An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Adv Menzi Simelane, who was recently “appointed” as National Director of Public Prosecutions (NDPP), has a rather eccentric view of democracy which can be summed up in one short phrase: “Just trust us.” This is not a view I share or, I would contend, that anyone who loves or supports democracy should share.
Last night I took part in a panel discussion with Simelane, former Chief Justice Arthur Chaskalson, and ID leader Patricia de Lille on whether the judiciary is capable of holding high ranking public officials to account. The discussion formed part of the UCT Constitution Week. Sadly it confirmed the grave doubts I have about Adv Simelane’s fitness to serve in the position of NDPP.
Simelane seemed to be quite an affable guy. When I told the story of how an apartheid Minister had complained about judges who, once appointed, thought they were there on merit and started thinking for themselves and expressed the hope that Adv Simelane would similarly now start thinking for himself, he even laughed. But he is nevertheless dangerously misguided.
Adv Simlene said that because we live in a highly politicized society (by which, I think, he meant a society divided along racial lines) the notion of justice itself was contested. Although he did not expressly use racial terms, it was clear that he was arguing that what was fair and just for a black person would not be fair and just for a white person and visa versa. For the system to work better we needed to be less distrustful, he said. We thus needed to be more trusting of the system and, by implication, more trusting of public officials and politicians (like Simelane himself).
I agree with Simelane that we live in a highly divided society with high levels of distrust. I can also concede that high levels of distrust are at least partly caused by racial divisions and by racially influenced assumptions about insincerity, dishonesty and partisanship of politicians and public officials. There is a need for everyone to reflect critically on their own (often unexamined or unidentified) assumptions about others who do not share their race, class and gender.
Yet, when a politician like Simelane (for he is a politician) says that the problems in our criminal justice system is based on a lack of trust and calls on us to be more trusting of politicians and other public officials, it make my hair stand on end. Clearly on a personal level South Africans should try and build bridges across race, glass and gender lines and should not always assume the worst about someone else merely because that person happens to be of a different race.
However, it would be foolhardy and dangerous for citizens blindly to trust our politicians and public officials (no matter what their race), as Simelane wants us to. When they ask us to trust them, they are really saying that we should not ask questions, we should not think for ourselves, we should not scrutinize their actions. Rather we should believe everything they say and support everything they do because, like mommy and daddy, they know best. We should also trust that, like mommy and daddy, they have only our best interests at heart.
This view is profoundly paternalistic, anti-democraticand dangerous. It aims to deprive ordinary citizens of any agency, and hence aims to rob them of their dignity and their ability meaningfully to take part in our democracy. A claim that the powerful politicians, public officials and business leaders know what is best for all of us and should thus be left alone to get on with the job, is a claim against participatory democracy. “Just trust us,” they say, “and we will look after you. Do not worry about the rest.”
It is exactly because we have learnt the hard way that it would be extremely foolish to place our blind trust in those who exercise power over us, that we have devised various forms of constitutional democracy and have created elaborate regulatory states in order to try and check the potential abuse of power of those who claim to have only our best interest at heart. If we blindly trust the powerful we give them absolute power over us and as Lord Acton said: “Power corrupts, and absolute power corrupts absolutely.”
In a modern open and democratic society – like the one established by our Constitution – we build in mechanisms to hold the powerful (the politicians, the public officials, the business leaders) to account exactly because we know we would be rather stupid to blindly trust that they would always do the right thing.
I for one, would not trust Adv Simelane. This is not because he is black, nor because he is an ANC politician. (If he was a white DA member I would have felt exactly the same.) It is because he has demonstrated that he has only the interests of a small band of politicians at heart. As the Ginwala report shows, he lied under oath to try and mislead the Inquiry and also drafted a letter containing an illegal instruction to the then NDPP – all because he was trying to protect his boss and/or because he was instructed to do so by his boss.
Trust is earned in a democracy. If Simelane grows into the role of NDPP, if he starts believing he is there on merit and begins to think for himself, if he refuses to be bullied by the Minister of Justice or the President, if he demonstrates that he is willing always to act without fear, favor or prejudice in prosecuting even the most well connected politician, then and only then will I begin to trust him.
It is our duty and our right as citizens to distrust politicians like Simelane until they prove us wrong. And even then we should always keep a beady eye on them to make sure they continue to serve us.BACK TO TOP