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.
This is not the first time since Justice Langa’s appointment as Chief Justice that he has not been part of the majority.
During the nine years that Arthur Chaskalson was Chief Justice he hardly ever was on the losing side of a case. Court watchers said that his strong personality and his ability to build consensus helped him to carve out a majority for his position in most cases. He was therefore the leader of the court in every possible way.
Chief Justice Langa is a less forceful personality than Justice Chaskalson and it does not seem as if he has stamped his authority on the court in the same way as his predecessor. Maybe that is a good thing because we will get more debate between judges?
I am intrigued by the question of whether Deputy Chief Justice Moseneke is not emerging as the kingpin of the post-Chaskalson Court. He does have a very strong personality and is an effective manager. I think his opinions will become more important as the Court changes in the next three years.BACK TO TOP