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 a letter sent by Constitutional Court Justice Edwin Cameron to Ross Garland, the producer of (and the brains and heart behind) Spud The Movie.
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My dear RossThank you again for the invitation to the Spud premiere in Gauteng last month – I am truly sorry that my Cape Rhodes duties prevented me from accepting.My godson Andy and I saw Spud last evening and were thoroughly and happily swept along by the fine acting, the excellent cinematography and sensitive direction (though I do tend to agree with Shaun De Waal that the Gecko character takes the schoolboy acting honours).But despite my pleasure in the experience, last night I was kept awake by one aspect of it – which I guess faithfully derives from the book – and find after a long day of thought that I must share my distress with you.It is the casual denigration of gays – the amiable gay-hating incidents – that occasionally spike up in the movie.They start with the John Cleese character denouncing Virginia Woolf and another novelist as lesbians. He owns (of course) that he has nothing against lesbians – in fact, he says, he would like to give them all a thorough “rogering”.At the Waterfront Nu Metro last night, this evoked a big laugh.Yet you must know, Ross, that it is exactly this impulse that is imperilling the safety and the lives lesbians in townships throughout the country, and appears to have resulted in several brutal murders. Middle class academics and discussants call it “corrective rape”. But to township lesbians it is a constant and benighted horror – the need butch men express to set their sexuality at rights – by giving them a thorough “rogering”.I found it distressful that a South African-made movie, with a South African producer, could reflect this speech. Its effect cannot be other than to condone that sort of violence besetting lesbians in our country.You must know, apart from the lesbian murders and rapes in South Africa, about the law now pending before the Ugandan Parliament that seeks to ban homosexuality with savage punishments, even to introduce the death penalty for certain kinds of homosexual acts?You must know of Steven Monjeza and Tiwonge Chimbalanga, the Malawian men sent to jail for fourteen years last December (fourteen years) for declaring their intention to love and commit to each other (released after intervention of the UN secretary-general)?You must know of the hatred, scorn, death threats and violence that beset gay and lesbian, bisexual and transgender lives throughout Africa?Did you not think it wrong for Spud so casually to appear to connive with these impulses?I think of the underpants-collector who is accused of “faggotism” – and of the cringeing scene showing the ineffectually simpering rugby coach, clearly depicted as an effeminate gay man, exhorting his team to give “more pressure in the rear” (a “joke” that was already current, and made me cringe, when I was a teen struggling with my own sexuality at Pretoria Boys’ High in the late 1960s).The usual response to complaints of the sort I am making to you, Ross, is that they are trying to enforce “political correctness” onto harmless fun.There are several comments to make on this.The first is that the film is highly “politically correct” on other important issues – for instance, the ANC and black/white relations. The racist father is clearly depicted as demented, and Spud’s “progressive” commitments lauded (although his condescension is deftly rebuked in a telling scene where he presumptuously puts his arm around the black head of house).Even the Jewishishness of kid pornographer is safely steered around. You did not think it necessary or acceptable to sneer at his Jewishness – even though I suspect some measure of anti-Semitism lurked in South Africa’s private boys’ church schools two decades ago, and may still do.So you were very careful to position yourselves correctly on race and politics and Judaism – even though a faithful depiction of white schoolboy and parent attitudes in 1990 would have reflected much rancid racism.The second is that racist jokes and anti-Semitic jokes and anti-women jokes were long also defended as harmless fun, but their deadly impact is now well recognised.Yet it still seems to be acceptable for gays and lesbians to be derided and sneered at in a movie made in South Africa in 2010.Why?I find I cannot find an answer to that question.You and I have had warm social engagements. I respect you and admire you and have small doubt you feel the same about me. You know I am a gay man. Does that aspect of me strike you as inconsequential, ignorable? Would the fact that Arthur Chaskalson and Albie Sachs and Richard Goldstone are Jewish not serve to inhibit any temptation to run with crude anti-Semitic jokes in a movie you produce? Why then is homophobia acceptable?I am sure you have many gay and lesbian friends – as I am sure John De Ruit does. I am sure you must feel appalled, and perhaps even angry, at my suggestion that what many would think are innocent jokes in the movie are playing into a larger horror of hatred, oppression and violence on our continent.Yet that is exactly what I think they do.Thank you Ross for bearing with me while I disburden myself of my distress at this one aspect of an otherwise excellent production. Most of my life, though personally very “out”, and politically very emphatic on gay and lesbian equality, I have remained silent in the fact of such taunts and jokes and jibes. My seemingly butch exterior (so different from the simpering rugby master) colludes with such collusion.I find I cannot be silent any longer.I send you my warm and respectful greetings.Edwin