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.
It has all been so predictable. Last week Judge Eberhart Bertelsmann handed down judgment in the North Gauteng High Court barring African National Congress Youth League president Julius Malema from using the words “shoot the boer (farmer)”. In his judgment, Judge Bertelsmann said: “The first respondent [Malema] is also barred from uttering any song of a similar nature which incites violence.”
The order would be effective until the matter is heard in the Equality Court, where it has been referred by Bertelsmann. This seems like a far more considered and astute judgment than the previous court order which purported to ban the use of the words “Kill the Boer” in the abstract. It correctly finds that only the Equality Court can give a definitive judgment on whether the chanting of these words by Malema in a certain context constitutes hate speech in contravention of section 10 of the Equality Act.
But Malema is trying to rustle up support from his constituency and to distract all of us from the credible news reports that he is a liar and a crooked tenderpreneur, so it was inevitable that Malema would do something to up the ante and to defy the court order. This he did when he chanted the “Kill the Boer” phrase in Zimbabwe.
The question that now arises is whether Malema could be convicted of contempt of court for singing the words in another country. Surely, the argument goes, our courts will usually not have jurisdiction to regulate actions taken by an individual in another country like Zimbabwe?
It seems to me the answer might be far less clear than that.
The Supreme Court of Appeal found in the case of Metlika Trading and Others v The Commsioner for the South African Revenue Service in 2004 that where a respondent is a resident of South Africa, a South African court may assume jurisdiction to grant an interdict (whether mandatory or prohibitory) against that person “no matter if the act in question is to be performed or restrained outside the courts jurisdiction”. The court also found that such an order could be enforced by contempt of court proceedings.
In that case the question was whether the court could restrain someone from taking certain actions in Mauritius and if it could do so, and that person failed to adhere to the court order, whether the person could be found guilty of contempt of court. The court found that a South African Court could order a person not to do something – even in Mauritius – and if that person then failed to obey the court order the person could then be found guilty of contempt of court.
Thus, unless I am missing something and (of course) depending of the exact wording of the order handed down by Bertelsmann, Julius Malema could have made himself guilty of contempt of court – even though he had sung the words in Zimbabwe and not in South Africa.
Whether it is worth pursuing this option and whether it would be politically astute to give Little Julie a platform from which he could paint himself as a martyr, is another question. Given the murder of Eugene Terreblanche and the unfortunate hotheaded statements made by some in the wake of that murder, I am not sure such a course of action is the correct one.
What is needed really, is for the ANC leadership to act wisely and decisively, to reign in Malema and to allow everyone to calm down. Sadly, I am not sure whether the present ANC leadership has either the wisdom or the courage to act decisively. Given the fact that everyone (inside and outside the ANC) seems scared of the kind of populism that Malema threatens to unleash, what we might get is not decisive and wise leadership but mealymouthed platitudes about “debate” and “discussion”.
This would not be surprising, given the fact that the ANC leadership has lost its moral authority over the past year or two and seems too scared or too intent on making a fast buck to act in a principled manner.BACK TO TOP