Quote of the week

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.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)
21 February 2008

Maybe not so stupid after all…..

Somebody in government who actually read Constitutional Court cases (is it Deputy Justice Minister Johnnie de Lange or Presidential legal advisor Mojanku Gumbi?) must have whispered into the ear of Justice Minister Brigitte Mabandla (pictured) and Safety and Security Minister Charles Nqakula.

How else to explain comments made by these two learned and honourable servants of the people on Tuesday regarding the disbanding/strengthening/phasing out/extermination (take your pick) of the Scorpions? Last week Minister Nqakula surprised many of us when he announced in Parliament that the Scorpions “will be dissolved” finish en klaar (as Jackie Selebi would say).


But at a briefing this week Minister Nqakula was at pains to emphasise that the disbanding of the Scorpions is only a proposal. According to him:

We want to place on the table a proposal. I never said that … this is going to happen…We are going to Parliament and there’s no way in which our systems are going to be short-circuited.

Justice and Constitutional Development Minister Brigitte Mabandla added that: “I am convinced we will do nothing stupid … nothing that cannot stand the muster of the Constitution.”

The reason for this new circumspection is perhaps based on a realisation that the South African Constitution does not establish a pure form of representative democracy in which us poor sods vote for a political party every five years and then have no further say in anything the government or Parliament decides to do.

In two ground breaking judgments handed down in 2006, the Constitutional Court confirmed that the inclusion of provisions in the Constitution that explicitly requires the various legislatures to “facilitate public involvement” in their work establish the principle that ordinary citizens have a right to have a say in the passing of important legislation by those legislatures.

This means Parliament must act reasonably in the circumstances but must at least provide a meaningful opportunity for the public to participate in the legislative process when an important issue like the disbanding of the Scorpions is at stake. This would include an opportunity to make written and oral submission to Parliament and would require the members of Parliament to engage with those submissions.

Parliament must, of course, have the final say in the kind of legislation it passes but a balance must be struck between the need to respect Parliaments institutional autonomy on the one hand, and the need to empower citizens to so that they will be able to effectively take part in the important debates in Parliament that would potentially affect their lives. There will be an effective participation by the public in this process if the process allows for a real dialogue between members of Parliament and the public.

As Justice Ngcobo said in the Doctors for Life International case, the need for public participation:

[E]ncourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and to become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.

This means Parliament – elected by almost 15 million South Africans – cannot merely rubber stamp a decision taken by 4000 delegates at Polokwane because this would subvert the participatory aspect of our democracy.

Where Parliament facilitates such a process of meaningful participation, its members are free to make an unpopular decision. It is then for civil society to put pressure on Parliament to make the “right” decision and where that fails, it is up the voters to eject the majority party from government at the next election.

The problem in South Africa is that the ANC MP’s (and the 4000 delegates at Polokwane) do not believe the voters will punish them for acting in such a self-interested way, so they will probably go ahead with getting rid of the Scorpions.

But even ANC voters do not have boundless patience and who knows, in five or ten years time those ANC leaders will wake up to the realisation that they have been rejected by the masses of our people in favour of a party (as yet to be formed) that would listen more closely to their needs.

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