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.
But consider what the Truth and Reconciliation Commission has been trying to do: to legitimate the memory of individuals, and at the same time to produce an official version of the past, one that everybody can sign up to. In its hearings, different realities collide. ‘Reconciliation’ is a project poised between remembering and forgetting, and the problem (or so it seems to me) is that in the case of South Africa memory, personal or collective, is often accompanied by crippling shame; whether you have been victim or victimiser – or cannot agree which role you occupy – you are ashamed to have lived under apartheid, to be the relict of such a system. Shame is what makes forgetting most urgent, and also what makes it impossible. And the virus has arrived to intensify stigma; South Africa, for so long a political untouchable, so far off the moral map, is ravaged by a disease which from its inception has been identified with sexual shame.
Fassin says: ‘The South African government and maybe society as a whole push away the intolerable,’ and try to select an alternative truth; and what is intolerable is not only the disease itself, but its stigmatising representations. Mbeki has accused the West in these terms: ‘Convinced that we are but natural-born, promiscuous carriers of germs, unique in the world, they proclaim that our continent is doomed to an inevitable mortal end because of our unconquerable devotion to the sin of lust.’
The question is: how does one deal with this shame – our hangover from apartheid? President Mbeki seems to deal with it by not dealing with it at all: in other words, through denial. But surely there is another way? Surely, following Biko perhaps, one can begin to face and challenge the shame to begin to imagine a life without it.
Without dreams of another way of being in our world, all that is left is shame and blame. And on that path one is surely doomed to remain a prisoner of the past for ever and ever?