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.
“Sometimes stubbornness gets measured in blood, and sometimes the wounds of race are blinding.” So argues Roger Cohen, columnist for the New York Times, in a thought provoking column on President Thabo Mbeki’s failure regarding Zimbabwe. Money quote:
BACK TO TOP
This mess is Mugabe’s, but Mbeki has been his enabler. Why? The filial respect of a fellow African liberation fighter? Distaste for Tsvangirai, a former trade union leader, at a time when Mbeki’s own power has been undermined by South African trade unions and their man, Jacob Zuma? A loathing of Western interventionism?
No doubt the above play a part, but I think the real clue lies in Mbeki’s previous act of blind stubbornness, whose harvest was not the blood of neighbors but of his fellow citizens.
For more than three years, Mbeki indulged in a bout of AIDS denialism that stopped antiretroviral drugs from getting to millions infected with H.I.V. Hundreds of thousands of avoidable deaths ensued.
Mbeki was never specific about the roots of his dissent, now sidelined if never disavowed. But when asked in Parliament in 2004 if he believed widespread rape played any role in spreading AIDS, he exploded:
“The disease of racism,” he said, led to blacks being portrayed as “lazy, liars, foul-smelling, diseased, corrupt, violent, amoral, sexually depraved, animalistic, savage and rapist.”
The link between H.I.V. and AIDS, in this angry vision, was a fabrication foisted on Africans by whites determined to distract the continent from real problems of racism and poverty, and accepted by blacks afflicted with the slave mentality engendered by apartheid.
Mbeki’s pseudoscience was death-propagating nonsense. But his theories of sexuality under apartheid were not.
I spent enough time under apartheid to see that the portrayal of blacks as sexual animals was integral to a white policy of dehumanizing them. More than once, I was asked with a boozy sneer by South African whites if I could ever imagine being attracted to a black woman.
So when Mugabe rails against the white colonialists, and expropriates white farmers, and portrays himself as the African fighting back white colonialism — when he resurrects the long struggle — I suspect he strikes a chord with Mbeki, whose own pragmatism is no Mandela-like conciliation.
“The racial petulance lives on in Mbeki,” said Peter Godwin, whose superb book, “When a Crocodile Eats the Sun,” chronicles how he and his sister Georgina saw their family’s life in the Zimbabwean capital, Harare, destroyed. “He’s the black intellectual living with the fact that whites think they are better.”
Mbeki should read Godwin’s book. It might even inspire him to criticize Mugabe. But then, he’d say, it’s a white man’s work. And that’s the truth.
But what the disaster of Mugabe and of Mbeki’s nonmediation teaches us is that the wounds of a racist past, however deep, cannot justify a nation’s dismemberment. Mugabe must go, South Africa move on, and Mbeki must consider the blood that has flowed from his myopia and now tarnishes his legacy.