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.
Like most paid up members of the chattering classes I have become less freaked out about the prospects of a Jacob Zuma presidency over the past few months. Mr Zuma has impressed me not so much with what he has said – although it is nice to hear such an important man making solid statements about everything from the xenophobic violence in Alexandra to the murderous violence in Zimbabwe – but with the fact that he is saying anything at all.
Mr Zuma seems to understand that being a good leader is also very much about connecting and communicating with the people and talking about their hopes and fears. He has demonstrated an understanding that a President must really act as a cheerleader in chief of the nation – something that President Thabo Mbeki seems to find distasteful and, quite frankly, a bit beneath his dignity.
Apart from other faults he may have (some of which I have documented on this blog!) , President Mbeki often comes across as aloof and uncaring. I am sure our president cares deeply about the well being of the poor and marginalised in our country, but sadly he does not always seem capable of showing it. He often appears as if he thinks a President is too important and posh to talk about the fears and concerns of ordinary people on an ongoing basis.
Mr Zuma, on the other hand, has shown himself to be a master at playing the perceptions game and of making the right noises to make different sectors of South Africa feel as if their concerns are listened to and taken seriously. But just when one has almost managed – with lots of willpower and determination – to begin to see Mr Zuma as a caring and thoughtful sort of guy, he comes out and says something so appallingly stupid and craven that it takes my breath away.
A case in point is his statement, reported this morning in our local fishing village rag, the Cape Times, that South Africans should debate the scrapping of bail for specific crimes such as murder, rape and robbery. According to the report, Mr Zuma said he felt the country’s laws and judicial system may be too user-friendly to criminals. “How do you stop crime? Maybe we should think about scrapping bail for specific crimes.”
I happen to disagree with the popular perception that our bail laws are too lenient. As properly interpreted by the Constitutional Court, the legislation seems to strike the right balance between the rights of the accused on the one hand and the rights of the public on the other. Of course, as Ms Carmichelle can attest, the bail laws are not always properly applied, but that is another matter altogether.
But that is not why I find Mr Zuma’s statement absurd. It is because he himself was an accused in a rape case and he himself has stated on numerous occasions that we cannot judge him because our Constitution guarantees for everyone – including himself – the right to be presumed innocent until proven guilty.
We allow most accused persons to be let out on bail pending their trials exactly because they have not yet been convicted of any crime. To suggest that all people accused of certain crimes should not be given bail is really to suggest that we should take away the right to be presumed innocent until proven guilty. Such legislation would almost certainly be unconstitutional because it would fundamentally limit this important right in our Constitution.
But it is this exact same right on which Mr Zuma and his supporters have relied so often in defending him against attacks. The statement is therefore completely illogical and makes no sense. Unless of course, Mr Zuma thinks one set of rules should apply to him and another set to all other accused.
He of all people should know that not all those people who are arrested for rape or robbery or murder are guilty of a crime or are ever convicted of the crime they are charged with. It would therefore be unconscionable to punish such innocent people by locking them up on the say so of the police. Down that road lies a police state.
Of course to solve the crime problem is an extremely difficult task and will require more training for a better run police force and rapid social and economic upliftment of the poorest South Africans, a narrowing of the gap between richest and poorest citizens, and the rebuilding of the social fabric destroyed to some degree by the migrant labour system.
That seems too difficult, so why not just lock up everyone accused of being a criminal? If Mr Zuma’s logic had been followed by the Mbeki government, he would have spent many months in jail before being acquitted on the rape charges. What worries me is that he does not seem to have thought about the sheer hypocrisy of his position at all.
It is embarrasing to say the least. Hopefully Gwede Mantashe and the other top ANC officials will have the guts to whisper in his ear that he really should not say such things because they make him look, well, very dumb.BACK TO TOP