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.
Safety and Security Minister Charles Nqakula’s proposal to amend the Constitution so as to allow Police to detain arrested suspects for longer than 48 hours before charging them in a Court of law, sounds like a spectacularly unwise idea. He is arguing that Police find it difficult to always formulate a charge before the end of the 48 hour period and suspects are then set free and even sue the Minister for wrongful arrest. There are at least three ways to respond to the Minister of Safety and Security.
On the Cape Talk with John Maythem this afternoon, Peter Gastrow suggested we should re-look our Criminal Procedure model and investigate whether it would not be better to move towards a more inquisitorial system, like on the Continent. That way Magistrates, say, could play a more active role in the run up to a trial. Interesting suggestion worth exploring I think.BACK TO TOP