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.
I am visiting Egypt, a country whose transition to full democracy is precariously poised. The military is currently ruling the country after the Tahrir Square “revolution” and it is unclear how this transition will end. Everywhere we go, we hear Egyptians expressing anxiety about the transition and asking whether the lessons of South Africa might be of relevance for the situation in Egypt.
“We do not have a Nelson Mandela here,” some academics tell us rather wistfully.
But it is far too early to understand what is happening in Egypt and to know whether our own experience of transition from an authoritarian to a democratic state would be of any relevance here.
What strikes me forcefully though, is that the South African transition was quite unique. Why did the apartheid military not revolt when FW de Klerk started the negotiating process? How close did we get to a military coup? How did we end up with a strong social democratic constitution when large sections of our society are deeply conservative and seemingly opposed to the liberal aspects enshrined in the Constitution? Why did the ANC show such an agile ability to strike the necessary compromises required to ensure the relatively smooth transition? Would President Jacob Zuma and the current leadership of the ANC have been as wise and canny as the leaders around Nelson Mandela? What are all those apartheid generals now think about the transition?
I have no time to try and answer these questions now. I am back on Saturday when I will Blog again on my return.BACK TO TOP