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.
Today I travelled to the suburb of Coyoacan in Mexico City to visit the “Casa Azul” (Blue House), former residence of Mexican painters Frida Kahlo (see self-portrait below) and Diego Riviera as well as the house where Leon Trotsky was assassinated. These are places that one would imagine members of the South African Communist Party (SACP) might love to visit — or maybe not.
At the Blue House I saw a painting by Kahlo entitled “Marxism will give health to the sick”, in which Kahlo throws away her crutches (she was severely injured in an accident when she was 18), as well as a self-portrait of Kahlo with Joseph Stalin in the background. Both are magnificent paintings that shimmer with an idealism and a vitality that cannot but move the viewer.
Mexico City is also filled with breathtaking murals painted by Diego Riviera, the most impressive entitled “Man, Controller of the Universe” on the top floor of the Palacio de Bellas Artes, which was originally commissioned for New York’s Rockefellar Centre. (The Rockefellars had the original destroyed because of the anti-capitalist message of the painting.)
These artists and painters lived in a time when many progressive and idealistic members of the intelligentsia in many parts of the world (from France to Mexico) were Communists. There is something touching and even moving about the belief people like Kahlo and Riviera had that the world could really be a better place — not only for the industrialists and the upper middle classes but for most or even all people living in a country.
Of course, many conservative South Africans, who were bombarded by the paranoid anti-Communist rhetoric of the apartheid state, believes that there is something inherently evil about hanging on to some of the idealism of the Communists of the Kahlo and Riviera era. They somehow believe that the ANC is being controlled by “evil” Communists who are plotting secretly to take away the privileges that they had acquired on the back of the blood, sweat and tears of black South Africans.
This seems ridiculous to me. The knee-jerk anti-communism of reactionary South Africans (who are often but not always white) harks back to the era of the “Total Onslaught” and has very little to do with the political reality in South Africa.
Today even the Communists do not seem to be Communists. The leader of the SACP lives it up in five star hotels and drives around in a R1.2 million car and is a cabinet Minister in a government dominated by crony capitalists and their supporters. Could it have been different?
In this regard the story of Leon Trotsky is interesting. As Wikipedia explains:
Trotsky was one of the leaders of the Russian October Revolution, second only to Vladimir Lenin. During the early days of the Soviet Union, he served first as People’s Commissar for Foreign Affairs and later as the founder and commander of the Red Army and People’s Commissar of War, he was a major figure in the Bolshevik victory in the Russian Civil War. He was also among the first members of the Politburo.
After leading a failed struggle of the Left Opposition against the policies and rise of Joseph Stalin in the 1920s and the increasing role of bureaucracy in the Soviet Union, Trotsky was successively removed from power, expelled from the Communist Party, deported from the Soviet Union and assassinated on Stalin’s orders. An early advocate of Red Army intervention against European fascism, Trotsky also opposed Stalin’s peace agreements with Adolf Hitler in the 1930s.
Trotsky was murdered in the study of his house in Mexico City, probably on the instructions of Joseph Stalin. I am not sure whether this story has any relevance for the leaders of the SACP. If there is a lesson it may be that power has a tendency to corrupt and that one may find it difficult to adhere to one’s principles and not to be seduced by the trappings of power — as Blade Nzimande has so clearly demonstrated since he became a highly paid Cabinet Minister in President Jacob Zuma’s cabinet.
Does this have anything to do with constitutionalism or constitutional law? Well, let me try and trace at least a tenuous link. It seems to me, the story of Trotsky and his murder by Stalin’s cronies reminds us that no matter how idealistic one might have been and how good one’s intentions were, if one attains political power the chances are that one will become corrupted by that power and that one will be deformed by that power and will abuse it – unless one’s power is somehow constrained.
Progressives in South Africa who wish to change the world for the better and address the scandalous (racialised) inequalities between rich and poor should not view a constitutional state, with a clear separation of powers, an independent judiciary and a comprehensive Bill of Rights, as an obstacle to the achievement of their dream but should rather view this as a prerequisite for the achievement of such a laudable goal. Especially a Bill of Rights like ours that contains not only traditional liberal rights, but also social and economic rights, is an ally of all true progressives — not its enemy as some in the ANC (most recently Tokyo Sexwale) has recently suggested.
In the absence of constitutional constraints on those in power — no matter how idealistic they were when they attained power — the temptations will almost certainly become too much and the ideals will be completely subverted. In the absence of positive constitutional obligations to provide ordinary South Africans with access to housing, health care and water, those in power will almost certainly at some point begin to yield power purely for its own sake (or to make money) and not to improve the lives of ordinary citizens.
So when Blade Nzimande makes the laughable and completely bizarre statement that the free press in South Africa is the greatest threat to our democracy, he is acting more like Stalin than like idealists such as Kahlo and Riviera. With all its faults, the free press places another constraint on the exercise of power by former idealists who now ride around in R1.2 million cars. A free press prevents the flourishing of a kind of Stalinism, and prevents the emergence of a world in which all opponents are enemies who have to be locked up or murdered.BACK TO TOP