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.
Few recent events have highlighted the racial fault lines in South African society more starkly than the recent death of Manto Tshabalala-Msimang. While many South Africans (mostly white) have welcomed the death of the late Minister, pointing to her disastrous management of the HIV/AIDS crisis and the untold suffering and death caused by it, many other South Africans (mostly black) have chosen not to highlight her faults, pointing to an African tradition of not speaking ill of the dead.
Some argue in essence that in a diverse society they have no duty to respect the cultural traditions of the majority, just as they do not demand that the majority respect their traditions. Others claim that the lack of respect shown for African tradition is deeply hurtful or even racist and demonstrates an inability or unwillingness on the part of some white South Africans to embrace reconciliation.
This is a complex matter, not only because cultural traditions and practices are contested, are therefore not static, and are sometimes exploited for political gain, but also because it goes to the heart of how we manage diversity in a deeply divided society.
South Africa is, of course, not the only country grappling with this problem.
All over Europe debates are raging about what the white majority can expect from immigrant populations. In France, for example, the debate focuses on the duty of the minority Muslim population to respect or even embrace French cultural practices in order to become “full” French citizens.
It seems to me a good way of approaching this issue is to adopt a principle championed by former Justice Albie Sachs in the context of the right to freedom of religion in cases where religious practices clash with broader values espoused by the Constitution. Sachs argued that the state and others have a duty to make a “reasonable accommodation” of such practices in order to respect both the secular and the sacred within the disciplining framework of the Constitution.
What is required, first, is to listen respectfully and to actually hear the views of those who do not share your own cultural beliefs and world view. Too often we shout past each other and make assumptions about what people believe without hearing their views and considering them in an honest and open manner.
Second, we should accept that in a constitutional democracy based on human dignity, equality and freedom no cultural belief or practice is automatically sacrosanct (even if it is embraced by a majority of citizens). To hold otherwise would be to place an absolute limit on the freedom of every individual to decide for him or herself how to live a life of dignity and respect according to his or her own ethical rules and beliefs.
Third, this does not mean we should not strive to respect and accommodate the cultural beliefs and practices of other members of society where it is reasonably possible to do so without fundamentally betraying our own values and normative commitments. We all live in the same country and if we are to foster mutual respect for one another, we should be sensitive to the views of others without abdicating our own dignity and our freedom. Personally, my normative commitments closely mirror those enshrined in the Constitution and requires me to balance my own freedom, right to speak my mind and dignity on the one hand, with respect for the dignity and freedom of others, on the other.
When someone thus demands that I should not do or say something because it runs counter to their cultural beliefs or practices, I will ask whether that belief or practice has a valid goal and whether respecting it will fundamentally detract from my own dignity and freedom. Where someone says that a hatred of homosexuals is part of his or her culture, for example, I will not respect that and will speak out against it because to shut up would be deeply oppressive and dehumanizing for me.
Although it is not part of my particular culture, it seems to me a practice that demands some circumspection when speaking about the recently deceased can be reasonably accommodated without betraying one’s most cherished beliefs and principles or commitment to honesty and truth. Respect for the feelings of the family and friends of a recently deceased person can – in my view at least – be squared with my own notion of my own dignity and the dignity of all the members of society with whom I share the country.
In a diverse country in which people differ sharply on cultural beliefs and practices, it seems to me we will all be better off if we try to understand and respect such differences where it seems reasonably possible to do so. If one feels that it is not, one should be able to have an honest debate about it and should be able to justify why – in a particular case – respect for the cultural beliefs and practices of another is impossible if one is to hold on to one’s own dignity and one’s commitment about freedom and equality.
In such matters reasonable people might well differ and do so respectfully. On this Blog some participants have expressed some harsh views (based on their religious or cultural beliefs) on the alleged evils of homosexuality. As a rule I have not jumped down their throats as long as they expressed their views in a rational and reasoned manner. It is, after all, in the very nature of a constitutional democracy that people will differ with one another about fundamental issues that goes to the heart of their identities. But we all too often forget that when someone differs from you, it does not necessarily mean that he or she is an evil or bad person.
Pity many people (from all sides) do not always adhere to this view and feel that any disagreement with them represents a fundamental attack on their dignity and worth as a human being. That, perhaps, says more about our particular history, or about their own insecurities and lack of self-respect, than about the views of the person they are disagreeing with.BACK TO TOP