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 was quite shocked to read that Winnie Mandela is on the ANC election list despite the fact that she is still serving her five year suspended sentence for fraud. Does the ANC think the Constitution does not apply to it (after all, it will govern till Jesus comes again), or do they really just have very bad lawyers?
I happen to have a kind of weird admiration for Winnie – despite the fact that she went off the rails in the most appaling way during the Mandela Football club saga. (Stompie Sepei will surely haunt her for the rest of her life.)
Mrs Mandela has suffered much and at first did so in a constructive and dignified maner. She has also shown more principle than most. Although she has not been completely free of the ostentation and arrogance that came with power, she has always shown real concern for the poor and has often visited poor communities when it was not glamorous or advantageous to do so. And she also stood up to Thabo Mbeki when all trembled on their knees in front of him.
But the Constitution is quite clear and Winnie cannot become a member of the National Assembly. As I wrote on this Blog before
Section 47(1)(e) of the Constitution states that every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except (amongst others):
¨anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.¨
It seems pretty straight forward to me that Winnie Mandela is not elligible. After all, although Mrs Madikizela-Mandela had never served any time in prison, she was sentenced to a prison term without the option of a fine. This prison sentence might have been suspended but it was a prison sentence and she had not choice to rather pay a fine than live under the cloud of this suspended sentence.
So, she is actually still serving her sentence – although not in jail. If she gets up to her old tricks she could be put away for a long time.
Yet the ANC has nominated her for a position in the National Assembly. Why? I think it is the same kind of attitude that got the ANC in so much trouble in the by-elections last year and which led to the disqualification of several of their candidates in Cape Town. It is a kind of attitude that thinks the rules are made for other people – not for the mighty ANC.
That is why the ANC dominated Parliament could pass a very good law against corruption, but then got all upset when Tony Yengeni was convicted in terms of that law. The same reason why its leadership thinks it is ok to field a Presidential candidate who is trying everything in his power to make sure he is never charged because his lawyers have obviously told him that he might well also join that friend and crook Schabir Shaik in prison if he ever gets to court.
This has perhaps little to do with the traditions and culture of the ANC (although the DA types will mutter darkly about Stalinism and the like) and everything to do with the ever increasing majorities the ANC receives at the polls. It is what happens when one believes the masses of the people supports one no matter what one does. (Hey, one can even throw poor people out of their homes and let them die of neglect in hospitals in the Eastern Cape because the suckers will just vote for you again next time around).
This is what happens in any country where there is no real political competition. Why bother with following the rules if you make the rules in the first place and no one can touch you if you break the rules? This culture of impunity is the inevitable result of a 70% majority in Parliament.
And this means the poor courts are inundated with cases where ANC government officials have failed to follow the law and where the court now has to fix the mess. But how long can we rely on courts? Not for ever.
So the sooner we send a wake up call to the ANC and vote for any party but them (well, maybe not the Fredom Front+ or that outfit of Amichand Rashbandsi) the better. Even if one supports the ANC policies in general (as I happen to do), their big majority is bad for democracy and bad for all South Africans.
This is not, as some will surely say, displaying a ¨hatred¨of the ANC. It is showing a love of democracy, of which there is perilously little left in South Africa.BACK TO TOP