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.
Yesterday the Inspecting Judge of Prisons, Nathan Erasmus, said that Schabir Shaik was not receiving special treatment merely because he spent the last month in hospital instead of the prison where he was sentenced to stay for 15 years. According to the Mail & Guardian:
“We checked the prison and medical records to confirm why Mr Shaik had been sent to hospital,” he said, adding that he had contacted Shaik’s own physician, Dr Somalingum Ponnusamy, for confirmation about his condition. Ponnusamy’s opinion was that Shaik’s condition warranted hospital treatment. Erasmus said that while Shaik was being held in a single ward, it was “equipped only with the bare essentials”, and he was under constant guard.
But this morning the Minister of Correctional Services, Ngcondo Balfour, announced that Shaik had been sent back to prison. The only possible reason for this move is surely that the Minister decided – after perusing the relevant reports – that Shaik was not sick enough to stay in Hospital.
This means that either Shaik’s doctor or Judge Erasmus or the Minister has been lying to the public. They can’t all be correct. Unfortunately the Minister is refusing to make public the report on which he based his decision.
This episode seems to have left a black mark against the name of the Inspector of Prisons. He was either far too credulous of Shaik’s doctor or he deliberately protected a politically connected prisoner from media criticism. Either way, his credibility is basically hovering just above that of the Public Protector at the moment and it will take some doing for me to take him seriously in future.
And doctor Ponnusamy? Questions suggest themselves: How close a friend is he of the Shaik family? Did he receive any money from said family for his diagnosis and if so, what amount? Should he perhaps be reported to the relevant authority?
Maybe he is a good man who had the wool pulled over his eyes or maybe the Minister is to blame, but how can we tell if the Minister is not telling us why he sent Shaik back to prison. So much for open and accountable government.