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.
An allegation that Zikalala showed a Special Assignment programme to the Presidency prior to broadcast is especially grave, as it opens the SABC up to editorial influence in violation of the Act and its own code of editorial practice.
The FXI further argues in its complaint that the denial of the existence of a blacklist in June last year had misled the public — a violation of the Act, the SABC code of practice and Icasa’s code of conduct for broadcasters.
The complaint also points to possible violations of the freedom-of-expression clause found in the Constitution. These include an attempt to force the Mail & Guardian Online to remove a copy of the blacklisting report, and the alleged screening of the Special Assignment show to the Presidency.
Having not seen the complaint and not being an expert on Icasa (after reading the various acts governing Icasa’s work I felt like a first year law student at a Master’s seminar on Tax Law), I have no idea whether the complaint has any legal merit.
However, if even a fraction of the media reports about the shenanigans at Icasa are true, I would not hold my breath for a speedy resolution of the dispute. After all, according to his ex secretary, Paris Mashile the chair of Icasa, hardly ever did Icasa work and liked taking off his shoes and having a nap in his office.
Maybe Mr Mashile is a very hard worker and his ex-secretary was lying through her teeth about his work habits. But given the fact that Icasa is the institution that is supposed to regulate Telkom and thus is supposed to help bring down telecommunication prices, I can only say again: don’t hold your breath FXI.