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 new ANC strategy document apparently makes proposals for the amendment of the way the leaders of the ANC are elected. Given the fact that our pure proportional electoral system does not allow us to directly elect any person (we can only vote for a party), the Mandarins at Shell House might want to consider amendments to the election that would make them more transparent and more in line with the democratic values set out in our Constitution.
Not that I imagine there is a snowballs hope in hell of that happening. A movement who seems to feel us voters should not have any say about internal party arrangements, is hardly likely to embrace transparency and openness when it comes to party democracy. But more surprising is the fact that the DA has also rejected moves for such a law when I posed this to Douglas Gibson at an Idasa event.
Mr Gibson was rather dismissive of my suggestion, so I did some research and wrote him the following email:
Last night at the Idasa event on the working of Parliament I asked whether political parties in South Africa would be prepared to consider the adoption of a party law that would, inter alia, regulate the way in which candidates are selected to stand for public office. You replied that this was unacceptable and never happens in any democracy – “only in countries like
”. I thought it might be interesting for you to know that many countries do have party laws, including North Korea , Germany , Argentina , Mexico and as far as I cant tell at least 40 others. South Korea
In Germany Article 17 of the Party law of 1967 (last amended in 1994) states that: “The nomination of candidates for election to all levels of government must be by secret ballot. The nomination procedure shall be as prescribed by the electoral laws and party statutes.”
Article 21 of the electoral law further regulates the matter as follows:
“(1) A person may only be named as a candidate of a party in a constituency nomination if he or she has been elected for this purpose at a members’ assembly convened to elect a constituency candidate or at a special or general delegates’ assembly. A members’ assembly convened to elect a constituency candidate shall be an assembly of members of the party who at the time of their meeting are eligible to vote in the German Bundestag election in their constituency. A special delegates’ assembly shall be an assembly of the delegates elected by such an assembly of members from their own ranks. A general delegates’ assembly shall be a general assembly appointed in accordance with the statutes of the party (Article 6 of the Law on Political Parties) by such an assembly of members from their own ranks in view of forthcoming elections.
….. (5) Further details regarding the election of delegates for the delegates’ assembly, the convening and the quorum of the members’ or delegates’ assemblies as well as the procedure for the election of the candidate shall be set forth in the parties’ statutes.
(6) A copy of the record of the election of the candidate, with details of where and when the assembly took place, the form of the invitation, the number of members present and the result of the ballot shall be submitted with the constituency nomination. In so doing, the chairperson of the assembly and two members present designated by it shall give the District Returning Officer an assurance in lieu of an oath to the effect that the election of the candidate was by secret ballot. The District Returning Officer shall be responsible for accept-ing such an assurance in lieu of an oath; he shall be considered an authority within the meaning of Article 156 of the Penal Code.
Your assertion regarding
was therefore slightly off the mark. North Korea
That was the last time I heard from Douglas Gibson. Heavens, with such a system in place who knows what rabble might not be elected to the party lists, so no wonder he is not enthusiastic about the idea.BACK TO TOP