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.
The Hans Christian Andersen story of the emperor’s new clothes always intrigued me when I was a little boy. It was not so much the actions of the silly old emperor that befuddled me, but rather the question of why all those people went along with the lie that he was wearing anything.
Of course, once one grows up and realises that we all lie from time to time to smooth things over, to get along or to conquer the world, I had more sympathy for those lackeys serving the emperor.
It was therefore exhilarating to read an edited version of the Fifth Bram Fischer memorial lecture in the City Press, delivered by none other that Chief Justice Pius Langa. Justice Langa used the fairy tale to illustrate his point that our society is in desperate need of voices of dissent. He said the story spoke of
a susceptibility to conform, to submit to peer pressure, to populism, to political correctness and to a reluctance to think for one’s self. I am referring to the lack of courage to say or do the unpopular thing, to follow the dictates of our conscience. The favoured choice is the safer route to do nothing. But to keep hoping that others will do for us what we fear to do ourselves, we accordingly wait for the little boy to emerge from the shadows and point out the obvious – that the emperor has no clothes.
There is no doubt that the world, and this country in particular, are in dire need of men and women of courage who follow the dictates of their conscience.
is a young country on the democratic road and can only benefit from having all constructive views not being withheld, but being freely expressed. South Africa
In the past, I have found Justice Langa to be quite an enigma. Highly intelligent, but quiet and obviously shy, he has not produced the flashy jurisprudence or theoretical insights associated with Justice Albie Sachs or Laurie Ackermann, say. He has also always been very polite and measured – maybe even over cautious – in his public utterances.
That is why this lecture comes as a delightful surprise. It is clearly a heartfelt and much needed message. The fact that the Chief Justice delivered it gives it a special significance. It will embolden more people to speak their minds – even when that requires criticism of the powerful and dominant voices in our society. As Langa underscored in his lecture there is
a need for independence of thought and action – a need to make space for people who refuse to accept the norm, despite overwhelming opposition to their opinions. Without expressions of disagreement, the group is the poorer because it acts without all the knowledge that could be at its disposal and therefore often comes to the wrong decision. There is no doubt that dissenting views are important in all spheres of life, not least of all in the practice of law. They lead to healthy debate and a testing of generally accepted views, thus enriching the quality of the decisions taken.