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 see public hearings will be held at Parliament on the 5, 6, & 7 August 2008 about the draft legislation that will be abolish the Scorpions. There will also be public hearings in the provinces from Monday 11 August to Friday, 15 August 2008.
It is clear that these hearings will aim to give effect to the recent Constitutional Court judgment in the Merafong case in which the Constitutional Court confirmed again that meaningful public participation was required when Parliament passed important legislation. Parliament will therefore have to manage this process very carefully to vaccinate the legislation against a constitutional challenge.
As the majority pointed out in the Merafong case – following previous precedent – meaningful participation did not require Parliament to follow the suggestions of the public, but merely that it had to be open to be persuaded by such submissions. What was required was for the public hearings not to be “a cynical charade”, but “held in good faith”. There must be “a possibility of change” in the position of the legislature.
There is no authority for the proposition that the views expressed by the public are binding on the legislature if they are in direct conflict with the policies of Government. Government certainly can be expected to be responsive to the needs and wishes of minorities or interest groups, but our constitutional system of government would not be able to function if the legislature were bound by these views. The public participation in the legislative process, which the Constitution envisages, is supposed to supplement and enhance the democratic nature of general elections and majority rule, not to conflict with or even overrule or veto them.
When public hearings are held on the abolition of the Scorpions Parliament will therefore have to listen to a wide range of opinions and if the ANC does its work, it will ensure that some of these opinions will support the abolition of the Scorpions and when they eventually pass the legislation it will be very difficult to challenge on the grounds that there was no meaningful public participation in the adoption of this legislation.
So, farewell Scorpions. Just another institution destroyed to serve the short-term political interest of what Xolela Mangcu calls the new fascists. The only way to deal with this kind of short-sighted and destructive arrogance on the part of the ruling party is to vote them out of office. But this will not happen next year because there is no credible party to vote for.BACK TO TOP