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.
Is the legislature expecting a new spike in divorces now that they have legalised same-sex marriage? From anecdotal evidence it seems that same sex couples are not rushing to the magistrates offices across South Africa to get married so even the most homophobc person could not argue that there will be a flood of new divorce cases.
This means that the propose legislation suggests that in a moment of sanity the higher ups at the Department of Justice or Home Affiars have realised how silly it is to try and limit divorce by making the process expensive and cumbersome.
Whether the advocate’s profession is going to be thrilled by this move is, of course, another matter.