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 first thing that strikes me about the Constitutional Court judgment in the main Zuma application is that it was not unanimous. Justice Sandile Ngcobo dissented and would have found in favour of Zuma and Thint. Given the extraordinary political implications of the judgment, it is fair to assume that the Chief Justice would have tried very hard to get consensus among the judges to deliver a unanimous verdict.
The fact that Justice Ngcobo dissented will thus raise eyebrows among Constitutional Court watchers. In the year before the current Chief Justice and Deputy Chief Justice were appointed, many of us noticed that Justice Ngcobo suddenly wrote an extraordinary number of opinions, either dissenting from the majority or concurring with it in a separate judgment. Some interpreted this zeal as a sign that Justice Ngcobo had ambitions to become Chief Justice and was trying to show his mettle.
The fact that he has dissented in this case may create the impression that he is trying to position himself as an alternative candidate to Deputy Chief Justice Dikgang Moseneke for the post of Chief Justice when Pius Langa retires next year.
This perception may well be unfair. He might just have a view that the rights of individuals should weigh far heavier than the interest of the state and of society in fighting crime. After all, he wrote the dissenting opinion in the Prince case and argued there that the state had not justified the law that failed to make an exception for Rastafarians to posses and use dagga.
Nevertheless, a dissenting opinion in such a high profile case that went against the man who might well appoint the next Chief Justice, will not go unnoticed.BACK TO TOP