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.
Steven Friedman has written a characteristically thought provoking piece in the Business Day today about the scrapping of the Scorpions, arguing that the ANC is not as democratic as it should be.
ANC leaders are right that they can comfortably win re-election despite scrapping the Scorpions. But they are wrong to say that this means that they are taking democracy seriously. Democracy is a system in which most citizens are meant to get their way, not most activists. Politicians who cynically ignore their voters because they know that they can be taken for granted cannot claim a serious commitment to democracy.
Party leaders have a ready reply. Nowhere in the world, they insist, are politicians obliged to go back to their electorate to check every decision. If you vote for a party but don’t join it, you must expect others to decide for you.
But citizens do not lose their rights because they do not join a party. Of course ANC leaders are not forced to ask their voters what they think. But leaders who insist that the only decision-makers in the ANC who matter are the 6% of supporters who join the movement cannot credibly claim that they are reviving the voice of the grassroots citizen.
Parliament’s task is to do what most citizens want — not what most members of a party want. Unless and until the new ANC leadership show an interest in what most of their voters want, their claim to democratic commitment within the ANC is as tenuous as that of the leadership they have replaced.
But I am a bit ambivalent about this view. Two years ago when Parliament had to decide on the adoption of the same-sex marriage law, most ANC voters were also against this move, yet in the end the ANC dominated Parliament adopted the Civil Union Act. Sometimes a majority party must do things not supported by its voters for the greater good and to implement the values of the Constitution.
Perhaps the Scorpions case is different because it might well be argued that the scrapping of the Scorpions is not based on principle or on a desire of the ANC to expand and protect the constitutional guarantees of citizens, but instead to protect their own members from prosecution for corruption.
Nevertheless, a majority party who believes in human rights may well sometimes act in a way not in line with the wishes of the majority of its citizens. The trick is to know when to do so and when to give way to the wishes of the majority. In the case of the Scorpions the ANC clearly got it wrong.BACK TO TOP