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.
A reader seems perturbed by the goings on in the Pietermaritzburg High Court yesterday. She writes:
Please shed some light on why the National Prosecuting Authority should have to battle for the release of documents (the Thetard Diary) from Mauritius. Why is this not seen for what it is: an obstruction of justice?
Mr Zuma’s lawyers are trying to prevent the NPA from securing evidence they might want to use in a trial against him and the current Thint chief executive, Pierre Moynot. The question seems to be based on the premise that a criminal trial should be about determining the relevant facts (the “truth”, if you will) and that it is not reasonable for an accused to object to the securing of evidence that will assist with establishing the facts.
In Europe, where they have an inquisitorial criminal justice approach, the search for the truth might well be what drives a criminal trial and the judge or presiding officer will have wide leeway to secure evidence in ways she sees fit without too much restriction. But we have inherited the British model in which criminal trials are accusatorial in character.
This means that the state and the defence are locked in a battle – much like in a soccer or cricket game – and the assumption is that this battle will lead to the discovery of the truth or at least will lead to a credible outcome. For the battle to be fair, all kinds of procedural rules and safeguards are built into the system and the defence council therefore has a wide array of weapons at his disposal to try and outwit the State. Just like a rugby or cricke game has a set of complicated rules, a criminal trial is based on such rules with the judge or magistrate as the referee.
The deeper the pockets of the accused, the more “tricks” can be afforded and the less likely it is that the accused will be convicted (perhaps some people will disagree with this last point?). Mr Zuma is using all the “tricks” at his disposal to stay out of jail – remember, if convicted there is a mandatory sentence of 15 years waiting for him. Mr Zuma has a constitutional right to do so and I would not fault him for it on a legal basis.
What really boggles the mind is that this legal strategy is not seeming to have any political fallout for Mr Zuma. He claims to be a victim of a conspiracy, but then is trying everything within his power to prevent the state from securing a diary and other evidence? Why not just allow the state to secure the diary? If he is innocent as he claims, there is surely nothing to fear? By opposing the state in this way, he is really admitting that there is something to hide, which just underlines the fact that he should not be let near the levers of state power in this country.
But then again, when it comes to Mr Zuma, those principled people like Mr Zwelenzima Vavi and the Friends of the Jacob Zuma trust, seemed to have lost all perspective. They know the diary shows Mr Zuma had met with the ams deal bribers, so they are also rooting for it not to be secured. The fact that newspapers editors and the public are not all turning away from Mr Zuma and his hangers on in disgust maybe says something about the disfunctionality of our politics.