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.
On the day the
While the advocates in flowing robes presented oral arguments, omies and tannies with weather-beaten faces and wrapped in blankets leaned forward in their chairs, intent on following the complicated legal arguments. When the community’s lawyer made what they thought was a good point, they sighed and nodded their heads.
For me it was a moving and uplifting scene because it demonstrated that somewhere a group of ordinary South African cared enough and trusted the Constitutional Court enough to come 800 kilometres to listen to arguments about their fate. It showed that people trusted the Court to give them a fair hearing.
I was therefore not surprised when the
During the oral arguments, the state contended that the legislature did not have to hold public hearings on a matter like this because the legislature was elected by the people and represented the people’s interest and need therefore not consult them in between elections.
Justice Sandile Ngcobo rebuked the government for making this argument, stating that it fundamentally misconstrued the nature of our democracy.
Our system of government requires that the people elect representatives who make laws on their behalf and contemplates that people will be given the opportunity to participate in the law-making process in certain circumstances. The law-making process will then produce a dialogue between the elected representatives of the people and the people themselves.
Unfortunately, the ANC has often misconstrued the nature of our democracy and has not always understood that the mere fact that the people elected them to lead does not mean they have a monopoly on wisdom and do not have to listen to the people when the people disagree with them.
In the Matatiele case, the ANC legislature was reminded that democracy requires more than voting every five years followed by instructions and orders by the winning lot. Sadly the ANC has not learnt this lesson. The Court forced the legislature to consult the community, which yesterday overwhelmingly expressed their opposition to the incorporation of Matatiele into the
Yet, using its majority in the committee, the ANC voted in favour of the amendment and thus ignored the wishes of the community. Of the dialogue envisaged by the
On the one hand these sad events show the limits of the
But it also reminds us that democracy works best where there is a real contest and a real danger of a party losing power. Because the ANC is so deeply ensconced it can afford to be arrogant and heartless to a small community because others will still vote for them. Maybe it is inevitable that a arty with such an overwhelming majority would become arrogant, but maybe it is also a sign of a party led by a President who thinks he knows best.
Still, those omies and tannies who came to the Court will not forget what the ANC did to them – after all, not to be listened to is deeply frustrating and insulting. As the wishes of more communities across South Africa are ignored because our President and his cabinet knows best, the electoral majority of the ANC will wane.