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.
Listening to TAU’s Advocate Roelof du Plessis as he cross-examines Mr Julius Malema in his hate speech case is a bit like sitting on a stage in front of a crowd of people and having one’s tooth extracted without any anaesthetic while having to listen to Steve Hofmeyer songs being played backward. It is painful. It is embarrassing. It is dehumanising. It is stupid.
Du Plessis sounds like Adriaan Vlok or PW Botha giving a speech in 1986 about the dangers of communism and the evils of ANC “terrorism” and the swartgevaar. It is like the baas telling the bloody k*@ffirs how lazy, stupid and evil they are. Talking about Lenin, Marx, communism and the evils of land distribution, is really not the way to win the argument — either inside court or outside court. The fact that adv. Du Plessis thinks this is all relevant, suggests that he does not get out enough and that he has no idea that he lives in a South Africa that is now a constitutional democracy.
Du Plessis’s approach is so tone-deaf and so obnoxious that it manages to do exactly the opposite of what it is intended to do: it creates sympathy for Julius Malema and for the singing of the Kill the Boer song. Instead of dealing with the legal issue — whether the singing of the Kill the Boer song by Julius Malema at a politically charged event constituted hate speech – Du Plessis is seemingly trying to put Julius Malema’s political views on trial, caricaturing these views in the process. But because his own views are so extreme, it is adv Du PLessis’ views that one ends up judging as being unreasonable, paranoid and bordering on racist.
In any case, the court is not the place to deal with such issues. These are political disagreements that run deep. This once again reminds me that it is inappropriate to deal with the singing of the song in a court of law. What is needed is to engage the ANC leadership on this issue so that it could return to its former position that the singing of this song in certain contexts is not helpful and that it should be avoided.
But Du Plessis, alas, is so clueless that he natters on in defence of the old South African flag and other obsessions of AWB types. He seems to suggest that Afrikaners are in danger of becoming victims of genocide. This kind of view is so ignorant of our history and the nature of the democratic transition, that it cannot but alienate any right-thinking or reasonable South African. By performing in the manner that he has, adv. Du Plessis has managed something of a miracle — he has managed to make Mr Malema sound reasonable, level-headed and dignified.
The cross-examination serves as a timely reminder (if any reminder is needed) that some South Africans still do not see the ANC as the legitimate government of South Africa. Seething with anger and suffering from a historic amnesia, he seems unaware that South Africa has emerged from a deeply evil system and that we now live in a democracy in which a legitimately elected government is implementing the policies of the ruling party.
In a constitutional democracy one has a right and a duty to argue about whether the policies of the governing party are wise or not and whether it is good for all of us (by which I do not mean only white South Africans) or bad for all of us. But even if one does not agree with the ANC government’s policies or even if one is critical of the corruption and arrogance of some ANC leaders, this does not make the ANC government illegitimate.
I must say, watching adv. Du Plessis’s performance today is almost enough to make me want to burst out singing: “dubul’ibhunu / dubula dubula”.BACK TO TOP