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 question on all our lips is, of course, why South Africa has consistently underplayed the problems in Zimbabwe and at times seems to be rather reluctant to criticise the camp old tyrant north of the border? (By the way, am I the only one harbouring suspicions that Robert Mugabe might be a closet homosexual in the tradition of J Edgar Hoover?)
My theory is that South Africa’s position regarding Zimbabwe has much to do with President Thabo Mbeki’s African ambitions. He wants to be the most important and influential statesman in Africa (and then use this influence for the better of the Continent), but he is the leader of a country that is viewed suspiciously in many other parts of Africa. We are relatively wealthy and our Constitution contains rights that are shockingly “Western”. We also think of ourselves as “special” and sometimes have the cheek to talk of “Africa” as if we are not part of it.
If we criticised Mugabe in the same tones used by that unspeakably obnoxious old codger, John Howard, Mbeki’s enemies on the continent would have some ammunition to claim that he was merely an agent of Blair and Bush. Given the colonial history of Africa, most of the elites in Africa are extremely sensitive about interference from the West. So, although Mugabe is not popular amongst his fellow leaders, his stance against the West provides him with cover. He can dare Mbeki to have a go at him, knowing it will hurt Mbeki more on the Continent than it does him.
As soon as Mbeki would have a go at him, Mugabe would throw a hissy-fit (doing his “Springtime for Hitler” routine) and insecure but ambitious Mbeki would be caught in the middle. So, better keep quiet and try to work the matter behind the scenes. Who said foreign policy had anything to do with principles?