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 rejection by the Supreme Court of Appeal of the Shabir Shaik appeal on all three counts came as something of a surprise. Newspaper reports suggested that he would at least be acquitted on some counts. Now the SCA has confirmed the 15 year sentence and Shaik will have to go to jail.
Of course, the spin to protect Jacob Zuma has already started. In a statement the ANC Youth league had the following to say, according to a report on the Mail and Guardian online:
“We must at all times, observe the provisions of the Constitution of the republic, and desist a temptation to find any person guilty outside of the credible due processes of the law, as this undermines and violates important elements of the rule of law,” the league said. No court of law has found Zuma, the ANC deputy president, guilty of any wrong-doing, it said.
I have long thought that the use of the “innocent until proven guilty” argument is a complete perversion of the Constitution. On one level, yes, Mr Zuma has not been convicted of any crime and he is thus not a criminal. For that label to stick, a court of law will have to find him guilty of a crime beyond reasonable doubt. To prove a person’s guilt beyond reasonable doubt is an extremely high burden for the state to discharge, but this is for a reason. Once convicted, one could be sentenced to a long term in jail, so its imperative that a court should only convict in the most clear-cut cases. Mr Zuma is innocent until proven guilty and this means he cannot be put in jail.
But this does not mean that the rest of us must suspend all our faculties and pretend we have no opinion and no common sense view about Jacob Zuma and thus cannot make any moral or political judgment about a man whose friend and financial adviser has just been sentenced by a second court to 15 years in prison because of his generally corrupt relationship with Zuma. That is really a perversion of the notion of innocent until proven guilty, trying to export the principle (now becoming a slogan) from the legal arena where it is of fundamentally important principle, into the political and ethical arena. To say we as voters should not have any view on whether Zuma will make a good President despite a court having found that he was bribed is to ask us to believe in Father Christmas and the Tooth Fairy. But maybe the Youth League believes in those things. After all, they once believed that Brett Kebble was also the victim of an NPA smear campaign so they will probably believe anything that is in their interest to believe.