ConCourt Serves Justice without Fear, Favour or Prejudice
When his name was struck off the roll of advocates in Society of Advocates of SA (Witwatersrand Division) v Fischer, lawyer and apartheid activist Bram Fischer, instead of appearing personally in court, wrote a letter to the court stating: "I accept, my lord, the general rule that for the protection of society laws should be obeyed, but when the laws themselves become immoral and require the citizen to take part in an organised system of oppression then... this compels one to refuse to recognise such laws." We have seen similar disobedience in the past two years.
Former president Jacob Zuma refused to appear at the state capture commission when he was summoned because its chairperson, Raymond Zondo, dismissed his request for his own recusal, basing his decision on stating that the alleged association to Zuma was so remote that it could not affect his mind. The commission applied to the Constitutional Court to order Zuma to appear before it.
Zuma defied the order by not appearing at the commission but instead issued a statement stating: "The Commission into Allegation of State Capture can expect no further co-operation from me in any of their processes going forward. If this stance is considered to be a violation of their law, then let their law take its course." The Constitution took it into account in giving the order for 15 months' imprisonment for contempt of court.
Zuma then applied to rescind the judgment according to Rule 42(1)(a) of the Uniform Rules of Court. This application can rescind a judgment if there is found to be an error in the granting of the judgment in the absence of party affected thereby. The application was dismissed because it was found that Rule 42(1)(a) only applies to parties excluded without notice or fair procedure, not to parties who elect to absent themselves from proceedings.
In another matter, we have also seen Chris Hani's widow, Limpho Hani, refuse to accept the judgment by the Constitutional Court after Janusz Walus's appeal to it to challenge the minister of justice and correctional service's refusal to grant him parole was granted. The SACP of which Hani was a member, assisted Limpho to also apply for its rescission and the application was also dismissed.
These two cases have sparked protests around the country against judgments by the Constitutional Court. After Zuma was arrested, there was civil disobedience around the country in July 2021 when rioters blocked roads essential to trade and investments to halt economic activity of the country and damaging trucks and looting stores to protest for his release, and in another matter, the EFF, ANC and SACP protested to stop Walus's release on parole and Walus was stabbed in prison, which delayed his release.
This is what we refer to as the counter-majoritarian dilemma. It is a situation when the Constitution overrules the will of the majority or democracy. Others argue that it is not a dilemma because we have a Constitutional democracy as the Constitution was voted for by the majority and so to deny the Constitution is to challenge the will of the majority.
One senses that our Constitution is anarchic. Perhaps it says a lot about the drafters of the Constitution. They were in a dictatorship at the whim of a group. Perhaps the reason why they wanted a written Constitution to rule and be supreme and ignore the normal rules of democracy and limit the power of a group is that they have experienced how a group can (to use the words of Bram Fischer) "organise a system of oppression". They have seen how men left to their devices, without a written Constitution, can become oppressive. Therefore they only wanted the law to serve justice and no one to be above that law.
Aristotle in his book Politics also wanted to find the best government for the city and realised that man is a "political animal"; that, deep within, he has also the desire or need to rule. Because of this, he found that democracy is not only good for giving people the freedom to govern themselves but also that it can be destructive because people can be misled by popularity instead of the law. Perhaps, this is also the situation that the drafters of the Constitution wanted to prevent when they drafted the rule of law that subjects everyone to the Constitution.
In Walus v Minister of Justice and Correctional Services and Others, Chief Justice Zondo, delivering the judgment, said: "When the fathers and mothers of a Constitutional democracy drafted our Constitution and included in it the Bill of Rights, they did not draft a Bill of Rights that would confer fundamental rights only on those who fought for democracy and not on those who had supported apartheid or those who were opposed to the introduction of apartheid in this country. They drafted a Bill of Rights that conferred fundamental rights to everyone."
He also made it clear in presenting the 2021/2022 financial year annual judicial report when he said: "The judiciary of South Africa, from the chief justice at the top down to the district court, will not be intimidated by anybody, no matter his or her position in society, into giving judgments that do not accord with the Constitution."
But one may ask how do we know that the law serves justice and is therefore justifiable? When the court is not subjective, does not favour or prejudice anyone and finds that the law is legitimate and reasonable without fear. The justices of the Constitutional Court take an oath that they will uphold the Constitution. They only interpret the law and demonstrate that it is reasonable within the parameters of the Constitution as a mathematician would work out his calculation in a formula to arrive at an answer. It is the Constitution that balances itself to protect everyone whether in the group or in the minority. The justices are, therefore, also ruled by the Constitution.
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