No matter how impractical or destructive any new piece of legislation may be, as citizens we can rely on the courts to ensure that the legislation adheres to the Constitution. A government website summarises this succinctly when it states: “No other law or government action can supersede the provisions of the Constitution.”
This belief in the Constitution as a ‘safety net’ serves to placate many a landowner worried about having his or her land expropriated without compensation. Sudanese president Omar al-Bashir has been accused of war crimes and crimes against humanity. His recent visit to South Africa and the blatant disregard for the law which led to his departure has resulted in a flurry of comments on the consequences of the State ignoring its own laws.
Constitutional law expert, Pierre de Vos, said the following on his blog: “When a democratically elected government flouts the orders of a court, it undermines public confidence in the courts and undermines the legal system as a whole. If members of the public come to believe that what matters is not what a specific legal principle requires, but what those with money and power dictate, lawlessness in its most extreme form logically follows.”
De Vos quotes former Chief Justice Ismail Mahomed as saying: “The courts would be impotent to protect the Constitution if the agencies of the State which control the mighty physical and financial resources of the State refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl, but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship.”
Too often we hear ministers questioning the value of the justice system. Even more worrying is government’s growing tendency to ignore court orders. If you or I were to do this, we’d be sent to jail, but the same is not true for government institutions. Why, we had police officers gunning down striking mine workers at Marikana, and not one is being prosecuted; they were simply ‘following orders’ (whose, they can’t say). It is speculated that the police commissioner might be fired, but who is to say that she will not simply be ‘redeployed’ to another department, as has been the case with many an errant but well-connected comrade?
Thus far, our justice system is ranked among the best in the world, providing the necessary assurance to investors. However, as an investor destination, South Africa has too many marks against it, such as corruption, crime, inefficient bureaucracy and onerous labour regulation. It simply cannot afford to be seen as another African country where the law is subject to the whims of those in power.
