This week South Africans had been reminded as soon as once more how we arguably have probably the most progressive and inclusive Constitution on this planet.
Drafted on the flip of democracy, it is a collaborative doc, representing the collective knowledge of our folks.
Two key judgments handed down by the nation’s courts prior to now few days as soon as once more demonstrated this.
On Monday, the Supreme Court of Appeal discovered that former president Jacob Zuma’s launch on medical parole was illegal.
In September final yr, a number of events approached the Gauteng High Court to evaluation and put aside then Correctional Services Commissioner Arthur Fraser’s choice to grant Zuma medical parole.
Zuma’s launch on medical parole appeared doubtful. It fed into the notion that these with affect and political energy might abuse the authorized course of. Arthur Fraser’s makes an attempt to discredit the present President with allegations of cash laundering involving Phala Phala added gas to the narrative that the ex-prisons commissioner was appearing politically when he ordered Zuma’s launch.
However, as is so typically the case when there was an abuse of energy or a failing by a authorities chief, it has been civil society and the courts which have held the nation on target.
The Helen Suzman Foundation was the second respondent within the matter. Its director Nicole Fritz responded to the judgment in a tweet saying, “There is no question that today’s judgment holds out serious, even devastating, consequences for Mr Zuma. But make no mistake, this is what equality before the law demands: that the law will now bow or break before the powerful or at the spectre of threat. It requires observance and compliance from us all. It grants no favours or special treatment.”
This was so true. Even within the face of the prospect of one other wave of unrest and looting which ensued final yr when Zuma was jailed, the courts have ordered that he return to jail but once more. The Department of Correctional Services has since launched a press release that it will problem the Supreme Court of Appeal judgment.
Also on Monday, simply hours after the Zuma judgment, the Constitutional Court in a majority judgment written by Chief Justice Raymond Zondo, ordered that Chris Hani’s killer Janusz Waluś be launched on parole.
This is a case thick with emotion and deeply divisive. It is tough for a lot of to take away the details and the law from the depth of the sentiment. Waluś’s actions took the nation to the brink and really practically triggered a civil warfare.
Justice ministers through the years have refused quite a few functions for parole from the Pole.
In 2020, Ronald Lamola turned him down citing remarks made by the trial court docket.
But finally, the politicians ran out of street down which to kick the can and it was the judiciary that needed to step in.
Politically, it was a clever transfer from Lamola who has ambitions of being the ANC Deputy President. There would have been no getting back from being the minister who set Hani’s killer free. It is extra palatable to have his political choice overturned by the apex court docket based mostly on law.
In his judgment, the Chief Justice powerfully reminded the nation that the Constitution was not written merely for many who fought in opposition to apartheid, however for all South Africans.
“I have also borne in mind that when the fathers and mothers of our 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 who were opposed to the introduction of democracy in this country.
They drafted a Bill of Rights that conferred fundamental rights on everyone, including those who had supported apartheid with all their hearts. Indeed, they drafted a Bill of Rights which conferred fundamental rights even upon visitors to our country so that, upon entry into our country, they begin to enjoy the benefits and protections of our Bill of Rights,” mentioned Zondo within the judgment.
In different phrases, and as a newspaper headline learn this week, it’s painful however it’s the law.
For Hani’s widow Limpho, Zondo is an simple and comprehensible goal for her fury. She responded by saying that she felt that the trauma she and her household had been put by way of at Waluś’s palms, was not given due consideration by the Constitutional Court.
“This country is finished where in this country a foreign white can come into South Africa, kill my husband…This judgment is diabolical, totally diabolical. I’ve never seen anything like this,” she added.
Limpho Hani also gave credence to Minister Lindiwe Sisulu’s attacks on the judiciary, which have proven to be dangerous.
Deputy Minister in The Presidency for State Security, Zizi Kodwa, has since suggested it was time to revisit certain South African laws.
“And if there is a way in society, usually that the felony justice and the law are not defending them that has received the potential to create social instability within the nation and, subsequently, we should not run away from legal guidelines that we predict should give confidence to the folks,” he mentioned.
This too is doubtlessly harmful.
The authors of the Constitution did not have a crystal ball. But they needed to mitigate in opposition to potential future abuses and hypothetical eventualities which had been past comprehension on the daybreak of democracy.
Time and time once more our Constitution and the judiciary that serves it has needed to maintain the nation on the best path when the opposite arms of presidency have failed us. There are numerous examples of court docket instances the place the rule of law has stopped energy from being abused and compelled the chief to change course.
It is additionally why now we have the idea of the separation of powers, as now we have seen in situations the place the courts have held that the legislature should rework the law to ensure that it to move constitutional muster in a altering world.
For many, as Mr Bumble discovered in Oliver Twist, the Dickensian concept that the law is an ass could appear extra applicable this week as the appliance seems opposite to widespread sense.
But what now we have seen in actuality in South Africa is that the law is something however an ass.
Author, columnist and journalist Mandy Wiener hosts The Midday Report on 702 and CapeTalk.
