The judge’s decision is not final, is it? | Fin24
 
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The judge’s decision is not final, is it?

May 14 2017 14:16
Mandi Smallhorne*

IN THE kitchen and bathroom of my friend’s apartment in a big South African city, the walls are disfigured by huge patches of damp – it looks as though the walls are melting. The pipes in the bathroom of the apartment above her are leaking, dripping water into the walls every time the inhabitants wash themselves.

She’s lived with this situation for more than a year now, watching her hard-won home and her largest investment deteriorate day by day.

Yes, of course, she tried to engage the neighbour, to no effect. And she engaged with the Body Corporate, who seem to me to be a bunch of ineffective dithering wusses – but don’t quote me on that. And she dug into her equally hard-earned savings to consult a lawyer.

A group of her friends, real and virtual, watched anxiously as things unfolded and we got feedback on Facebook. It was like watching someone write and rewrite a horror movie; each time we heard from her, our gasps were audible across South Africa as we took in the latest unbelievable wrinkle.

Innumerable times, the neighbour refused access to people tasked with assessing the situation; he accused my friend of making illegal alterations to an apartment she’s never done more than paint; his constant denials meant she paid at least four different independent leak detectors to provide evidence of just where the water was coming from (it might have been five, but my memory’s shot). Please note, she paid – over and over again – to prove that she was being injured.

Ultimately, the whole ghastly saga went to arbitration, and a universal sigh of relief temporarily shifted the earth on its axis as we heard that the decision had gone in her favour.

But.

Nothing has changed. His Royal Highness (may he be walled up in a damp dungeon and left to rot) has done absolutely nothing in the couple of months that have now passed to repair the damage. If she went upstairs and punched him in the jaw, in my opinion she’d be completely justified, but that would mean a charge of assault, wouldn’t it? And what other options does she have?

So she’s consulting a new lawyer. Another legal bill for her to pay. And here we go round the prickly pear… (with thanks to Thomas Stearns Eliot).

Judges, magistrates, arbitrators and other such roe do not (as Stephen Grootes pointed out here) have a police force of their own. And in the last couple of years, we’ve learnt that lesson on a much bigger stage than my friend’s bathroom. We’ve seen court decisions – ConCourt decisions, nogal – go against the biggest of big cheeses, and be ignored with a sweeping disrespect that triggers both awe and terror.

That provides me with another reason to dislike this decision of My Vote Counts and the Helen Suzman Foundation, to go to court to get our president removed from office. I may agree with just about everything the HSF says in its founding affidavit about how the president has failed the people, abused his powers, acted recklessly and violated the Constitution of this country, but if the Constitutional Court sits again on a matter relating to the president and rules against him – and is thoroughly, comprehensively and wilfully ignored yet again, what then?

At what point does respect for the law just melt like dew in the sunshine and disappear?

In a speech some years back, Chief Justice Mogoeng Mogoeng described “peace, good governance and a generally sound economy” as being a consequence of “the rule of law, human rights and good governance” being observed as a matter of course.

“In those countries courts protect the right of the media to objectively and accurately inform the public; courts are largely efficient and effective; they are not beholden to the executive, parliament, the media, lobby groups or the rich and powerful. Civil disputes are somewhat speedily and justly resolved and investors are apparently happy that the law and those who enforce the law will protect their legitimate business interests if unjustly or unlawfully interfered with.

"There is good governance, social and political stability largely because courts force the politicians and society to act only in terms of the law.”

Our judiciary has proven itself remarkably sturdy, surprising us again and again with rulings that surely displease the powerful. Yet if executive bodies refuse to enforce the decisions of the judiciary, we are in serious trouble.

Which should come first: seeking a possibly unenforceable ruling that this troublesome president whose actions are certainly damaging to our society should be removed – or reflecting on how a whole system is not working, and acting as civil society to demand that this be changed?

I’m going to go with the latter. Can people who know more than me – such as Pierre de Vos, perhaps (@pierredevos) – weigh in and tell us how to enforce enforcement of the judge’s decisions when the relevant executive (police, Parliament, whatever) fails to do the enforcing?

Can my friend do a citizen’s arrest and insist that her neighbour be held until he complies with the judgment? ‘Course, we’d get lasered into a pile of ash if we tried the same on the pres, so to whom do we turn for enforcement of those rulings?

Asking for a country.

* Mandi Smallhorne is a versatile journalist and editor. Views expressed are her own. Follow her on Twitter.

mandi smallhorne  |  opinion
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