oa Constitutional Court Review - Between moral authority and formalism : Nyathi v Member of Executive Council for Dept of Health, Gauteng
|Article Title||Between moral authority and formalism : Nyathi v Member of Executive Council for Dept of Health, Gauteng|
|© Publisher:||Juta Law Publishing|
|Journal||Constitutional Court Review|
|Author||Pierre De Vos|
|Publication Date||Jan 2009|
|Pages||409 - 427|
|Keyword(s)||University of Cape Town|
Wholesale non-compliance with court orders is a distressing phenomenon in modern day South Africa, both in the Eastern Cape and elsewhere. Where this non-compliance with court orders is rooted in the 'laziness and incompetence' of state officials and where it negatively affects often poor and vulnerable members of society who are, in effect, denied access to life-sustaining resources (which would otherwise have been provided by the state) because of the tardiness of state officials, courts are confronted with difficult issues that strike at the heart of the rule of law, and for respect for the moral authority of the judiciary. What is at stake in such cases is nothing less than the legitimacy of the legal system and the courts that underpin it. When indigent members of society turn to the courts (itself a rare occurrence, given the prohibitive cost and technical difficulties faced by many such individuals) to have the legal obligations of the state owed to them enforced and the system fails them due to a lack of respect for court orders, the rule of law - which EP Thompson controversially called an 'unqualified human good - is fundamentally threatened. Courts therefore have, both in pragmatic and ethical terms, a duty to take steps - within the limits of what is permissible by the Constitution and the law - to ensure that court orders are enforced and the court's legitimacy and authority is preserved.
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