Writing over ten years ago Cameron Stewart compared the rule of law to Tinkerbell – the fairy whose very existence depended upon others’ belief in her and who, in the story of Peter Pan, was saved by the act of clapping as evidence of this belief. (Cameron Stewart ‘The rule of law and the Tinkerbelle effect: Theoretical considerations, criticisms and justifications for the rule of law’ (2004) 4 Macquarie Law Journal 135). In his article, Stewart pleads with readers to ‘clap for the rule of law, because if we stop believing in it, the ideals that it represents will cease to exist and the practical effects would be disastrous’ (ibid at 136). The core ideal of the rule of law – a founding value of our supreme Constitution (section 1(c) of the Constitution of the Republic of South Africa, 1994) – is the prevention of the abuse of public power which is one of the most egregious manifestations of unaccountable government. To this extent, the rule of law, as enforced by an independent judiciary, has value even on a minimal conception of it in so far as it is a sine qua non for the prevention of executive excesses. It has thus been described as ‘an unqualified human good’ in that, ‘it (actually) limits ruling powers by requiring equal application of the legal rules to rich and poor, the powerful and powerless…[It] is by no means sufficient to ensure just legal rules or a just society in general, but it is a necessary condition in that its opposite – unbridled power – ensures injustice’ (Daniel H. Cole ‘ “An unqualified human good”: E.P. Thompson and the rule of law’ (2001) 28 Journal of Law and Society 177 at 189).
The recent full bench judgment of the Gauteng High Court in Southern Africa Litigation Centre v Minister of Justice and Constitutional Development (27740/2015)  ZAGPPHC 402 (24 June 2015) (‘the Bashir judgment’), provides evidence of the exercise of such ‘unbridled [executive] power’ and thus represents both a devastating blow to our democracy and a significant reminder of the crucial role of the courts within our tripartite system of government. In this note, I discuss the Bashir judgment against the backdrop of the fraught factual matrix that led to the executive seemingly facilitating President Bashir of Sudan’s swift exit from the country in direct breach of an interim court order prohibiting as much pending the finalisation of the application. This outcome constitutes, quite plainly, the exercise of arbitrary power in contempt of court on the part of our executive and a resultant breach of the rule of law and constitutional mandate on organs of state to assist and protect the courts to ensure, inter alia, their effectiveness (section 165(4) of the Constitution). The judgment thus necessitates that we pause and take stock for as our history book serves to remind us, there is a vital need to preserve the integrity of the rule of law, as enforced by the judiciary, against governmental erosion.
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Citation: The Bashir Judgment raises the red flag for the Rule of Law and the Judiciary (2016) 133 South African Law Journal 246