NICOLE FRITZ: Courts have become battlefields that pit democracy against war

For all the obvious tragedy, the news that author Salman Rushdie had been stabbed multiple times by an assailant intent on carrying out the fatwa issued against him by Iran’s Ayatollah Khomeini 33 years ago also seemed such a throwback.

Like pictures of Nancy Reagan entertaining at the White House, the fatwa seemed to have escaped from old issues of Time magazine.

But that the nearly successful attempt to fulfil the fatwa would be made now, by an assailant born almost a decade after the fatwa was issued, is not at all surprising. We live in an extraordinary time: never before have so many had access to public platforms by which to share ideas, participate in discussion and make their voices heard.

We might assume that this would allow for a great flourishing of the democratic ideal: of a richness and preponderance of reasoned debate and deliberative discourse, where strength of argument rather than strength of arms prevails. And yet perversely, far from receding, intimidation, bullying, threats of violence and violence itself seem ever more clamant in our exchange.

Nigerian author Ben Okri, writing in the aftermath of Rushdie’s stabbing, writes that “writers and artists cannot afford to be intimidated by the reality of violence”. Of course, it isn’t only writers and artists who can’t afford to be intimidated by the reality of violence. All of those looking to uphold democracy can’t allow themselves to be so intimidated.

As Rushdie himself has said: “Two things form the bedrock of any open society — freedom of expression and rule of law. If you don’t have those things, you don’t have a free country.”

I am saying that conflating the use of the court system, a means provided in democracies for peaceful settlement of disputes, with acts of violence is most disturbing

It is therefore alarming that SA courts seem increasingly to be asked to take account of the threat of violence as a kind of substitute for legal argument.

Controversial legal advocate Malesela Teffo is attempting to fend off an application by the Legal Practice Council that he be struck from the roll of advocates by warning that there will be serious unrest in the country if that occurs.

So crude, if grandiose, a threat might be easy to disregard if it didn’t so obviously echo the similar threat that resounds like a drum beat in so many of former president Jacob Zuma’s engagements with our courts and various legal authorities — that a disturbance of the type we saw in July last year might yet consume the country again.

A different but related narrative concerning the courts is that resort to their processes is a type of violence. Recently, the home affairs minister issued a statement arguing that in initiating legal action against him the Helen Suzman Foundation was engaging in a “dictatorship” of NGOs and looking to secure the “dislodgement of the government of the day from power by all means available”.

Don’t get me wrong: I’m not suggesting that resorting to the courts and using the litigation process should be insulated from criticism. I am saying that conflating the use of the court system, a means provided in democracies for peaceful settlement of disputes, with acts of violence is most disturbing.

Courts can’t be intimidated by violence, threats of violence and intimidation. If they were, determination of disputes would not be by reference to principles of fairness or equity, or any of the provisions in our constitution or law, but would compel assessment of which party was best able to command the support of those who threaten harm.

And if course, if that were the principle of determination we wouldn’t need courts at all. We could simply give them over to battlefields.

• Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.