Makhanya v University of Zululand - LexisNexis South Africa

26[62] The approach taken by the court below has the effect of denying toMakhanya, as a matter of ‘judicial policy’, the ability to pursue the presentclaim at all, thereby thwarting the assertion of the right upon which theclaim is founded. That cannot be correct, because ‘judicial policy’ to thateffect would be unconstitutional.[63] It is not unknown in history for authorities to attempt to subvert theassertion of rights by the expedient of denying the holder a forum in whichto assert them. For a right without a forum in which to enforce it might justas well not exist at all. The drafters of the Constitution were clearly alive tothe stratagem of surreptitiously negating rights in that way, which itoutlawed by guaranteeing to every person a forum in which to prosecute anylegal claim and not only some of them. 32 That guarantee is fundamental tothe preservation of rights.[64] Even if the court below meant only that the claim could not beasserted in the high court but may be pursued in the Labour Court under itsconcurrent jurisdiction (which is not what the court had in mind) that wouldalso be unconstitutional. The law has designated the high court as a forumfor pursuit of the claim, and a litigant may not be denied access to a courtthat the law allows.[65] Clearly a court may not thwart the assertion of a right by denyingaccess to a court in which to do so. It would be no answer to say that itreally will not matter because the claimant has another right that is just as32Section 34 accords to every person the right to have any dispute that can be resolved by the application oflaw decided in a fair public hearing before a court or, where appropriate, another independent and impartialtribunal or forum.