As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
he JSC, in its answering affidavit sworn to by a member who is a senior advocate, refused to divulge the relevant facts by stating that it was the policy of the JSC ‘not to publish how members voted with regard to any particular decision’ and that ‘the JSC has never published the particulars of the vote with regard to the size of the majority and the way each member decided’. An evasive answer like this by senior counsel on behalf of a body like the JSC cannot be countenanced. It is the number of members who voted either way, not their identities, that is relevant. The JSC knew that this information was crucial for the determination of an issue legitimately raised and upon which the court would be required to adjudicate. Nor is this attitude of the JSC reconcilable with our constitutional democracy which values openness and transparency, and this is particularly so when regard is had to the constitutional functions and obligations of the JSC. – Supreme Court of Appeal in a judgment challenging the exclusion of the Western Cape Premier from a JSC hearingBACK TO TOP