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.
Human rights lawyer Geoff Budlender SC says courts should be seen as institutions that strengthen rather than undermine democracy, notes a Business Day report. Budlender said that in a participatory democracy, the courts played a crucial role as a ‘critical mechanism of accountability’ to the people. The Constitution gave the executive the function of developing and implementing policy, but this did not mean that every policy could claim a genuine democratic mandate, he said. According to the report, Budlender said his four years’ experience as a civil servant had shown him ‘it was unelected officials like me who made many of the most significant decisions’ on policy. The theory that the executive had ‘a monopoly of wisdom on policy questions, based on a democratic mandate, strikes me as somewhat remote from reality’, he said. Budlender added if courts were to live up to their role in democratising society, they needed to make judgments that did not undermine the other constitutional imperative – that the government should be able to govern. – Business DayBACK TO TOP