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.
The party has a responsibility to ensure that, in the process of seeking to transform both the state and society, the legitimacy of the state is not compromised. Whereas the party, through its government, exercises political authority over the State, the separation between the Party and the State is imperative. Given the character and nature of the ANC, contestation to influence and control the State is an ongoing struggle, whose outcome will partly be determined by the balance of forces, as well as the imperatives of what type of society and State, the ANC seeks to build. The ANC’s approach and orientation on the question of State Power and its use is well documented. The Strategy and Tactics document of the ANC, as adopted at the ANC’s 52nd National Conference held in Polokwane, is clear on what must be done. The challenge lies in our day to day experiences, wherein the ANC, its Alliance partners and its functionaries in and out of government, adopt different and at times conflicting postures towards the State and its Organs. The ANC fully embraces the doctrine of Separation of Powers as articulated in the Constitution of the Republic of South Africa. – ANC Gauteng discussion document