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.
Could it be that the president’s supporters do not want the courts to review and possibly set aside the decision of former director of public prosecutions Mokotedi Mpshe not to proceed with the prosecution of Zuma on charges of corruption? That appears not to be the kind of power they think courts should possess. Of course, they are free to criticise judgments they consider to be wrong, but that is a different matter to curtailing constitutional democracy, which rests on a principle of constitutional review. If that is not the reason for the recent moves, it is high time the country was told specifically what has motivated this call for a review. Without a clear explanation, the inference drawn in this column sadly becomes irresistible. Is it too much then to ask that the present chief justice enter the arena and defend the Constitution as it currently stands? –Serjeant at the Bar in the Mail & GuardianBACK TO TOP