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.
Since that disastrous case, then Chief Justice Arthur Chaskalson chose not to appoint an acting judge to the Constitutional Court as he was entitled to by section 175 of the Constitution. Now new Chief Justice Pius Langa has decided to appoint acting judges again and I am not sure this is a good thing.
In a closely contested case, an acting judge appointed by the Chief justice in consultation with the Minister of Justice, may hold the deciding vote. In the Chaskalson era those judges almost always voted with the Chief Justice. This means that the Chief Justice can temporarily “pack” the Court with his/her appointees and can help to secure a majority in cases where the permanent judges might normally have a majority.
Because South Africa’s Constitutional Court is not particularly divided on ideological grounds this has not yet been an issue but in years to come it may become decisive. In future, some judges may even decline to take sabbatical in fear of “ceding” his or her vote to the “opposition”, which would be rather unfortunate.
At the same time acting judges do get a chance to take part in deliberations of the Constitutional Court and can thus be “groomed” for a post on the highest court. Still, not an ideal situation.