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.
1. The President of the Republic of South Africa has under s 84(2)(f) of the Constitution of the Republic of South Africa, 1996 and in terms of Government Notice R926 published in Government Gazette No 34731, 4 November 2011 appointed a Commission of Inquiry into the Allegations of Fraud, Corruption, Impropriety or Irregularity in the Strategic Defence Procurement Package (“the SDPP”).
The Terms of Reference of the Commission are to inquire into, make findings, report on and make recommendations concerning the following, taking into consideration the Constitution and relevant legislation, policies and guidelines:
1.1 The rationale for the SDPP.
1.2 Whether the arms and equipment acquired in terms of the SDPP are underutilised or not utilised at all.
1.3 Whether job opportunities anticipated to flow from the SDPP have materialised at all and:
1.3.1 if they have, the extent to which they have materialised; and
1.3.2 if they have not, the steps that ought to be taken to realise them.
1.4 Whether off-sets anticipated to flow from the SDPP have materialized at all and:
1.4.1 if they have, the extent to which they have materialised; and
1.4.2 if they have not, the steps that ought to be taken to realise them.
1.5 Whether any person/s, within and/or outside the Government of South Africa, improperly influenced the award or conclusion of any of the contracts awarded and concluded in the SDPP procurement process and, if so:
1.5.1 Whether legal proceedings should be instituted against such persons, and the nature of such legal proceedings; and
1.5.2 Whether, in particular, there is any basis to pursue such persons for the recovery of any losses that the State might have suffered as a result of heir conduct.
1.6 Whether any contract concluded pursuant to the SDPP process is tainted by any fraud or corruption capable of proof, such as to justify its cancellation, and the ramifications of such cancellation.
2. The Commission is to report to the President within a period of two years from date of proclamation.
Written submissions can be made to the Commission by way of an affidavit by no later than 30 July 2012.
Enquiries may be directed to: The Chairperson, Arms Procurement Commission at firstname.lastname@example.org . Telephone numbers to be provided at a later stage.