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.
18 November 2010
Adv Menzi Simelane National Director of Public Prosecutions National Prosecuting Authority
Per email: email@example.com
Dear Adv. Simelane,
We write to express our grave concern about your decision to prosecute the female learner in the Jules High School sexual offences matter. We believe that her constitutional rights will be violated in the event of her being prosecuted.
Given the impact of criminal charges (even though the matter has reportedly now been diverted out of the criminal justice system), we worry that this reinforces a punitive approach to consensual, adolescent sex – however inappropriate – rather than an approach that seeks to educate and counsel young people about sex.
In particular, we worry that this prosecution reinforces deeply harmful stereotypes about sex that tend to blame women and girls for sexual violence.
Our primary view is that her prosecution amounts to a victimisation of the victim. Whatever may have, in fact, have occurred between the three young people involved, including the issue of whether she consented to sexual intercourse, it is very clear that the lives of all three, and especially the girl, have been harmed by the events.
From what has been reported in the media, we understand that video footage of the sexual acts allegedly performed has been distributed widely. This has undoubtedly caused further harm to the girl and further impaired her dignity.
We are concerned that no attention has been paid to this aspect of the matter by the NPA, and we believe that the people responsible for the recording and distribution of these video images ought to be prosecuted.
The publicity that the case has received, including the revelation of the girl’s identity, amounts to an entirely inappropriate invasion of her security of the person, privacy and human dignity. The prosecution, and the apparent urgency with which it has been conducted, merely serves to exacerbate her suffering.
There are very important issues of constitutional principle and the public interest that arise in this case which, we submit, need to be given very careful thought by the state and by your office in particular.
Therefore, we urge you to reconsider your decision, and to ensure that the appropriate steps are taken to protect this girl from further harm, while you review not just her prosecution but the policy in relations to such prosecutions.
Given the very wide and serious issues of constitutionality and the public interest, as well as the serious impact that your action has had, we are releasing this letter to the media.
We would welcome an opportunity to discuss these matters with you and invite you to permit us, with you, to facilitate a public debate about the constitutional implications that arise from this case and from cases involving children, and young girls in particular.
Executive Secretary CASACBACK TO TOP