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.
In response to the “male rape” judgment by the
Excuse my ignorance, but do these judges each come up with a ruling (like in a game of rock, paper, scissors) or do they discuss the ruling? What I want to understand is whether Justice Langa could or did try to convince the majority of his point of view?
The short answer is no. A longer answer would be that the eleven judges first read all the documents submitted to them, then listen to the advocates making their arguments on behalf of their clients while they also grill those advocates on any conceivable aspect of the case. Then the judges retire to a beautiful room where they all sit around a big round table (it looks a bit like a huge tree stump) to discuss the case.
I think there is a vote at first to see who supports what position. They will then argue their positions and at some point the Chief Justice will appoint one of the judges who supports the majority view to write the majority opinion for the Court. The judge will then write a draft judgment (with some help of his or her clerks) and this will be circulated to the other judges. They might make suggestions for things to add or to take out. Some judges will say, well, I will support your opinion if you add this or take that out.
In the end all the judges who agree with the majority judgment signs on to it but it is published under the name of the main author.
Judges who do not support the majority judgment or want to add their two cents worth can write their own judgment. In the death penalty case – the first heard by the
In any case, the judges have plenty of time to argue with one another and to try and convince the other judges of their opinion. The previous Chief Justice, Arthur Chaskalson, appeared to have been particularly good to get others to agree with him. Chief Justice Langa does not seem to hold the same sway. But whoever talked a hole in the head of those judges who signed on to the male rape majority opinion should really be kept in check. And the judges who signed on to that judgment should really feel a bit embarrassed.BACK TO TOP