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.
I almost fell off my chair laughing when I read yesterday that the Democratic Alliance has warned that politicising the office of the Public Protector undermined the “brilliant” work it has done. The Cape Times reported that the DA’s defence of Adv Thuli Madonsela comes in the wake of an attack on her by the ANC Youth League (ANCYL) and COPE’s reference to her office as a “toothless wonder” after she found Communications Minister Siphiwe Nyanda guilty of breaching the Executive Members’ Code of Ethics by publicly defending axed Transnet Freight Rail boss Siyabonga Gama.
The ANCYL – in its usual hysterical way – lashed out at Madonsela for finding Nyanda guilty of being “truthful” and questioned whether she was protecting the public, or merely “parroting misperceptions of opposition parties”. (This defense of Nyanda is interesting because it suggests that the tenderpreneurs of the ANCYL and the tenderpreneurs in cabinet were watching each others backs.) DA MP and Justice and Constitutional Development spokesperson Natasha Michael said the ANC had “systematically ignored” the role played by the Public Protector. It praised Madonsela for her investigations and warned political parties not to interfere.
The sentiments expressed by Michael are of course laudable and correct. Political parties should not interfere with the work of Chapter 9 institutions (or courts) and they should not try to politicise the decisions of these institutions for short term political gain. This is a principled and constitutionally honourable position to take. But I suspect Michael did not clear this statement with her leader, Helen Zille, who seems to hold a different view.
In the wake of a report by the Human Rights Commission into the Western Cape toilet saga, Zille did exactly what Michael says political parties should not do: she questioned the political motives of a Chapter 9 institution and claimed that the Human Rights Commission was being abused as part of a dark conspiracy to tarnish the good name (if any) of the DA, stating as follows:
Three years ago when the City was locked in a make-or-break battle with the Province over the unconstitutional Erasmus Commission, Professor Pierre de Vos took me to task for saying: “some judges allow themselves to be used and, unfortunately, (Judge) Nathan Erasmus is one of them.” Today, I repeat that in relation to the SA Human Rights Commission: Some Chapter Nine institutions allow themselves to be abused and, unfortunately, the SA Human Rights Commission is one of them.
Instead of sticking to a factual and legal argument about why the SAHRC report might be flawed (something she had every right to do), she attacked the integrity of the Commission to try and deflect attention from the extremely embarrasing saga about open toilets. It is so much easier to attack the messenger than to deal with the substantive issues: the DA equivalent of “pulling the race card”.
Sadly, this is part of a broader pattern in which the DA in general and its leader in particular seem to have one standard for the ANC and other political parties and another standard for itself. It is as if the DA believes that it is exempt from the same standards it holds others to because it believes it is the only party who knows what is best for everyone (a rather patronising view) and that it is therefore the only party who can be trusted without having to be held to the general principles on which a functioning democracy is based. It thus sees itself being exempt from the duty to honour the principles it claims to espouse. “Do as we say, not as we do,” seems to be the DA motto.
Given our history and given the racial profile of the DA, one would be forgiven for concluding that the DA believes only white people can be trusted, that white people therefore do not have to follow general principles of constitutional democracy and good governance, and that white people are therefore allowed to deal with each situation on its own merits without having to stick to the rules it claims to respect and honour. Black people, on the other hand, must be held to a higher standard because they are inherently unprincipled and corrupt enemies of democracy.
When Gwede Mantashe attacked judges of the Constitutional Court as counter-revolutionaries, the DA rightly criticised this because the ANC leader was launching a personal attack on judges of the highest court and was undermining respect for the judiciary. But when The Dear Leader, Helen Zille, attacked the integrity of Judge Nathan Erasmus, a High Court judge, thus undermining respect for the judiciary herself, we were supposed to cheer her on. She argued that, given the facts, she had every reason to question the integrity of a judge. And besides, so Zille argued, the High Court had declared the Erasmus commission unlawful and her attack was therefore justified.
This is, of course, nonsense. The High Court (per Swain J) never found that Erasmus had allowed himself to be used by the ANC (as Zille had implied) and the High Court did not question the integrity or motives of Judge Erasmus. In fact, although Judge Swain found that the then Premier had acted with an ulterior purpose in appointing the Commission, he explicitly exonerated Judge Erasmus stating: “I wish to make it absolutely clear that I do not suggest that Erasmus J was in any way a party to such conduct“.
The High Court – re-interpreting the jurisprudence of the Constitutional Court in a rather “innovative” manner – did find that a judge should not have agreed to chair the commission, but the court made it clear that no ulterior purpose (as alleged by Zille) was present on the part of the judge. This fact was lost in the post judgment spin by Zille and the DA sycophants.
What was also lost was that the DA and Zille had actually not pressed the point before the court at all that Erasmus personally was allowing himself to be used or was biased. In fact, judge Swain explicitly found that he did not have to answer this question. The High Court therefore did not exonerate Zille regarding her personal attack on Erasmus as the matter was not pursued before the court by the DA lawyers (although it was raised initially). Lawyers are not stupid so they probably knew that there was no chance that a court would endorse Zille’s scurrilous attack on a sitting judge.
Of course, courts often find that other judges had erred, but this does not give anyone the right to call into question the integrity of the judge whose decision was found wanting by another court. Down that road lies anarchy and a complete disrespect for the judiciary.
Similarly, after the High Court had found in favour of Zuma in his case to have the search and seizure warrants declared unlawful, the decision was finally overturned by the Constitutional Court. This did not allow either Mantashe or anyone else to call into question the integrity of the High Court judges or the judges of the Constitutional Court. Neither the High Court nor the Constitutional Court had found that any judge involved in the case had acted like counter-revolutionaries, so Mantashe had no right to make that allegation. Like Zille, he was attacking and politicising one of the three branches of our democracy. Unlike Zille, he has not continued to defend the indefensible.
And of course, when serious allegations of wrongdoing or criminal activity by ANC leaders surface, the DA – once again, rightly, in my opinion – demand that the affected leader should be suspended or should step aside until such time as the allegations have been dealt with or the criminal case concluded. But when a DA MP was charged two weeks ago with raping a young woman, the DA blithely stated that it had no reason not to believe the denials of its MP, that the MP is innocent until proven guilty, and therefore that the DA would not suspend that MP.
The same pattern repeats itself over and over again. It tarnishes the name of the DA (to the extent that it has a name) as it opens the party to charges of hypocrisy and, worse, racism. It reflects a kind of arrogance that is often associated with someone who has been the Baas his or her whole life and is used to being the Baas and to tell others what to do and how to behave while not having to follow suit. “We are always right, we are always principled, therefore we do not have to follow the same principles we claim to hold so dear and demand others respect.”
No wonder the vast majority of black people (and most of the sensible white people I know) refuse to vote for the DA – despite the corruption and maladministration of many ANC led municipalities and provinces. Who wants to be lorded over by such a bunch of self-righteous and unprincipled hypocrites?BACK TO TOP