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.
The defense had a high mountain to climb because it had not raised the constitutional issues in either the High Court or the Supreme Court of Appeal. In the Constitutional Court the most important argument raised by the defense was that Mr. Shaik had not received a fair trial because he was charged on his own and not together with Mr Jacob Zuma.
The Court reiterated that the right to a fair trial was a substantive right that went beyond the rights specifically enumerated in section 35(3) of the Constitution and in an implicit rebuke of the “Stalingrad” legal strategy employed by Mr. Jacob Zuma’s lawyers stated that:
It is also clear that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires: “fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”
This seems to suggest that the Court will not easily entertain technical complaints masquerading as high constitutional principle and that the accused would have to show that he or she was really fundamentally prejudiced by the actions of the state before there would be any chance of declaring a trial unfair and unconstitutional.
In this case, Mr Shaik’s lawyers had not shown that the applicant had suffered any prejudice. Mr. Zuma was asked to testify on behalf of the accused but he had declined (something I did not know before), but it cannot be said that this failure to testify had prejudiced the accused because it is impossible to predict what would have happened had the parties been charged together.
On a symbolic level this judgment reflects badly on Jacob Zuma (but his supporters seem immune to any moral opprobrium heaped on him) but I am not sure it is very significant from a legal perspective. It does not tell us anything about the legal issues most pertinent to the case and the court did not consider the non-constitutional arguments about the interpretation of the facts or the law.
The fact that the Court had decided not to allow one judge to sign his or her name to the judgment is very revealing though. This has only happened before in a hand full of highly charged political cases (including the floor crossing case and the Treatment Action Campaign case). It means the Court is acutely aware that the case would be scrutinised in the light of the succession race and the possibility of charges being laid against Mr. Jacob Zuma.
It reminds us of how poisonous the atmosphere has become in the run-up to the ANC December conference. Everyone is under suspicion, every judge a possible enemy. These are dark days for our democracy indeed.