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 Free State has passed legislation disbursing R30 million to political parties for the election and this R30 million has already been distributed among the political parties in the Free State. This is, how shall I put it, illegal and unconstitutional. It is also unconscionable, given the fact that the Free State has stopped putting new patients on ARV’s in November last year because it claims to have run out of money and about 30 people die every day because of this decision.
Every political party who illegally received this money must return it forthwith – or maybe they can buy ARVs with the money and donate it to the relevant Free State hospitals. That way they might actually save some lives and the illegal act might actually do some good.
Provincial Legislatures do not have any powers except those given to it by the Constitution and it can therefore not make any laws except on any issue clearly defined in the Constitution. Section 104 of the Constitution makes clear that Provincial Legislatures can only pass legislation for its province with regard to those functional areas set out in schedule 4 or 5 of the Constitution or otherwise assigned to it by the national parliament.
Schedule 4 and 5 deals with important issues like housing, health services, education and casinos (and some not so important issues like abattoirs and provincial sport) but says nothing about elections. Just to underline this blindingly obvious fact, section 236 of the Constitution states that:
To enhance multi-party democracy, national legislation must provide for the funding of political parties participating in national and provincial legislatures on an equitable and proportional basis.
One needs not be a constitutional lawyer to understand this. One only needs to be able to read and have a wish to obey the Constitution. Members of the Free State Legislature apparently lack one of these vital attributes and would therefore rather breach the Constitution than, say, save the lives of people dying of Aids.
I trust the national treasury will instruct the political parties to return this money they have stolen from the people forthwith and will instruct the legislature to use this money for something legal – like saving lives. Meanwhile the bright spark who came up with this idea should be fired. If it happens to be an ANC politician in the province one would hope that the new ANC under Jacob Zuma will put its money where its mouth is and will discipline the comrade.
If they do not want to expel this member so soon before the election, they might order him or her to go and work in the mortuary to help bury the citizens of the Free State who are dying every day because of the financial mismanagement in that province.
Just a thought.BACK TO TOP