Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
1 March 2007

Haikona Motata…

There was a mixed reaction to my comments here and here about Justice Motata’s appearance on Tuesday in chambers rather than in open court. While some emails lauded me for the harsh tone of my remarks, others argued that the prosecutor, Nazeer Cassim SC (degrees not obtained in Bulgaria, I presume), did not do anything that was illegal.

I do not want – and may not be competent – to argue about the question whether the action was legally acceptable or not. My point was that those involved should have acted according to the tenets of the Rule of Law, which requires an acceptance that we are all equal before the law and should not be treated differently because we happen to be rich and (at least in their own eyes) important.

Judge Motata evaded his constitutional and ethical responsibility – as a servant of the Constitution – to face the music. He most probably expected and demanded special treatment and was afforded such treatment, sending a signal that all are not equal before the law.

The response of critics also seems to be part of an emerging trend in public discourse according to which we are told that we are not allowed to judge public figures unless we can prove that they have broken the law and had committed a crime.

Thus Mr Jacob Zuma is “innocent until proven guilty” and we can therefore not ask awkward questions about why he took more than 1 million Rand from a convicted fraudster and then did favours for him in return while lying about it in Parliament.

Thus Commissioner Jackie Selebi admits that he is good friends “finish en klaar” with a person arrested for murder and we are told we must first prove he is corrupt before we start blaming him for nothing – how very dare we! Never mind that Mr Selebi has never denied the allegations that the accused had bought him expensive clothes and made some other payments to him.

There is a long list of such incidents where, in an Orwelian twist, those caught with their pants down are cast as the victims and those who ask the difficult questions about their nakedness are cast as the villians.

It is time that we eradicate the term “innocent until proven guilty” from the political discourse and reserve it exclusively for sparce use in the courtroom in criminal trails. It is used out of context to protect scoundrels and crooks and to demonise those who do not want to stop asking the questions that must be asked to help safeguard our democracy.

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