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 guess all politicians do it. Zuma does it all the time. Zille has done it to get rid of the Erasmus Commission. And now the whole Gauteng Provincial ANC seems to be doing it: hiding behind the constitution when it suits them.
In the case of the ANC the hypocrisy is unfortunately even more brazen than in the case of Helen Zille, as some of the same politicians who hide behind the constitution when their own is being probed, are quick to say that ¨criminals¨have too many rights, that the police should shoot the bastards, that rapists should not get bail.
So I cannot say I was too suprised when I read in Business Day that the ANC in the Gauteng legislature tried to block discussion of the Carl niehaus scandal by saying that the matter has been reported to the police and is therefore sub judice. (After all, we know from the apartheid days that the sub judice rule is – yes you guessed it – also the last refuge of scoundrels. According to Business Day:
ANC MPL Mathole Motshekga said Bloom should have read the constitution before informing the police. The law had standards on referring cases to the police and mentioning people’s names who were not involved in those cases.
I think what he meant to say is that one cannot lay a complaint with the police and make it public unless, well, unless the ANC has decided that he or she is guilty. This is of course utter rubbish.
The Constitution does say that every accused person must be presumed innocent until proven guilty in a court of law where this presumption helps to guarantee a fair trial. It says nothing about not being allowed to lay a complaint fo wrongdoing with the police against anyone and making that public.
It is of course for the dear police to dilligently investigate such complaints and to hand over the docket to the NPA who must then decide whether there is a winnable case. The statement is therefore nonsensical. Unless it is taking AS A FACT that Mr Paul Mashatile is innocent of any wrongdoing. Laying a malicious complaint to tarnish the reputation of a political opponent might well have some legal consequences in terms of the law of defamation, but in this case neither the ANC nor anyone else knows whether there is a winnable case against the Gauteng Premier. That is for a court to decide.
But who needs a court if the ANC itself – appointed by God to lead South Africa until Jesus come – has decided that a person is innocent. Fair trial rights only count for others after all.
And why is it that the same people who cry foul every time there is allegations of wrongdoing against the ANC – as if all these allegations were fabricated and it all just really is a dark plot – but think nothing to tell the electorate that the criminals must be dealt with more strictly. As if all the accused persons who are not ANC members do not have the right to be presumed innocent until proven guilty.
But this is the fact: even non-ANC members are not criminals before they have been convicted of a crime. So for Mr Zuma or the Minister of Police to say rapists must not get bail or that the Police should shoot the criminals is really encouraging the infringement of rights. If I was a rapist I would join the ANC – maybe they would tell the police to respect my rights then.BACK TO TOP