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.
According to the office of Judge President Bernard Ngoepe, arrangements were being made for the leave to be extended. The spokesperson then continued:
The judge President is just as much in the dark about this. The instruction (to extend Motata’s leave) comes directly from the Minister of Justice.
If the spokesperson was correctly quoted, both the Minister and the Judge President has much to answer for. Our constitution guarantees the indepedence of the judiciary and establishes the principle of the seperation of powers. Moreover, section 165(3) explicitly states that no person – not even the minister of Justice – or organ of state may interfere with the functioning of the courts.
This means that the Minister does not have the power to order any Judge to go on leave. It also means that any Minster who purports to have such power and who orders that a judge had to go on leave is in fact contravening the Constitution. If the Minister of Justice had indeed made this order as reported, she has behaved in a scandalous way. In a mature democracy such a Minister might well be asked to resign.
Worse still, if Judge President Bernard Ngoepe had meekly followed the instructions of the Minister as reported, he had failed miserably in his constitutional duty to uphold the independence of the judiciary. It is one thing for a Minister to be stupid enough to try and order the Judge President around, but it is unforgivable for a Judge President and his officials to behave as if this was acceptable and normal.
I must say I am not too surprised at the apparent abdication by Judge Ngoepe of his constitutional duty to safeguard the independence of the judiciary against inroads by the executive. I recall my astonishment at an Idasa sponsored round table, when Judge Ngoepe declared that judges had no business to get involved in the enforcement of social and economic rights because it would interfere with the work of the executive – despite the fact that the Constitution enjoins judges to do just that.
Those remarks seemed to be injudicious and exessively pro-executive, apart from also being ignorant of the Constitutional Court’s socio-economic rights jurisprudence. In our democracy, with its ostensible culture of justification, Judge Ngoepe owes us an explanation. He needs to tell us why he did not tell the Minister to go to hell.
Of course, the Judge President should not have needed the Minister to instruct him to act against Judge Motata. If he had one grain of common sense and any understanding of what was needed to protect the integrity of the judiciary he would have acted long before the Minister decided to get involved.
All in all, it stinks to high heaven.