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.
When Justice Minister Jeff Radebe (that guy who masterminded the scandalous decision of the JSC not to investigate the complaints of gross misconduct against John Hlophe because it feared that a real investigation would have to lead to the impeachment of Hlophe) gave a speech yesterday at the farewell for five justices of the Constitutional Court, he sounded rather defensive.
Instead of mouthing warmhearted platitudes about our highest court – as one would have expected of a good politician – he spoke for fifteen minutes in defense of the JSC. He said the true test of the JSC’s character was that it was “fair, honest, and focused on providing the president with a cadre of justices from which he will make his decision”. The test was “not the accolades that arise as a consequence of whom they did not short-list as much as who they did”.
Of course the JSC did not embarrass itself with the compilation of the Constitutional Court short-list, but rather when it made an inexplicable decision to let John Hlophe off the hook and condoned lying by a judge.
No matter what the Minister says now, nothing can erase the fact that the JSC decided that it had nothing to do with it that a judge of one of our highest courts had lied under oath (and maybe that same judge had lied several other times to the media or under oath – that judge being John Hlophe, seemingly a pathological liar.
The fact that the Minister is now so defensive about the JSC suggests that he does have some shame and that he feels a bit embarrassed about the indefensible decision of the JSC. Maybe this is a good thing as it suggests the Minister of Justice understands what is right and wrong, what is legally and constitutionally required and what cannot be justified – he just chose for expedient reasons not to do what is right and not to obey the Constitution.
That is marginally better than having a Minister of Justice who acts unlawfully and does not even recognise that his actions are scandalous. Maybe there is something to work with there. Maybe he can still be convinced that following the Constitution and the law is not optional and that condoning the lying ways of a judge in the long term will hurt us all.
If he does not and if he thinks it is perfectly fine that a leader of our judiciary continues on the bench despite the fact that he is a pathological liar and a skel, well, then god help us all.BACK TO TOP