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.
In the article on Zuma versus Mbeki, which I linked to yesterday, the author suggests that President Thabo Mbeki was busy centralising control over the judiciary”. A reader wants to know whether this is correct.
As far as I can tell, this assertion is not correct. According to someone close to the cabinet, it was Mbeki who personally ordered the withdrawal of the draft legislation which would have amended the Constitution and would have given more control over the administration of the judiciary to the Minister of Justice. This was also reported accordingly by the Mail & Guardian.
Last month the Minister of Justice tabled two Bills – one dealing with Judicial Education and one dealing with the establishment of a complaints mechanism against Judges – which seemed to accommodate at least some of the concerns expressed by the Judiciary. The Bills largely left control over the training and disciplining of Judges in the hands of Judges and seemed to present a relatively sensible compromise between the executive’s impulse for control and the Judiciary’s need for independence. (Despite some problems with the legal education Bill.)
However, my source suggests that the Minister of Justice (read, Deputy Minister of Justice) has indicated to the ANC caucus that when the Bill comes to the Portfolio Committee (chaired by someone romantically linked to the Deputy Minister of Justice), they may want to change the Bills to enhance the role of Magistrates. The argument is that Magistrates should be treated as co-equal with Judges and should get equal space “at the table”.
Politically, Magistrates are perceived to be less independent and thus more malleable than Judges. Legally, the Constitutional Court has confirmed that Magistrates Court are hierarchically at a lower level than High Courts and are therefore fundamentally different. To treat Magistrates and Judges exactly the same therefore makes no constitutional sense.
I suppose some members of the Executive believe that Magistrates would be prepared to do the bidding of the Executive in the various forums created by the Bills.
If these changes are introduced during the Committee stages of the Bill, Judges will be extremely upset. The President will also be extremely upset. The Minister will, as per usual, not have a clue, while the Deputy Minister will work behind the scenes. Let’s hope cooler heads in the ANC prevail and no significant amendments are made to this legislation during the Committee stage.
Watch this space!BACK TO TOP