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.
It has now been 205 days since Schabir Shaik was released on medical parole because he was allegedly “in the ﬁnal phase of a terminal disease or condition” and was sent home in order “to die a consolatory and digniﬁed death”. (These are nor my words, but the words used in section 79 of the Correctional Services Act.)
Of course, we know that an individual can only be released in terms of section 79 after a medical practitioner treating the criminal had indeed diagnosed that criminal as being in the final stages of a terminal illness. We have also known for a long time that Shaik’s doctors never diagnosed him as being in the final stages of a terminal illness and that he was therefore released unlawfully.
After 205 days as a free man, Shaik remains very much alive. This is no surprise as he never was at deaths door when he was released. Despite the clear evidence that the release was unlawful, the Minister has steadfastly refused to refer the case the the Parole Appeals Board as he was obliged to do, claiming there was no evidence of wrongdoing. (Like the apartheid government who always claimed there was no evidence that the Police tortured and killed the opponents of apartheid, our Minister refuses to see what is before his very own eyes.)
The miracle here is of course not really a medical one at all. The miracle is that Shaik is getting away with this because he once upon a time paid bribes worth millions of Rands to our President, something our society does not seem to care about too much. Who cares that some animals are more equal than others? Who cares that poor, black criminals languish in jail and die there while well connected people like Shaik escape their punishment. Who cares about the principle of equality before the law. After all, there was no equality before the law during the apartheid era, so why should there now be such a thing?
Let us forgive and forget, I say! After all, this is the kind of thing the apartheid government did, so why should we be any better than they were. We have learnt well from our oppressors.BACK TO TOP