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.
The Prevention of Organised Crime Act of 1998 has been a boon for lawyers, as (not surprisingly) many individuals who have had their assets seized in terms of this act have challenged the seizure. In the past year, no less than two such cases have ended up at the
The CC handed down judgment on Monday in the second of these cases in the matter of Mohunram and Another v the National Director of Public Prosecutions and Others. As a matter of constitutional law, it is not the most riveting case, most notably because the applicants never challenged the constitutionality of the act but merely challenged the interpretation and application of the act by the NDPP and the Supreme Court of Appeal (SCA).
I do think the judgment is fascinating though, mainly because it provides some clues on the politics of
She is obviously being groomed for a place on the court when Sachs, Mokgoro and O’Regan retire in 2009. On all accounts she is an able jurist with a demonic work ethic who holds strong opinions. If she makes it onto the court, she will be one of the more active members and with her formidable intellect she may have a significant influence on the jurisprudence of the Court in the years to come. Surprisingly, in this case she did not vote with the more progressive members of the Court to overturn the seizure of the property, so her politics is not as predictably progressive as that of Sachs or Mokgoro.
Once again Deputy Chief Justice Moseneke (pictured) finds himself on the side of the majority, while Chief Justice Langa signed on to the minority judgment. I have remarked before on how retired Chief Justice Chaskalson almost always found himself on the side of the majority because he had an uncanny way of persuading his colleagues to his point of view. It seems that soft-spoken and humble Chief Justice Langa does not have the same ability because this is not the first time that he has not managed to cobble together a majority for his position.
Deputy Chief Justice Moseneke is definitely emerging as a major player on the Court. He is fiercely intelligent and thoughtful, but also likeable and confident, which seems to help him in persuading other Justices to his point of view.
Lastly, it is interesting to note that this case landed up in the
Reading the case one is struck with the way in which the Court deals with the various SCA judgments on this matter as it would any other judgments of a lower court. More evidence that we now clearly have only one highest court in this country.BACK TO TOP