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 ANC sources Lekota also made a decisive intervention at the ANC caucus meeting last Monday during the debate about the Bill, telling those members of the caucus who oppose same sex marriage that they had no choice but to support the Civil Union Bill. Same-sex marriage was a matter of discrimination, not of conscience, and the ANC had always been against discrimination of any kind.
The reason for this support stems from Lekota’s days as a Delmas treason trialist in the late eighties. One of his co-accused was Simon Nkoli who came out of the closet to his comarades during the trial. This action and the debates it inspired (they had lots of time to debate in those Delmas prison cells) prompted UDF leaders such as co-defendants Popo Molefe and Patrick Lekota to recognize homophobia as a form of oppression. Nkoli tragically died of Aids related ilness in 1998.
It just goes to show how people can change their view once confronted with a real life homosexual/black person/American. I will drink a glass of wine in honour of Nkoli tonight. Without him, and without people like Lekota who saw the link between various kinds of oppression, the Civil Union Bill would not have been possible. Neither would our progressive Constitution.