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.
Because no accurate public polling data is available in South Africa to measure the voting intensions of members of the electorate, it is impossible to make any meaningful predictions about the outcome of the local government election, which will be held next Wednesday. In the past, available public polling data had consistently underestimated support for the African National Congress (ANC) and had overstated support for the Democratic Alliance (DA), so even if polling data had been available this data would have been less reliable than similar data in the USA.
I will therefore refrain from playing the ignorant pundit by making any predictions about how well the various parties will do in the upcoming election. In any case, as a middle class white person living in Cape Town, I do not have sufficient information about what is happening in various communities to make any sensible comments on the outcome of the election. Nevertheless, I will venture a few preliminary thoughts about the manner in which the election was fought — based on the manner in which the media has reported on the campaigns and on the election debates broadcast on radio and television.
(I make no comment about the nature of the practical aspects of the campaigns and the efforts made by political parties to get their voters to the polls, something that might be crucial as a low voter turnout by traditionally ANC supporters or DA supporters might well make a huge difference to the outcome of the election in various municipalities.)
Bearing these caveats in mind, the following aspects stood out for me.
But there is an important matter of electoral design that has also been highlighted by this election. This election campaign has been largely run as a national campaign and has not focused much on pressing local issues. We are often told that one reason why our national and provincial legislatures are not working as well as they should is because of the electoral system which makes those representatives accountable to their political parties and not to the electorate. If we brought back the constituency-based system, so some analysts argue, our representatives would be more responsive and accountable.
But at local government level half of the councillors are elected to represent geographical constituencies, and one would have imagined that those standing in these wards would try to demonstrate to voters in that ward how they would improve the lives of their constituents. Yet, although I stay in a fairly affluent area in Sea Point, I do not have a clue what the names of the ANC or DA representative is who is standing in the election for this ward. I have had no communication from the prospective ward councillors about how they intend to serve me and why I should vote for him or her. All I know is that my previous councillor is not standing for re-election. (Trust me, I was looking forward to see his face smiling at me from the lampposts!)
Which goes to show, even if one has a constituency-based electoral system very little would change as far as accountability is concerned. As long as elected representatives are in effect appointed by political party leaders, they will be accountable to those leaders and not to the electorate.
Because the ANC is not going to win this Sea Point ward (like most wards in South Africa, my ward is dominated by one political party), the DA leadership has in effect decided who will represent me and that leadership will also decide whether this councillor will serve another term after the next election.
Changing the electoral system will therefore probably not make provincial and national legislative representatives more accountable and effective unless the voting patterns of the electorate changed dramatically and the elections in most wards or constituencies became far more competitive. Even then, as long as party leaders in effect had the right to impose or remove candidates representing the party, the accountability might not be as strong as one would wish.
Predictions? Nah – I will leave that for the professional pundits.BACK TO TOP