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.
Yesterday the Inspecting Judge of Prisons, Nathan Erasmus, said that Schabir Shaik was not receiving special treatment merely because he spent the last month in hospital instead of the prison where he was sentenced to stay for 15 years. According to the Mail & Guardian:
“We checked the prison and medical records to confirm why Mr Shaik had been sent to hospital,” he said, adding that he had contacted Shaik’s own physician, Dr Somalingum Ponnusamy, for confirmation about his condition. Ponnusamy’s opinion was that Shaik’s condition warranted hospital treatment. Erasmus said that while Shaik was being held in a single ward, it was “equipped only with the bare essentials”, and he was under constant guard.
But this morning the Minister of Correctional Services, Ngcondo Balfour, announced that Shaik had been sent back to prison. The only possible reason for this move is surely that the Minister decided – after perusing the relevant reports – that Shaik was not sick enough to stay in Hospital.
This means that either Shaik’s doctor or Judge Erasmus or the Minister has been lying to the public. They can’t all be correct. Unfortunately the Minister is refusing to make public the report on which he based his decision.
This episode seems to have left a black mark against the name of the Inspector of Prisons. He was either far too credulous of Shaik’s doctor or he deliberately protected a politically connected prisoner from media criticism. Either way, his credibility is basically hovering just above that of the Public Protector at the moment and it will take some doing for me to take him seriously in future.
And doctor Ponnusamy? Questions suggest themselves: How close a friend is he of the Shaik family? Did he receive any money from said family for his diagnosis and if so, what amount? Should he perhaps be reported to the relevant authority?
Maybe he is a good man who had the wool pulled over his eyes or maybe the Minister is to blame, but how can we tell if the Minister is not telling us why he sent Shaik back to prison. So much for open and accountable government.