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 abuse complained of in that case was that one of the accused persons had been incited by an informer and a customs officer to commit the offences in question and had lured him into the court’s jurisdiction. The court in Latif held that it was for a court to consider whether the abuse complained of was such as to justify a stay of proceedings. Mr Mpshe assigned to himself the role reserved for courts. If he had had proper regard to the decision in Latif, he would not have used it to justify the decision to discontinue the prosecution. Thus, he ignored relevant material such as the relevant dicta in Zuma, Latif and the appeal court judgment in HKSAR. The courts in the latter two cases were emphatic that allegations of abuse of process were within the remit of the trial court.BACK TO TOP