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.
Carmel Ricard reports in The Weekender on a decision of the Supreme Court of Appeal (SCA) to overturn the murder conviction of Jewell Crossberg, a Limpopo farmer who killed a man and then claimed he was shooting at baboons and suggests there are racial tensions to be viewed between the majority of judges and the minority opinion written by a black judge.
This week, however, the appeal court upheld Crossberg’s appeal , finding by a four-to-one majority that he had not deliberately shot to kill Dube or anyone else, but that he had been criminally negligent.
The court said there was a “fundamental misconception” that Crossberg’s defence was that he had mistaken the deceased for a baboon; that was not, in fact, the true nature of what Crossberg had claimed in his defence.
He had said he had fired two shots into the bush to scare off baboons he had seen crossing the road. He also claimed the shots were fired at sunrise, while driving east , and he could not see well.
In addition to clarifying the “baboon” issue, the majority of the court strongly criticised the state’s handling and presentation of the case against Crossberg. However, three decisions were written in connection with the appeal outcome, and they disclose significant tension between members of the bench about the correct approach to the matter and the outcome.
But Justice Danston Mlambo disagreed with this decision and wrote a minority opinion,
Navsa’s decision, supported by three of his four colleagues, was followed by a second judgment, written by Judge Mlambo, which adopted the opposite position. In his dissenting decision Mlambo said his colleagues’ criticisms of the state were misplaced and Crossberg had suffered no substantial prejudice because of the missing statements.
In his view, the farmer did not see a troop of baboons in the vicinity because there were none. Humans could be “effortlessly distinguished” from baboons and it was clear Crossberg had always known he was shooting at people and not animals. He would therefore have dismissed the appeal and upheld the murder finding.
Ricard seems to suggest that because the minority opinion was written by a black judge and because the case was seen as racially charged this suggests that there were racial tension amongst the judges. This may or may not be true but it is difficult to say by just reading the judgments.
It does suggests though that different judges can look at the same evidence and come to a completely different conclusion and that perhaps this process may be influenced by the perspective of the individual judge. Whether they drive a Porsche say, or not, might thus be relevant….BACK TO TOP