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.
Minister of Justice, Jeff Radebe, is a learned man. He obtained a B Iuris degree at the University of Zululand, and finished an LLM in International Law at the Karl Marx University in Leipzig in 1981. He also studied at the Lenin International School, Moscow in 1985, but it is unclear what qualification he obtained there.
It might be of no consequence that Radebe obtained most of his legal qualifications in a communist country. After all, the constitutions of most communist states described their political system as a form of democracy. On paper such states recognized the sovereignty of the people as embodied in a series of representative parliamentary institutions.
But here is the rub: Communist states such as that of East Germany and the USSR did not adhere to the principle of the separation of powers. Instead, they had one national legislative body (such as the Supreme Soviet in the Soviet Union or the Volkskammer in East Germany) which was considered the highest organ of state power and which was legally superior to the executive and judicial branches of government.
No wonder, then, that Radebe has some difficulty with concepts such as an independent and impartial judiciary and the separation of powers. They obviously did not teach that stuff in Leipzig or Moscow. Yesterday, Radebe got into a terrible muddle when he tried to defend the appointment of Adv. Mokotedi Mpshe as an acting judge. First he claimed that the appointment of a member of the NPA would not compromise the independence of the judiciary, amongst other reasons because:
Members of the NPA are paid by the government. The GCB makes a convenient omission which undoubtedly advances its course (sic) by not referring to instances where advocates and attorneys in private practice take positions as judges. These are legal practitioners who get briefed to appear on behalf of government and get paid by govt…who during their acting stints may have to adjudicate matters that involve govt.
Apart from the fact that Radebe confuses the government and the state (maybe because in Leipzig and Moscow in those days there was no distinction between the two?) his argument about payment of acting judges completely misses the point. Full time judges are also paid by the state, but no one has suggested that they are not independent because their institutional independence is safeguarded. The fact that members of the NPA are paid by the state is therefore not the reason why the appointment of Mpshe (or any other member of the NPA) as acting judge would infringe on the independence of the judiciary.
Rather the problem is that NPA members are state employees and are subject to the authority of the head of the NPA – unlike advocates who work for themselves (and are not answerable to the Minister or the head of the NPA) and university lecturers who are subject to the authority of their universities (not to the Minister or the head of the NPA). A member of the NPA appointed as acting judge will be required to serve two masters by being both subject to the authority of the head of the NPA and subject only to the Constitution and the law which he must apply without fear, favour or prejudice.
As the Lesotho court of appeals warned, where a member of the prosecuting authority is appointed as acting judge his or her “official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors”. Such a person will not be independent as required by the law because he or she will be accountable to someone with a direct stake in the outcome of criminal cases.
Which brings me to Radebe’s second brilliant argument. He says the Constitution guarantees the independence of the NPA, so an employee of the NPA could therefore not be said not to be independent when acting as a judge. Oh dear, they must have forgotten to teach either logic or reason in Leipzig and Moscow.
First, it’s great to hear the Minister has had a change of heart and now believes in the independence of the NPA. When he defended the appointment of Menzi Simelane a mere three months ago he made it clear that he did not believe in such independence. It is also great that he has now corrected his boss, President Jacob Zuma, who said two months ago that the government is the NPA’s boss. Now that he has changed his mind and believes the NPA is independent, he will obviously ask the President to fire Simelane, who has a different view.
Second, Radebe seems to have a bit of difficulty to understand the concept of independence. Even if the NPA is independent from the government, it prosecutes cases to court. An independent member of the NPA who acts as a judge may therefore be asked to hear a case prosecuted by one of his colleagues. Such an acting judge could therefore not possibly be independent AS A JUDGE because he will not be independent from the NPA who is prosecuting the case before him or her – if he is still employed by the NPA.
Radebe seems to be unaware that an independent member of the NPA cannot at the same time be independent FROM the NPA.
In any event, Radebe also announced that Mpshe had resigned from the NPA. If he had any sense he would have focused on that fact to answer his critics. But he could not do so, because that would have amounted to an admission that serving NPA staff should not be appointed as acting judges and that, in turn, might have required him to admit (gasp!) that he was wrong. And I am told people who studied in Leipzig in the eighties do not like doubt and very much hate being wrong.