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.
I agree with commentators that there is almost no chance that the Constitutional Court will make any order at this stage to stop the adoption of the legislation to disband the Scorpions and incorporate some of its members into a special unit of the South African Police Service. The application is clearly premature and should have waited until the legislation was actually adopted.
But even then, chances would be slim for such an application to succeed because one would have to show that there is no legitimate purpose for the legislation (which would be almost impossible to d0) or one would have to show that the cabinet and Parliament had unlawfully abdicated its role as legislature and executive to the majority party leadership who had instructed them to abolish the Scorpions and had thus circumvented the Constitution.
If the Court made such a finding it would put severe strain on the system and might dent the credibility of the Court. AS the Constitutional Court has shown in the floor crossing case, for example, it would be extremely reluctant to get involved in such political controversies in the absence of a clear argument that one of the rights in the BIll of Rights are being infringed.
But some aspects of the legislation as it stanmds might be vulnerable. It states that “selected” members of the DSO would be placed in a new unit in the SAPS but it is unclear how these members will be selected. The members will also have to undergo a security clearance but as the Bill stands even that might not be sufficient as some members of the DSO may not be selected. This might infringe on the labour rights of the DSO members as set out in the Constitution.
Who decides who is “selected” to form part of the new unity and based on what criteria? As far as I can tell the Bill is silent on this. This is an ominous aspect of the Bill as it provides for the de-selection of some members of the existing Scorpions who might be working on the sensitive cases dealing with Mr Jacob Zuma na d Jackie Selebi.
If the Minister or the head of the SAPS can select or de-select who of the Scorpions should form part of the new unit this might open the possibility of rigging the process in such a way as to completely destroy the present investigations into high profile ANC types. This would be unconscionable.
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