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.
My colleague from Stellenbosch University, Prof Sandra Liebenberg has written an excellent piece on the notion of transformative constitutionalism. I could not have said it better:
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The notion of ‘transformative constitutionalism’ has found a deep resonance in the jurisprudence of the courts, academic literature and civil society campaigns for social justice. As our constitutional institutions are feeling the strain of recent developments, it is fitting to reflect on some of the challenges which face the realisation of this transformative vision of the Constitution. …
The first challenge concerns the increasing signs of the emergence of a narrow, patriarchal nationalist identity with its characteristic penchant for the exclusion and marginalisation of ‘the other’. This was most graphically manifested in the explosion of xenophobic violence earlier this year. However, its insidious presence can also be detected in the reactions of the Labour Minister and BEE leaders to the court’s ruling concerning inclusion of South Africa citizens of Chinese descent in empowerment legislation, the daily ‘bureaucratic violence’ dished out to refugees, asylum-seekers and other categories of non-nationals in their attempts to gain access to basic services from government departments, the endemic violence against women and AIDS activists, and the horrific conditions in which prisoners are incarcerated in many prisons in South Africa. These phenomena are the antithesis of a constitutional project which values human dignity, interdependence and a diverse society.
Secondly, the statistics continue to tell the tale of increased socio-economic disparities in wealth. The on-going systemic inequality and deep conditions of poverty afflicting a large proportion of the population risks making the constitutional commitment to social justice and an improvement in people’s quality of life seem hollow.
Finally, there are the subtle undermining and the not-so-subtle attacks on the foundation of a constitutional state – the rule of law and an independent judiciary. The subtle undermining refers to the trend which has emerged of many government departments failing to respect court orders. This has a long history stretching back to the government’s failure to respect orders of the courts primarily in the Eastern Cape and KwaZulu-Natal to ensure that social grants are paid timeously and are not unlawfully terminated. The courts have struggled valiantly to deal with this phenomenon through a range of mechanisms such as maintaining judicial supervision over mandatory orders against government departments, making awards of constitutional damages against the relevant departments, citing government officials for contempt of court, and even threatening to make government officials and the heads of department responsible for paying the costs of cases out of their own pockets.