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 ANC has asked Parliament to investigate the allegations against Loyiso Mpumlwana, who was nominated by the National Assembly as a full time commissioner of the South African Human Rights Commission. Mpumlwana was fired from the Truth and Reconciliation Commission after it was discovered that he defrauded the TRC. He was only one of four people the TRC instituted criminal charges against. One of the other three was PW Botha…..
The ANC is to be commended for this step. It will now request the President not to appoint Mpumlwana until a full inquiry has been concluded. In August 1997 the TRC issued the following statement:
The Truth and Reconciliation Commission is to lay charges against its former Regional Head of Investigations in the Eastern Cape, Mr Loyiso Mpumlwana, arising out of allegations that he was employed by the Premier’s Office of the Eastern Cape at the same time as being employed by the Commission.
The Commission will lay charges against Mr Mpumlwana for fraudulent misrepresentation. It will also bring a civil action to recover monies paid to him while he was employed by the TRC.
Mr Mpumlwana’s apparent employment by the Premier’s Office was brought to the attention of the Commission by that office after a recent report in the Mail and Guardian about discplinary charges brought against him by the TRC.
The charges were brought against Mr Mpumlwana during June as a result of his inadequate performance. After a disciplinary hearing lasting three days, he was found guilty of eight of 10 charges he faced relating to his failure to perform his duties. He tendered his resignation before the TRC decided what sanction to impose on him. The TRC accepted his resignation.
Well, Adv Mpumlwana should of course never have been on the ANC list of nominees for appointment to the SAHRC, but at least the party seems to have admitted to its mistake and might even rectify it. That would set a great precedent for the future. One assumes this means the party will also act against the criminals known as the Travelgate MP’s who stole money from Parliament.
Of course, if a proposal by the Asmal Committee on Chapter 9 Institutions had been implemented, this would never have happened. (Full disclosure: I was a legal advisor to this Committee so might be seen to have a stake in the implementation of its recommendations.) The Asmal Committee suggested that civil society be given an opportunity to comment on the quality and the suitability of a short list of candidates considered for appointment to Chapter 9 institutions such as the SAHRC.
This is because section193(6) of the Constitution states that the involvement of civil society in the nomination process may be provided for in line with section 59(1)(a) of the Constitution. That section requires the National Assembly to facilitate public involvement in its activities. As I wrote before, the Constitutional Court has stated that this means Parliament must provide for reasonable and effective participation by the public in the law making process (and also in the appointment of SAHRC Commissioners). Sadly, this was not done and now the National Assembly sits with egg on its face.
As Justice Ngcobo said in the Doctors for Life International case, the need for public participation:
[E]ncourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and to become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.
But public involvement also acts as a check on the Parliament to police it and to assist it not to make really bad decisions (as it did here). Maybe this sorry saga will convince the National Assembly to implement the recommendations of the Asmal Committee. Who knows, we might even get competent appointments to the SAHRC.
Whether the Travelgate criminals will be fired is of course another matter…. Wonder what PW Botha would have thought about all of this.BACK TO TOP