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.
Maybe I owe an apology to Helen Zille, leader of the Democratic Alliance? I harshly criticised her earlier this year for challenging the constitutionality of the Erasmus commission of enquiry set up by then Premier Ebrahim Rasool, arguing that she appeared shifty and less than honest. I was particularly scathing of her criticism of Judge Erasmus, saying that:
I was rather shocked and surprised to read that Mrs Zille had told a radio station that “some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them”….Mrs Zille attacked judge Erasmus in very personal terms and accused him of being abused and used by the ANC and did this in a transparent effort to undermine the credibility of the judge and of the Commission that he chairs. This is no different from the ANC Youth League and Young Communist League diatribes and shows a scandalous disregard for our Constitution. If Mrs Zille was really a woman of principle she would, at the very least, have apologised for the comment – yet when given the chance she declined to comment further on the matter.
But today a bench of judges agreed with Zille that Rasool’s motive had in fact been the “improper one” of seeking to embarrass his political opponents, in particular the Democratic Alliance (DA), which leads the city. Judges Kevin Swain and Chris Nicholson, sitting in the Cape High Court, also said the appointment of a serving judge to chair the commission is incompatible with the principle of separation of powers, and is therefore unlawful and invalid.
Luckily I did not comment on the legal validity of Zille’s argument – otherwise I would have had serious egg on my face. However, in as much as my comments might have been interpreted as suggesting she does not have a case, I definitely owe her an apology. The Court, presented with all the facts, found that this Commission was set up with a political motive and thus that Rasool had tried to abuse the judiciary for short term political gain.
I have not had sight of the full judgment yet, so I cannot make an informed comment of the correctness of these findings. But it clearly is a serious slap in the face of Rasool and a vindication of Zille.
But I still feel that it was inappropriate of Zille to criticise Erasmus for agreeing to chair this Commission and that the way she criticised him in a very personal way undermined respect for the judiciary. The Constitutional Court has made it clear that it is not always inappropriate for a judge to sit as a head of a commission of enquiry and without all the facts presented to the Court, it would have been difficult for Erasmus to make a call.
What the judgment seems to suggest is that judges should be very careful before accepting such a position and when in doubt they should decline an offer of heading a Commission of Enquiry. Erasmus might therefore have erred in this regard by not being extra careful.
This might have been a mistake. But I would contend it was also a mistake of Zille not to wait for the Court to make a decision on this matter before suggesting that Erasmus was somehow an ANC lackey. Even where a judge makes such a mistake it is for a Court to decide whether accepting such a position is compatible with the Constitution.
It is not for a politician to cast aspersions on the personal motivations of a judge where he or she is seemingly legally appointed to head a Commission of Inquiry. This kind of personal criticism undermines respect for judges and for the judiciary. Judges are not prevented from heading Commissions of Inquiry and if they are asked to head such a commission they might err in accepting such a position but this does not mean they are political lackeys of a particular politician or party.
So, Helen Zille, apologies. But please, next time think before you personally criticise the motives of a judge even before a Court has made any finding on the appropriateness of such a judge sitting as the head of a Commission of Inquiry.
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