The reasoning of Judge Sebutinde in her dissenting opinion handed down in the International Court of Justice recently called to mind the stinging rebuke that South Africa’s Supreme Court of Appeal gave Judge Nicholson in the Zuma Case in 2009.

This was in response to Nicholson dismissing the state’s corruption charges against Zuma on the grounds that they were politically motivated. This is what the court of appeal said:

‘It is crucial to provide an exposition of the functions of a judicial officer because, for reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law. The underlying theme of the court’s judgment was that the judiciary is independent; that judges are no respecters of persons; and that they stand between the subject and any attempted encroachments on liberties by the executive This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.’

This is relevant because Judge Sebutinde referred specifically to the dangers of a court confusing its judicial function with a political one, and the importance of applying the legal test for a prima facie case, rather than the much looser and more subjective test of what the judges regarded as unproven but nonetheless plausible.

Moment of madness

We all know where Judge Nicholson’s moment of madness sent us. The endemic levels of corruption, the abuse of the state (state capture), riots and the collapse of public institutions and infrastructure are all a direct result of Judge Nicholson’s failure to behave as a judge should.

This resonates personally for me, as my father-in-law was the judge who convicted Shaik, only to have that decision shamefully subverted by Shaik’s subsequent parole. He thought that Nicholson’s decision was dishonest and that it showed just how far corruption in South Africa had gone.

I think that the same criticism can be made of the ICJ and for much the same reason. This is what Judge Sebutinde said:

 ‘Thus, even at this preliminary stage of provisional measures, the Court should have examined the evidence put before it to determine whether there are indicators of a genocidal intent (even if it is not the only inference to be drawn from the available evidence at this stage), in order for the Court to conclude that the acts complained of by the Applicant are, prima facie, capable of falling within the scope of the Genocide Convention.’

She found, following a judicial analysis of the evidence, that South Africa had not made out a prima facie case of an intention to commit genocide. Applying the prima facie test that normally applies in applications for provisional relief she stated that:

‘In sum, I am not convinced that the acts complained of by the Applicant can fall within the scope of the Genocide Convention, because it has not been shown, even on a prima facie basis, that Israel’s conduct in Gaza is accompanied by the necessary genocidal intent. Furthermore, the rights asserted by South Africa are not plausible and the Court should not order the provisional measures requested.’

But the majority did not apply this test.

Not necessary

They said it was not necessary to prove intent on even a prima facie basis. All that was necessary was to show that it was possible (not probable) that a finding of genocide might be made once all the evidence had been heard. In effect, what the ICJ was saying was that Israel had not shown that the allegation of genocide was impossible. I see this as a reversal of the onus of proof or, in criminal cases, the constitutionally protected presumption of innocence, on which the legal systems of democratic countries are based.

It is too early to say how badly this moment of judicial madness is going to affect the future, but early signs are not promising. Hamas of course welcomed the judgment and thanked South Africa for its efforts, as have other regimes who either hate the West or want Israel wiped off the face of the map. They, along with South Africa, have used the judgment to fuel a propaganda campaign that attacks Israel and through its proxy, the democratic system that characterises Western democracies.

And while the ICJ made it clear that their ruling was not a finding of genocide against Israel, it was a rejection of the legal principles and norms that apply in Western democracies.

The Western response has been interesting. On the one side the left has applauded the decision, but the response of most democratic countries has been to suspend donations to the United Nations agency (UNWRA) that is responsible for providing aid to Palestinians. This is because it turns out that many UNWRA employees were members of Hamas, and that some of them directly participated in the atrocities of October 7 and the hostage-taking that followed. The UNWRA itself has indoctrinated Palestinian children to hate Israel and Jews at its schools, and is still doing it.

I watched the recent United States Congress hearing into UNWRA’s conduct. It would be difficult to overstate the fury expressed by congressmen that children had been taught by a UN agency to hate Jews, and that this had been ignored by the UN for years, despite complaints from numerous countries and public interest groups.


The adage about capitalism selling you the rope that you use to hang yourself also comes to mind. Questions are being asked about why democracies are assisting countries and organisations that want to do them harm. The obvious answer is to stop doing so. This could have serious implications for the United Nations.

Sadly, South Africa has quite unnecessarily placed itself front and centre in this conflict and it seems that it has done so to advance the short-term interest of the ANC rather than the country.

I expect that there will be adverse consequences for what the ANC, and by extension South Africa, has done. I cannot see any good coming from it.

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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Ian Cox is an attorney in Durban, specialising in commercial law. In recent years he has become increasingly involved in the constitutional and administrative law aspects of environmental law-making. His particular area of interest is conflict between the ‘nature first’ or biocentric perspective adopted by conservationists and the ‘people first’ or anthropocentric sustainable development approach required in terms of the Constitution. In this capacity, he has taken on both an activist and advisory role in the fight to prevent trout from being declared an invasive species, and has helped the freshwater aquaculture industry challenge attempts to unreasonably regulate its industry. He has also advised elements in the game ranching industry. In his personal capacity, he made submissions to the High Level Panel on game breeding, hunting and trade.