Our new Minister of Justice, Jeff Radebe, is a lawyer and has a Masters degree in International Law from that august institution, the University of Karl Marx in Leipzig, but he might need some assistance to bring him up to speed with the structure and principles underlying our own Constitution. And I am not sure cribbing from a student textbook is going to do the trick.
In an article published in the Sunday Times last month Radebe presented an extraordinary argument in defense of the decision by acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe to drop charges against President Jacob Zuma. As pointed out by James Grant in an article on Politicsweb, Radebe seemed to have borrowed extensively from a student textbook, but have fundamentally misunderstood (or deliberately misconstrued) what the Constitution actually requires.
In the article Radebe seems to argue that the National Prosecuting Authority is part of the judiciary and that criticism of the NPA or a legal challenge to its decision fails to respect the independence of the judiciary.
The constitution enjoins us to respect the judiciary, and that includes the acting national director of public prosecution’s decision to withdraw the case against Zuma. Therefore, to challenge the rulings of the judiciary, including those of the NPA, outside the due avenues of law is to invariably undermine its independence and hegemony in society. In essence, it is to invite anarchy…. It is incumbent upon all of us, in fighting our political or other battles, not to put into disarray our constitutional democracy, lest we invite chaos and anarchy merely for the expediency of narrow political gain.
Now that the acting director has acted in terms of the constitution and the powers vested in him as a judicial officer, opposition parties want to interfere with the operations of the law…. The opposition should not be selective in discussing the role of the director because, in terms of our law, he, in exercising his discretion as dictated by our laws, assumes a judiciary function. And the judicial function of the director has the same constitutional protection as that of a court of law or a judge. It is therefore crucial that the director be afforded the same protection against political influence.
This is a spectacularly uninformed, if self-serving, argument. In the light of the (probably illegal) firing of Vusi Pikoli this line of reasoning also seems hypocritical, to say the least.
The NPA is not part of the judiciary and does not exercise a judicial function. Neither does the NPA enjoy the same independence as our courts. It is true that section 179(4) requires that national legislation must ensure that the NPA exercises its functions “without fear, favour or prejudice”. But section 179(6) states that the Minister of Justice – that is Radebe – “must exercise final responsibility over the prosecuting authority”.
The Constitution and the NPA Act clarifies what, at first blush, might seem like a contradiction. This is done, first by allowing the Minister to decide on a prosecution policy in consultation with the NDPP. This prosecution policy binds the NPA and “must be observed in the prosecution process”. The NPA Act also requires the NDPP to provide the Minister with all the information he may require or request to exercise his responsibility but prohibits him from interfering in individual decisions of the NDPP.
Moreover, the Minister of Justice unfortunately seems not to understand that even the decisions of the judiciary are not beyond criticism – as long as the criticism focuses on the reasons given for a decision and not on the race, sex or political affiliations of the judge. A decision by a lower court can also be appealed to a higher court. In a constitutional democracy, even if the NPA was part of the judiciary (which it clearly is not), its decisions can and must be scrutinised and criticised. This will not lead to chaos or “put our democracy in disarray”. On the contrary, such criticism is an absolute necessity if we are to establish and strengthen the legitimacy of the courts (and also of the NPA).
But the most disturbing aspect of this article is that the Minister seems to have (let us be kind) a limited appreciation of the principle of the Rule of Law. He seems to suggest that once the NDPP made the decision to drop charges against Zuma and purported to have done so in terms of the Constitution and the law, such a decision cannot be reviewed by the courts.
No Minister, its time to go back to school. Where an organ of state like the NPA makes a decision to drop charges, the Rule of Law requires it to adhere to the Constitution and the law. The Constitution states that the NDPP can only drop charges in accordance with the prosecuting policy. If charges were not dropped in accordance with this policy, the NPA would have acted unlawfully as it would not have been legally empowered to do what it purported to have done.
The Constitutional Court has made it abundantly clear that where an organ of state fails to adhere to the Constitution or the law there is a breach of the Rule of Law and that decision would be invalid and could be set aside by a court. This is exactly what those who criticise the decision of Mpshe are arguing.While a court cannot order the NPA to make a specific decision regarding the dropping of charges, it can (and must do so if requested) declare invalid an unlawful decision by the NPA.
This is a fundamental tenet of the Rule of Law. I guess those learned colleagues at the University of Karl Marx did not teach our Minister the finer points of the Rule of Law or if they did, our Minister was bunking that class. As he is now the Minister of Justice it is rather important that Radebe brushes up on his understanding and knowledge of the Rule of Law and that he stops making self-serving arguments aimed at shutting up critics and pre-empting decisions by our courts.
Let us hope Radebe’s schoolboy cribbing and out of context borrowing from a student textbook will stop now that he has been appointed Minister of Justice and that he will respect the Rule of Law and the power of our courts to enforce it.
As I have always said, people should try by all to obtain local qualifications. Foreign qualifications tend to lack some of sort of credibility. Today Jeff Hadebe’s qualifications are under suspect from the learned professor.
Must say, judged on that extract the Minister of Justice is a juridical moron. What really bothers one is that by writing that drivel he was trying to influence ordinary people and the public discourse. But was he spectacularly mistaken or blatantly dishonest?
And this cry by all and sundry that the judiciary should not be criticised is also getting stale.. Everybody knows that they”re {because of the composition of the JSC} politically “vetted” by the ruling party – to put it softly.
But as soon as they”re appointed they”re supposed to be protected behind the judicial veil. “Royal game”. What nonsense – it is exactly that which allowed judges and magistrates in the previous dispensation to get away with the type of decisions chronicled by Bizos in his recent tomb.
It reminds me of that press release last year by the so-called Heads of Court to stop the criticism of the judiciary: But who sat on that body? His Honourable old Sloppy himself!
how about this for a bit of whip n tickle…
Jeff Radebe a zuma loyalist
hlophe a zuma loyalist.
Hlophe is now ready for arbitration to settle his disputes. how about that well lets look a little deeper into this.
lets by pass the JSC to make them look bias cos thats what will happen and establish a four- member panel of experts “to provide advice and guidance on how the JSC should deal with matters of this nature” because hlophe said the JSC is biased and if Hlophe said so well then it must be true because hlophe is a living legal god and its nice to be a loyalist to zuma because the ANC is in the business of human traffican friends to high places
Jeff Radebe under section 165 (4) of the constitution which provides that organs of state, “through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.
in other words through the very constitution that protects all of us and the justice department blackmail the JSC and the CC judges because the Jeff Radebe the one and only minister of justice being tactfully deployed will most likely swing in favor of hlophe so the CC judges must withdraw its complaint and then holphe will withdraw his plus they must apologies.
Thats the deal thats seems to be on offer by hlophe.
so through a loophole one can easily interfer in the indepedence of the judicary and the JSC.
but hey if that doesnt work well good old Jeff will just have to replace you guys with new members
such a clever boy hlophe
This should be interesting…
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20090518152746124C119313
In the very same article Radebe emphasised that “Our courts, as a rule, also cannot interdict the prosecution authorities from prosecuting when the latter have decided against it and cannot, as a rule, compel the prosecution authority to prosecute.”
If this is true prof, what then are the benefits of challenging the NDPP’s decision to drop charges against President Zuma?
Khutso, I’m not a lawyer, so perhaps you will get a more educated response in a short while, but my understanding is that the court action is to challenge the legality of the NPA dropping the charges against Zuma, based on the precept that the Constitutional requirements regarding adherence to prosecuting policy were not followed.
It follows logically that if the action succeeds, and the NPA is forced to reinstate the prosecution, they would be able to drop the charges again should they find some way to do so which satisfies the legal requirements re prosecuting policy. I for one however doubt they will be able to do so, given that they couldn’t find any real reasons the first time around.
But hopefully that gives you an idea of what the action is about…presuming I understand correctly.
I read this early, no one had posted. Struggled with it all day as I carried out my duties. As a continuation of these past lost years, as SA in my opinion is losing weight drastically, and the world has such hopes for us. Normally, I would have just let it go, wait for another post and inspiration. Well it happened tonight, for what ever its worth, while I prepared my garden veggies for my lover and child. Wrote an email to my former wife, now in Canada, in poetry, you’re welcome to delete if inappropriate. Herewith:
safe from the madness
of global opinion
and ceaseless acts of cruelty
where justice cries
even here
land of the divide
with separateness
of colour, of culture
a rainbow broken
black, grey, white
for justice they fight
yet the oppressors they own
capital, poverty, the middle way
winter storms prove all
blasting the poor
blue light brigades
careless shots, at those who dare
approach
thugs punch old west gun fights
AK’s, no Winchesters anywhere
bmw’s, mercedez, not a quarter horse in sight
the law
horse’s ass
glee and whiskey prevail
round and round and round
life goes old to new
ahh, but I like that old time rock and roll.
shuuuhhhh….after 2weeks not visiting this blog the good Professor is still going on about ‘last month’ articles on charges dropped even before elections – I mean, even elections themselves are a closed subject. Is this just pure laziness to contribute meaningfully to the public discourse OR mere intelectual bankruptcy Or a bit of both? Haai man!!!!
Prof, as much as I respect the ‘ I WRITE WHAT I LIKE’ rule, I dont believe redocumenting your well documented views over n over is progresive!
Spuy,
This is topical news. I hope you are aware of the application brought by the DA regarding Mpshe’s decision to drop the charges. It is coming up sometime in June.
I think the Minister is trying to influence that up coming decision. So this makes this post SO relevant.
Spuy,
If you had taken the time to read and not simply post nonsense, you’d have seen that the article prof refers to was written on the 18th of May by a WITS academic.
What we get from this is that the ANC promotes those who plaguarise (spelling) and it may even profit those of us at varsity – seeing as we have the wonderful Blade Nzimande, PhD as Minister of Higher Education. I wish that people would be accurate when they’re in such high positions.
I hope the DA wins its court bid because the NPA decision is a truly flawed one, at best.
I often hear people saying the decision of Mpshe to drop the politically motivated charges against Jacob Zuma was illegal. But i have yet to hear a legal argument in this regard. Being that the case, i will in the meantime continue to embrace the view that Mpshe was correct to drop the diabolical charges against the then president- in- waiting
Its questionable. I’m quite sure that Prof De Vos would have outlined those reasons a few weeks ago. The reasons advanced by the NPA were hardly convincing, the “authority” they relied on was foreign. The “authority” was further, not from a jurisdiction we usually borrow from and the decision was overturned on appeal. I believe the judge in question has said why it was improper to use his case as a legal basis for the conclusion.
Bottom line – it was dodgy and clearly political and not legally reasoned in a satisfactory manner.
Spuy and Zwakala, you seem to suggest an election can miraculously make illegal action legal. But it cannot. If 90% of voters agree that we should kill all foreigners this would still not be legal. Radebe is now Minister of Justice and has final responsibility for NPA, so it is rather important to highlight his views on this. An election does not change that.
By the way, see here http://constitutionallyspeaking.co.za/?p=957, here http://constitutionallyspeaking.co.za/?p=937 and http://www.thetimes.co.za/PrintEdition/Insight/Article.aspx?id=978686 for explanations on why the NPA decision was probably illegal.
Zwakala // May 19, 2009 at 7:55 am
This has been discussed in earlier posts, but here is a quick summary.
The Constitution says that decisions made by the NDPP must be without “fear or favour”. It also says that any decisions taken in respect of prosecutions must be taken in accordance with the prosecution policy (that is mentioned earlier).
The problem was, that the Mpshe statement did not even make reference to any aspect of the Policy, and it is hard to magine what part of the policy could have applied in this situation.
Therefore, the decision did not have a legal foundation or justification, and this is required. The term for this is that the decisionw as “ultra vires”, which means tha it was outside of the legal authority of the NDPP. He cannot take decisions unless he does so in terms of the law or the Policy.
This makes the decision “unlawful”. It is not that it is an action prohibited by law (that would be “illegal”), but it is an action that the law does not provide for.
However, given that the stated reasons were not entirely logical in their own right (he was taking a court’s role, and he referred to reasoning that was overturned, and the cases he used did not apply to us), there is a real suspicion that there must have been some other reason for making the decision that we were not told. If this is the case, then he had to have acted out of either fear (being threatened), or favour (being offered something, or just supporting Mr Zuma).
This last scenario would mean that he had knowingly breached the Constitution, which would be a serious issue.
@Mike Atkins, thanks for that Law101 analysis for us outside the field. I like the way you have simplified it which confirms my long held view that law is common sense.
Makes for an interesting court challenge next month dont you think? It would be interesting to read the NPA/Mpshe responding affidavit. It will be a revelation I hope and not further muddle the issue. This looks set to be a storm approaching in the wintry horizon of the month of June.
It will be the climax of the schism between the ANC and the DA after the last bout of stone throwing.
Is it going to be our winter of discontent?
Mike Atkins
Before you go far with the argument, you need to explain how Mpshe by not making reference to the prosecution policy has made his decision unlawful. If something is not illegal then what is the problem which requires a legal solution?
Professor
I do not know what you are talking about. However it is time for you to accept that there was a conspiracy to stop Jacob Zuma from becoming your president and my president. If you do not want to believe that; then you should have a valid reason to do so and you should not have a problem to share that reason with us so that we can engage you on it.
When i find time i shall read the links you have provided.
Zwakala // May 19, 2009 at 1:43 pm
look its like this, this is not rocket science to understand.
to quote a judgement from a judge from another country who has also publicly stated that the charges should not have been dropped shows that Mpshe did ((not apply his mind)) I put this in brackets because this is what the crux of the legal matter is therefore he acted against the very NPA policy which is to act with out:
Fear ( I.E any form of political pressure)
Favor( I.E for zuma)
Prejudice(I.E accusing McCarthy and Ngcuka without giving them the right to be innocent until guilty and with out giving them the right to hear the actual audio)
therefore it is ILLEGAL…
Is this still over your head?
Chris Mcdaniel
Please refer to my previous posting. I think it is not worth responding to your article. Save to mention that you will have to provide reasoning of what you mean when you say Mpshe “did not apply his mind”, if you want to take this argument any further. Please note that I am not trying to defend Mpshe nor anyone else but my intention is simply to get to the bottom of the truth. It is my wish to liberate people from slavery of unwittingly peddling their personal opinions fuelled by prejudice as expert knowledge.
Zwakala // May 20, 2009 at 7:35 am
firstly then maybe you should stop being so arrogant and follow up on the links that people have provided you first, if you want to get to the bottom of the truth. In other words do your research instead of coming across as callus.
Did not apply his mind……and why its illegal 101: it is my god given grace to educate people from lazyness
step by step
1) Mpshe cited alleged “abuse of process ( without regards to a formal investigation = Prejudice: what does prejudice mean? = illegal
2) Mpshe placed particular reliance on a 1991 House of Lords decision, R v Latif ( South Africa follows its own constitution)
3) a close analysis of Latif itself reveals that Mpshe’s reliance on the case as a judicial justification for discontinuing the prosecution of Zuma is misplaced and misleading. lets see how:
a)) what was the Latif case about: In Latif, the Court was dealing with the conduct of law enforcement and customs officials, not prosecutors!!!!!
b) Thus, the judgment relates to the conduct of officials involved in the investigation of crime, not the manner in which prosecutorial authorities manage a prosecution.
c) Latif was concerned with the discretion of a court not the prosecuting authority.
d) The Latif case therefore impliedly indicates that decisions regarding whether or not to stay a prosecution on the ground of an alleged abuse of process is one which only a court is properly entitled to make. NB!!!! In other words if Mpshe was reliant on the Latif case to give his reasoning he should of left it to the courts to decide
e) Mpshe through this act now became prosecutor judge and jury.
f) Mpshe by law has to weigh up policy issues against public interest by relying on international policys not the NPA’s policy he desregarded public interest = illegal
g) If McCarthy and Co had a political motive with the timing of charging Zuma it still has no bearing on the merits of the decision to charge in other words the evidence from Marituis and court orders for search and seizures on zuma and his lawyers is still legal and untainted.
Q&A:
1) the question you need to ask did Mpshe understand Latif case? the answer is no the Latif case is completely different to the situation of Zuma. iThe case was dealing with Entrapment its got no nearing infact its not on the same level as the situation with Zuma, Mcarthy and Co
2) Why wasnt the tapes given to court first to determine the authenticity of the audio but instead Mpshe acted against this and accused McCarthy and Co for political conspiracy without giving them the right to be innocent until proven guilty.
In order to claim political conspiracy there 2 things?
i) Entrapment
ii) Fabricating evidence
3) Why did Mpshe Copy word for word on a judgement that was over turned? because there was no other way to get passed Harms judgement. Please go see what harms judgement was.
Conclusion 101:
Mpshe was put under pressure from the ANC and looked for an easy way out. therefore acted in fear and favor.
His statement which is actually a judgement is sloppy because he has been found to have copied word for word on a hong kong judge which was overturned by an appeal court. Mpshe now finds himself to be contrived, disingenous and selfserving.
Did Mpshe apply his mind impartially and in good faith? the answer as ive explained in detail all up above is no.
Mpshe is not prosecutor judge and jury and there is still no proof of a conspiracy theory by the way unless you have that proof? because that was actually the basis for dropping the charges
PS im not south african. and to say statements like this:
opinions fuelled by prejudice as expert knowledge. the only one who is prejudice…. is you for not understanding or being to lazy to follow up on links and actual facts but instead you find yourself shooting your mouth off without given any evidence or legal links to back you side up.
Please provide me proof “im fuelled by prejudice? you making a judgement on something or on someone you actually know fuck all about thus you come across as being a smart ass. enjoy your day
Chris Mcdaniel
How can I enjoy my day after spewing such drivel on me? I thought when I came here I was going to face real debate but I guess I was wrong. You know why Chris you are always wrong on this Mpshe issue? It is because you are moving from a wrong premise. Mpshe is not required by law to apply his mind but he is simply required to apply the law! Can you discern the difference? Since you have said you are not a South African I will forgive you for not understanding our laws in this country.
For Mpshe to cite the judgment you are harping on about was simply gratuitous; what is of paramount importance here is whether Mpshe applied the law (including the prosecution policy) or not. Mpshe was faced with prima facie evidence about the political interference in the prosecution of Jacob Zuma. If Mpshe in his announcement said something like this: “it would be unfair to continue with the prosecution of Jacob Zuma given the evidence of political interference”; then he had absolutely applied the law as required of him. He did not have to quote any section in the Act or prosecution policy or cite case law to drop the charges against Jacob Zuma. I guess he cited case law simply to provide clarity.
Now it is time for you to face reality that Jacob Zuma will never be in the dock again. Remember this: Mpshe was required to apply the law not his mind.
Zwakala // May 20, 2009 at 1:49 pm
now look who is coming with an ulterior motive you clearly are backing Zuma so you will refuse to look at the actual facts and merits of evidence or what anyone is presenting you with legal reference.
if you can not apply your mind how can you expect to apply law and give a logical and legal reasoning? you simply cant what happend was a poltical solution not a legal one.
the fact of the matter is Mpshe did not make reference to the NPA and south african law and incase you seem to think i dont know much about your law south africa runs its own constitution and its own common law
over and above all of this since you seem to be such a legal expert then you should know very merits of the evidence is legal and is against Zuma.
But yet im not surpriced by your biased outlook as you still cant provide me a legal argument to back your claims or proof of evidence of a conspiracy. Why because there simply isnt any.
The fact is this is to higher grade for you because you seem to miss the logic of prejudice.
Im done with you cos ur wasting my time if you cant argue with me on legal terms with legal backing of links or case reference or NPA policies.
Zwakala – Let me come out in defence here for Chris McDaniel, and, if you had followed the debate from the outset, you would’ve seen that Chris is actually seriously debating the issue with proper legal arguments (not drivel). It is exactly because “Mpshe was required to apply the law not his mind” that lawyers worth their keep are saying that he did not apply the law.
The thing is, it is people like you who side-step the legal debate altogether with nonsens like Jacob Zuma should not be prosecuted because there was a political vendetta against him. Political vendetta or not, he has a clear case to answer. Political vendetta or not, Mpshe himself has decided to re-instate the prosecution against Jacob Zuma after reviewing Pikoli’s files with his so-called panel of experts, simply because there is an answerable case against him. It is only after some political ‘behind the scenes’ communication between Jacob Zuma’s lawyers and Mpshe, that he suffered a change of heart. Then, he did not apply (or even act as if he is doing so) the National Prosecuting Policy (which has been fully quoted and legally debated some time ago) and the Constitution (which is the Supreme Law, by the way, and should therefore have been applied by Mpshe according to your own conception of what Mpshe should have done). There is a constitutional duty upon the NPA to investigate and to prosecute all serious crime for the benefit of society, and it does not matter whether the suspected criminal is the head of sate or the head of police (or a judge, or a prosecutor, or a lawyer, or whomever) or whether it would not be politically expedient or not. The Prosecuting Policy clearly states that decisions whether to proosecute or not should not be coloured by personal favour or fear.
Seriously – it is with statements that smack of political bigotry like, “Now it is time for you to face reality that Jacob Zuma will never be in the dock again”, that people like you evade serious debate. If you have a legal argument, then bring it on man, but stop making nonsensical statements and then accusing people who do present legal arguments of evading legal debate.
lets test you theory that Mpshe must not apply his mind because thats not important.
Apply your mind round this (by the way i asked you to look this up bt of cause you didnt)
NDPP v Zuma (573/08) (2009) ZASCA at paragraphs 37-38:
” A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same apply to prosecutions.”
apply that mind of yours and give me a legal solution with south african and NPA reference.
have a nice day sunshine
@Mouse
you know what i find laughable about all of this Mouse is people are so convienced prima facie evidence of a political conspiracy exists because of transcripts not even the actual full audio but snippets of garbage is not concrete proof of this black ops conspiracy. OOOHHH the decision to charge somebody on this day or that day wow the biggest conspiracy in the history of man kind this tops JFK’s conspiracy and Roswell.
Im still yet to see this or even hear of this so called evidence….im sure the rest of us would like to know, hell im sure McCarthy and Ngcuka would even like to see this evidence.
prima facie lol man what a joke
The above thread concerning Zwakala’s confusion is a great example of the often confused, emotive driven logic that ANC supporters employ to justify their misplaced allegiances.
It shows that most individuals who support ‘comrade’ jz lack the ability to critically analyse but seem to be big on cronyism and corruption.
Well done Chris. Glad to see you stayed on course in the face of Zwakala laughable logic.
People should learn to accept defeat or admit to have been wrong. Things are what they are in this world because people do not want to be wrong; they want to be on the right side all the time even if they are wrong. That is what you Chris are doing. You do not want to accept the fact that you were wrong to say Mpshe was required to apply his mind as opposed to saying he was required to apply the law. In the sphere of law it is nonsensical to say so; but one is required to apply the law to the facts and that is what Mpshe did when he made use of the words like “unfair” and also referring to the political interference in the prosecution of the president. If to divert attention is your way of accepting defeat, then I say that you should be bold enough to admit that you were wrong; after which you should apologize to the people of South Africa for insulting their intelligence and for bringing the academia into disrepute.
By quoting the Harmse judgment you are again displaying your ignorance of our laws. You need to go and read the NPA Act to understand why Harmse was wrong in that paragraph. I wish I had time to engage you all on your skewed opinions. The fact that Professor is not interjecting it could mean he has also accepted defeat; he must apologize too!
Zwakala // May 21, 2009 at 8:07 am
what is wrong with u?, you wanted a legal debate im giving you a legal debate with legal arguments based on legal reference and legal quotes.
instead you seem to fail to back yourself up! if im wrong about Mpshe then back it up with legal quotes, surely this is what a debate is all about? How am I wrong ( with legal references PLEASE)?
so as far as im bothered I am right unless you can provide me a “LEGAL” quote or case law or ACT to back your self up and prove to me that i am wrong.
Im tired of this, i just wish someone could engage me with legal references for an actual debate instead i find a multies poodle yapping his mouth off trying to exercise how bloated his ego is with a hidden agenda of how great his god zuma is and spread more propaganda, news flash i dont give a shit about ur president, i give a shit about law.
Zwakala you have been found to be arrogant, a waste of time and an embarrassment who cant seem to stay on course.
As far as we can all see, your just a smart ass who knows nothing about what he is talking about or a smart ass because you cant back your self up with a legal point thus i conclude your just a smartass.
“The fact that Professor is not interjecting it could mean he has also accepted defeat; he must apologize too!”
and ego-testical to
Have a nice day.
Zwakala // May 21, 2009 at 8:07 am
I got abit of time here, so let me educate you abit on south african law.
South african law is wonderful why? well,one can find so many gray ares in it, so to apply law – well its not exactly cut n past now is it. hell you just need to look at your very own constitution still alot of gray areas and loopholes one can find and not exactly straight to the point.
So how are you going to apply law to something that is not realy striaght forward? well one needs to apply a legal mind first in order to give a logical legal reasoning on why you interpret the law in this manner.
See Mpshe applyed law, the wrong law because South African law is not binding on UK law or on Hong kong law, simply because south africa has its own constitution and its own common law.
Then you say this:
“but one is required to apply the law to the facts and that is what Mpshe did”
first of all what facts? HOng kong or on South africa? see what you fail to release his that fact which Mpshe was so relient on was over tunred by a higher court because his facts were based on Hong kong and not on south africa.
If he wanted to apply facts well then he should of applied the correct facts and should of placed it on south african law which is binding.
“By quoting the Harmse judgment you are again displaying your ignorance of our laws. You need to go and read the NPA Act to understand why Harmse was wrong in that paragraph.”
well please point out this section of the NPA act by your own ommission on how Harmes judgement is wrong goes to show your actual lack of knowledge of law.
please im begging you please educate me and point out what the act says.
i would ask you to stop being so arrogent and actually know how to debate, as you can see im willing to learn, so proof to me that im wrong.
must piss you off that someone from overseas knows more about ur law than what you do, but i must admit i do have an unfair advantage as i do this for a living.
Zwakala – “In the sphere of law it is nonsensical to say so;” – I take it you mean that it is nonsensical in a legal sense to say that a prosecutor should apply his mind to the facts of a matter before deciding to prosecute or not to prosecute. If that is the case, you have a rather convoluted understanding of the South African criminal legal system. If you are a lawyer, and that is the way you understand your law of criminal procedure, the NPA Act and policies pertaining to the NPA’s constitutional duty to investigate and prosecute serious crime, then I have my doubts on the integrity of the law school where you graduated. In order for a prosecutor (in this case Mpshe) to apply the law to a specific suituation, he has to apply his mind to the facts of the matter, in his mind weigh up the legal issues and determine (by applying his MIND) whether a specific prosecution would be lawful or not. If he doesn’t apply his mind to tyhe matter, the decision will be a nonsensical one. That said, when Mpshe, according to you ‘applied’ the law (not his mind – because, according to your argument he is mindless or brainless), he did so wrongly. This is probably because he chose to speak in quotations from a case that does not constitute law and has been overturned(probably because he did not apply his mind properly to the legal issues at hand) . You know, an ancient Tibetan Proverb has it: “Man who speaks in quotations, cannot speak for himself.” That seems to be true of Mpshe. Thing is, he took a decision (to overturn his own – or was it that of his panel of experts? – earlier decision to continue with the prosecution) that is bad in law and does not comply with the Constitution, the law, the NPA act and the National Prosecuting Policy (I don’t know how far you want to narrow down the concept of ‘law’ in the South African sense). And then you have the audacity to, without having any LEGAL argument to support your view, say that Harms’ judgment (with which the whole Appellate Bench agreed in every sense) is bad in law! You are a comic man! Which Circus are you with? Please provide legal arguments for your view, or it is you who will have to apologize to the people opf South Africa for insulting their intelligence. As far as your remark on Chris “bringing ‘academia’ into disrepute” is concerned, I surely hope you are not an academic (or purport to be one), because, if that is the case, then surely we do not only live in a Banana Republic, but also have banana Universities.
Zwakala // May 21, 2009 at 8:07 am
while im own lunch lets apply your mind
NPA act
Impartiality of, and oath or affirmation by members of prosecuting authority
…………………………………………………………………………………….
32.(1) (a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without
fear, favour or prejudice and subject only to the Constitution and the law.
…………………………………………………………………………………
In good faith (bona fides)?
Zwakala
what do the above mean to you?
lets brake it down
1. Moral ground -[Good faith (bona fides) = the mental and moral state of honesty, conviction as to the truth or falsehood of a proposition or body of opinion,]
2. Legal ground – [honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.]
what do we have
1) body of opinion, mental state, moral state = MIND
2) unfair advantage of illegal tapes over another person i.e McCarthy and Ngcuka = illegal
Conclusions
Mpshe did not act in good faith by plagirising an over turned judgement and making reference to a case law that has no bearing at the subject at hand, has no bearing on the merits of the evidence and has no bearing on south african LAW!
Mpshe did not act in good faith (MIND) by allowing an unfair advantage to Zuma with allowing him to present illegaly occupied tapes without investigating or going to court to conclude the authenticity of the tapes
Mpshe did not act in good faith (MIND) by accusing McCarthy and Ngcuka before assumed innocent and once again without proper investigations or hearing the full audio.
Mpshe did not act in good faith (MIND) by not listening to the entire audio
Mpshe did not act in good faith (MIND) by over stepping a court and making his own evolution from prosecture to judge to jury.
Mpshe did not act in good faith (MIND) and consider the merits of the evidence against Zuma.
good faith = honest intent = applying good state of mind =functions in good faith and without
fear, favour or prejudice = applying good laws=NPA act = SA law=legal
Mpshe acted in fear( Political pressure)
Mpshe through his actions acted in favor by allowing an unfair advantage to zuma by allowing the illegaly occupied tapes
Mpshe acted prejudice to McCarthy and Nqcuka
THerefore through applying my mind and legal reasoning through legal law i have come to the legal conclusion that the dropping of the charges was illegal.
I think you owe me an apology and everyone else an apologie.
What do you want me to quote from the law? I take that as a euphemism for saying you do not understand what I am talking about when I state categorically there is nowhere in the legislation or common law that says Mpshe must apply his mind instead of applying the law to the facts of each case. For now I will make it your homework to understand this “mystery”. Also bear in mind that I do not have a problem in quoting any legislation or case law. It is just that it is not worth it in this case. The issues under discussion are too obvious. It is you who have a problem. Having said that I have noted that there are people outside here who have taken exception with what I am writing here. I wish I had time because I still need to engage the Professor on this issue of judge Hlophe. Please tell those who get bitter when they see their arguments being demolished by Zwakala not to use (influenced of course by prejudice) what I write here to form an opinion about my character.
Zwakala – “Please tell those who get bitter when they see their arguments being demolished by Zwakala not to use (influenced of course by prejudice) what I write here to form an opinion about my character.”
Arguments demolished? Hoo boy!!!? … What an infantile response by someone who has not mentioned even one single legal (or moral) argument. … Better watch out for that chip on your shoulder that is developing, … everyone will start throwing salt and vinigar at ye.
I suggest you again read my post under Anonymouse // May 21, 2009 at 9:33 am
Anonymouse
lets just ignore this uber troll he clearly is just on here to spread some racist propaganda.
the guy must just go play with himself couldnt even debate himself out of a round hut.
Zwakala // May 21, 2009 at 1:47 pm
What do you want me to quote from the law?
this you numbnut
Zwakala
By quoting the Harmse judgment you are again displaying your ignorance of our laws. You need to go and read the NPA Act to understand why Harmse was wrong in that paragraph
why is it wrong give me reference to the NPA act to back your claim up troll?
This debate seems to be going in circles and is about a non-issue because of a lack of understanding about the Rule of Law. Zwakala seems to suggest where a public official exercises a discretion he does not have to apply his mind when he applies the law. This is a misnomer. Where the exercise of a discretion is fettered by law (as it is in this case), the official applying the law can only do so by applying his mind to ensure that he sticks to the law. (He can of course apply any other part of his anatomy but that would not be a lawful decision.) If the law says when I exercise a discretion to appoint someone to the post of deputy bottle washer to the President I can only appoint a “suitably qualified person” who “understands the nuances of bottle washing”. If I appoint my cousin I have not applied my mind to the matter and my decision will be unlawful. Not applying one’s mind in this case would be the same as ignoring the legal requirements for the exercise of the discretion. This is different where I did apply my mind but honestly but wrongly assumed that a suitably qualified person will always be a family member.
In any case, it is a non-issue and a good example of how some among us (to quote a former President) try to avoid the substantive issues by focusing on irrelevant and minuscule distinctions and then choose to argue about these distinctions. This is a classic move used when one knows one has no leg to stand on. Judge President Hlophe (amongst others) is very good at this kind of obfuscation. Here the question is: did Mpshe follow the prosecution policy when he dropped charges? What Zwakala needs to argue (but would find difficult to do) is that Mpshe did apply the prosecution policy despite not mentioning it in the reasons given. One will have to do this by referring to the reasons given and comparing them to the prosecution policy and making an argument that the reasons can be squared with the policy. So far no one has made this argument. Zwakala, why don’t you give it a go?
Pierre De Vos // May 22, 2009 at 2:33 pm
well pierre thats exactly what im trying to do with him….one of the biggest obsticles is Harms.
Mpshe tried through international law to get round this judgement and failed. Ive asked Zwakala to get round it through the NPA act…. and has so far not taken the challenge.
The reason why im harping on about applying mind is Mpshe is required by law to act in good faith ( good faith does not mean going to church and praying for Jesus Christ Super Star, it means moral state of mind), through his actions Mpshe broke the law by acting in fear, favor and prejudice and did not act in a moral state of mind which is required by the NPA policy to act with, instead he made a political choice which is without his scope. Through this action he has actually fabricated evidence by just accepting the transcripts to drop charges and has actually committed the Political conspiracy that he has now accused his former co-workers with.
The point is, referring to the reasons given by Mpshe is doomed to fail, the reasons are legally flawed as the judgement has been overturned, Mpshe reasons carry no weight whats so ever. it is a dead duck
logical step is for Zwakala to try get round Harms by using the NPA act…
The other logical step is for Zwakala to apply his mind to the actual heart of dropping the case….the illegaly obtained transcripts and to apply any law internationaly or localy that allows an advantage of this type.
And thats the crux of the Mpshe matter. No investigations into the tapes, No actual legal reasoning because really there is none with a dead and nil judgement and complete prejudice towards McCarthy and Co.