Constitutional Hill

A tale of two judges

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way — in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. – Charles Dickens, A Tale of Two Cities

The revealing interview of Justice Mogoeng Mogoeng by the Judicial Service Commission (JSC) this weekend and the subsequent decision of that body to rubber stamp the decision of the President, reminded me of the famous quote from The Tale of Two Cities reproduced above. We saw the best of judges and the worst of judges sparring with each other. As Xolela Mangcu wrote about this tale of two judges:

Moseneke stood as a symbol of authority and Mogoeng as a beneficiary of power. The question is which, then, will be the real leader of the Constitutional Court: authority or power? By nominating Mogoeng, President Jacob Zuma may well have taken our judiciary down a path where power trumps authority.

We also saw some ordinary citizens, perhaps expecting so little from themselves and from our system of government or deciding to go along with the decision of the President so that they would not alienate the government from which they need to receive work in future, cheering on mediocrity and power for power’s sake. We saw other citizens, animated by a belief in the core values embodied by the Constitution and the belief that as South Africans we deserve the best, who were shocked by what they saw, perhaps unrealistically yearning for authority to trump brute power in our political and legal discourse.

We saw some JSC members prepared to walk in the light of reason and to deal with the painful facts and we saw other members skulking in the darkness of unreason and emotions, displaying a remarkable lack of appreciation for the robust nature of openness and accountability in a system that is worth calling a democracy. And as is often the case when reason clashes with unreason, facts did not stand in the way of those who had no rational arguments to make.

Thus, some commentators and JSC Commissioners have questioned the bona fides of those who have asked critical questions about the suitability of the “nominee” to become Chief Justice, claiming that such people were animated by a hatred of the President and never support any decisions of the President or, worse, claiming that such people confronted the facts because they were racists. This is, of course, a lie. When justice Sandile Ngcobo was “nominated” as Chief Justice, many of us (who have asked questions about the suitability of justice Mogoeng’s appointment) enthusiastically supported the nomination of Ngcobo. Although we might have believed that Deputy Chief Justice Dikgang Moseneke was a better person for the job, we did not say so, but sang the praises of the nominee because he was clearly a man of integrity, somebody with a towering intellect, somebody whose judgments have demonstrated that he is imbued with the values of the Constitution.

In the same manner we cheered on the appointment of Deputy Chief Justice Moseneke and of Chief Justice Pius Langa – even if we had our political differences with then President Thabo Mbeki who nominated these candidates (all of whom happened to be black).

I suspect that the interview over the weekend would have been interpreted completely differently by different people, depending on their political views, their knowledge of the law and legal processes, and their ability to get past shallow emotions to a place where facts and reason reside. For the first group, justice Mogoeng might well have emerged as something of a hero, somebody wrongly vilified by nasty people with an axe to grind. After all, the nominee did not come across as the ogre depicted by Zapiro, nor as a bumbling fool, and he passionately, aggressively and sometimes bitterly defended himself against the sharp criticism levelled against his judgements and his judicial philosophy and displayed a moral flexibility much admired in politicians.

I happen to find myself in the second group who was deeply troubled by what emerged at the JSC, based not on emotions but on the facts and an analysis of the issues at hand. In this sense the interview was more revealing than expected.

Justice Mogoeng justified some of his rape judgments and the seemingly patriarchal reasoning employed by him in those judgments by claiming that he was merely following the precedent set by the Supreme Court of Appeal (SCA) to which he was bound as a judge, what I would call “the SCA made me do it” defence. He thus justified his views that women abusers who are “provoked” by the victim deserve leniency, that rapists who know the victim should also be given some leeway, and that child rapists can legitimately be described as having been “tender” to the child he raped because the injuries sustained by the child were not as horrific as in other rape cases, by claiming that this approach is in line with the law. The problem is that these views are not in line with the law as it has developed after the end of apartheid.

These justifications were revealing because they suggested a lack of knowledge of the law and a lack of knowledge and/or lack of respect for the legislature who has spoken quite forcefully on this issue. Thus, in defence of his judgment in S v Moipolai (handed down in 2004, ten years after the advent of democracy) in which Mogoeng stated that it was “highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that he caused her to fall, and thirdly to punch her because her sense of decency and privacy did not allow her to share the same bed with the father of her children and another woman”, justice Mogoeng relied on a judgment of the SCA in S v N, handed down at the height of apartheid in 1988. In that judgment the Appellate Division (as it was then called), displayed the kind of patriarchal values that was rife amongst apartheid era judges by stating that it was permissible to take into account  as a mitigating factor in sentencing in a rape case that there was an intimate relationship between the rapist and the survivor.

Of course, since 1988 the legal landscape in South Africa was supposed to have changed dramatically. This is what some of us mean when we talk about the “transformative” nature of our legal and constitutional system. We adopted a new Constitution in which the rights of women are now protected. Parliament passed sections 51 and 53 of the Criminal Law Amendment Act 105 in 1997, providing for minimum sentences to be imposed on rapists unless compelling circumstances existed to deviate from this. This was done exactly to prevent judges with patriarchal views from imposing inappropriately lenient sentences on rapist based on criteria that says more about the sexist assumptions of the judge, than on the way in which the survivor might have experienced the rape.

In 2001 the SCA made it clear that knowing the rape survivor would NOT constitute such a compelling circumstance that would allow for a reduction in the minimum sentence. (One could add that ordinarily it should be an aggravating circumstance that the rapist knew the survivor — at least for anyone imbued with the values enshrined in the Constitution – because the effect of being violated in this way by somebody one knew would be devastating for the rape survivor.)

Mogoeng’s justification for his rape judgments is therefore surprising as it suggested that our Chief Justice designate was at the time when these judgments were handed down wholly ignorant of the new legislative environment and the constitutional values embodied by the legislation. It also suggested that the nominee might have been unaware that the SCA had developed our law in this regard to bring it in line with the Constitution and the relevant legislation. Whether ignorance of legal precedent and legislation should be a disqualification for appointment as Chief Justice, I will leave for every reader to decide for him or herself.

Mogoeng’s defence of his “dissent” in the Dey case was perhaps more bizarre and therefore more damaging to his image. Apart from the fact that his defence was less than plausible, it also contained in it a serious admission. Justice Mogoeng claimed that he was given little time to decide on whether he agrees with the other judges of the Constitutional Court that it would never per se constitute defamation to call somebody gay. He did not give reasons for “dissenting” from this view, Mogoeng claimed, because he had not really had time to apply his mind to the issue at hand.

This argument — if indeed true — appears more like an admission of a dereliction of duty on the part of the nominee than as an exculpation for not providing reasons. Surely when a judge sits on the Constitutional Court and indicates that he or she disagrees with the opinion of colleagues and if he or she is then asked to provide reasons for the disagreement but refuses to provide such reasons, one would assume that the judge did apply his mind to the matter but decided for strategic or other reasons not to provide reasons for the disagreement. Can one ever indicate disagreement with others without having applied one’s mind to an issue? To me it sounds a bit like claiming to be half pregnant — not something widely accepted as possible amongst doctors or people with any knowledge of the human body. How could one possibly indicate a disagreement without having thought about why one is disagreeing? To me, at least, this explanation makes no sense and does not ring true.

When one is a judge and is required to decide where one stands on all the important issues before the court, one is required to apply one’s mind to all the issues at hand and if one disagrees with the majority judgement on any issue one is required to provide reasons for this disagreement. A failure to apply one’s mind to the issues at hand would suggest that one has failed to live up to one’s judicial oath of office and, in effect, that one has refused to do one’s job properly.

I imagine that for many non-lawyers justice Mogoeng’s defence might ring true. After all, we have all been in situations where we have been pressed for time and have not given an issue as much thought as one would have liked to. As a member of a tea club one might well have failed to form an opinion on whether the dues of members should be increased or not. But the difference is of course that most of us are not judges and are not required by the Constitution to uphold the law, to apply our minds to the issues raised by a case before us and to provide reasons for our decision.

And what happens now? I have heard talk of civil society groups challenging the constitutionality of the process followed by the JSC on the grounds that the JSC had failed to engage in proper consultation with the President on this issue as required. It is argued that this is so because the JSC had decided that it was impermissible for it to consider whether other candidates may have been more suited for the position. How can there be a meaningful exchange of ideas if the one party exchanging ideas sees its role in such narrow terms, some have asked? This is a plausible, perhaps even strong, legal argument.

However, I am not sure it would be in the interest of the judiciary or the Constitutional Court for this matter to be litigated as it might further damage the credibility of our judiciary. Long drawn out litigation may well turn into a highly politicised and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice.

While it would be good to get some clarity about the meaning of the constitutional provision requiring that the President must consult the JSC BEFORE appointing a Chief Justice, a legal challenge will probably ultimately not change anything as it will be based on procedure and not substance and will not necessarily lead to a different outcome — given the fact that the President does have the constitutional power to appoint a Chief Justice. Would it be possible to approach a court to give clarity on this legal point without asking for the decision of the JSC or the President to be set aside? I am not a procedural lawyer, so I am not sure how to answer this question.

In any event, President Zuma will now appoint Mogoeng Mogoeng as the new Chief Justice, despite the fact that the nominee has been tainted — to some degree, at least — by the process of his appointment. (Depending one one’s view, the nominee would have been tainted either by the “vicious attacks” against and “onslaught” on him by dark forces, or tainted by the close scrutiny of his judicial views and temperament.)

My fervent hope is that the new Chief Justice will be able to demonstrate through his words and deeds over the next ten years that those of us who asked critical questions about his appointment and about his values and commitment to the Constitution have been mistaken. Maybe the gruelling process may have allowed the nominee to reflect more seriously on his commitment to gender equality and the dignity of gay men and lesbians and might have brought a change of heart. Maybe he might have realised that he ought not to rely on his personal religious views — as far as they clash directly with the values enshrined in the Constitution – when he considers cases coming before his court. I, for one, will keep an open mind.

  • David

    “Mediocrity is a handrail” – Baron de Montesquieu

    For at least the last 10 years this country’s watchword has been “mediocrity”
    This can be seen in the schooling system, the executive and even the judiciary. The JSC is particularly guilty of accepting mediocrity over excellence.

    The jurisprudence tradition of South Africa has been steadily deteriorating, judges are appointed without the skills, and often not even the capability, that is required to do the job.

    The imminent appointment of Justice Moegeng as the CJ is merely confirmation of this downward tread.

    Ironically Baron de Montesquieu, the author of the above quote, is most famous for his theory on the separation of powers, one of the pillars that our constitution is founded on.

  • Vuyo

    I similarly was not impressed by his responses. He relied less on appealing on his technical legal ability and more towards the irrelevant, (e.g. Obama is 6 months younger, other judges have had sons appearing before them, etc). All this reveals a man not steeped in the technical aspects of law, but in pragmatism and “common” sense. I also was surprised by his righteous indignation at the accusations against him (many of them that were spurious, e.g. age, former prosecutor of a homeland, etc). You would expect that, as a lawyer and senior legal practitioner, he would have become accustomed to criticism or at least would have expected criticism. His imperious attitude was therefore very shocking and convinced me fully of his unfitness for the office. He is surely the worst of Zuma’s appointments. As to the conduct of the commissioners, the least said the better (although Moseneke must be fully commended for executing his hard duties with aplomb).

    Typically, PdV, you write a good thesis and spoil it with irrelevant and/or unprincipled conclusions. In this regard I refer to your comment: “However, I am not sure it would be in the interest of the judiciary or the Constitutional Court for this matter to be litigated as it might further damage the credibility of our judiciary. Long drawn out litigation may well turn into a highly politicized and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice”.

    Principle is principle and should never take into account considerations outside of principle. A principle of utmost importance remains that the truth ought to always be upheld. The reality is that the JSC process of nominating the CJ is a farce (notwithstanding its decade’s long precedent). You cannot be said to have properly consulted where you nominate one individual absent of allowing others of presenting nominations. This is the opposite of consultation and is simply tyranny and contravenes basic constitutional foundations, particularly legality. Amazingly, for irrelevant considerations (damage to the judiciary) you propose that lobby groups should not litigate in respect of the process followed. You are therefore acting less than a jurist and more like the politicians you criticize so often. Indeed, you are acting like a hypocrite, as you regularly remain silent when conduct by third parties (which can be perceived or is in reality as damaging to the executive and legislature) occurs. I doubt you’d ever advocate self-censorship in the press in the name of preserving the good name of the government! Amazingly you choose such an approach in the name of preserving the good name of the judiciary!

    The JSC processes are subject to legality. Legality requires substantive. If the JSC and its members refuse to amend their procedures to ensure such substantive consultation then it is up to the citizenry to litigate in order to ensure compliance with the law. The hypocrisy of all of this lies in the shameful conduct of the commissioners who in their support of the president’s nomination have chosen to throw principle to the dogs. These very members would be up in arms if a JSE listed entity were to “nominate”, regularly, white candidates for executive management positions and then afterwards refuse to consider other nominations on the basis of precedent! All of this is scandalous and shows to prove that it is not only whites who have a monopoly on retrogressive views!

  • Vuyo

    “Legality requires substantive” = legality requires substantive consultation.

  • Lebohang B

    Justice Mogoeng as chief justice will certainly bring about an exciting contrast to the Constitutional Court. For many years, the constitutional court justices have lived under a protective caveat, their political/religions views were hidden and only speculated without any great certainty.

    With the acceptance of his nomination, Justice Mogoeng is going to be the first of a new breed of justices. Make no mistakes, the rule of law is still the rule of law, however we will experience a much more robust, proactive court. I am glad that the way is now paved for this ‘transformation’. As far as Institutional Security is concerned, the con court has laid sufficient jurisprudence for everyone to get with the program, no need to worry much about its independence or impartiality either, our democracy has matured somewhat to guard this.

    Fear not fellow South Africans, change is necessary for progress to take place. Those who oppose his appointment, the time will certainly come for you to nominate your ‘chosen one’.

  • Superintendent George Lindeque: Murder and Robber

    This whole “consultation” thing is utter tosh.
    Once Zuma took his pick, it was cast-in-stone, REGARDLESS of what would come out of the “interview/consultation” process.

    NO way was he going to subject himself to the embarassment of having to withdraw his nominee, especially after the Ngcobo debacle.

    The relevant provision in this case is itself unbelievably ridiculous.
    The Constitution OUGHTS to very abundantly dictate that there be a a) multiplicity of nominees interviewed by the JSC and then b) consultation with Zuma, who’ll then take his pick.

    This one-horse race makes a mockery of of this country’s democracy.
    Friggin’ JOKE!

    As for the nominee himself, NOT impressed. In fact, I’m DISGUSTED.
    Leaving aside the many reasons given against his nomination, his refusal to provide reasons for a judgement is ENOUGH ground to dismiss this arrogant, bigoted temperamental intellectual midget.

    “I didn’t apply my mind.” What? You fooken kidding me!
    The world doesn’t need such pricks as Mogoeng and that gobshit Kenneth Moshoe.
    Moshoe opposing the appearance of that gay bloke in parliament because in his religion’s averse/unaccepting of “such people”.
    Bloody CAKE!

    You think everyone gives a rat’s backside about your religion and your God? Well we don’t, cretin!
    STOP imposing your useless religion and morality on everyone.
    That goes for everyone else of their ilk.

    This IS a FREE world. People can be of any persuasion, any sexual orientantion etc, they want.
    If you don’t like it– which you don’t have to– you can lump it.

    “Gays/lesbians- not normal.” Normal to who? Who decides what’s normal and what isn’t, huh? For who?
    Shit man!
    So sick of bigoted, narrow-minded, self-righeous society we live in.

  • Superintendent George Lindeque: Murder and Robber

    Edit: Murder and RobberY.

  • sirjay jonson

    The question that now presents itself is: apart from chairing the JSC, just how exactly are his powers, known views and limitations going to effect the CC?

    Yes, its a wait and see situation. My question is how much influence will he have in the decisions through the long years to 2021.

  • Michelle Solomon (@mishsolomon)

    Have you seen Mogoeng’s responses to those cases held against him? I would like to here your response on this, but I was appalled.

  • Superintendent George Lindeque: Murder and Robbery

    Mogoeng isn’t a suitable candidate, let alone the most suitable one.
    Knowledge of the law, intellect, ethics, wisdom, everything, he ticks NO box.
    How he was appointed to the highest bench in the land in the first place I cannot for the life of me understand.

    That this man is going to sit on the same chair sat on by the giant, very immense jurists such as Langa and Ngcobo is a disgrace of the worst kind.

    It’s not long ago that the latter showed commendable wisdom and humility to withdraw in light of the controversy his nomination for an extended term had visited on the office.
    Exactly what this Mogoeng should do, albeit for different reasons.

    If he had the remotest bit of wisdom, he’d have known that there are FAR better suitable candidates than him, and therefore, knock back Zuma’s overtures.
    Doing that wouldn’t have been a sign of lack of ambition on his part, no, but of wisdom, honesty and humility.

    The fact that he accepted the nomination when he KNEW there’s demonstrably a better, more suitable bloke for the job to me shows a selfish man with no regard whatsoever for the judiciary but only his own ambitions.

    For Zuma, this wasn’t about appointing the most suitable candidate, no, rather, it was about roping in the most convenient one for his own political purposes.
    So logically, Moseneke NEVER had even the remotest of chances of even being mooted, let alone getting friggin’ appointed.

    The whole arena’s politicised. So I disagree with the Prof that courts shouldn’t be used to settle political scores.
    Cousin, courts, the judiciary, IS used for such purposes.

    This Mogoeng saga is a judiciary being abused.
    How many can actually convince me that Moseneke is lesser than Mogoeng?
    If there’s anyone out there, then please, convince me.

    The judiciary’s long been used settle them political issues.
    If the DA and other lobby groups wish to pursue this matter in court– for whateveq reason– let them.

    Zuma and his cronies should be moaning about folk abusing the judiciary. This is a game of their OWN creation, and they’re merely being played at it.

    My sympathies really go out to Deputy CJ Moseneke.
    Such a towering figure, giant of a jurist who’s served the people of this country with distinction and humility and has been a great credit to his profession and to every man and woman out there who takes pride in their work.
    Respect, Deputy CJ.

  • Linda

    Wow, beautifully written coming from a scholar true to our Constitution and its transformative vision, constitutional values and rights. As the judgments of the designated chief justice speak for themselves, so do your words speak for the person you are and the way you care for the people of South Africa. Thank you.

  • Superintendent George Lindeque: Murder and Robbery

    Ag, man! Edit: should’NT.

  • Mike Ambassador

    Well Said “Superintendent George Lindeque: Murder and Robber ” I was also gob smacked when I heard him say he did not apply his mind ……is that not his primary function and why he gets a huge salary paid for by my tax. Surely that is grounds for a disiplinary hearing.

  • Belle

    WOW Vuyo!! Brilliantly articulated. My thoughts exactly.

  • Belle

    First test for the new CJ …. how he handles the POIB … WHEN it comes before his court.

    Can anyone provide a timeline on when the rest of the CC judges are due for replacement? How long will it take for the ANC to reach a point where they ‘own’ the court’s majority?

  • Lebohang B

    There would not today be a need for this debate, had the Constitutional Court through its interpretation of our Constitution exercised proper judicial restraint. Instead, in my opinion, we have seen many cases (or traces) of some sort of activism on the part of our Justices.

    Public opinion has gone out the window, as clearly visible in the cases of Makwanyane and Doctors 4 life. This does not do any good for the image of the court, or does it. Seems to me the court had been riding the high wave for too long. Hand picking cases, living a fallacy that they are protected by the current ruling party, so long as they did not step on their toes.

    Time for the judges to be judged….and Mogoeng is back by God himself.

  • John Roberts


    “The jurisprudence tradition of South Africa has been steadily deteriorating, judges are appointed without the skills, and often not even the capability, that is required to do the job. ”

    This is Africa and Africans, whilst insisting that there is no difference between an African and a European, do things the African way, which is different from the European way even though we’re the same !

    Skill is an imperialistic notion.
    Capability is a European fabrication.
    A job is just there for money and nothing else. It doesn’t need to be done properly. Not in Africa by Africans.

  • D Mwangi

    “There would not today be a need for this debate, had the Constitutional Court through its interpretation of our Constitution exercised proper judicial restraint. Instead, in my opinion, we have seen many cases (or traces) of some sort of activism on the part of our Justices. Public opinion has gone out the window….”

    True. The contentiousness of these appointments is a function of people’s desire to use the judiciary as a means for social engineering. Anti-democrats who believe a majority of their fellow citizens are too benighted to be persuaded to enact their policy preferences should question whether millions of freedom fighters died for the right to self-rule or to be administered by a judicial oligarchy.

    I enjoyed this post, though. It’s alarmism had some amusing elements.

  • malome tom

    in matters very much like this one the discourse is often polluted by protagonists who for whatever reasons pursue nefarious agendas. and this makes it hard for one to have a fair public (media etc) enquiry as to the suitability of this man for the job. the reaction to his appointment was hysterical (the sobriety of your own responses not withstanding pierre). the discussion automatically became polemical as opposed to fair intellectual debate on mogoeng’s lack of published material (judgements and otherwise), his bizzare explanation that he relied on cases ‘in front of him’ (??) in the Moipolai case (as opposed to researching and finding new, more applicable ratios on rape and women’s rights – laziness). thus people who would’ve otherwise not supported him, like ntsebeza, find themselves politically compelled to support his nomination.
    fact is, he isn’t the best man for the job, but let’s not be naive here, the attack on him was political in many instances and it annoys me that that form of attack crowded out other modes of ‘attack’ particularly from groups like nadel (please reference nadel’s submission, it is perhaps the most devastating indictment on mogoeng’s intellectual unsuitability for the cj role) and Advocates For Transformation. All we heard was the same familiar whine which often dressed itself up as a sophisticated proxy of swart gevaar. and the narrative of the opposition was reduced: he is a zuma appointee, he is conservative (so what? on both counts) therefore he must be useless. we all lost on this one

  • sirjay jonson

    Superintendent George Lindeque: Murder and Robbery
    September 5, 2011 at 17:36 pm

    I wish to ad my thanks to your post.

    At some point, the inevitable (last straw to break the camel’s back) ramifications will take effect and South Africa will begin to rise again. I await Her (SA’s) next miracle.

  • izeze

    sirjay –

    “,,, and South Africa will begin to rise again”

    Ja, sirjay. Maybe when Jesus comes back. Or never. Whichever comes first.

  • Brett Nortje

    D Mwangi says:
    September 5, 2011 at 18:53 pm

    Oh, shut up!

    Where are those millions buried?

  • sirjay jonson

    I have to comment here, although perhaps I should not. However, I am tired of being called a racist because I am against the criminality of our government. I couldn’t care less what color they are, those of the regime, the new monarchy, the new bosses. I care only for the principles of human rights and the Constitution of the Republic of South Africa and weep that gangsterism has taken hold at the highest and unfortunately, middle and lower levels as well.

    I have four children of black descent, and have dealt with racism towards my cross color line marriages for years. I was raised as a Christian to love the jews, to never think or express a harsh word towards them for all the pogroms they suffered. My parents totally accepted and loved my ‘black’ wives. Racism of any sort was abhorrent to them, and to me also, most fortunately.

    The criticism by the chattering classes towards this proposed anointment of our new and unworthy CJ is not racist. Our concerns have to do with the Constitutional supreme law, principles, values, and what is good for the country, which is only that capable to move us forward.

    It is a sad day in South Africa today… we can only hope and pray that a shift comes soon. And remember, it is the majority who are really being shafted, although our minorities are as well.

    True Democracy is easily observed as successful or not… in the treatment of minorities.

  • Brett Nortje

    I really, really hate to agree with Vuyo…

  • sirjay jonson

    Agreed Brett: but it’s great what he posted. Good on ya Vuyo.

  • malome tom

    sirjay, good for you. your enlightenment doesn’t change the fact that some of the attacks on mogoeng was ad hominem and racist.

  • sirjay jonson

    @ Brett: going back to Canada late December for a traditional family Christmas. First time in seven years. I’m returning for a month as head of a large family who selfishly abandoned them for the sunny climes of South Africa; they the family (six children and others) have finally offered to sponsor my trip back so they can see their dad. Will be joining my brother as well, a leading arbitrator, amazing litigator (never has lost) at his lodge a thousand meters above the amazing Columbia river in the Rocky Mountains at mid winter.

    I’ll think of you while surrounded by snow, wolves and caribou, and indeed I’ll drink a SAfrican brandy and coke in your honor.

  • sirjay jonson

    And while I’m at it Vuyo: I do so humbly apologize for the ANC apologist comment.
    Thank you for bringing it to my attention.

  • John Roberts

    @ malome tom

    “some of the attacks on mogoeng was ad hominem and racist.”

    O kak man.
    List the racist attacks. And give compelling reasons why they were racist.
    Otherwise shut up and stick to picking your nose.

  • sirjay jonson

    @ malome: I have to agree with JR on this one. Can you give compelling reasons why complainants and media are racist on this issue. Earlier, this was the thrust of my own post. I, and I believe many others, who also don’t believe or feel they are themselves active un-self controllable racist, we who don’t believe that our complaints about the inherent damage which is likely from such a post (I mean, really, 10 years) for this appointment… that we are racist. We believe his beliefs are contrary to the Spirit of the Constitution and that his beliefs will effect the decisions of the CC to detrimental result. Can you with reasonable argument convince us otherwise?

  • malome tom

    sirjay, please read my first comment above. i too didn’t, don’t support his elevation to the role of cj. some of the response to his nomination was hysterical and played the man. ironically much of the line of attack was levelled against ngcobo, albeit not as vituperatively. my contention is that these types of attacks in a way defeated the overall purpose of proffering a solid case against mogoeng. the arguments for instance citing his lack of experience or his ‘traditionalist’ reasoning in mcbride, very familiar laments of unreconstructed types in the field of law. those criticisms didn’t hold water and revealed certain prejudices. no-one cited experience with other judges on the cc who have less experience than mogoeng (and before someone says it is CC experience that matters, our constitutional jurisprudence is still in its nascent stages so, none is infinitely more experienced than the other).
    and some people found him unsuitable merely because he is conservative, as if in itself that’s a bad thing.

    some of the response to him was typical reflexive south african responses to the appointment of black people to positions of power. which in effect diluted the very real criticisms of mogoeng and found him supporters where he would have had none

  • Brett Nortje

    That’s a Maggsism.

    So black people can speak truth to power but white people must stay stum.


    “some of the response to him was typical reflexive south african responses to the appointment of black people to positions of power.”

    Perhaps you ought to re-examine what black people are appointed to positions of power.

  • etienne marais

    Vuyo: you’ve ticked all of the boxes…great post.

  • Maggs Naidu –

    September 5, 2011 at 15:50 pm

    Hey Vuyo,

    Well said.

    “The reality is that the JSC process of nominating the CJ is a farce”.

    And a disgrace!

    It’s sad to have witnesses first hand the calibre of most of the commissioners whom our judiciary relies on.

    At least we had the opportunity, thanks to M-squared, to see what actually goes on in that circus.

    Oh well, rent a crowd is not only a feature in nominations of local government councillors.

    p.s. I’m thinking that there is a god who resides in a particular church somewhere. Dead people can walk again, AIDS is cures by snake oil, winning Lotto numbers on demand. And the highest offices are just a prayer away.

    Even ASOS (acquired sexual orientation syndrome) will be reversed with the humble touch.

    The Reverend, His Excellency should think of joining them to bolster his 2012 bid.

  • Mikhail Dworkin Fassbinder

    I am just happy that integrity and Christian loyalty have prevailed against a RACIST white liberal media assault.


  • D Mwangi

    Brett Nortje says:

    “Oh, shut up!

    Where are those millions buried?”

    I don’t know why you must immediately devolve into such condescension.

    Those millions were buried in every corner of this beautiful country over the course of many, many years. In fact, some of them didn’t even receive burials. Anyway, it is fallacious to assume that because we have not unmasked a mass grave yet, we can have no idea how many gave their lives in the struggle.

    The point of my post was that if minorities treated Africans with dignity, they would respect them enough to engage them in rational discourse and try to enact their policy preferences through persuading the majority rather than imposing them on the majority via the judiciary.

    I do not know if Brother Mogoeng is the best candidate for the job but I do assert the following:

    1) To claim that the appointment of one member to an 11-member body who all have equal votes is a threat to democracy, borders on hysteria.

    2) One would not be bothered in the least by his appointment unless they believed the following:
    a) he would base his rulings on things not legitimately considered Constitutional legal tools
    b) he would base his rulings on legitimate Constitutional legals tools but would de-emphasize, or interpret differently, tools his detractors would use or believe ought to be used to support a ruling that would impose their policy preferences

    If he commits a), he is wrong. But as I stated, he is one member of an eleven-member body and his vote would obviously only be the decisive in a case in which at least five other members agreed with his conclusion.

    If he commits b), he is being a judge whose worldview happens to draw legitimately different conclusions than yours.

    In which case, you must stop paternalistically trying to impose your policy preferences on Africans and persuade them. If you think there is something wrong with the JSC process, persuade your fellow citizens. If you believe there is a right to X (but reasonable people can disagree about deducing it from the Constitution), persuade your fellow citizens there ought to be a right. If you believe there is no right to X in the Constitution (but reasonable jurists can disagree), persuade your fellow citizens there ought not to be a right.

    Africans fought and earned the right to self-governance. Cases like Makwanyane and Doctors 4 Life undermine this right and negate the sacrifice of all those who gave their lives so that we could say how we want to be governed.

    Aristotle said, “Man is a rational animal.” He did not say “Man is a rational animal– except for Africans.” You would realize even your gardener has the capacity to reason if you stopped condescending (and trying to use the judiciary to protect your interests) long enough to engage him in democratic discourse.

  • Brett Nortje

    I would rather just try to persuade you to be truthful, if you can.

    There are no millions of dead freedom fighters. That is a flight of fantasy on your part. The bodycount of black victims of white oppression is rather low in the context of the country’s history.

    Nothing like the count of Thabo’s AIDS victims, for a start.

    If there was a point to your post, you have buried it under falsehood.

  • Thomas

    I plead ignorance but I have a few questions.

    Why was the honourable judges appointmnt to the CC not criticised?

    If the honourable judge was to be appointed would his judgements be final and the eleven (11) Cjs judgements be overruled?

    What are the views of the other eleven judges on: rape, women, child abuse, homosexuals etc?

    Most appointments by the president have been criticised and attacked how do I as a citizen not feel that this is the same attack even in this case?

    I how do I as a normal citizen make up my mind on this matter when the facts are not placed on the table?

  • ewald

    Prof, feel free to remove this comment if you think it may be defamatory. The more I listened to what Mogoeng said and how he was saying it, the more uncomfortable I became with his ‘psyche’ and was not surprised in conversations I had with two psychologist friends who watched him suggesting that it would not be difficult find a diagnosis if one would use the DSMIV.

    I was struck by his repressed violent anger and sudden swing to overly subservient ‘humbleness’ and being both victim and victor at the same time. There is something fraying on the borders and I know because I also received a signal from God, and it was coming through the tv.

  • John Roberts

    “some of the response to him was typical reflexive south african responses to the appointment of black people to positions of power.”

    I have to know …. how do you morons dream up this shit ? Have you no common sense of your own or do you just think like a black ?

    The argument may hold some water if the guy’s record was impeccable.

    I think you may feel differently if your 14 year old daughter was raped tenderly. Anybody who condones that deserves ad hominem attacks. Maybe you’d care to explain that judgement to all us racists ?

  • Belle

    malome tom, you make the same mistakes that Maharaj, Ntsebeza, and other defenders of Zuma’s nomination make:

    You focus entirely on those hysterical critics who (wrongly) decried Mogoeng’s supposed lack of experience.

    You ignore entirely the vast majority of critics whose concerns related to Mogoeng’s sympathy towards men with urges, fury at men who rape men, his acceptance that paedophiles can be tender, and evidence of his poor ethical judgement.

    Can you challenge these points instead, please?

  • abidam

    In the Concourt case of The Citizen vs Robert McBride, where McBride had sued The Citizen for defamation over its critical comment, the majority decision was mainly for The Citizen. But Mogoeng, in a minority decision, agreed with McBride.

    In the JSC hearing, Mogoeng, explaining this, said we have to strike a balance “between the right to freedom of expression and the right to dignity”.

    Presumably he referred to the dignity of McBride and not the dignity of the people killed, mutilated and injured by the bomb he planted at Magoo’s Bar.

  • malome tom

    belle, please re-read my own criticisms of mogoeng above. there’s no point in saying that i focus only on the hysterical responses. there’s no way you can read what i wrote above and still come to that conclusion. and i do not ignore what other’s have said. once again, just re-read what i wrote above.

  • Maggs Naidu –

    “Having considered concerns raised by various bodies regarding the suitability of Justice MTR Mogoeng for the position of chief justice… on allegations, inter alia, of homophobia, gender insensitivity, want of ethics, lack of judicial experience, his faith, temperament and judicial accountability, Justice Mogoeng’s written response to those allegations and his interview, the commission is, by a majority, of the view that Justice Mogoeng is suitable for appointment to the position of chief justice… ”

  • malome tom

    and for the record, ntsebeza is on record as saying that he didn’t support the nomination. so let’s not make easy arguments

  • Peter John

    “My fervent hope is that the new Chief Justice will be able to demonstrate through his words and deeds over the next ten years that those of us who asked critical questions about his appointment and about his values and commitment to the Constitution have been mistaken.”

    Oh vain hope!

  • Maggs Naidu –

    malome tom
    September 5, 2011 at 18:56 pm

    Hey MT,

    “fact is, he isn’t the best man for the job”

    The fracas is not over the ‘best [person] for the job’.

    For now it’s suitability.

    Overall the impact of the CJ wrt judgements of the CC is minimal.

    It’s unlikely that the CC will suddenly become ‘executive minded’ as a result of the possible nomination.

    Those arguing that he is suitable are basing that on rather stretched realities – he’s Black, suitably qualified, came from humble beginnings, put together some course packs, can wear contradictory hats while upholding the constitution and some other silly stuff. Oh and any CC judge (or any judge for that matter) should be (unless otherwise established) available for nomination for the top post.

    Oh well – this will forever be President Zuma’s Chief Justice if appointed rather than SA’s CJ.

  • me

    why isn’t anyone pointing out that there are shades of intolerance for other people’s religious beliefs here? to wit, many people are crucifying the nominee because he is a christian.

  • Maggs Naidu –


    Maybe M-squared was on to something.

    A Frenchman has been ordered to pay his ex-wife €10 000 in damages for failing to have enough sex with her during their marriage, reports say. …

    A judge has now ruled that this law implies that “sexual relations must form part of a marriage”. …

    “By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other.” – IOL

  • Gwebecimele
  • Gwebecimele

    @ Maggs

    The Husbands Association in France must protest against this unfair judgement and this judge must not be appointed as a CJ.

    May be we need to review the vows and agree upfront on once,twice, thrice a week kind of arrangement.

  • Thomas

    Mind the Mogoeng gap
    2011-09-04 10:00

    Nomalanga Mkhize

    In the debate about whether Mogoeng Mogoeng will make a good chief justice, we are bedevilled by the gap between political intentions and outcome; the gap between past and present, and, fundamentally, the gap between our ideals and reality.

    The heated Mogoeng nomination debate exposed three areas of disjuncture in our society.

    They are that between so-called progressives in the professions; between the values enshrined in the Constitution and those held by society at large; and that most vexing disjuncture of what the Constitution recognises and that which it can remedy.

    Constitutional law Professor Pierre de Vos asked with palpable frustration: “What happened to reasoned debate?” on his Constitutionally Speaking blog.

    He was puzzled by what appeared to be the defence of Mogoeng by progressive black legal professionals, such as Dumisa Ntsebeza (chairperson of the Judicial Service Commission and of Advocates for Transformation) on the basis of black solidarity.

    De Vos further asked: “Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the ongoing propagation of white superiority by white racists, that they do not believe that, as fellow South Africans, they deserve the very best chief justice, who just happens to be Deputy Chief Justice Dikgang Moseneke?”

    I was annoyed at the initial vituperation against Mogoeng which revolved around unconvincing arguments about his age, religion, lack of experience and something a bright-spark celeb-analyst allegedly called “intellectual laziness”.

    Even fans of the cartoonist Zapiro could not fathom why his creativity had failed him with the hatchet-job cartoon of Mogoeng as the lapdog on the leash of the beady-eyed Jacob Zuma.

    Credible evidence of Mogoeng’s misogynistic jurisprudence began to emerge days into the noise and I swear I heard a palpable “there you go”.

    His judgments on conjugal rape and beating are outrageous.

    But we need to ask more fundamental questions. Why was Mogoeng allowed to join the Constitutional Court in the first place?

    Shouldn’t all judges embody our constitutional values at all levels of our judiciary?

    Are there more misogynists and anti-gay rights judges lurking in the system, especially in our magistrates courts – first port of call for most?

    Who are the other apartheid-era judges presiding over our courts today?

    How many of them hanged people and what were the circumstances?

    What were the circumstances when all they did was lock people up?

    What about the other judges who hold conservative views on race, the economy, the working class, the unemployed, the disabled and the elderly?

    The answers to these questions are vital to understanding the gaps between us. Critics miss that Ntsebeza, for example, was practising Biko in his viewpoint.

    He did not defend Mogoeng because he is black, but buttressed his argument by referring to the continued marginalisation of black legal professionals.

    He criticised the tone and terms of the Mogoeng debate which he believed were held on the basis of a white gaze, in similar vein to the argument writer Lewis Gordon put forward recently in the Mail & Guardian regarding the debate on affirmative action.

    Mogoeng and Moseneke occupy the same racialised space in the profession, although they hold polar-opposite ideological views.

    Ntsebeza wrote about the ease with which the credibility of a black judge was eviscerated with scant evidence by people who considered him a legal non-entity.

    The intellectual landscape is littered with political analysts who run about in the same professional networks, creating self-referential circles of knowledge about what or whom are significant or acceptable in the political realm.

    It’s an incestuous relationship among columnists, editors, analysts and sections of civil society who feed a tiresome liberal consensus on South African political affairs.

    And they’ve done it again with Mogoeng. We need to re-examine what constitutes the embodiment of a good judge in the new South Africa and how to come to terms with the diversity inherent in our society, which is inevitably reflected in the judiciary.

    I can think of numerous public professionals who go to churches like Mogoeng’s in conservative South African urban enclaves and who share his beliefs – but they do not necessarily oppose the spirit of the Constitution on the basis of their faith.

    They know when to render to Caesar what is Caesar’s and to God what is God’s in the course of their daily business.

    The Constitutional Court must be able to abide this diversity if it is to be worth more than the paper it is written on.

    The Constitution and the judiciary itself must withstand both the whims of the executive and the beliefs of individual judges.

    I believe the contestation around Mogoeng was worth more than the polarisation itself, for he needs to account to the citizenry.

    What we ultimately want to know is how Mogoeng will uphold the right to equality in the Constitution?

    Can he separate his faith from his duties?

    If he feels that he cannot, then he must, with all due respect, decline the nomination.

    – City Press

  • Maggs Naidu –

    September 6, 2011 at 12:14 pm

    Hey Thomas,

    “Can he separate his faith from his duties?”

    If he can or does, then that may spell more trouble – sounds to me the perfect example of doublethink which is defined somewhere as the acceptance of or mental capacity to accept contrary opinions or beliefs at the same time, esp. as a result of political indoctrination.

    We might as well appoint the head of CSIR someone who is a part time member of and advocate for The Flat Earth Society.

    We’re being conditioned into accepting less than suitable throughout government.

    Our President advises ministers of their appointments through the compound – A cabinet minister, for instance, told the meeting – in Zuma’s presence – that it was true that the Gupta brothers had known beforehand of the president’s plan to reshuffle his cabinet in October last year. He told of how one of the brothers had informed him, days before changes were announced, that Zuma would promote someone who was a deputy minister at the time to a full ministerial post.

    The PP’s report on the police headquarters leases goes into file 13.

    It’s acceptable to have as Minister of Intelligence one who does not know that his wife is a drug trafficker.

    the list is long.

  • John Roberts

    “…some of the response to him was typical reflexive south african responses to the appointment of black people to positions of power.”

    Rather rephrase this correctly. I’ll do it for you.
    ….the response to the valid, democratic criticism was a typical reflexive black response to any form of criticism.

    We can’t set the bar too high….after all, he is black.

  • anton kleinschmidt

    @ Maggs………”We’re being conditioned into accepting less than suitable throughout government.”

    Within the next few years the reality of your comment will convince you that a vote for the DA might be the only way of dealing with “less than suitable”.

    We live in hope while we wait for the penny to drop.

  • Brett Nortje

    Gwebecimele says:
    September 6, 2011 at 11:38 am

    Khaya should get a clue. The more whites Juju and JZ convince there is no future for their children in South Africa the higher the salaries go of those who remain in a country starved of skills.

    Meanwhile, he sits waiting for a saviour.

  • Brett Nortje

    Maggs Naidu – says:
    September 6, 2011 at 12:56 pm

    Oh, really?

    Are you proposing to licence Christians who want to enter public life or do you just want to bar them out of hand?

  • Maggs Naidu –

    anton kleinschmidt
    September 6, 2011 at 14:47 pm

    LOL AK,

    The challenge is more serious than than.

    For activists to re-emerge, the message has to be heard that we live in a Constitutional democracy.

    This dark road that president Zuma is taking us down is happening in our lifetimes with our permission.

    But Voting for the DA is not an option. Thanks for asking 😛

  • Maggs Naidu –

    Brett Nortje
    September 6, 2011 at 15:44 pm

    Hey Goofy,

    “Are you proposing to licence Christians who want to enter public life or do you just want to bar them out of hand?”

    Hmmm – do I get either option or can I choose both???? 😛

  • Maggs Naidu –

    anton kleinschmidt
    September 6, 2011 at 14:47 pm

    Hey AK,

    Get down to Thembelihle quick – there’s a ready group in the waiting.

    And a sign of the times too!

    Residents of Thembelihle, south of Johannesburg, burned ANC t-shirts bearing the face of President Jacob Zuma on Tuesday, a union spokesman said.

    “We have local officers, members and organisers that cover the area and witnessed a number of t-shirts being burned,” said Sizwe Dlamini of the Wits Central region of the National Union of Metalworkers of SA.

    “No amount of anger or frustration by protesters can justify their counter-revolutionary acts…it is an act of hooliganism and comrade tsotsis.”

    While on the subject of comrade tsotsis

  • Sabs

    Vuyo has said it all! I personally do not expect Zuma to take into consideration any of the views expressed during his process of consultation. Except for the expected paying lipse-service to the consieration of views expressed during consultation, it would do justice to tell the nation why he differed with this and that view, more especially those that criticise the desigante candidate on constitutional and legal basis. The Jsc could not have come to a different decision from that of the majority party for it is flooded with Zuma aplogists. Comments like the ANC has spoken are not uncommon amongst those who support the decision. This is a situation where the president is like saying i have made my decision, convince me and my majority apologists otherwise, Would you then call this consultation? I support the view that this should be the other way round, where more candidates are interveiwed and the president selcts theafter.

  • anton kleinschmidt

    @ Maggs………why wait ….”For activists to re-emerge”.

    We already have plenty of activists but they all belong to the DA

  • Mikhail Dworkin Fassbinder

    @ AK

    “We already have plenty of activists but they all belong to the DA”

    With respect, Anton, you are being facetious. The DA is a white liberal party, and its so-called “activists” are nothing but latter-day bladi agents of white supremacy.


  • sirjay jonson

    Mikhail Dworkin Fassbinder
    September 6, 2011 at 17:46 pm

    “We already have plenty of activists but they all belong to the DA”

    At first Fass, I thought ‘ahh, isn’t that the truth’, as there are many who fit this description in the DA with true sincerity. However, immediately I reminded myself of all the black women I know who work selflessly with incredible dedication and sacrifice. Pity their beloved party which is like a sacred womb for them, that it ignores their activism. ANCYL on the other hand, their activism is me, me, me.

    I thus draw the conclusion that the ANCYL is not an activist grouping; their so called militant youth… trashes, burns, throws stones and beats up defenseless women. And then there is Mr. Tenderpreneur, a don really, as such a name for him is a valid descriptor.

    Loved your long posts. cheers.

  • sirjay jonson

    Mikhail Dworkin Fassbinder
    September 6, 2011 at 17:46 pm

    “We already have plenty of activists but they all belong to the DA”

    At first Fass, I thought ‘ahh, isn’t that the truth’, as there are many who fit this description in the DA, and with true sincerity. However, immediately I reminded myself of all the black women I know who work selflessly with incredible dedication and sacrifice. Pity their beloved party which is like a sacred womb for them, that it ignores their activism. ANCYL on the other hand, their activism is me, me, me.

    I thus draw the conclusion that the ANCYL is not an activist grouping; their so called militant youth… trashes, burns, throws stones and beats up defenseless women. And then there is Mr. Tenderpreneur, a don really, as such a name for him is a valid descriptor.

    Loved your long posts. Do I sense a new softness in your expression not expressed in for example, the previous post. cheers.

  • sirjay jonson

    Apologies, the send didn’t go for four or five minutes so I thought it had failed.

  • Peter John

    September 6, 2011 at 11:38 am
    “A tale of 4 races”

    If thousands of Indians have managed to more than double their average income, why can blacks not also have done so?

  • Snowman

    Perhaps we ought to have a mechanism to ensure that all of our Judges adhere to Constitutional imperatives.

    I was on a flight in SA recently and was sitting behind one of our black Judges who was discussing MM’s purported homophobia and he remarked to his friend next to him on the subject of homosexuality: The Constitution allows it but it is certainly unChristian and it is certainly unMuslim and it is ABSOLUTELY unAfrican.

    How does one change the African mindset?

  • sirjay jonson

    September 6, 2011 at 18:54 pm

    “How does one change the African mindset?”

    By the rule of law under our Constitution… over time, practiced with diligence by those so dedicated.

  • sirjay jonson

    And I might add for those disbelievers, black giants formulated the Constitution.

  • Mikhail Dworkin Fassbinder

    @ ‘Snowman”

    “How does one change the African mindset?”

    With respect, Snowman, the very way you phrase the question betrays your COLONIALIST mindset. The point is not for the “African” mindset to be amended, but for you to adjust to the fact that you are an uninvited guest on this continent. I suggest you ‘get with the program”, or hurry back to Iceland, or some other clime where your prospects of survival are enhanced.


  • Anonymouse

    Eish!! A number of things come to mind:
    1.) Firstly, as I have stated on numerous occasions before, our (beloved) Constitution, even though it is highly valued locally and internationally as the most liberal and progressive ‘municipal’ (‘national’) instrument on, inter alia, human rights, is flawed, at least as to the manner that it provides for checks and balances to ensure that none of the three legs (or arms) of government (legislature, executive and judiciary) oversteps its boundaries of power and competence. This has become quite evident in the ‘nominations’ of Pius Langa (as CJ after Arthur Chaskalson), Dikgang Moseneke (as DCJ), Sandile Ncgobo (as the next CJ), and, now, Mogoeng JT Mogoeng (as the next CJ) – where the incumbent Presidents merely ‘informed’ (without ‘consulting’) the JSC and other parties of their ‘choices’ of a new CJ or DCJ. This is underscored by the fact that our dear (current) President (sometimes sporting a leopard skin and white takkies) has, at a conference of judges (and applauded by many attendees) in more than so many words told the judiciary to adopt a ‘hands-off’ approach when requested to second-guess executive action.
    2.) We, driven by reason and ‘right (not as opposed to ‘left’!)-mindedness’ have failed to challenge the Presidents’ so-called “nominations” of Chief Justices and Deputy Chief Justices since Arthur Chaskalson, simply because we believed (and rightly so!) that those ‘chosen ones’ (Langa, Moseneke and Ngcobo) were the rights choices from a legal, political and ‘creole’ point of view. Thus we have lent credence to the current President’s argument, which he also employed to defend his decision to extend the term of Ngcobo CJ that was overturned judicially in the CC (including the current ‘nominee’ in its number of Justices), that he was just doing what the Presidency has been doing before in terms of existing laws and precedent, and now, suddenly, where we disagree with his choice, we cry: “Unconstitutional!”
    3.) Now what! The one good thing in this whole sorry saga is that the Chief Justice’s vote in any constitutional matter where he (or she – perhaps in the too distant a future!) is equal to that of any other Constitutional Court Judge that presides in a specific ‘constitutional’ (or ‘other’, as soon as the new Suerior Courts Bill is entered into force – God forbid!) matter, and does NOT carry more weight. However (Anathema, sit! Anathema, sit!), once again our Constitution and national legislation provides for an ‘Ogre’. In terms of s 167(2) of the Constitution, “[a] matter before the Constitutional Court must be heard by at least eight judges”. Now, suppose a matter is heard by the (new) CJ and seven other CC Justices, and there is an equal division of votes, the CJ (at common law and in terms of current and envisaged national legislation) retains the casting vote. Call this ‘foreboding’ or whatever, I think that, unless the other ‘other’ CC Justices are vigilant never to allow an equal number of presiding judges, this is the “Achiles’ heel” of our constitutional jurisprudence. Indeed, in such a case (and, God forbid, with manipulating the process a little more to appoint more loyal ANC cadres to the CC Bench when vacancies occur), we might encounter a situation where ‘political power’ is allowed to trump ‘judicial authority’ (and constitutional jurisprudence). … It is indeed hard for the righteous man (or woman!) to be righteous, where the unrighteous has the greater right – Hesiod.

    A number of years ago, I attended a workshop of some kind where Mogoeng Mogoeng and a number of other judges also were. Then already, and, yes, mice do have big ears, I have heard whispered suggestions that Mogoeng might be in line for future CJ-ship if Hlophe fails. I was astounded, to say the least, but, as leeeetle mice do, I kept quiet, not letting anyone know that I’ve overheard. … (Perhaps I would be a better spy than a judicial officer!)

    Politics is a dirty, … very dirty game. … And 10 years is a long, … very long time. …

  • sirjay jonson

    Mikhail Dworkin Fassbinder
    September 6, 2011 at 19:15 pm
    @ ‘Snowman”

    “The point is not for the “African” mindset to be amended, but for you to adjust to the fact that you are an uninvited guest on this continent. I suggest you ‘get with the program”, or hurry back to Iceland, or some other clime where your prospects of survival are enhanced.”

    Ahh Fass, your old shithead self is back again… Do you realize what you’ve said, what you have advised…. or should I say threatened?

    Shame man.

    Additionally and for that matter personally, I was invited, as were many others. Its your attitude man (woman), and its one so wide spread in this country which is marinating such ignorance. Then there is your anger with others, with your sarcastic attacks, which is actually self deceiving, self denying anger… and its your attitude shared by many which is a major part of our national and social challenge, effectively the obstruction to all that which is possible, whereby we can live in equality, peace and security for all under our glorious Constitution, and I might add by doing so, set a vital example to the world.

    Your abilities and talents need be put to better use.

  • Anonymouse
    I wonder what the figure in Africa (or, at least, South Africa) is … and then they are allowed to VOTE (and choose the next CJs)!

  • Brett Nortje

    Anonymouse says:
    September 6, 2011 at 19:33 pm

    Huh! Is that how you account for Pierre’s and other ‘progressive’ subject knowledge experts’ 10 years of blindness, leaving the ANC to argue precedent with some justification, Dr Mouse?

    “driven by reason and ‘right-mindedness’ ”

    I have other. more choice explanations.

  • sirjay jonson

    September 6, 2011 at 19:33 pm

    Thank you Anonymous: you are overcoming your understandable mouse-ness, it seems.

    Yes on your comment re checks and balances.

    And… your comment, the “Achiles’ heel” of our constitution(al)”:

    That’s it, isn’t it, the deciding vote for a majority.

    And what price did Judas pay for his actions?

  • Anonymouse

    sirjay jonson says:
    September 6, 2011 at 19:55 pm

    I forgot the exact amount of silver ‘shekels’. But yes. …

  • Brett Nortje

    Dr Mouse, some silly female comments under the story that you referred us to that the mental-illness figure should be higher, that religion should be counted as mental illness.

    Yourr reputation as a spotter and headser-upper is under threat.

  • Anonymouse

    Brett Nortje says:
    September 6, 2011 at 20:01 pm

    i don’t think I’m a ‘spotter’. i’d rather call it intuition’ … but, then again, thats a female thing, which I am not. … Silly female to call religion a mental illness. Oh, that just twisted my sobriety …

  • Anonymouse

    Gwebecimele says:
    September 6, 2011 at 11:38 am
    “A tale of 4 races”

    “Khaya Dlanga

    Perhaps I should start off with some shocking numbers, which I’m sure some will tell me I haven’t put in line with population numbers, education levels and other such factors. Well, there are other societies in the world that are similar to ours but hardly as unequal.

    In 1995, just a year after the demise of apartheid, the average white income was R48 387, R9 668 for coloureds, R23 424 for Asians and a whopping R6 525 for blacks. Fast forward to 2008. You think things might have improved because you see lots of black folks driving fancy cars and eating in fancy restaurants, right? Let’s see if you are right. White per capita income in 2008 was R75 297, coloured was R16 527, R51 457 for Asians and a bling, bling R9 790 for blacks. While a white person makes R100 a black person makes R13.”

    Hooh Boy! (US for ‘Eish!’) – I suppose of that R13, jacob, Tokyo, Julias and the likes make R12, while the others make, well, slightly less than average!

  • Chris (Not the right wing guy)

    September 6, 2011 at 19:46 pm

    I also suffer from insomnia. I just never realised it was classified as a mental illness.

  • Brett Nortje

    Another serial fantasist….

    Simelane moots law for racist crimes
    WERNER SWART | 04 September, 2011 01:13

    The National Director of Public Prosecutions, Advocate Menzi Simelane, has called for the introduction of race crime legislation following last week’s story in the Sunday Times – and called for greater policing of social network websites.
    Pulling no punches, South Africa’s chief prosecutor said that, in most of these incidents, black people were the “victims”.

    He said: “It goes without saying that until race legislation is specifically enacted, South Africa will continue to have incidences of crimes committed where racism is a major factor.”

    Such legislation should seek to identify “those acts which, in their commission, exhibit blatant racism or actions which society finds repugnant in their racial bias”.

    This must also, Simelane said, extend to people who post offensive racist material on websites and social media networks.

    “It is no longer an issue for debate only. This has been exhausted. Yet the racist conduct continues. It is now time for legislation to be put in place,” he said.

    Simelane said it was a fact that racism was behind many crimes.

    “It is also a fact that, in all or most of these crimes, black people are victims. It is also a fact that the perpetrators are mostly white men. Our courts are full of people like these.”

    Simelane also bemoaned the perception that the law favoured the rich.

    “The perception is informed by, among others, the fact that the perpetrators have the financial means to engage legal representatives to fight their cases. This is their right, of course. But, in our context, this is seen as the system being more favourable to them on account of financial means or race.”

    This week the SA Human Rights Commission also called for better control mechanisms and tighter legislation to be able to find and prosecute social media users who abuse the platforms.

    Spokesman Vincent Moaga said the SAHRC had consistently been urging government to act on hate crime. “We remain concerned about people abusing social networks to propagate messages of hatred. There has been many complaints where people use fictitious names that are difficult to trace and (as a result) we had to close the file,” Moaga said.

    The justice ministry’s Tlali Tlali said yesterday proposed legislation to deal with hate crimes would make racial discrimination, xenophobia, hate speech and other acts of intolerance an offence.

    He said the Department of Justice was currently finalising research into the subject, after which it would consult with stakeholders.

    But he said that despite SA not having specific legislation that criminalises hate crimes, there were certain legislative measures that could be used at present. These, he said, include:

    o Section 9 of the Constitution which guarantees the right to equality and prohibits unfair discrimination, while Section 10 guarantees the right to dignity. He said the violation of these rights can be prosecuted as a common law crime of crimen injuria;
    o Section 16(2) of the Constitution excludes propaganda for war, incitement of imminent violence, and advocacy of hatred based on race, ethnicity, gender or religion;
    o Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act prohibits hate speech, and;
    o Section 17 of the Riotous Assemblies Act permits the prosecution of a person guilty of actions that could cause public violence.

    In response to the picture, Tlali said that the person who posted it could face all these charges as well as civil litigation.

  • sirjay jonson

    Try chanting Chris, numbs the mind.

  • Brett Nortje

    Anonymouse says:
    September 6, 2011 at 20:17 pm

    Of course, Khaya’s statistics make provision for population growth rates?

  • sirjay jonson

    Actually Anonymouse, wasn’t thinking shekels, rather his suicide.

  • Brett Nortje

    Sirjay, that is just another sly dig at Juliass!

  • Brett Nortje

    Sirjay, how did Canada get Indians without skills into the workforce?

  • Anonymouse

    Chris (Not the right wing guy) says:
    September 6, 2011 at 20:20 pm

    I’m not suffering from insomnia (I guess that makes me mentally stable?), I’m just trying to write a judgment while suffering from both “writer’s block” and “writer’s cramp”.

    Brett Nortje says:
    September 6, 2011 at 20:21 pm

    Oh, FUCK! (Unfortunately I lack the African equivalent, since “njova” sounds so much like the Afrikaans ‘naai’, and “the end of the world is ‘naai'”.

  • Anonymouse

    Naah, now I’ becoming ‘vulgar’ – perhaps I must go sleep.

  • Anonymouse

    Nevertheless, this time, it appears that the ‘reasoned’ voices of NADEL, FUL, US Lawyers (and others featured in the seminar room) will be silenced by the dark, ‘unreasoned’ voices of BLA and members of the ANC. As Hanibal Lecter said to Clarise in the end to ‘Silence of the Lambs’: “I’m having a good friend for dinner tonight.”

  • John Roberts

    “While a white person makes R100 a black person makes R13.”

    You can’t compare apples with bananas.
    Many whites are entrepeneurs that own their own small businesses after losing out to BEE in the informal economy.

    Money meant for black entrepeneurs went instead to the national youth fund and hence into Malema and other tenderpreneurs pockets.

    My mother used to be an accountant for a large multi-national but lost out to BEE.

    For the last 10 years been knitting and sewing Barbie Doll clothing and selling on the internet into Australia and Indonesia and earning more than in her corporate career.

    Now black people want to complain that she earns more than them !

    Get a fucking life you arseholes.

  • Lebohang B

    Perhaps our version of the doctrine of ‘separation of powers’ is not so perfect. Perhaps the JSC’s role needs to be questioned. Perhaps [Chief] Justice Mogoeng represents a bleak future for South Africa (though I fail to see how).

    Well let the truth be told, because not all of us (certainly not on this blog) are for reconciliation. Not all of us are willing to help make South Africa a better place for all.

  • Anonymouse

    Quote of the week:
    “If a lunatic in a mental hospital tells us that a voice in his head, or from the ceiling fan, or from a pigeon at his window tells him to cut off the other patients’ heads, we place him under close surveillance and label him a menace to the rest of the hospital. We would do this long before he commits any act to prove his willingness to submit to the imaginary voice. If a man says God told him he would be Chief Justice, or that he thinks God approves of him taking that office, we consider it perfectly socially acceptable – because firstly, many other people labour under similar delusions and secondly because it doesn’t include any promise to do harm. Is there much difference though? Surely a delusion is still a delusion, even if many millions believe it? – Garreth Cliff, writing about Mogoeng Mogoeng’s claim that he received a sign from God to become Chief Justice.”

    Perhaps Garreth Cliff read that article on the percentage of nut cases in Europe (and my question about the position in South Africa) that I’ve posted above, even before it has been posted? … Go, Gareth!!

  • Anonymouse

    Lebohang B says:
    September 6, 2011 at 21:10 pm

    Hooh boy! And, Fuck! Where do you come from? India or Pakistan?

  • Anonymouse

    Prof De Vos – Charles Dickens, A Tale of Two Cities

    Perhaps you should start one off with: “A Town Like Alice”

  • John Roberts

    @ Lebohang B
    “Perhaps [Chief] Justice Mogoeng represents a bleak future for South Africa (though I fail to see how).”

    Well in that case you need an optorectumy.
    They’ll connect your optic nerve to your rectum to improve your shit outlook on things.

  • Lebohang B

    Got some jokes there…. John Roberts. A sense of humour could very well be proof for signs of some sort of primitive intelligence, though I could be wrong.

  • Maggs Naidu –

    September 6, 2011 at 20:17 pm

    Hey Dr Mouse,

    “I suppose of that R13, jacob, Tokyo, Julias and the likes make R12, while the others make, well, slightly less than average!”

    Let me see if I understand it the way you wrote, correctly.

    The average is R13.

    The top of the group is R12.

    The rest earn less than average.

    I think I got the meaning of “Hooh Boy!”


  • Maggs Naidu –

    John Roberts
    September 6, 2011 at 21:05 pm

    Hey JR,

    “You can’t compare apples with bananas.”

    Why not??

  • John Roberts

    @ Maggs

    Why not ? Well here’s the short version :

    Consider the following simple question: “Is an apple more like an orange or a banana?” Although everyone probably knows the differences between these three types of fruit, just how would we go about making a valid analytical comparison of them? Analogical reasoning seeks to identify specific sets of similar and dissimilar characteristics, in search of some unique combination of characteristics that can then be used to define distinctive properties of each set.
    In this example, we will first try and identify as many different similarities and distinctions among these three items as possible. To begin with, all three items are edible fruits. They all contain seeds inside their fleshy fruit part. In two of these fruits (the apple and the orange) the seeds are NOT generally eaten at all, but in the third fruit (the banana), the seeds are so tiny that they are normally eaten along with the fruit itself. Color is probably not a particularly good characteristic to use in distinguishing these fruits. Although the color of ripe oranges and bananas is usually quite distinctive, ripe apples typically range from green to yellow to red and even orange. Both apples and oranges are typically round in shape, whereas bananas are never rounded; instead, they are more elongated in shape. The outer skin of oranges and bananas can be peeled away from the inner flesh of the fruit without the aid of a knife, but the outer skin of an apple can only be removed with the aid of a knife or some other sharp object. The outer skin of apples is sometimes eaten along with the fruit (but not the apple seeds), whereas the outer skin of both bananas and oranges is never eaten. Finally, oranges are a member of the citrus family of fruits, whereas apples and bananas are not.
    In making our final comparison, we then attempt to determine in which of these categories apples and oranges are most alike (i.e., similar). Of all the categories that we have compared, apples and oranges are similar only in that they are both generally round in shape and their seeds are not edible. In all other categories of our comparison, apples and oranges are dissimilar.

    Comparing oranges with bananas, we find once again that these two fruits are similar in only two of the categories that we examined (i.e., they are both peelable without the aid of a knife and they both have inedible skin). Finally, comparing apples to bananas reveals only one similar characteristic between these two fruits: neither belongs to the “citrus” family.

    In this example, the final category, “color,” is not useful for any meaningful comparison, so we will not consider it any further. Reasoning by analogy, we thus can conclude that an apple is more like an orange than a banana as to its overall shape and the fact that its seeds are inedible (like those of an orange). Likewise, an apple is more like a banana only in the fact that both of these fruits are not members of the citrus family of fruits.

    Remember the original question: “Is an apple more like an orange or a banana?” Reasoning by analogy we can only conclude: “It depends!” Specifically, our answer to this question depends entirely upon which set of criteria we are using to make our comparisons.

    The foregoing example is illustrative of a very important aspect of any legal reasoning that is made by analogy: the relative degree of similarity between two things is entirely dependent upon what specific category of data the comparison is based upon. Comparing apples, oranges, and bananas can produce entirely different results that are not dependent upon the individual items compared, but upon the specific categories that we select for making those comparisons. This unique feature of reasoning by analogy makes this form of argument particularly well suited for legal analysis because it can be asserted to prove (or to disprove) almost any given set of comparisons. However, it also makes this form of argument far less reliable than the traditional logical syllogism argument or even than an argument based upon deductive reasoning.

    Continuing with our fruit example, suppose that in your jurisdiction (State X) there is a statute (i.e., Statute 101) that prohibits “the transport of oranges and similar fruits into the State of X.” (emphasis supplied). You have been contacted by an apple grower who wants to ship a large order of apples into State X, but he is concerned about violating this statutory prohibition which is punishable by payment of a large fine for each violation. After researching the law, you find a second statute (Statute 202), also from State X, that expressly permits “bananas and similar fruits” to be imported into State X. (emphasis supplied). To answer your client’s legal question, you are now faced with the very problem that we have been considering in our fruit example: “Is an apple more like an orange or a banana?” Reasoning by analogy what specific argument would you make on behalf of the apple grower?

    Based upon our previous analogical analysis, you first focus upon the meaning of the phrase “and similar fruits” that is used in BOTH statutes. This phrase is the common term that will be used as a bridge for your deductive syllogism argument. The only basis for making a favorable comparison between apples and bananas would be to assert that neither fruit is a member of the citrus family. Your syllogism might look like this:

    (1) Statute 101 prohibits the shipping of ALL “oranges and similar fruit” into State X.
    (2) Apples and oranges are NOT similar fruit, because oranges are citrus fruits and apples are not.
    (3) Therefore, Statute 101 does NOT prohibit the shipping of apples into State X.

    By contrast, attorneys for State X would argue that since apples and oranges are both round and both contain inedible seeds, they are “similar fruits” and thus prohibited by the very same statute (i.e., Statute 101). The State’s syllogism argument might look like this:

    (1) Statute 101 prohibits the shipping of ALL “oranges and similar fruit” into State X.
    (2) Apples and oranges ARE “similar fruits,” because they are both round and they both contain inedible seeds.
    (3) Therefore, Statute 101 prohibits the shipping of apples into State X.

    BOTH of these arguments are logically sound. Both are also supported by facts that have been reasoned by analogy with reference to the meaning of the statutory phrase “and similar fruit.” Still, only one of these very opposite conclusions can be right. The other conclusion is wrong, even though both arguments are based upon sound analogies. How do we determine which analogy should be applied?

    This example illustrates the major obstacle to legal analysis that is presented by the use of reasoning solely by analogy. In legal analysis, arguments by analogy look for specific similarities (or dissimilarities) between ANY two things that are being compared with each other. Care must be taken, however, in selecting and articulating which specific individual criteria form the basis for making a LEGALLY RELEVANT comparison. Arguments by analogy do not attempt to declare general conclusions. They only seek to establish the comparative identity (by analogy) of individual facts or circumstances. The attorneys, and the courts, must determine which of all possible criteria that might be compared in a given circumstance are most appropriate. These criteria are said to be the ones that are legally relevant. All other criteria, although useful for making other comparisons in other cases, are unimportant to the case at hand. However, they are NOT legally relevant.

    Conclusions reached by analogical reasoning, unlike those based upon inductive reasoning, are not supported by a commonality of similar experiences in similar situations; instead, they are based upon the degree to which one individual circumstance or result is similar (or dissimilar) to another. If two different things are only partially similar, then the comparison between them can only be partially accurate. The greater the number of materially relevant points of similarity that can be described between two different things, the greater the effectiveness of the resulting comparison. This can be illustrated in the following manner:

    (1) Facts A, B, and C all produce the same legal consequence, X.
    (2) Facts A and B also produce a different legal consequence, Y.
    (3) Therefore (reasoning by analogy) Fact C PROBABLY will also produce the legal consequence, Y.

    There is nothing in this argument that says anything specifically about the relationship between Fact C and legal consequence Y. Our conclusion about legal consequence Y is derived only by Fact C’s analogy with Facts A and B in situations that produce an entirely different legal consequence, X. Any conclusion that we might derive from Fact C’s similarity with Facts A and B, and their relationships with legal consequence X, may or may not have the same relationship to legal consequence Y, the thing that we actually want to establish in our conclusion. For this reason, arguments by analogy may be helpful in establishing the validity of a particular legal premise (e.g., that Fact C probably will produce legal consequence Y), but such arguments, by themselves, generally cannot produce the same level of confidence as a true legal syllogism would.

    Ultimately, our confidence in the accuracy of the conclusion that “Fact C PROBABLY will produce the legal consequence, Y” is in part based upon the number of similar points of comparison that we can make between Fact C and Facts A and B. Thus, if we are able to find other similarities between these same Facts, then our confidence in this specific conclusion would be greater.
    To illustrate the relationship between an argument by analogy and a deductive syllogism within the context of an actual legal argument, consider the following example:

    (1) A Battery may be simply defined as the intentional, nonconsensual contact with the person of another that is either harmful or offensive.
    (2) Defendant intentionally and without consent struck the Plaintiff’s pet puppy with a stick, causing harm to the puppy.

    Has the Defendant committed a Battery? The answer to this question is uncertain. We cannot construct a syllogism because we do not have any two terms in either the major or the minor premise that are equivalent with each other. In other words, there are no transitive terms that logically bridge or connect the major and minor premises. Specifically, in this example, we have the term “the person” in the major premise, and a completely different term, “the puppy,” in the minor premise. What we need to know is whether these two terms “person” and “puppy” may be treated as equivalents for purposes of applying the syllogism. This is where the argument by analogy may be helpful in resolving this question.

    We begin by looking for Battery cases involving puppies. Unable to find such a case, however, we do find several other cases that we will use to construct our argument by analogy.

    Case A: The court upheld a Battery action on behalf of a person who was struck and injured by a stick that was intentionally swung by the defendant without the victim’s consent.

    Case B: The court refused to permit a Battery action against a defendant who intentionally and without consent threw a rock and struck the plaintiff’s dog, injuring the dog.

    We first reason by analogy, comparing the two different cases. Cases A and B BOTH involve actions for Battery, although the offending agent in Case A was a stick, whereas Case B involved a rock. Initially, we conclude that for purposes of a Battery there is probably no legally significant difference between a stick and a rock, so we look for some other reason to explain the different results in these two cases. Analogical legal reasoning seeks to determine whether the “puppy” in our case is more like the “person” in Case A or the “dog” in Case B. Comparing Case A with Case B, we conclude by analogy that a puppy is MORE LIKE the “dog” in Case B than the “person” in Case A. But how does this help us construct our syllogism?

    We are still no closer to answering our initial question than we were before. Even after concluding by analogy that the “puppy” in our case is more like the “dog” in Case B than the “person” in Case A, we still do not have an answer to the question of whether the Defendant in our case has committed a Battery or not. All we know from our reasoning by analogy is that intentionally striking the “dog” in Case B was not a Battery, whereas the intentional striking of the “person” in Case A was a Battery. Again reasoning by analogy, we might further conclude that a “puppy” is NOT a “person,” at least for purposes of imposing liability for a Battery. This conclusion is a little more useful than our first conclusion, but by itself it still does not answer our question: has the Defendant in our case committed a Battery? To do this we must return to our original syllogism. However, this time we can substitute the new information that we have determined by analogical reasoning from our analysis of Cases A and B:

    (1) A Battery may be simply defined as the intentional, nonconsensual contact with the person of another that is either harmful or offensive.
    (2) Defendant intentionally and without consent struck the Plaintiff’s pet puppy (which is NOT a person) with a stick, causing harm to the puppy.
    (3) Therefore, Defendant has NOT committed a Battery.

    Just as always, our ultimate conclusion was attained deductively through application of a typical logical syllogism argument. However, we reasoned by analogy to help us compare the equivalency of two different terms (i.e., person and puppy) that were initially contained within the major and the minor premises. Without the aid of this type of reasoning, we could not have completed our logical syllogism because the terms in the major and minor premises were so completely dissimilar (i.e., puppies cannot be compared with people). Thus, we used reasoning by analogy as an AID to developing premise statements that were similar; these statements were then used to construct our logical syllogism argument. Despite the usefulness of reasoning by analogy, it must be observed that analogical reasoning, by itself, is NEVER a proper substitute for syllogistic argument. It is merely one of many tools that may aid in the development of such an argument.

  • Lebohang B

    “Instead of being helped by the justice system, black people were most often the victims of it.” Fearing for change?

  • John Roberts

    Hey, black people, get a fucking life you fucking arseholes.

  • Maggs Naidu –

    John Roberts
    September 6, 2011 at 22:18 pm

    Hey JR,

    Impressive short version.

    It’s good to see (thanks Dworky) that your vocab consists of more than FUCK!

    Did you write that all by yourself?

    And don’t lie – you should know by now I got a good sniffer.

  • Maggs Naidu –

    Pierre de Vos
    September 6, 2011 at 23:12 pm


    “Please refrain from the childish use of other people’s names.”

    We know that it’s you posting as PdV!

    p.s. We also know that September 6, 2011 at 22:57 pm was probably not you!

  • John Roberts
  • Maggs Naidu –

    John Roberts
    September 6, 2011 at 23:33 pm,

    Hey JR,


    But thanks for the admission (albeit extracted) that you plagiarised.

    Since I can’t compare apples with bananas then

    Shall I compare thee to a Summer’s day?

  • D Mwangi

    Question: With the reasoning by analogy example, wouldn’t it be necessary to determine the essential nature of each fruit first, before you could know which properties are analogous?

  • Mikhail Dworkin Kunt

    @ Mwangi

    Ha ha ha hahaha


  • Brett Nortje

    Lebohang B says:
    September 6, 2011 at 21:10 pm

    I’m gatvol of the ‘progressive’ version of reconciliation that requires white South Africans to make nice while people whose only claim to that kind of destructive power is ANC membership loot and pillage the country.

    400 000 people have been murdered in SA under ANC rule and the administration of criminal justice dumbed down under political appointees like Ngcuka Mokotedi Mpshe Menzi Simelani Jackie Selebi to the point where a fraction of the victims families know the closure of a succesful prosecution of the violators of their loved ones.
    6 million people infected with HIV and many children – hundreds of thousands – left orphaned.
    The ANC all but destroyed the mining sector strongarming friends and family into it just before a world-wide commodities boom – which we basically missed out on.
    The ANC has a vision of the agricultural sector that seems to require turning hundreds of productive farms into Letaba Ranch.
    The tea industry in Magoeba’s Kloof has been detroyed leaving SA importing tea. What happened to the bakkieloads of mangoes and avos that in years past would be sold on corners like Main Reef and Dobsonville Road this time of year?
    KwaZulu has seen a low profile insurgency since 1994 with warlords having white farmers murdered to parcel off their land.
    Some abbattoirs are paying R55/kg for lamb as farmers get out of that market because of rampant looting. Stealing fences, walking up to pregnant ewes with an axe. severing the spine and walking away with a hindquarter each and the remains of three dead sheep on the ground.
    The manufacturing industry has just been talked into a major contraction by Juliass & Co.
    The ANC has just run an entire election campaign with racial mobilisation the only plank in the platform, with chants of kill people like me in Soweto’s shopping malls – scapegoating them for the ANC’s massive looting and incompetence – and I am supposed to be ‘nice’?

    And now the kleptocrats like Ramatlhodi have decided that – to really be safe from prosecution – they have to engage the courts in a war of position.

  • Maggs Naidu –

    @ PdV,

    Please delete this comment – it’s not from me and it’s inappropriate.

    Maggs Naidu –
    September 7, 2011 at 7:20 am

  • Mikhail Dworkin Fassbinder

    With respect, Maggs, I suspected immediately that JR might have had a hand in the ambitious penile-extension ad posted under you name. That being said, I did think that the gross exaggeration, the twisted logic, the subliminal RACISM of the text bore some of the hallmarks of your characteristic discourse.


  • Maggs Naidu –

    Brett Nortje
    September 7, 2011 at 8:30 am

    Hey Goofy,

    “I’m gatvol of the ‘progressive’ version of reconciliation that requires white South Africans to make nice”

    What did you think was going to be the reality post 1994?

    Our nation which had been entrenched structurally and systemically with decades, if not centuries, of iniquity and inequity.

    Did you perhaps fall for the line that the magic wand which created the Rainbow Nation would have seamlessly normalised our country?

    If so – do you want to buy the Eiffel Tower?

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    September 7, 2011 at 9:00 am



    I accept that “the gross exaggeration, the twisted logic, the subliminal RACISM of the text” bore some of the hallmarks of my characteristic discourse.

    Well spotted!

  • Brett Nortje

    Says the father and uncle of Khulubuse and Duduzile!

    Can you believe this guy?

    Swartes kry nie kanse, sê Zuma
    2011-09-06 23:21
    Maryna Louw
    Suid-Afrika se tronke is vol swart gesigte omdat swart mense nie
    geleenthede in Suid-Afrika het nie, het pres. Jacob Zuma gesê.

    “Daar is baie min wit gevangenes, want hulle is besig om sake te
    doen, maar ons het nie geleenthede nie.

    “Swart mense is werkloos en honger en dan beland hulle in die

    Zuma het gister in Johannesburg op ‘n spitsberaad vir swart
    sakelui gesê ongelykheid in Suid-Afrika is steeds kommerwekkend.

    “Die maatskaplike en ekonomiese aspekte van transformasie bly nog
    agterweë. Die impak van armoede en ongelykheid is steeds

    “Hoe meer ons bereik, hoe meer is ons bewus daarvan dat ons nog
    soveel meer moet doen.”

    Die eienaarskap en bestuur van die land se ekonomie het nie
    werklik verander sedert Suid-Afrika ‘n demokrasie geword het nie,
    het Zuma gesê.

    Hy het verwys na die Kommissie vir Gelyke Indiensneming se
    jongste verslag wat daarop dui dat minder as 17% van
    topbestuurslede swart is.

    Dié “kommerwekkende statistieke” beteken dat regstellende aksie
    moet voortduur om die speelveld tussen wit en swart gelyk te maak
    aangesien net ‘n klein deel van die samelewing tot dusver deur
    swart ekonomiese bemagtiging (SEB) bevoordeel word.

    Zuma het gesê die fokus op SEB moet verdiep en wetgewing sal
    ingestel word om maatskappye vas te vat wat net voorgee dat hulle
    aan SEB-vereistes voldoen.

    “Die name van maatskappye wat oortree, asook dié van hul
    direkteurs, sal op ‘n swartlys geplaas word, boetes sal opgelê
    word en die maatskappye se telkaarte sal opgeskort word.”

    Maatskappye én die openbare sektor gaan ook gedwing word om ‘n
    sekere persentasie van hul aankope van plaaslike ondernemings
    onder swart beheer te doen.

    Zuma het gesê die ekonomie moet swart entrepreneurs oplewer wat
    hul eie fabrieke besit en onder meer teks­tiel, meubels en
    metaalprodukte vervaardig.

    Terwyl baie swart mense verskeie sektore van die ekonomie betree
    het, is daar geen sigbare swart nyweraars nie.

    “Ons sien nie dat swart mense of vroue groot fabrieke of myne
    besit nie.

    “As ons nie myne besit nie, besit ons slegs aandele. Buitengewone
    maatreëls moet ingestel word om dié buitengewone kwessies te

    “Swart sakelui sal moet saamstaan om transformasie te

    “Ons is reeds 17 jaar lank ‘n demokrasie. Ons weet wat gedoen
    moet word, maar ons het eenheid (in die swart sakesektor) nodig
    en daardie eenheid begin hier.”

    Mnr. Jimmy Manyi, kabinetswoordvoerder, pres. Jacob Zuma en mnr.
    Brian Dames, Eskom-bestuurshoof, in Johannesburg.

  • Brett Nortje

    Maggs Naidu – says:
    September 7, 2011 at 9:16 am

    So, the looting and maladministration was a given?

  • Brett Nortje

    THAMI MAZWAI: Painful to see hawkers robbed by ANC youth
    IN 2008, the Small Business Project, a research agency that
    focuses on small business, released research that showed the
    extent to which small businesses were victims of crime.

    Published: 2011/09/07 07:32:19 AM

    IN 2008, the Small Business Project, a research agency that
    focuses on small business, released research that showed the
    extent to which small businesses were victims of crime.

    The research revealed that low-level retailers and professional
    services have above-average incidents of robbery. These low-level
    traders are entities with annual turnovers of less than R100000 a
    year – about R8000- R9000 a month.

    They are mostly in the inner city and are run by individuals who
    eke out an existence in the shadows of the economy.

    These people leave their homes in the early morning, buy stock
    for the day and stand on street corners selling fruit, sweets,
    shoelaces and other paraphernalia. Attacking these people is
    destroying their businesses. At least 30% will be out for the
    count after such incidents. After all, some would have borrowed
    R2000 from microlenders.

    They lose their earnings from the day, the remaining stock and
    there is damage to their makeshift stands. They are left still
    owing the R2000. While other businesses have liability insurance,
    these do not and must contend with lenders who will list them on
    credit bureaus if they can no longer afford to repay the loan.

    My younger brother was a victim; but he had me. Most others have

    This came to mind when I watched in horror as young people
    vandalised informal trading stands in the Johannesburg inner city
    last week. Six weeks ago, striking members of the National Union
    of Metalworkers of SA also laid into street hawkers, overturning
    their carts. We all watched astounded as the protesting youths
    and strikers grabbed apples and gleefully started munching them.
    The wails of the elderly woman, one of the victims, still ring in
    my ears. It was simply heartbreaking, more so when we know that
    these people have families to feed.

    Countless professionals in the black community were raised and
    educated with money from shebeens (now taverns) and the profits
    of those who sold soft goods, fruit on street corners and food
    from coffee carts. These self-employed folk are an integral and
    proud part of our economy and its history.

    They reflect our resistance to apartheid’s exclusionary

    The irony is that the informal traders are now victimised by
    youths shouting “economic freedom” or workers on strike for a
    “living wage”. What “economic freedom” is it when the youths do
    not allow ordinary people the freedom to trade? What “living
    wage” are we talking of, when the strikers do not allow others
    the right to a living?

    The latest figures from Statistics SA are that unemployment is at
    25,6% and more than 7 -million South Africans live off less than
    R7 a day. At least 2,8- million youths are unskilled, unemployed
    and not in school. These are the people on the street corners,
    some making a paltry turnover of R1000 a month, according to
    research released by Finscope. A turnover of R7500 per month, to
    be a bit generous, can translate into a profit of R1500, and this
    is hardly enough to pay the rent. These numbers demonstrate the
    low incomes that ravage black communities.

    A close friend has adopted a four-year-old from the Eastern Cape.
    Malnutrition is etched on the child’s young face. In the first
    few days in her new life, this sweet little new addition would
    dive into her food and stuff her mouth as if afraid the food
    would be taken away. Not surprising – where she came from, she
    shared a plate with six others. It was survival of the fastest
    gobbler. This is widespread in various parts of our land. Poverty
    is not a rumour, but a reality for millions in our land.

    Instead of crucifying the participants in the informal sector, we
    should be looking to improve their incomes. We also have no
    choice but to increase the number of self-employed in our
    country – this is how other nations combat unemployment.

    Watching what the youths and workers did to the hawkers was
    painful. We now know who does not care if the helpless have a
    plate of food or not. And it is not white people.

    . Mazwai is director of the Centre for Small Business Development
    at the University of Johannesburg.

  • Brett Nortje

    This is how the ANC in government commoditises patronage:

    ANC’s ‘trade mission’ raises eyebrows
    Participation of ANC’s fund-raising arm in a country-to-country
    trade expo under way in China has been criticised
    Published: 2011/09/07 06:37:10 AM

    THE participation of the African National Congress’s (ANC)
    fund-raising arm in a country-to-country trade expo under way in
    China has been criticised for blurring the line between the state
    and the ruling party.

    The ANC’s Progressive Business Forum took about 100 business
    people to the China Northeast Asia Investment and Trade Expo in
    Changchun, China.

    The forum has in the past been accused of selling access by
    charging businesses for attending functions where they could
    mingle with Cabinet ministers.

    The delegation is accompanied by Deputy Water Affairs Minister
    Rejoice Mabudafhasi and parliamentary portfolio committee
    chairwomen Elsie Coleman (economic development) and Joan Fubbs
    (trade and industry).

    It is the first time the Progressive Business Forum is taking
    part in the week-long expo, which is being held for the seventh

    The expo is a gathering of trade officials from countries in
    northeast Asia to discuss economic co-operation and regional
    integration. The forum will host a “South African exhibition
    stand” at the expo, it said yesterday.

    The head of Idasa’s political monitoring service, Judith
    February, said that the participation of a political party’s
    fundraising arm in a gathering of states “completely blurred” the
    line between the state and the ruling party.

    It was hard to see what the ANC’s forum was doing in a state-
    level expo, besides fundraising, she said. It was also
    problematic that a minister was part of a political party

    Ms February said trips such as these were allowed to happen
    because there was no regulation of political party funding in SA.
    But they raised many questions about the kind of deals being

    The forum said the trip highlighted the importance which the ANC
    attached to strengthening trade relations between China and SA.

    ANC spokesman Brian Sokutu said yesterday that the Progressive
    Business Forum was “complementing” the government’s work in
    strengthening trade ties between SA and China.

    There was nothing sinister in the trip, he said, which came “at
    the invitation of the Chinese”.

  • Maggs Naidu –

    Brett Nortje
    September 7, 2011 at 9:36 am

    Hey Goofy,

    It’s nearly like substantial portions were lifted for that piece from the Second Carnegie Inquiry Into Poverty and Development in Southern Africa.

    Some 30 years later (and nearly two decades into democracy) – the more things change the more they stay the same.

  • Tuneless

    While on the point of pointing fingers: The acquisition of millions of hectors of land acquired in this country by whites is highly a questionable issue. The methods used to oppress and segregate where indeed horrendous. Peace is worth fighting for.

    si fueris Rōmae, Rōmānō vīvitō mōre; si fueris alibī, vīvitō sicut ibi: (“if you were in Rome, live in the Roman way; if you are elsewhere, live as they do there”)

    Do not take their land!
    Do not destroy their families!
    Do not impose your mannerisms and laws by force!
    Respect them! Be of good will and honesty!

    We indeed have a very beautiful country. One Bartolomeu Dias could not help but fall in love with. What about the indigenous people of the land? Where they not allowed to be proud of what they had? Are they not capable of emotions or acquisition of land?

    There is today no solidarity amongst South Africans, a lot like the olden times. I fear it is because we are trying to do as the romans do in rome.

  • zoo keeper

    I’m with Thomas

    How did he get onto the CC Bench in the first place.

    Why, if he has made this far, is his prior record relevant. This should have been taken care of long ago.

    Mogoeng should probably not be on the CC Bench anyway. All inquiries into his judicial record prior to this moment seem a little too late.

    The JSC has spectacularly failed to properly interview members of the highest court – let alone CJ.

    Once he’s on the CC Bench how can he be removed – impeached? On what basis?

    Its a complete F-up from start to finish and as a full result of the JSC’s failure to take its job seriously.

    And what are the special requirements for the job of CJ?

    I know we all have our expectations, and mine are particularly high for the CJ, but these still have to be measured against the requirements for the job.

    If these employment requirements are low or vague, and he meets them, how can you legally object?

    The first port of call is to adequately define the requirements for the job of CJ. To my mind the best juror may not be the best candidate, but rather the best administrator.

    It would be far better if the judges of all the country’s benches were allowed to vote for their CJ – because he or she will lead them.

    No JSC panel of politicians but an inhouse job of peer-review. The JSC could be used to interview judges for posts but once they’re on the bench the JSC falls away and the judges run their own shop.

    Pure separation of power at play.

    What do you guys think??

  • Maggs Naidu –

    Hey Tuneless

    “…the acquisition of millions of hectors of land..”

    Did Hector own those hectares ?

    Bloody dumb idiot !

  • Maggs Naidu –

    Maggs Naidu –
    September 7, 2011 at 11:03 am

    Whoever wrote that is a “Bloody dumb idiot !”

    Tuneless – that did not come from me.

  • Brett Nortje

    zoo keeper says:
    September 7, 2011 at 10:47 am

    Heaven help us with Ntsebeza around.

    I’m struggling to find where I filed the source so do not quote me on this…but…

    After Chaskalson retired he told the media he did not think the quality of the judiciary had declined because he still read all the law reports and he had not gained that impression.

    Should a CJ be able to read and internalise everything in the law reports?

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  • Maggs Naidu –

    zoo keeper
    September 7, 2011 at 10:47 am

    Hey Zooky,

    “Its a complete F-up from start to finish and as a full result of the JSC’s failure to take its job seriously.”

    It may have been unwise for the interview to have been televised live.

    What was intended by our constitution to be an august body seems to be no more than rent-a-crowd – two groups, each more comical than the other.

    One group cheer leading, the other ridiculing – they (both groups) did more harm to their positions than fill the role expected of the JSC.

    Those who clearly supported Mogoeng did so in a way that implied that Mogoeng is incapable of lucid, rational or intellectual thought.

    The others were so vested in demeaning and ridiculing the interviewee that opportunities to extract reasoning (or lack of it) passed them by. E.g. praying for direction implies a moral, ethical or legal dilemma – what was it? To what extent does he rely when deciding cases on the direction from god?

  • Mikhail Dworkin Fassbinder

    @ Maggs

    “in Our Pharmacy you can buy U.S. certified, FDA approved…”

    With respect Maggs, I am not interested in your medicines. And it seems ironic that you proudly mention that these are “U.S. certified” drugs. The reality is the U.S. has been at the very centre of a gigantic conspiracy to murder our people with so-called “medicines,” all the while reaping giant profits and stealing oil from Libya, Iraq and Kurdistan, and installing the half-white Khama family as a puppet protectorate in Gaberone and building a huge airbase in the country!


  • zoo keeper


    I agree.

    And I think it was unwise for the JSC to let it be televised because they’ve been exposed as useless at their jobs!

    So much for inspiring the confidence of the nation!

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    September 7, 2011 at 11:31 am

    LOL Dworky,

    You should register on the website – send your credit card and banking details too. 😛

  • Anonymouse

    Tuneless says:
    September 7, 2011 at 10:27 am

    A recent survey showed that, In good ol’ R of SA, the average farmer provides food for 1,500 people, whereas in other, Super Economies like the US of A, the average farmer provides food for 500 people. While I am in favour of land re-division, and especially agricultural land re-division, one must be very careful to say that the land must be given to local people just because they ‘want’ it, one should make sure that, if land is redistributed, that it is distributed to people who want to farm and make a difference to the economy. Not like in Zim, or like in the case of a great number of farms that were reclaimed in R of SA from 1994 that now either lie useless, or are being hired out to farmers (white or black) who want to make a difference.

    In any event, that debate has been going on in other blogs. Despite you love fr our beautiful country, what do you think of the latest CJ ‘elect’ (oops, ‘nominee’)?

  • Maggs Naidu –


    President Jacob Zuma is “applying his mind” on the possible appointment of Constitutional Court judge Mogoeng Mogoeng as South Africa’s next chief justice, says his spokesman, Mac Maharaj.

    Applying his mind after making the controversial nomination, having loaded the JSC with candidates who are uncritical of executive aspirations and getting their approval is more comical than the JSC performance.

    President Zuma was expected to broaden debate, revert to a participatory democracy and protect our institutions of democracy – he’s simply thumbing his nose to all of us who supported his ascension to high office.

    And Dworky told me so!

  • Gwebecimele

    The White masters must be laughing at the darkies who are at each others throat over the left overs.

  • Mikhail Dworkin Fassbinder

    @ Gwebe

    “The White masters must be laughing at the darkies …”

    Gwebe is right.

    Just the other day, I saw a group of White Masters laughing at some nearby darkies.


  • Gwebecimele

    Thanks Minister for stating what is obvious and publicly known.

  • freeboot

    Pierre, you’re understating the Mogoeng’s bizarre Dey response.

    The man said:
    A) “There was a minority judgement and I didn’t see the sense in adding two or three sentences.”
    B) “It would have taken two/three days to pen an opinion.”
    C) “In hindsight I should have added an opinion, however superficial.”

    From which we conclude that our incoming Chief Justice dissents (and decides?) superficially, on the basis of reasons unavailable to him at the time, and writes at the breakneck rate of one sentence per day.

    Also even today he believes that it is appropriate for a Concourt justice to provide “superficial” reasons for a judgment. Eisharama!

  • Maggs Naidu –

    @ PdV

    Delete or know that the comment at September 7, 2011 at 11:10 am is not mine.

  • Brett Nortje

    Centre for Development and Enterprise study finds Cosatu member has destroyed South African children’s future:

  • Brett Nortje

    Gwebecimele says:
    September 7, 2011 at 14:21 pm

    It is a bit harsh of the Minister to describe a business conference as racist just because it is called the ‘Black Business Conference’ and one of the participants is called the ‘Black Management Forum’?

    Surely there were white South Africans there? Surely there is no colour bar to membership? That would be unconstitutional?

    Perhaps the convener of the Conference’s surname is ‘Black’? The owner of the conference centre?

  • Chris (Not the right wing guy)

    Maggs Naidu –
    September 7, 2011 at 16:43 pm

    I knew that. But if it were t-shirts . . .

  • Mikhail Dworkin Fassbinder

    I reject the snobbish exclusivism that says JR cannot offer his invaluable insights under whatever names he pleases. I am, myself, honoured that he opts occasionally to post under my name. And so should you, Maggs.

  • Snowman

    Of course there are other Judges who belong to wierd religious cults that call themselves Christian.

    A case in point is Cape Town Judge Roger Botha Cleaver who belongs to a cult of British origin – which calls itself Christian. Some years back the Judge smoked too much if their holy weed (or perhaps he ingested some of the vile incense which they used) before proceeding to write a judgment in the matter of SAB v Laugh it Off.

    He proceeded to find that LIO’s Black Labour, White Guilt t-shirt ‘bordered on hate speech.’

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    September 7, 2011 at 20:33 pm

    Hey Dworky,

    “I am, myself, honoured that he opts occasionally to post under my name. And so should you, Maggs.”

    I too am honoured that JR opts occasionally to post under your name!

  • Maggs Naidu –

    anton kleinschmidt
    September 6, 2011 at 14:47 pm

    Hey AK,

    “We live in hope while we wait for the penny to drop.”

    It seems the penny has dropped!

    In Merafong, ward 21, the DA polled 51.05%, up from 39.8% in May 2011. The ANC received 38.1% of the vote, down from 55.3% in May 2011.

    In Tshwane, ward 78, the DA polled 95.32%, up from 84.5% in May 2011. The ANC polled 1.3%, down from 11% in May 2011.

    Well done to the DA!

  • Mikhail Dworkin Fassbinder

    Maggs, I am frankly disgusted that the DA (with the full might of the white liberal media behind it), opportunistically prays on the desperation of our people, who are so naive as to think that a white racist party that supports capitalism would do any better.

    There is only one party that can represent the aspirations of our people. Can you guess which one that is, Maggs?

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    September 8, 2011 at 13:26 pm

    Hey Dworky,

    “There is only one party that can represent the aspirations of our people. Can you guess which one that is, Maggs?”

    It’s a hard question. I really need help with that. Give me some time to pray about it – I’ll get back to you when god answers. Do you perhaps know any lawyerly types who can help draft my prayers to god?

    Meanwhile, back at the ranch …

    In the South Gauteng Region’s Elective Congress (held 20 August 2011) of the DA, there was a great showdown between Cameron Mackenzie and Khume Ramulifho. Guess what, Khume was leading the race, having won two of three rounds. When the decisive third round was approaching, one Janet Semple cancelled the congress. Can you read my flow: “Black vs. White”?

    Here is a Black man, about to emerge as the first black leader of one of the most influential regions of the DA and one white woman steps in to protect another white person by calling off the elections. And the reason for calling off this congress at its historic climax: Semple is quoted in the City Press as saying “It was a result of administrative problems. There were extra ballots that suddenly appeared.”

    Do you know what this means? It simply means vote rigging and this practice in Africa is largely associated with black people. So, one quickly concludes that Khume or his backers were the prime suspects of vote rigging. Black man cannot be trusted. Hahaha ‘Just chuckling’.

  • anton kleinschmidt

    @ Maggs……

    Thanks for posting that letter written to HZ by Lukhona. Iy makes for compelling reading and I would hope that HZ responds promptly and publicly. If there were white people mucking about with the South Gauteng process then it needs to be dealt with immediately.

  • Maggs Naidu –

    anton kleinschmidt
    September 8, 2011 at 17:50 pm

    Hey AK,

    The story is hidden away from sight.

    If the DA cannot manage it’s own regional election process with no more that 357 voters, it may be a challenge for it to run an entire country (and maybe the continent the way things are going).

    “The whole thing became uncontrollable”, “allegations of attempted vote-rigging”, “The congress descended into chaos”, “It was a result of administrative problems” …

    It sure sounds like the gremlins which infest the ANCYL have also found a happy home in the DA. 😛

  • anton kleinschmidt

    @ Maggs

    What is it with politicians? They seem to be masters at finding new ways to hash things up. HZ needs to kick some backsides

  • Mikhail Dworkin Fassbinder

    “It sure sounds like the gremlins which infest the ANCYL have also found a happy home in the DA”

    Maggs is so right in discerning a basic equivalence here.

    I heard a rumour that DA Youth League members recently rampaged through some city somewhere brandishing wooden guns, chanting “Kill the black” (metaphorically, of course), and looting street vendors! How is that so different from the ANCYL? Hey?

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