Constitutional Hill

Berlusconi + Zuma = Politicians

Silvio Berlusconi, the Prime Minister of Italy is, shall we say, a colourful character. In recent months his wive decided to divorce him after evidence of his philandering ways – allegedly with prostitutes and at least one rather young woman – surfaced. He has been twice re-elected by the Italian voters who seem to be no brighter or more worried by ethical lapses than their American and South African counterparts.

The 73-year-old has been dogged by legal challenges. He has been brought to court on charges of corruption, bribery, false accounting and illegal party financing but has always either been acquitted or won on appeal. In many cases time simply ran out under Italy’s statute of limitations. But the Italians seem to like him – perhaps because his companies control much of the Italian media and few Italian media outlets do anything but sing his praises. In that respect much of the Italian media is about as objective as the SABC on an off day.

After Mr Berlusconi won re-election in 2006 he decided that it was better to be safe than sorry and had legislation passed which attempted to indemnify the Prime Minister and the three other top politicians from prosecution while in office. Yesterday Italy’s top court declared this law invalid. As the Times of London Reports:

The 15 judges returned a majority decision, rejecting the legislation because it violated the Italian constitution on two grounds: first, it had not been subject to the greater scrutiny of constitutional procedures; second, it violated the principle that every Italian must be equal before the law.

Mr Berlusconi’s legal team had argued an Animal Farm defence, claiming that his unique duties as Prime Minister meant that he was “first above equals”. They argued that the law was necessary to prevent lawsuits distracting the most senior officials in the country from their electoral duty.

Now the billionaire politician will again face a series of trials for fraud, corruption, tax evasion and bribery. The court’s ruling on constitutional issues is final and there can be no appeal.

The Opposition called on Mr Berlusconi to step down as Prime Minister but, speaking in front of his palace in Rome last night, he vowed to carry on. “The Constitutional Court is a political organ. The trials against me are a farce. Viva Italia and Viva Berlusconi!” he said with a clenched fist. He added that the court, the head of state and the media all favoured the Left. “I will go on. We must govern for five years, with or without the law. I never believed because with a Constitutional Court with 11 left-wing judges, it was impossible that it would be approved.”

Sounds familiar doesn’t it. Did I hear the name “Jacob Zuma” mentioned anywhere? Of course, in South Africa the NPA dropped the charges against then Mr Jacob Zuma before he was elected President of the country, so it was not necessary to pass legislation to try and indemnify the President from prosecution.

There was a good reason why the NPA dropped the charges in a manner that might well have been unlawful, as the passing of legislation to indemnify Mr Zuma from prosecution would also most probably not have passed constitutional muster.

I am almost certain that if a similar law were to be passed in South Africa it would also be declared invalid and that a constitutional amendment would be required to indemnify the head of state. Such an amendment would fundamentally undermine an aspect of the Rule of Law – that no one is above the law – and would have to be passed by a 75% majority in the National Assembly.

Like Mr Zuma and his supporters (remember Gwede Mantashe called the Constitutional Court judges counter-revolutionaries when it ruled against Zuma),  Mr Berlusconi is now also attacking the media and the courts. Its the oldest trick in the book. If one does not want to address the substantive issues and if one wants to garner sympathy from the public,  one attacks those who point out the uncomfortable legal realities and awkward facts that suggest one has a serious case to answers.

It worked in South Africa and it may still work in Italy. Nevertheless, I am rather enjoying the Berlusconi spectacle as it serves as a reminder to the Afro-pessimists among us (to parahprase former President Thabo Mbeki) that the kind of abuse of power and undermining of institutions that we have seen in the run-up to the Zuma election is not an “African thing”. Rather, it is a “politician thing”. It has nothing to do with either the race of the politician or the continent he or she operates on, but rather with the ways in which charismatic leaders who yield considerable power (with the assistance of a largely friendly media) may turn themselves into victims to protect themselves from criminal prosecution.

Only time will tell whether either the Italian or South African criminal justice system will survive the turmoil that necessarily accompanies the prosecution of a sitting leader or whether either system will be damaged beyond repair.

Maybe its time for a little holiday in Italy. Sounds as if I will feel right at home there.

  • CD

    “it serves as a reminder to the Afro-pessimists that the kind of abuse of power and undermining of institutions that we have seen in the run-up to the Zuma election is not an “African thing””

    Definitely not! For example, see how the powers of the prosecution authorities were abused under the last Republican government in the US to “take care” of the political opposition.

  • Mayflower

    “first above equals”… now that’s what I call creative! Enjoyed the article, thanks Prof!

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  • George Gildenhuys

    Prof,

    Very good point: the abuse of power, undermining the rule of law and generally corrupt government is not an African thing, but a politician thing.

    The reverse is also true, calling for good governance, rule of law is not racist thing, it is a principle thing. ;)

  • Anonymouse

    Prof – I believe the Bothma case decided today by the CC (the 40-year-delayed-rape trial) has the potential to reopen the debate whether the delays in Zuma’s prosecution had been such that his right to a speedy trial has been infringed.

  • Maggs Naidu

    George Gildenhuys says:
    October 8, 2009 at 16:40 pm

    The reverse is also true, calling for good governance, rule of law is not racist thing, it is a principle thing.
    ———————————————————————————————————-
    Except when that principle is applied in a racially selective way as is often the case in South Africa, then it is no longer a principle thing more a racist thing.

  • George Gildenhuys

    On another note, I bet the DA wishes they did not make such big deal about Zuma’s corruption trail. Before the election Zuma bashing was very popular and I believe it gave the DA a couple of votes.

    My feeling is that public opinion has shifted to real world issues like unemployment, service delivery and crime among others and perhaps sees this court challenge as a frivolous distraction for the man that is supposed to be in charge. The term pick you battles… comes to mind, I reckon the DA has put the judiciary in the firing line for something that would not really change life for ordinary South Africans.
    By no means am I saying that opposition should let things slide, the judiciary is an effective tool to hold the executive to account WHEN IT MATTERS, but this does seem a little like the DA is crying about something that puts stress on the judiciary for no real benefit.

  • sirjay jonson

    George: the gravest mistake we can make is trivializing or underestimating what is unfolding.

    Thank god for the DA, whether we vote for them or not, at least they are a chord of sanity within the madness which is present day SA.

    As for Italy, that’s no excuse for the drama we are in here. Italy is Italy, Italian lovers are reknown for their seductions, and those who wish to be seduced on holiday. Have you checked how many governments they’ve had in the last 20 years.

    There is so much which is crazy, taking place at political levels in SA, that it is now almost impossible to see clearly here. Who pays the price? Minorities and the poor of course, and Lady Justice still on her knees.

    Time we grow up.

  • Sipho

    The French president, Chirac, also engineered an act protecting him against prosecution while in office. After the end of his presidential term, the authorities have resumed the investigation into irregularities from Chirac’s earlier job as mayor of Paris.
    So what is different?

  • Maggs Naidu

    sirjay jonson says:
    October 8, 2009 at 19:56 pm

    George: the gravest mistake we can make is trivializing or underestimating what is unfolding.
    ——————————————————————————————————–
    George makes a very valid point.

    The campaign was personality rather than issue based.

    It’s going to be quite something to get the voters to let go of that which was so central to their campaign.

    Whatever they say now will be suffixed by “Stop Zuma”.

    As the saying sort of goes “be careful what you campaign for, it may just come back to haunt you”.

  • George Gildenhuys

    RE: sirjay jonson says @ October 8, 2009 at 19:56 pm

    I am not trivialising the issue.

    My point is that the majority of the ANC government is quite inept at governing a country. Since 1994 very little has changed for the majority of South Africans. The white middle class are still enjoying the high life, although behind higher walls and bigger dogs. While very little real social adjustment happened. In fact, the gap between rich and poor grew exponentially.

    sorry a bit of topic.

    But,

    the same goes for the DA, wasting time and money on a legal point, whether the NPA should or should not have dropped the charges, that in actual fact would give no real benefit for the people of South Africa and at the same time lining up the judiciary up against the executive when it is actually all about Zuma’s alleged crimes as an individual that has now turned into a “state” issue.

    Surely there is a bigger picture here. IF the DA withdraw their case and let the judiciary live to fight another day for issues that actually matters I for one would commend them (for a change) for deciding what is best for South Africa as opposed to what is best for the DA.

  • Mikhail Dworkin Fassbinder

    Maggs is right.

    It is too often a racist thing to demand the rule of law.

    “Madam” Zille and Kriegler have proved themselves to be racist in their spurious invokings of the rule of law. These are people who never said ONE WORD against apartheid! Not a word!

    Pres. Mbeki was wrong on may things. But at least he exposed Tony “Fight Black” Leon for the crass racist he is.

  • George Gildenhuys

    Usually I don’t get involved on this blog once people start the mudslinging and using race as ammunition, but for here’s me giving it a go:

    Mikhail Dworkin Fassbinder @ October 8, 2009 at 23:22 pm:

    ag asseblief tog, boetie jy moet nog baie leer…

    Clearly you have a deluded view of what racism is.

    Asking other people to play by the rules does not make them racist. Annoying perhaps, but racist? NO.

    The objections I have to Helen Zille’s constant crying about the Rule of Law is that is seems most of the time to be about political point scoring… and the trouble is that the noise is drowning out the legitimate objections that the opposition has.

    by the way, if you consider Tony Leon a racist then you have to ask the President why he appointed one as ambassador to Argentina? Apparently our dear leader (meant with some irony) doesn’t agree… ;)

  • George Gildenhuys

    PS:

    Perhaps you want to recheck Helen Zille’s track record before accusing her of not saying a single word against Apartheid… just a thought.

  • Thomas Blaser

    That Europeans copy from Africans is not a new thing nor does it necessarily speak to Afro pessimism. The flow of exchange and interactions goes from the former colonies to the former colonial centres, back and forth. So it is a misconception to see these relations only a s one way street. Policies and atrocities committed in the colonies came back to the territories of the colonial powers. And so did other practices and tastes and so on. That Berlusconi is imitating African dictators is just a very visible flow from Africa to Europe of political practices.

  • Sne

    @ Prof.

    A very informative post indeed Prof. Thanks.

    @ George

    I associate myself with what you said about DA and its application.

    @ Mouse

    I have not read the Concourt decision to allow the private prosecution yet but I have read the High Court decision granting a permanent stay of prosecution. I honestly believe it is not fair to the accused to be faced with rape accusations of 40 years ago. I understand that a crime, unlike lipids, cannot be emulsified. But I think the lady in this instance is “abusing” the state institutions. Rape is indeed a disgusting, though prevalent, crime in our country but women need to be careful of not over-exposing us to ridiculous rape cries as that may make us insensitive to serious rape cases. From what I read in the High Court judgment, the lady does not stand a chance but like I said I am yet to read the Concourt judgment so I might still change my stance here… ;-)

  • Chris

    I drive a Fiat, except on the days it doesn’t start, and I don’t want to go on holiday to Italy. An Italian car is more than enough.

  • http://n/a Mikhaik Dworkin Fassbinder

    Pierre is right. Mr Berlusconi shows the Afro-Pessimists up for the arrogant racists they are!

    Transparency International — which ranks African states on average as much more corrupt than most states in Europe — is a den of corrupt Afro-Pessimists!

    Congratulations Pierre, for reminding us that at least one part of Pres. Mbeki’s denialism was right on target!

  • http://n/a Mikhaik Dworkin Fassbinder

    @ George

    Why would Tony Leon have mounted a “Fight Black” campaign if he was not a racist?

    Let us be grateful that JZ sent this arrogant bigot to Argentina, thus freeing us from the noxious fumes of his toxic discourse!

  • Chris

    George Gildenhuys says:
    October 9, 2009 at 1:05 am
    PS:

    “Perhaps you want to recheck Helen Zille’s track record before accusing her of not saying a single word against Apartheid… just a thought.”

    And I was present when Judge Kriegler said some very nasty things about apartheid.

  • George Gildenhuys

    Mikhaik Dworkin Fassbinder,

    all i can say is: get help.

  • Maggs Naidu

    George Gildenhuys says:
    October 9, 2009 at 10:36 am

    Mikhaik Dworkin Fassbinder,

    all i can say is: get help.
    ———————————————————————————
    :)

    Dwork is Achmet http://www.youtube.com/watch?v=dAm-js57apk.

  • Maggs Naidu

    Mikhaik Dworkin Fassbinder says:
    October 9, 2009 at 10:05 am

    Transparency International — which ranks African states on average as much more corrupt than most states in Europe — is a den of corrupt Afro-Pessimists!
    ———————————————————————————————————
    But Dworky, who is corrupting these corruptable dictators?

    Didn’t Leigh wisely say that bribery is a bi-something thing?

    Do the TI stats consider the US Billions per day in the Iraq war (that pumped up the commercial interests of companies associated with the politicians that provided irrefutable proof that mad Saddam had WMD and nukes)?

    Ngcuka now stands accused of being in the pockets of foreign intelligence – If it’s true, could it be that of Burundi? Somalia? Brother Leader?

  • http://n/a Mikhaik Dworkin Fassbinder

    @ Maggs

    1. “Who is corrupting these dictators.”

    This is a remarkably silly question. Maggs. It is whites who are doing the corrupting. Yes, whites. African corruption is but a legacy of colonialism and a manifestation of neo-colonialism. Everyone knows that. (TM told us.)

    2. Did TI consider US corruption? No, Maggs, obviously not. This is my point! And may I point out: IT is not just TI that is infected by Afro-Pessimism. All of these so-called monitoring NGO’s are run by bigots and racists. i know this, How do explain that all of them point fingers at Africa, and say not a word about Iceland? Hey? Why?

  • Mdu

    Pierre you are again inconsistent you Berlusconi owns most of Italian media,then why he lambast them? Zuma was hated by SAn media which he does not own, but we still voted for him for we saw through their racist agenda.

  • Maggs Naidu

    Mikhaik Dworkin Fassbinder says:
    October 9, 2009 at 11:22 am

    But Dworky, if we extend the zero sum principle, surely for every corrupt politician, there has to be someone with the fat purse.

    Although TI is doing some great work, I find it odd that they refrain from digging up from where the corruptors hail.

    Until a few years ago it was not illegal for German companies to engage in corruption of foreign politicians.

    Tony Blair tried to squash the investigations into arms deals involving BAE, Saudi, SA and some other countries – I assume that was not part of the TI report.

    But like aunty says “the weakest link must go”.

  • http://n/a Mikhaik Dworkin Fassbinder

    Maggs is right.

    But it is not just TI that is at fault. Virtually every NGO I know endlessly harps on about so-called “African” corruption!

    Why is that? It is because they are RACISTS.

    That’s why!

  • Maggs Naidu

    Mikhaik Dworkin Fassbinder says:
    October 9, 2009 at 11:37 am

    Ducking again!

    Chicken!

  • http://n/a Mikhaik Dworkin Fassbinder

    Maggs, why would a chicken “duck”?

    More seriously though, I do not think you are reading my posts very carefully

    The more enthusiatically I agree with your brilliant contributions, the more you scorn me.

    Frankly, I am a little hurt!

  • Maggs Naidu

    Mikhaik Dworkin Fassbinder says:
    October 9, 2009 at 11:44 am

    Nice try, hybrid duck!

    Unless you insist that your perspective is the only one.

    p.s. I concede that my IQ can do with some high octane input but my intellectual challenges are genetic – so help me out a bit with my retarded thinking and respond directly.

  • Sne

    @ Maggs

    I believe it happens that the Attorney-General in countries like UK is sometimes instructed by the politicians to halt corruption allegations against foreign states or their high officials in order not to sour cordial country relations. I cannot recall the exact case in which an individual in UK took the Attorney-General to court for not granting him a right to sue another country in the European Court on Human Rights for the violations of his rights. I believe the UK was importing oil from that country and did not want to spoil that. Pertaining to the Arms Deal, it is possible that investigation into same was halted. But then again, which country would want to alienate the ANC (the alleged members of which are the primary beneficiaries of the Arms Deal) by engaging in the investigation of the Arms Deal?

    @ Mouse et Prof.

    I refer to para [29] of the Concourt judgment in the Bothma case to which you have alluded in your post above marked for the attention of Prof. I found very interesting the fact that Mr. Els intends to impugn the Constitutional validity of section 7 of the Criminal Procedure Act, which authorises private prosecutions. I have this question for you and Prof.;

    Given that the Concourt has decided against Mr. Els in the interlocutory application for the permanent stay of prosecution, can Mr. Els request that all the judges who were involved in his permanent stay of prosecution application recuse themselves in the main application if it comes back to the Concourt?

  • http://n/a Mikhaik Dworkin Fassbinder

    Maggs, I admire you for struggling so hard to overcome your genetic handicap.`

    Coincidentally, I too am a little slow – not because of my genes, but by virtue of a small but intellectually crippling cranial lesion.

    Anyway, respek!

  • Maggs Naidu

    Sne says:
    October 9, 2009 at 11:53 am

    The BAE thing is bigger than South Africa.

    http://www.independent.co.uk/news/uk/home-news/blair-used-irresistible-pressure-to-halt-investigation-into-baesaudi-arms-deal-782541.html.

    Other countries are involved as well – Tanzania, the Czech Republic, South Africa, and Romania at least.

  • http://n/a Mikhaik Dworkin Fassbinder

    Maggs is right.

    One of the best way to deal with so-called corruption here is to point to corruption elsewhere.

    Yes!

  • Maggs Naidu

    Mikhaik Dworkin Fassbinder says:
    October 9, 2009 at 12:08 pm

    Maggs is right.

    One of the best way to deal with so-called corruption here is to point to corruption elsewhere.

    Yes!
    ———————————————————————————————————
    Cranial lesion?

    Is that like the Big Bang thing?

    Mum smacked you on the head?

    Anyway, the way to stop corruption is not “to point to corruption elsewhere” but to expose it in it’s entirety.

    But don’t you dare expose yourself in your entirety and blame me!

    p.s. If you really have the hole – sorry abt that!

  • Sne

    @ Maggs

    Thanks for the link.

    PS: Can a qualified apology like the one you have offered to Dworkin really be tantamount to an unqualified one?

  • Maggs Naidu

    Sne says:
    October 9, 2009 at 12:32 pm

    PS: Can a qualified apology like the one you have offered to Dworkin really be tantamount to an unqualified one?
    ———————————————————————————————————-
    :)

    I am not apologetic, just sorry to hear that Dworky has a cranial lesion (if it’s true).

    But that cannot be the reason why he is unashamedly anti Black.

  • http://constitutionallyspeaking.co.za Leigh

    George, you seem to make out that the DA launching an application for the review of the decision to drop the criminal case against Zuma boils down to the DA placing unnecessary strain on the courts. You appear to contend that as Zuma will probably never be tried, at least not as a sitting president, the judiciciary may well find itself in a confrontation with the executive that would, given the improbability of Zuma going to court, be largely meaningless. You argue also that the DA ought to choose its battles more selectively.

    I tend to agree, in rather a general way, that the DA might do well to be more selective when it comes to picking its fights. But I will, however, say that we should be careful to avoid endorsing assumptions without testing them first.

    With respect, you seem to me to assume that Zuma standing trial is the only result that would amount to a victory for the opposition. I think that we may want to test that assumption by considering whether any other possible implications of a successful court application could be properly described as being desirable. I would suggest three such implications.

    In the first place, we would have confirmation that the principal political opposition is brave enough to refuse to let the ANC get away with dubious behaviour in the knowledge that it can bank on its scandals simply blowing over.

    Secondly, if it is fair to say that there may be an intimate relation between (a) the ANC’s infamously poor service delivery and (b), its lack of regard for the rule of law, then an adverse result in the relevant review application may serve as a nudge in the right direction inasmuch as the ANC may end up second guessing objects that could involve the commission of wrongful behaviour.

    Thirdly, I would ask this: what if it is fair to compare our judiciary’s concern for the rule of law to a muscle? The hearing of the DA’s application could be construed as being a species of exercise. We could see our judiciary develop the jurisprudential character, vigour and resolve needed to check the ruling party which I think the ANC has repeatedly shown itself to be.

  • http://constitutionallyspeaking.co.za Leigh

    Maggs, what makes you say that Mikhail is anti black?

  • Maggs Naidu

    Leigh says:
    October 9, 2009 at 12:46 pm

    Maggs, what makes you say that Mikhail is anti black?
    ———————————————————————————–
    Did you ever read him “seeing the other side of the coin”?

  • Sne

    @ Leigh

    Your post seems to be more abstract but I am willing to let you guys argue and be an “armchair critic” like most judges in delict and criminal cases involving culpa in the form of negligence and the application of the ‘fictitious reasonable man test’.

  • http://constitutionallyspeaking.co.za Leigh

    @ Sne,

    First of all, hope you are well mate :) Second, if you would kindly excuse my lack of comprehension, please expand on what you mean by ‘abstract’.

    @ Maggs,

    If one were to opt for a fairly superficial interpretation of Mikhail’s views, then it seems clear that they are patently pro black. I will assume that by ‘(d)id you evr read him seeing the other side of the coin’, you mean he very rarely makes concessions that favour what some might call the stereotypical white perspective. If my assumption as to what you mean is correct, then with respect, I do not see how your point goes to sustianing the view that Mikhail is at all anti-black.

    Of course my assumption may well be wrong. In that case, I would ask that you say a few words as to what you mean by ‘seeing the other side of the coin’ – bearing in mind that it can hardly be in dispute that Mikhail’s posts typically reflect ardent support for causes with which many black South Africans associate themselves.

  • koos

    Fascinating stuff to read your blog and that of Traps of M&G. Pierre your blog is for legal guys but we also enjoy it. Traps is a journalist so his bloggers differ. What an interesting read of posts of both blogs. See “Berlusconi decision will interest Zuma” at :

    http://www.thoughtleader.co.za/traps/2009/10/07/berlusconi-decision-will-interest-zuma/

    I love it when a debate comes together!!

  • Maggs Naidu

    Leigh says:
    October 9, 2009 at 13:21 pm

    “If one were to opt for a fairly superficial interpretation of Mikhail’s views, then it seems clear that they are patently pro black.”

    He’s profoundly sarcastic, often condescending and patronising.

    I don’t see that as “pro black”.

    I will change my view if I read something that disputes my thinking.

  • http://constitutionallyspeaking.co.za Leigh

    Sne, I also like delict :)

  • http://constitutionallyspeaking.co.za Leigh

    Maggs, I think Mikhail would be hurt to read that you find him to be sarcastic, patronising and condescending. At the very least, Mikhail is not anti-black. That is, neither (a) the content of his posts nor (b) the motivation behind his posts reflect, in my view, anti black conceptions.

    Let us assume for the moment that there is an element of condescension in Mikhail’s posts – which is, I think, not the same thing as saying that his posts are condescending. The question is: what is it that you think Mikhail aims to demean?

  • Sne

    Leigh says:
    October 9, 2009 at 13:21 pm
    I am good Leigh thanks and hope you are as well.
    By ‘abstract’ I meant that the three implications of a successful court application that you have alluded to in your post are incidental to the plight of the ordinary man on the streets.
    Note: ANC, appears in all three of your points. That on its own invites one to believe that the advantages to be gleaned from the application are political.
    These implications that may stem from a successful court application will not in any way be advantageous to the ordinary voter on the street who is grappling with poverty, lack of service delivery and lack of housing and unemployment as they are concerned with political point-scoring and mudslinging than anything else. (My Social Security Law lecturer would kill me for listing all these despite being part and parcel of poverty) ;-).
    As things stand at the moment, the DA application does not appeal to the ordinary voter on the street; it is meaningless and no notice of it will be taken except as a good pointer towards the fact that Zuma is indeed a victim in all of the circus that surrounds him. Instead of showing him as the devil in our country, it will cause people to rally to his support as the “victim”.

  • Maggs Naidu

    Leigh says:
    October 9, 2009 at 13:37 pm

    “I think Mikhail would be hurt to read that you find him to be sarcastic, patronising and condescending.”

    So sorry to hear about his troubles, but that’s my view.

    “That is, neither (a) the content of his posts nor (b) the motivation behind his posts reflect, in my view, anti black conceptions.”

    When he/she/it writes “X is right” I read that as “X is talking crap”.

    For “brilliant” I read “idiotic”.

    “what is it that you think Mikhail aims to demean?”

    The need to fast track transformation in all its elements.

  • http://constitutionallyspeaking.co.za Leigh

    Sne, thank you for your response. You make out that the potential advantages that I suggest could be gained from a successful DA application are political.

    With respect, that is, in my view, not entirely true. There is, I think, a nexus between the ANC’s apparent inability to provide for better service delivery on the one hand, and its lack of regard for rules on the other. I think that connection can be articulated thus: in the first instance, the ANC unabashedly reflects a crony culture. This, it would seem, is a causal factor that exacerbates the problem of poor service delivery. And secondly, the ANC adheres to rules when doing so is sufficiently convenient. The connection between these two points is that the ANC is complacent given that apparently, it has little need to fear adverse consequences despite its characteristically objectionable conduct.

    I say that one way to cause the ANC to perform better and thereby benefit the people of this country is for the opposition – and anyone else that thas the means – to disturb the notion that the ANC is largely invulnerable. If the ANC is allowed to think of itself in that way, then it may well continue to perform so disappointingly.

    In short, it seems to me that this country could do with a ruling party that is less sure of itself.

  • Mikhail Dworkin Fassbinder

    Maggs is right!

  • Maggs Naidu

    Mikhail Dworkin Fassbinder says:
    October 9, 2009 at 14:54 pm

    Maggs is right!
    ———————————————————-
    LMAO!

    I thought you would not be able to resist!

    Ok Leigh, I rest my case.

  • Sne

    Leigh says:
    October 9, 2009 at 14:29 pm
    “In short, it seems to me that this country could do with a ruling party that is less sure of itself.”
    …………………………………………………………………………….

    Note: My failure to deal with the rest of the allegations in your post is not tantamount to an admission of the veracity of same. I reserve my entitlement to deal with same if I consider that to be necessary in the course of our encounter.

    Thanks very much for your reply as well Leigh. Pertaining to your sentence I have quoted above, I wish to admit that I am in full agreement therewith. However, I disagree with your assertion that the same can be achieved through the application that the DA has launched in court. To me this merely is an unnecessary mudding of the waters and clouding of the real issues which I have quoted in my post to which you are replying. If what is quoted above is what is intended by the DA application, then the “means” adopted to procure the “results” intended are ill-advised. In order to bring about more accountability to the ANC govt the DA needs to accumulate more support in the ANC strongholds which are abound with people who are neither interested in the legal battles of Zuma, his moral corruptness, his association with corrupt people, nor his close friendship with dictators, etc.

    The enumerated “ills” may be directly or indirectly connected with the plight of the people living in atrocious conditions but to them this court applications may seem a very long short to achieve the results. Apart from the above, we seem to be in agreement.

  • sirjay jonson

    So many interesting postings Prof, good on ya, gets us all thinking and putting our thoughts in ever improving strings of words. Quite unique dialogues you have effectively and continuously stimulated with your blog.

    I’m not sure I understand all this DA bashing, sort of confuses me, and I’m not one party or the other. If white, do we feel uncomfortably or something of that sort, white guilt perhaps, I’m not sure, but what I see is an intentional and deliberate attempt by the DA to bring sanity to democratic political action and discourse.

    One thing I am sure of is this: if we have someone with politically correct history still fighting for what, if we think about it, is rational and compassionate, why would we not support that?

    I think it goes beyond black, brown and white, more about promoting democratic or non-democratic behaviors, if you get my drift.

    Are we our own worst enemies?

  • http://www.theforumsa.co.za Dave A

    If we overlook the obvious problem of being taken the wrong way, the biggest problem with great satire is it just isn’t the same when it has to be explained.

    Simply brilliant.

    More on subject: I suggest Europe’s history of constitutionalism (and by the meaning of that word I rely on my understanding derived from regular reading of this blog) has been more like brief flirtations than a well established practice if you look at the grand scheme of things. Considering Italy’s political history, perhaps we should take heart from the fact that it was even possible to come to this point in Italy.

    Perhaps there is hope for our fledgling constitutional democracy yet.

  • Michael Osborne

    To my mind, there is nothing “brilliant” about the fake Slovenian/Ibo commentor Mikhail Dworking Fassbinder’s silly satire. His is the most vulgar form of irony – articulating the very opposite of what he believes, in the most over-the-top terms possible. A mildly clever schoolboy/girl could do as much.

    Having said that, Dwork does occasionally succeed in pointing out, in his own his crude manner, what might be thought to be the logical implications of the lines that Pierre, Chris, Maggs, Harold and others, sometimes push.

  • Leigh

    Sne, it seems we do not disagree about very much. I would capture the apparent issue between us thus: I say that the DA’s review application could render the ANC less sure of itself inasmuch as if its members were to come to believe that they would have to face meritorious suits whenever they conduct themselves questionably, they may become more reluctant to undermine the rules.

    Unless I have read you incorrectly, your core point is that there are preferable means to rendering the ANC less assured. And that, to my mind, is not the same thing as saying that the DA’a application could not conceivably go towards that end.

    So the true inquiry here seems to be this: to what extent can the DA’s suit promote the object of rendering the ANC less assured? Is it sufficiently promising to justify the expense? Or, should the DA opt for the approach that you suggested which is to glean more support in ANC strongholds?

    We agree that seeing the ANC’s complacency undermined would be in the interest of the country. And in truth, I quite like your approach of getting at the ANC through its support base. But how long would it take to do so? The ANC’s victory in this year’s general election was, for the most part, emphatic. In short, the ANC appears to enjoy ardent endorsement. So it seems that the opposition parties may do well to make the appropriation of voters who presently support the ANC a fairly long term object – unless the ANC starts to shove voters towards the other parties.

    So in the mean time, it seems to me that the opposition ought to explore other ways to disturb the ANC’s easy complacency. And one way in which to do so is to challenge the potentially unlawful decisions which benefit the ANC. I would also suggest that we explore this topic from another perspective. Let us ask, ‘What might happen if the ANC is allowed to make a habit of inspiring and then benefiting from unlawful decisions?’ In the first instance, it may well just continue to do so smugly. In the second place, the absence of objection may have the decidedly undesirable consequence of further entrenching the ANC’s crony culture. That is, if no one is going to stop the dodgy ways in which they help each other, then there would be no reason to stop. And I think many people would agree that the further entrenchment of that crony culture could conceivably impact adversely on service delivery.

    So in a nutshell, the notion of the ANC’s support base being convinced to scrutinise the ANC’s performance and then, on the strength of whatever findings they make, being convinced to look elsewhere for good governance, is very appealing. But as a country, I fear that we are not there yet. So in the mean time, efforts such as the suit which the DA has bravely pursued are desirable by my reckoning.

    I would also say this: on the face of it, the South African people have far more pressing concerns than whether (a) the NPA sustains the additional measure of embarrasment which it so richly deserves for capitulating to political pressure and (b), whether Zuma and the ANC learn that relying on the possibility that the stench of scandal is, over the course of time, reduced in potency is not going to help them. But I think that our people have many of their concerns precisely because our public officials are just too comfortable.

  • Maggs Naidu

    Michael Osborne says:
    October 10, 2009 at 10:01 am

    All that Dworky manages to achieve, in my view, is illustrate how wide the gap is – his best achievement is that he manages to strengthen rather that moderate/change my views.

    I would much rather reflect on commentators such as yourself, Mayimele, Harold, Leigh, Big Slipper and several others to interrogate my own thinking, even change my views.

    My exchange with Mayimele for example has me exploring the possibility that Mbeki was not the monster that I thought (maybe even would have liked) him to be, rather that we gave up our personal power, retracted into individually safe places and then found comfort in blaming Mbeki.

    If I recall correctly, Alan White, in post WWII research concluded that Hitler was not all powerful as was believed, rather that the people then gave up their personal power. Reading this poses some frightening prospects – http://www.johndclare.net/Word%20documents/Weimar%20Germany.doc

    Interaction with Harold on homosexuality and religion and having relied on my own socialisation of gender neutrality, I am at pains to contrast that with the madness of a society that encouraged/coerced widows onto the funeral pyres of their dead husbands or allowed the caste system to develop. Religions it seems is able to take society to the dark side.

    On the other hand in the context his own usage of the term, Dwork is right!

  • Maggs Naidu

    Leigh says:
    October 10, 2009 at 10:56 am

    All that is well and good.

    Ultimately it’s X marks the spot.

    Voting patterns are not going to change because of what the courts say, but because of what political parties say.

    The opposition parties are so far speaking gibberish!

    “In short, it seems to me that this country could do with a ruling party that is less sure of itself”.

    We could also do with opposition parties that are more sure of themselves – none are currently inspiring in any material way.

  • http://n/a Mikhaik Dworkin Fassbinder

    @ Maggs

    I am indeed, as the ever-sensitive and respectful Leigh observed, a little hurt by your scathing dismissal of my comments as sarcastic etc. Yes, my youth may make me come across as a little brash; like Mr Malema, I sometimes push the party line a little too strongly. I must learn that subtle understatement may be more effective than polemical flourishes. The latter are too easily parodied and dismissed.

    I therefore humbly apologise, dear Maggs, for any discredit or embarrassment my unrelentingly enthusiastic support for your positions may have occasioned.

  • Maggs Naidu

    Mikhaik Dworkin Fassbinder says:
    October 10, 2009 at 12:17 pm

    LOL!

    Hurt, my butt.

    Notwithstanding Michael’s small applause, your comments are rather silly.

    But I enjoy them nevertheless.

    p.s. On Malema – an interesting view : http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20091010074639211C440485

  • http://n/a Mikhaik Dworkin Fassbinder

    Maggs is right (again.)

    None of the opposition parties inspire confidence.

    Take the DA’s youth leader (whatever his name is.) An irresponsible and ignorant clown, a laughing stock, constantly spouting crap that embarrasses even his own party structures — and an unashamed racist to boot.

    How could anyone can have any confidence in a party with a youth leader of such as this?

  • Maggs Naidu

    Mikhaik Dworkin Fassbinder says:
    October 10, 2009 at 13:15 pm

    Interesting take.

    So people should be inspired by eloquent speeches.

    I read somewhere that Bernie Madoff and Tannebaum spoke very articulately.

  • http://www.theforumsa.co.za Dave A

    Something that struck me when considering the discussion around the position of the DA (and Julius Malema for that matter) –

    Principle-centered leadership does not exactly have a stellar history of success when it comes to politics. Pathos seems to trump ethos and logos on a very regular basis.

    It would seem that Machiavelli and Tsung Tzu are more appropriate reading than John Maxwell if you aim to be top of the political heap.

  • Leigh

    Maggs, if I have read you correctly, then it strikes me that you have been mightily unfair towards Mikhail. You seem to imply that eloquent speech should not, of itself, convince us to trust people. I think that is a sensible point. But with respect, Mikhail advocated nothing of the sort.

    Maggs, if you would honour me with just a little sympathy, I would ask that you be a little kinder towards Mikhail. He means well.

  • sirjay jonson

    “Perhaps there is hope for our fledgling constitutional democracy yet.”

    Absolutely Dave A; brings to mind Churchhill’s statement (apologies to the Afriakaaner)… ‘we will fight on the beaches, etc…”

    Saturday pm, lovely sunshine in the Koo, niks winds, braai glowing, all the people, all races happy here, there is still abundant life and promise in South Africa.

  • Maggs Naidu

    Leigh says:
    October 10, 2009 at 17:38 pm

    “But with respect, Mikhail advocated nothing of the sort.”
    ————————————————————————————————–
    And what do you think he means by “Take the DA’s youth leader (whatever his name is.) An irresponsible and ignorant clown, a laughing stock, constantly spouting crap that embarrasses even his own party structures — and an unashamed racist to boot”?

  • StudentQuery

    Re. “Given that the Concourt has decided against Mr. Els in the
    interlocutory application for the permanent stay of prosecution,
    can Mr. Els request that all the judges who were involved in
    his permanent stay of prosecution application recuse themselves
    in the main application if it comes back to the Concourt? ”

    Analagously: can/should a pro se ask that an application which needs to look into
    the appeal at WLD, be held at TPA, perhaps by full bench? Is TPA still considered
    as geing higher than WLD? Can an appeal to TPA pronounce that WLD’s finding is
    false, or does “2+3=5″ remain a “fact in law” until *PAID* to be overturned at SCA?
    Please !! some answers.

  • Chris

    Maggs Naidu says:
    October 10, 2009 at 12:24 pm

    “p.s. On Malema – an interesting view : http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20091010074639211C440485

    Perhaps more sad than interesting. I see the report reads: “Malema said to rapturous laughter . . .”

    I ask myself the question: Are Malema invited to speak because people are interested in his views, or to act as the court clown who is there simply to entertain the quests by making them laugh.

  • Chris

    My apologies for the bad grammer (but perhaps Malema are).

  • Maggs Naidu

    Chris says:
    October 11, 2009 at 16:10 pm

    http://www.mg.co.za/article/2009-10-09-inside-the-malema-machine

    I dunno if it’s appropriate to quote the Nedbank ad, but “it make’s you think, doesn’t it?”

  • StudentAB

    Can someone please provide David Bullard’s blog-URL ?

  • Harold Ferwood

    StudentAB says:
    October 11, 2009 at 17:43 pm

    I find this an odd place to be looking for this particular blog but I suggest asking Kameraad Mhambi. He does come across as someone who would be an avid fan of the gentleman whose commentary you seek.

  • Student’s Query

    Oh shoot, it’s so stressfull blogging with SA’s high telco costs.
    I meant to write “does 2+3=4 remain a fact in law” ie. can’t be disputed
    until overturned by a higher [very expensive] Court, or can TPD and/or
    full bench find that a WLD appeal was wrong, for the purpose of it’s own
    related decision. Namely “the second application should not be refused on
    grounds that it’s grounds should have been brought at the first application
    [a type of estoppel, res judicata argument]; because the 2nd application
    with new grounds need not have been brought, if the 1st application had
    not wrongly been refused?

  • Chris

    StudentAB says:
    October 11, 2009 at 17:43 pm
    Can someone please provide David Bullard’s blog-URL ?

    Try http://www.davidbullard.wordpress.com

  • Anonymouse

    Something quite else – but still to an extent linked to the Zuma and the former President’s sagas. All of them are but politicians:-

    We have just been officially informed by the Departrment of Justice and Constitutional Development that Adv Menzi Simelane has been transferred to the National Prosecuting Authority as Deputy National Director of Public Prosecutions with immediate effect, while his place as DG of the Department is to be taken by Simon Jiyane as of from toady. This is a case of curiouser and curiouser, I’d say. With the Ginwala Commission of Enquiry, Simelane was the one that seemed bent on having Pikoli removed from office. There were scant indications thereafter that Simelane is being investigated for poor performance (and, perhaps for lying at the Commission). Now he is appointed as Deputy. What happens if Pikoli is successful and reinstated as NDPP? If he is not, will Simelane (who succeeded Pikoli as DG when Pikoli became NDPP) become the next NDPP? How can anyone trust him to hold such a high office? These are just a few initial questions.

    Prof De Vos: Any takes on the issue?

  • Anonymouse

    In addition to the above questions: Can Simelane’s transfer to the NPA actually be a ‘demotion’?

  • Student’s correction:

    Oh shoot, it’s so stressfull blogging with SA’s high telco costs.
    Besides blogging is a crappy/dumbed-down mechanism compared to Usenet.
    The displacement of usenet by blogs is analagous to the displacement of a
    proper functioning public transport system, with the ‘every koosie has his
    own karetjie’ system.
    I meant to write “does 2+3=4 remain a fact in law” ie. can’t be disputed
    until overturned by a higher [very expensive] Court, or can TPD and/or
    full bench find that a WLD appeal was wrong, for the purpose of its own
    related decision. Namely “the second application should not be refused on
    grounds that *its* grounds should have been brought at the first application
    [a type of estoppel, res judicata argument]; because the 2nd application
    with new grounds need not have been brought, if the 1st application had
    not wrongly been refused?
    ——
    PS. unusually for this blog, this is not an assertion selling a point of view.
    It’s a question, begging an answer.

  • Sne

    @ Leigh

    Thanks for your response & sorry for taking a long time to reply. I have replied in accordance with the paragraphs you have used. However, for ease of reference, I will number my paras. Therefore, my response to your first para should be my para 1, etc.

    1. By taking on the ANC in this instance, the DA is using the state resources (cause Pres Zuma is utilizing state resources to defend himself) which could have been employed elsewhere to benefit the indigent members of our society.

    2. The DA application could go towards that end but it is indeed a very long and costly short. Our tax money has already been involved in an unwinnable case against Pres Zuma and I believe now is the time to cut our losses and not to commit to more irregular, irresponsible, fruitless and wasteful expenditure in legal and other fees.

    3. Your first two questions I answer with a resounding, No! Your third one I answer with a yes. This to be seems to be a more sustainable option and the one which will certainly benefit not only the poor and marginalized in our society but also our democracy as a whole.

    4. It is a public secret that what I have suggested is a long short but the benefits are immense such that it is worth a short. What the DA achieved here in the Western Cape could be replicated elsewhere as long as correct and useful methods are adopted. What those methods are should depend on the DA policies which are aimed at gaining more support. Yes the ANC does enjoy support. However, the reasons, as many have argued like Maggs Naidu, is not because the ANC cannot be unmatched but due to the lack of alternatives in terms of the parties for which a person may vote. Honestly speaking, the DA is not an alternative, say for someone who is not happy with how the ANC is doing things and how its members behave and (mis)use public funds. The DA needs to start being an good alternative to the ANC. Worth noting is that the youth of South Africa is looking not just for a party that emancipated our grandparents from the evils of Apartheid but for a party that will take the country forward and sustain the gains that have been made post-Apartheid. Is the DA politically relevant to the youth in this country? Is it relevant to the majority of people living in this country to defeat the ANC in national elections?

    5. I refer you to the above paras which address most of the concerns raised herein.

    6. I respectfully disagree with your conclusion. I believe such efforts will merely serve to cloud the real and immediate issues that our country is facing and serve to divert funds to lawyers’ pockets.

    7. I do not know why it is not possible in our country to take into task someone who is not performing in his position and instead of being dismissed he’s just given another equally demanding govt. job which he wont do well. Please I am not referring to Mantombazana Tshabala-Msimang and Adv. Simelane here. ;-)

  • Michael Osborne

    @ Sne

    “Honestly speaking, the DA is not an alternative, say for someone who is not happy with how the ANC is doing things and how its members behave and (mis)use public funds. The DA needs to start being an good alternative to the ANC. ”

    As a practical matter, you are right. But what policies proposals, exactly, do you think the DA should adopt, to render itself a viable alternative? Yes, there are differences in policy emphasis — certainly, the DA complains about what it sees as excessive AA and BEE. And it keeps on saying it favours a less regulated labour market. But note that many in the ANC have also criticised some aspects of AA and BEE.

    On the most fundamental issue of all – macro-economic policy, the DA is very close to Trevor Manuel; indeed, the DA has been quite complimentary of the ANC’s macro-economics over the years.

    I tend to think that it comes down in part to the familiar issue of race. Many SA voters just cannot imagine voting for a party with a largely white leadership, and an ancestry going back to the PFP.

    In fact, I wager that the DA could adopt a party platform exadtly identical to the ANC. It would still not get significant African support. That is a reality the DA must just come to terms with. Perhaps it should just disband.

    But even given this analysis, one still has to explain why parties with no particular historical baggage, black leadership, and policies also very close to the ANC’s, cannot attract much black support. I am thinking of the UDM and the ID.

    I wouild be curious, Sne, how you would explain this.

  • Sne

    I will use paragraph numbers to refer to your post bro and will ignore your (my?) quote.

    1. Admittedly, I cannot point out anything wrong with DA policies because I have not read any. To be brutally honest, I think the problem with DA is that it is very ‘white’ to such an extent that many Black people do not associate themselves with it. The condescending tone that Helen Zille seems to adopt when she refers to the mishaps of the ANC members is not helping the DA as well. Maybe the majority view it as being consistent with ‘white superiority’ and ‘black failure’ that was perpetuated by the Apartheid regime. It will take years for an ‘external’ party to really mount a formidable challenge to the ANC unless a split (as opposed to a splinter) occurs. The more educated South Africans get, the less they will see in the DA a potential continuation of Apartheid but will actually try to understand what the DA is all about and read and understand its policies. (This may take years indeed because I have never even read the DA policies myself)

    2. I agree with you pertaining to your paras 2 – 3.

    3. It could disband or continue to get more support from the apparently indomitable political force in SA, the ANC.

    4. UDM is generally speaking associated with failure. Gen. Holomisa had a chance in govt. in the erstwhile Transkei Republic and he has nothing to show for it. (By the way, is Gen. Holomisa a traditional leader of UDM or does the party not have other competent candidates who could be presidents?) Moreover, he must just disband his party because to me his party looks quite irrelevant to the SA political landscape. IFP is just a Zulu party which is irrelevant to non-Zulu speaking people. I have seen amongst its ranks a few whites but then again, I have seen some blacks in the New National Party. As for others, I think they have been bashed for their irrelevance in this blog and I need not usurp other people intellectual property rights by regurgitating what they wrote without quoting them. All in all, there is no alternative to the ANC in SA!

  • Maggs Naidu

    Michael Osborne says:
    October 12, 2009 at 14:01 pm

    For any political party to establish itself as a force to be reckoned with, it has to establish itself from the ground up within communities – that’s a lot of hard work.

    The easy route, getting one broken tap fixed as part of a pre-election campaign or silly election slogans is hardly inspiring.

    Opposition parties need to reinvent themselves if they want to be relevant.

    The ANC will probably take a beating in 2012 LGE but it will recover by 2014 and beyond – the gains that some opposition parties will show will not be sustained for long.

  • Michael Osborne

    @ Maggs

    Just admit it Maggs, you would not vote for the DA if it adopted a mirror image of the ANC’s platform, and “Madam” Zille adopted what you viewed as an entirely appropriate tone.

    The reason is that, in your mind, the DA will forever carry the baggage of the white “liberal” opposition.

    There is no need to be ashamed of that. Most white people (who have no particular conception of the ANC’s policies anyway), would not vote fior the ANC, for obverse political reasons.

  • Sne

    @ Maggs

    “…silly election slogans…”
    …………………………………………………………

    Are you refering to the “Stop Zuma” campaign? LOL. That was classical…

  • Maggs Naidu

    Michael Osborne says:
    October 12, 2009 at 16:42 pm

    It’s hardly likely that I will vote for any other party. I may, if things go like it did for the last ten year, refrain from voting.

    The DA is not an option.

    The reason is partly that they are is more inclined to keeping the status quo than transforming our society.

  • Maggs Naidu

    Sne says:
    October 12, 2009 at 16:58 pm

    :)

    And “Fight Black” as Dworky says.

    I wonder what 2012 or 2014 is going to be.

  • david hurst

    Hmmm, sounds very serious, this dialog. Brought to this site by MG link. Speaking about a purely ridiculous figure as Berlusconi, and to compare him to Zuma says one message about populist politics, that they can manipulate and get away with anything. For SA the message is more important because it is in a truely formative stage – and therefore far more serious. Hopefully it takes a farce, like Italian politics to sober up what is happening in SA. Control of the media here won’t be by a billionaire, it will be by the ANC. Clearly judicial considerations have been brushed aside, and show the future, now just wait for SABC or private media restrictions – just in the last years one can see editorial tail-between-the legs changes.

  • Sne

    Maggs Naidu says:
    October 12, 2009 at 17:22 pm

    Maggs, just to be off the topic a bit. Your post here the other day about the ten year management lessons or classes for blacks indicated to me that you were white. However, your nick suggests that you’re Indian. Yet you’re an ardent ANC supporter. I am flummoxed, any help?

  • Maggs Naidu

    Sne says:
    October 13, 2009 at 8:49 am

    Second generation South African – grandparents were Indian (“indentured labourers”).

    I think you misread my comments re management workshops – it was a prerequisite for “Black advancement candidates” to be “trained” till blood oozed out our ears and then some – appointment was an elusive thing (it’s somewhat better these days, but not entirely so). Anyway, I quit the corporate world before I got more training and a gold watch to boot.

    What’s surprising about being an ANC supporter?

  • Sne

    @ Maggs

    Thanks Maggs. I was not surprised by your being an ANC supporter. Was just flummoxed by the apparently incongruous elements you appeared to be made of. Thanks for clarifying matters for me.