Ronald Kevin Roberts (alias Ronald Suresh Roberts) published an intriguing – if wrongheaded – opinion piece in the Sowetan yesterday. In it he argues that the jury system should be reintroduced in South Africa because a “jury is the exact opposite of the sort of illiberal clique that until recently dominated key institutions of legal culture, such as the Judicial Services Commission”.
Arguing that the 2009 election was, in effect, nothing less than a rough- and-tumble referendum on the alleged criminality of Jacob Zuma, he punts juries as “the classic and humane safety valve of democratic legal systems”.
It has been the venerable role of juries to “nullify” the sometimes pedantic harshness of the law in the interest of the legitimacy of law within the broader society. That’s one reason why even the old whites-only jury trials disappeared in 1969, as apartheid securocrats completed their takeover of the legal system under John Vorster…
The fact that we don’t have juries, nor even discussion about the restoration of juries, is the single best sign of the triumph of illiberalism over democracy in a post-1994 legal system that is otherwise so proudly progressive. Apartheid distrusted the native voter; democracy still abhors the native juror.
Of course, only the most formalistic pedant will argue that there is no interplay between politics and law (see the article by Ronald Dworkin on the Sotomayer confirmation hearing in the Seminar Room for an elegant argument in this regard).
But I am not sure the argument by Roberts holds water (to put it mildly). To argue that the 2009 election was a kind of jury trial for Jacob Zuma in which he was acquitted is preposterous. We vote for a party, not an individual. It is therefore impossible to know whether those who voted for the ANC voted to “acquit” Zuma or despite the fact that Zuma was the ANC Presidential candidate.
In any case, a jury first hears all the evidence as presented by the state and then makes a decision on whether the state has proven its case beyond reasonable doubt. Zuma, of course, managed to evade the trial (his “day in court”) that would have allowed a presentation of the evidence. In order to avoid not only a possible conviction but also having to be judged by the voters on the basis of all the evidence gathered by the state, Zuma and the NIA made sure that he would avoid a trial. A jury also operates on consensus. All members of a jury must agree to convict or acquit a defendant. Where 35% of the jury “votes” against a defendant (as happened in the 2009 election), the defendant is not acquitted and can be retried.
But this silly comparison aside, does Roberts not have a point? After all, our legal system lacks legitimacy and it might well be argued that re-instituting juries would help to legitimise the legal system as it would introduce a democratic element into criminal trials which would give people a better understanding of the legal process and a much stronger feeling that they have a stake in it.
I would say, decidedly not. Re-introducing juries would be a disaster. This is not – as Roberts preemptively argues – because I am “illiberal” and racist and because I distrust black people to make correct factual decisions after hearing all the evidence presented by the state.
Far from it.
I do distrust South Africans in general (black and white) - who have been battered by crime and are often paranoid and fearful of “criminals” - from listening to all the evidence with an open mind and then making a fair decision. Given the discourse on crime in our society, will jurors always acquit defendants when they should? What about the fair trial rights and the presumption of innocence? I am not sure whether all South Africans – desperately wanting to see criminals behind bars – would always want to bother too much with assuming the innocence of an accused before finding him or her guilty – especially where the accused does not have high charging lawyers to look out for his or her interests.
But there is also a flip-side to this argument. Given the fact that South Africa is a deeply divided society with deep racial fissures, those accused persons who are lucky enough to be able to afford expensive lawyers will have an even more unfair advantage. A good lawyer will be stupid not to play on the possible racism and bigotry of at least some members of the jury. Such a lawyer will attempt to sway some of either the white or black members of the jury to view the case as a racial one in order to garner sympathy for his or her client and so ultimately to prevent conviction.
Imagine a white farmer is charged with murdering a black farm worker and the jury is made up of seven township residents and two white farmers. A good lawyer will play to the possible racist fears and prejudices of the white jurors who might be eager to believe that the farmer acted in self defense. How often would the state be able to secure a conviction (convincing all nine jurors of the guilt of the accused) in such circumstances? Not all white jurors would be swayed by the lawyer’s tactics, of course, but some will.
A jury system may therefore further pervert the criminal justice system, as rich defendants with clever lawyers will often be able to escape conviction while undefended (mostly poor and black) defendants will more often than not be convicted. Juries therefore seems to me like a quick-fix that will turn in to a “no-fix”.
Of course I believe there is a great need to make our legal system more legitimate. This requires a change in the race and gender composition of the bench and a change in the race and gender composition of the advocates profession – from which judges are mostly selected. The vast majority of advocates are still white and male and this clearly hampers transformation.
But transformation for me is also about making the legal system more accessible to ordinary South Africans. It seems untenable that most South Africans do not have the money to access the legal services required to enforce their rights and the legal obligations of others towards them through the judicial system and this poses a fundamental threat to the Rule of Law.
The dramatic expansion of legal aid to civil matters would really make a big difference in this regard, but this has resource implications so is not so easy to do. Nevertheless, if access to justice is not improved the legitimacy of the legal system itself will be further eroded – with or without a jury system. Moreover, an expansion of legal aid would also provide opportunities to transform the race and gender composition of the advocates profession so it seems to me to be of the utmost importance.
The acquittal of OJ Simpson by a Los Angeles jury has shown the world how wrong a jury can get things. In a society as polarised as our own, I believe there would be legitimate concerns that accused persons would not necessarily enjoy fair trials, especially if the lawyer is as persuasive as Johnny Cochran (” If the glove don’t fit, you must acquit”) and is able to articulate arguments that resonate with a lay audience although it may not be legally sustainable.
Prof – Good post. I agree with you in every respect that the jury system should not be reintroduced, but that the jury should remain permanently sequestered. An abortive attempt has already been made by the Department of Justice and Constitutional Development before 1994 to reintroduce the jury system in lower courts to advance goals of representivity, accessibility and community participation in judicial decisionmaking(transformation, if you like) through the lay-assessor system in s 93ter of the Magistrates Courts Act 32 of 1944 as amended. In certain cases, notably murder trials, regional magistrates have to be assisted by two lay assessors on questions of fact, unless the defence requests otherwise,, in which case the presiding officer remains with a discretion whether to appoint assessors or not. (In certain experimental centres, the compulsory appointment of lay assessors have even been expanded to other trials as well – and there are indications that it may be introduced nationally.)When lay assessors are used, the majority makes findings of fact, while the presiding officer has the only say on questions of law – much like the jury system.
The lay-assessor system is frought with problems. Although at first, I used lay-assessors freely and widely, even in cases other than murder trials (because I thought the goal of the legislatioon was quite laudable), many problems that I’ve encountered in practice motivated me to stop using assessors altogether, so much so that I have almost five years ago last used them. Moreover, as a result of some of these problems, defence lawyers almost invariably request the presiding officer to sit alone, to which request I usually gladly oblige.
The first problem that I encountered, is that lay-assessors usually feel they have a job to do, and that job is to convivct an accused person at all costs. I’ve spent much time to try and convince lay-assessors that there is simply no evidence that justifies a factual finding on which a conviction can be based, and I have encountered many situations where I have actually been out-voted by the majority of two lay-assessors aginst one presiding officer on factual issues. The assessors are often influenced by American Soap Operas, and I was quite surprised that one day the lay assessors tried to convince me in a written motivation of judgment to convict an accused of ‘murder in the first degree’ (even though there was no evidence on which the accused could be convicted of ‘ordinary murder’ as we know the crime in South Africa).
Second, lay-assessors, especially in courts based in rural areas, are so closely connected to society they live in, they can actually tell the presiding officer exactly what happened before any evidence has been led. They rely on what is reported in newspapers, on TV or even what a neighbour has told them. In one case, after I have convinced the two assessors just before lunch that there is no evidence on which to base a factual finding that may lead to a conviction in law, and we adjourned to hand down judgment after lunch, when we were about to resume, the assessors proudly informed me that they have now spoken to one of the witnesses who testified that he did not witness the incident, and he has informed them that there is another witness that did see the incident in the way they wanted to find, and therefore, we should convict. I’ve even had one case where the assessor asked whether she could not have time to consult a sangoma for guidance on how to find in a specific case.
Third, although the presiding officer can be at great pains to explain to assessors what evidence is inadmissible and should not be taken into account at all, they more often than not tend to take inadmissible evidence and innuendos into account. Unscrupulous prosecutors and lawyers often use inadmissible and unlawyerly tactics to influence lay-assessors emotionally to the one side or the other, and even where the presiding officer has acted against such lawyer, the emotional swing has already been achieved.
There are numerous other problems, like part-heard matters. Part-heard matters now depend for their finalization on the availability of three people presiding, not only one. The chances are simply greater that one out of three persons might become temporarily ill or unavailable for some or other reason, than what the chances are that one out of one would become unavailable. Sometimes, especially iin the regional courts, one might have two or three part-heard matters enrolled for one day and, depending on the roster of assessor duty, three totally different sets of assessors might be involved. In many instances the administration has simply not budgeted for remuneration of assessors and, while the system approaches the whole thing on a ‘community service’ basis, many (if not most) lay-assessors see the system as an employment in the true sense of the word. They demand to be used; and, if not paid in time, refuses to continue adjudicating a case.
A further problem with the jury system is that, because the jury usually consists of lay-persons, one cannot really expect the jury to provide ‘legal’ reasons for judgment. The adjudication of appeals is affected negatively where the appeal court does not have reasons on which to judge whether justice has been served. In the lay-assessor system, quite often the presiding officer has to provide reasons for the majority judgment though he or she does not really know what the reasons for the assessors’ judgment are.
The lay-assessor system, and also the jury system, is a no-win-but-always-lose situation, and the jury should remain permanently sequestered. We should not allow politics to reintroduce it.
Interesting topic.
Off course I think juries are an evil that should be abolished and I speak of personal experience.
About three years ago I got called up to jury duty; everybody on the voters roll in the UK can be called up for jury duty. They do compensate you financially and your employer has to (by law) grant special leave for the duration of the trail.
Well about a week into the trail one of my co-jurors reached a conclusion that the prosecutor’s witness is lying because he is a Sagittarius and they always lie. Of course the trail ended in a mistrial as the foreperson informed the judge of the fact that the case was discussed before all the evidence was submitted (never mind conclusions reached).
So the conclusion I came to is that juries are made up of substandard calibre people that believes in Horoscopes and God knows what else.
I would much rather my fate be decided by a judge with a legal degree than my peers with no verifiable qualifications in law or experience.
Nicholas,
In comparison to a our legal system which has in recent months itself has mirrored to be fundamentally flawed by the dangers the Professor have shown to have an effect on a potential South African jury system – “South Africa is a deeply divided society with deep racial fissures … “?
Bigotry and bias are thus clearly not something that affect “a lay audience” and a judiciary that is impartial is merely based on a belief.
At this stage I’ll rather put the deciding of my fate in a criminal/civil matter in my peers….
And your so-called “substandard calibre people” are those who feel the brunt of the law everyday and how it fails them because they have “no verifiable qualifications in law or experience”.
Being able to tell fact from fiction is a skill, if not an art, that requires above average intelligence, objectivity and considerable experience. No wonder the American juries are such a joke – usually a bunch of ignoramuses who are easily swayed by the antics of emotional and arrogant lawyers parading as wannabe Hollywood actors.
I’m not saying that our judicial officers are not prone to bias or emotion, but a well trained legal mind (scarce as they are) does offer some comfort.
Pierre de Vos,
I think the propositions made by Roberts are obviously pulled out of thin air whilst your reasons for not re-introducing the jury system in SA are not far from it either. I’d like to take issue with some of the points mentioned in your article:
1. On the “silly” issue of Zuma: on the one hand you say that “… only the most formalistic pedant will argue that there is no interplay between politics and law…” whilst on the other hand you try to dispel Roberts’ argument “… that the 2009 election was a kind of jury trial for Jacob Zuma…” by saying this is preposterous. Assuming that you are, by definition then, not one of the “most formalistic pedants”; you’d then also have to argue that politics and people go together, inasmuch as people-party-politics go together. Party political elections are in fact subjective and people-oriented decisions. Zuma represented the ANC inasmuch as Zille represented the DA etc. Zuma was, for many people, that figure and person whom they felt represented their interests (irrespective of whether one believed the nature and content of the allegations against were true, false, with or without substance). So, to a very large extent, people did in fact vote for Zuma precisely on the basis of his personality and not necessarily on the basis of the ANC itself as a party – particularly given the heavy media coverage of these controversies surrounding Zuma at the time of the election. And to this extent, it is clearly not far-fetched to maintain that the election was must have been an “acquittal” of those allegations against Zuma as well as “seeing justice prevailing” (seen from the viewpoint of his supporters). Accordingly, your argument in saying that “we vote for a party, not an individual.” is untenable precisely because Zuma is a perfect example for the fact that “people do (or did) in fact vote for personalities and not necessarily for parties”. Only the most formalistic pedant would argue that there is no interplay between politics and personality! To this end and irrespective of the aforegoing, who can exclude the fact that people may have voted tactically in order to “acquit” Zuma (as opposed to having voted solely for the ANC, as a party)?
2. On the re-introduction of the jury system: I disagree with the re-introduction for completely different reasons as you do. A re-introduction would (i) mean that there would have to be a socio-legal paradigm shift: the general lack of understanding, appreciation and respect for the law is too big in SA and this lack would have to be restored first (and at enormous costs too!), before any other juristic aspect could and would and (ii) it is not a question of jurors being “vindictive” as you’d like to see it (“…I’m not sure whether all South Africans – desperately wanting to see criminals behind bars would always want to bother too much with assuming …” – it is merely a lack of appreciation and respect for the law and justice on the part of the majority of South Africans i.e. a sense of respect for law and justice breeds a sense of objectivity in every citizen to judge on his/her perception of law and justice rather than seeing jurors as people who’d want to “vindicate themselves” merely because they’d like to see a “perpetrator” behind bars – a rather bizarre way of seeing jurors I’d say.
3. On the legitimacy of the law: you argue in favour of the legitimacy of the law via a change in the race and gender composition of the bench as well as the advocates’ profession. Assuming the bench and the advocates’ profession are rid of the unequal compositions (something I am in favour of too), but do you honestly believe that the SA legal system would be more “legitimate” in this way? Surely the “legitimacy of the law” goes a lot deeper than merely an “equal representation” of people on the bench and in the advocates’ profession? Your very next argument then goes on to state that “… transformation (note, not legitimacy) for me is also about making the legal system more accessible to ordinary South Africans.” This is clearly a contradiction in terms, especially when one simultaneously wishes to argue in favour of a jury system. My question again: how and to what extent would the bench and the advocates’ profession legitimise a legal system vis-à-vis the introduction of a jury system?
Harold Ferwood @ 13:15 pm
What i meant with substandard was in context of deciding another human’s fate in sometimes very complex legal cases.
one example for instance is the UK is currently considering abolishing juries for complex financial (white collar crime) as they found most juries gets lost in all the fincancial lingo.
“Being able to tell fact from fiction is a skill, if not an art, that requires above average intelligence, objectivity and considerable experience.”
Are these the elements missing from the JSC according to Judge Kriegler and the diminished FUL?
oh yeah, I seem to have forgotten … were there any faces on the voting ballots this year??
Hi Prof. Whats your take on Sipho Seep’s article this morning; http://www.businessday.co.za/articles/Content.aspx?id=81004
Suresh is of course right, had the voters of south africa been given a chance to decide on Zuma’s fate, Msholozi would have been a free man long ago, this was evidenced by ululations and co-dancing by the people whereever he went to campaign for the ANC
What would a jury have done in his case? http://www.news24.com/Content/SouthAfrica/News/1059/ccb710ece204496892b864f7c7eb7237/09-09-2009-01-50/Motata_gets_R20_000_fine
Harold Ferwood – “At this stage I’ll rather put the deciding of my fate in a criminal/civil matter in my peers….”
Who would a judge’s “peers” be?
Further, Pierre and sycophants is wrong to suggest to disguise their hatred of what happened in America when the prediminantly Black jury acquitted OJ Simpson as distrust of the jury siystem and yet not quote the incident, the fact is white america believed Simpson to be Guilty and Black america to be innocent, albeit there are always house negros, the same obtains here the majority blacks believe Honourable Hlophe to be innocent and the 99%Majority of white to be guilty, and that is why the racist erstwhile judge krigler is making a buffonnery of himself and for sure his racist buddies, loius harmse, who found there were no hit squards, despite overwhemling evidence, otherwise, are with him on this campaign.DO no think we have forgotten about krigler’s racist past and his endorsement of apartheid, but now he has suddenly had a damascus experience, let him foll his broederbond buddies with that balderdash!
Mdu – Are you a “house negro”? What an utterly insulting terminology you use.
@Mdu i concur. In any event the jury system has many fundamental flaws, some are that unqualified men and women are called to participate in a specialised field. the other is that their decisions and opinions are based on emotions and their ingrained prejudices, which dates back to childhood.In any event the American system is a joke, i have no respect for it whatsoever, how many times have we seen black American who were wrongly convicted. I cant believe Prof De Vos would bring up such a subject in his never ending quest to see the ANC, black people obliterated from the country. Dream on prof and your blind followers.
Another disturbing thing is the levels of racism directed at black people by these so-called organisations that are supposedly protection our Constitution. I’m talking about Afriforum and its call that Motata J be removed from the bench. We did not hear them call for the Magistrate from Port Elizabeth who was convicted of making racist remarks that he be removed from the bench, Why??, is it because what is good for the goose is not for the gander? The truth must be told that the decision of that Magistrate in the Motata matter is questionable, and i’m glad that he is appealing it. The sentence was even more ridiculous, it was meant for the eyes of the media. To bad, because on appeal, it will be in the sportlight. I have never seen such a harsh, excessive sentence in my life for a first time offender. The sentence arouses shock and emabrassment for the Magistrate who clearly wants to be famous for the wrong reasons.
Lastly when another Judge, who is white was convicted for drunk and driving, no one called for his unsuitability as a Judge. He sits and adjudicates cases in the North Gauteng High Court today. You see this is the racism that i’m talking about. The fact that this Judge pleaded guilty is no excuse. but alas, they did not call for his inpeachment!
Judge motata exercised his Constitutional rights by pleading not guilty. If these people were really protectors of our Constitution, they would respect the exercise of his Constitutional rights. The Constitution applies to everyone and imposes similar obligations on everyone, the fact that one is a Judge or not is neither here nor there! YOU PEOPLE,AFRIFORUM, PROF, AND ALL THOSE WHO PRETEND TO BE PROTECTORS OF OUR CONSTITUTION WHILE APPLYING IT SELECTIVELY ALONG RACIAL LINES SHOULD HANG YOUR HEARDS IN SHAME, YOU DO NOT DESERVE TO BE CALLED AFRICAN, YOU ARE THE VERY FORCES THAT WILL DRIVE THIS COUNTRY INTO ABYSS. i use caps to emphasise the point, not to depict rudeness.
@Mdu i concur. In any event the jury system has many fundamental flaws, some are that unqualified men and women are called to participate in a specialised field. the other is that their decisions and opinions are based on emotions and their ingrained prejudices, which dates back to childhood.In any event the American system is a joke, i have no respect for it whatsoever, how many times have we seen black American who were wrongly convicted. I cant believe Prof De Vos would bring up such a subject in his never ending quest to see the ANC, black people obliterated from the country. Dream on prof and your blind followers.
I hope peope are doing to come to their senses.
Another disturbing thing is the levels of racism directed at black people by these so-called organisations that are supposedly protection our Constitution. I’m talking about Afriforum and its call that Motata J be removed from the bench. We did not hear them call for the Magistrate from Port Elizabeth who was convicted of making racist remarks that he be removed from the bench, Why??, is it because what is good for the goose is not for the gander? The truth must be told that the decision of that Magistrate in the Motata matter is questionable, and i’m glad that he is appealing it. The sentence was even more ridiculous, it was meant for the eyes of the media. To bad, because on appeal, it will be in the sportlight. I have never seen such a harsh, excessive sentence in my life for a first time offender. The sentence arouses shock and emabrassment for the Magistrate who clearly wants to be famous for the wrong reasons.
Lastly when another Judge, who is white was convicted for drunk and driving, no one called for his unsuitability as a Judge. He sits and adjudicates cases in the North Gauteng High Court today. You see this is the racism that i’m talking about. The fact that this Judge pleaded guilty is no excuse. but alas, they did not call for his inpeachment!
Judge motata exercised his Constitutional rights by pleading not guilty. If these people were really protectors of our Constitution, they would respect the exercise of his Constitutional rights. The Constitution applies to everyone and imposes similar obligations on everyone, the fact that one is a Judge or not is neither here nor there! YOU PEOPLE,AFRIFORUM, PROF, AND ALL THOSE WHO PRETEND TO BE PROTECTORS OF OUR CONSTITUTION WHILE APPLYING IT SELECTIVELY ALONG RACIAL LINES SHOULD HANG YOUR HEARDS IN SHAME, YOU DO NOT DESERVE TO BE CALLED AFRICAN, YOU ARE THE VERY FORCES THAT WILL DRIVE THIS COUNTRY INTO ABYSS. i use caps to emphasise the point, not to depict rudeness.
Mdu, with respect mate I would like to pick up on two points which you raised. The first concerns your views as regards the OJ Simpson trial in the US. The second concerns your remarks about Kriegler J.
You make out (correctly in my view) that much of the support for and condemnation of Simpson apparently ran along race lines. I would add only that if that is at all true, then that phenomena militates heavily against the jury system. Hopefully my concluding remarks in this post will make my point here a bit clearer.
You accuse Kriegler J of having a racist past and of endorsing apartheid. Mdu, with great respect, you are just wrong about that. Kriegler J was heavily involved in the training of black lawyers during the 80′s – a time well before transformation became the shallowly comprehended catch phrase it is today. Let me just say respectfully that it appears fairly clear that whatever ill regard you may feel towards white people in general seems to obscure your judgment. This determination is supported by your latest comments insofar as your criticisms of Kriegler J are manifestly untrue. Kriegler J is only human – and I am sure he would be the first to admit that. But at the risk of sounding like something of a fan (which I probably am), that man has done much for this country. And that to my mind remains a fact despite people hurling cheap and demonstrably unsubstantiated allegations at him.
I would also offer to comments about the jury system. The first ties in quite sustantially with one which I believe George made a little earlier: juries do not care over much about the relevance of the mud. They care mainly about whether it will stick. Yes justice is most ably dispensed where the fact-finders are properly trained and suitably experienced.
The second point concerns juries in matters that can involve severe bodily injury such as (a) criminal matters that involve violent offences and (b) personal injury suits that involve grave harm. Juries may be required to consider exceedingly graphic content such as photograhic evidence of corpses or testimony of brutal rapes. Those sorts of things can leave profoundly troubling impressions. Leaving aside the abovementioned point that juries may well reach holdings on the basis of immaterial points, the question is: can one simply expect those jurors to forget about the disquieting material that they were called on to consider closely? I expect not.
So the cumulative effect of my two points is the following submission: on an exceedingly simple costs to benefits analysis, the introduction of the jury sytem is just daft. There might well be lingering harm to the jurors. And the benefit of jury-determined findings may well greatly undermine the dispensation of justice.
Skhokho – I for one do see a big difference between a drunk driving judge who admits guilt and one who doesn’t. The one is man enough to admit his error, the other thinks he can bullshit his way out of any accountability by calling witnesses racists or house-negroes – he is guilty of both drunken driving and dishonesty. And to be dishonest is (normally) completely unacceptable for a judge.
Leigh you always say he trained blacks, which prominent black, did he train and is that why he condenscendingly treat us, we;re not all his trainees he should keep that in mind,evem Eugene de Kock trained abo Joe Seremane!
I do try to take everyone seriously – at least until they demonstrate just how full of s**t they are. But it never ceases to amaze me that the people who so frequently cry racism are the ones guilty of it.
Many will no this. But I will ask it anyway: will the content of Kriegler J’s views ever replace the colour of his skin as the overarching subject? It does seem as if he would be asking for the moon on a bleeding string if he requested fair criticism of his grounds.
Thomas, Seepe makes a very basic mistake of logic. He conflates judges who have handed down inappropriate sentences with judges accused of or convicted of criminality. The law journals are replete with criticism of court judgments. Most of these judgments were handed down by white judges. It is right that we criticise judgments (and I think we have a duty to do so) when we disagree with them – regardless of the race of the judge – and that we should not hold black judges to a higher standard than white judges (which does happen). But it is irrational and absurd to compare bad or wrong judgments handed down by white judges with alleged corrupt and criminal behaviour by Hlophe and Motata. There is NO equivalence and the fact that Seepe does not see this is troubling.
Mdu, with respect, you and I are about to engage in a discussion about largely irrelevant material. Actually, it is just as well that we strayed so far towards irrelevance given that it can serve as a brief example of my the introduction of the jury system is such a foolish and misguided notion. I could give you a piece proving Kriegler J’s commitment to transformation. But his past efforts, although praiseworthy, should not have to serve as some sort of qualification. What matters is whether he makes good points. What matters is whether FUL has a sound legal basis for the review application which it means to pursue.
Mdu, if I may, I would like to ask you a straightforward question. And I apologise to our fellow bloggers for veering from the topic of the day. Leaving aside the colour of Kriegler’s skin, do you think it is important to ensure that public bodies exercise their powers rationally? Further, do you think that public bodies should base their decisions on relevant material?
I very much look forward to your answers. You are no doubt aware that you do no need to answer. But I am counting on you to do so. Mr Malunga, with respect, has demonstrated that he will not answer such question despite people being quite justified in thinking, as I am sure he is aware, that there is nothing untoward or unereasonable about seeking answers in law from a teacher of law.
Thomas – I was also disapointed to see Seepe descend to this level of rhetoric. He didn’t even pretend to address the merits of Kriegler’s viewpoints.
I had admired Seepe for the courageous stands he took against Mbeki long before it was popular or safe to do so. I was concerned with his mindless Zuma cheerleading, and am now horrified to see him fall so easily into such brazen use of this sort of hate speech.
Any criticism of corruption or incompetence in anyone aligned to the ruling elite is now sadly a no go zone – you will be merrily labelled a racist or house negro by a raft of squealing sycophants who are unable to deal with their own baggage and/or are trying desperately to clamber onto the new gravy train. All strength to Kriegler, Tutu, Ramaphele etc all of whom, it should be noted, have absolutely nothing to gain personally from their courageous standpoints. It is voices like these that will prevent the country entering the final phase of Zanufication.
Listen to the Message, not the Messenger … right Leigh?
Skhokho Radebe, your response does not make sense. If you agree with me that the jury system is not appropriate (as you say you do), why attack me? Have you been having some tea?
Mdu – “To bad, because on appeal, it will be in the sportlight.” … Hmmm, never heard of a ‘sportlight’ before. Excessive sentence – well, we’ll just have to wait and see. I’ve heard of many such sentences having been imposed on first offenders.
Professor,
His opinion is that you shrug the most important issue at hand with these trivial law discussions which inevitably regress back to the scab everyone loves to pick at.
Harold, exactly so. The trouble is that so many people introduce wholly immaterial concerns such as ‘who’ rather than the plainly relevant ‘what’.
I find myself (yes an oustanding achievement in itself) in the mood for analogies. And while that state of mind is not as charming as the mood for love in which some of our fellow bloggers found themselves just a few short spring nights ago, perhaps it can serve a purpose here.
You introduce a discussion about leg spin. But I on the other hand bring up grape fruit. You would be correct to conclude that my remarks are probably irrelevant. That is, you show that you want to talk about bowling. But my comments are not even about cricket.
The above example reflects broadly what happens here often enough. The discussion may be about whether FUL has a meritorious case. Now in order to argue for or against the position, one must necessarily talk about the law. Societal or pragmatic considerations may be germane on some other day in some other discourse. But if the facts are not in dispute, legal arguments are typically undermined by legal arguments. That’s how lawyers do it. That’s how it should be done.
Sometimes I think that the experienced lawyers among us such as the Professor really ought to explain the meaning of relevance. But I shall offer the following brief and general definition here and will trust to the more experienced among us to correct me or flesh this out some: points are relevant where they tend to support or refute that which is at issue. If they do not, then they are immaterial and the introduction thereof serves as more of an encumbrance than an aid.
Apparently the Judge pumped over a R1 Million into the legal economy in defending his case. Can’t that fine be written off as an “outstanding contributor award”?
But Leigh, that is entirely the point! The use of legal argument is merely a means to hide “Societal or pragmatic considerations” which are actually at the core of this collision of opinion. Therefore even if the message has merit, coming from a filthy mouth unfortunately removes it.
Looking back a couple of years ago to when Hansie shamed this country by admitting to taking bribes ….
What hurts me the most about that sorry story was the fact that possibly our greatest cricketing achievements under his tenure were nothing more than him poorly executing the throwing of a particular game …
Unfortunately Judge Kriegler will not have the luxury of blaming Old Nick for making him the fall guy for this atrocity he currently finds himself heading, and his so-called “righteousness” will soon come out looking like filthy rags” …
Leigh, catch him when he stumbles …..
Harold, allow me to revist my earlier point if I may. And incidentally, the comments which I mean to present here run counter to the idea of introducing the jury system.
A trial judge may actually have to consider both the message and the messenger as it were. That is, the presiding officer may have to at once consider (a) the relevance of the evidence and (b), the credibility of the witness.
Sometimes this may be a challenging task. It should not be entrusted to undisciplined thinkers who would lack the ability to (a) follow the testimony with a clear grasp of the elements that fall to be established or rebutted thereby and (b), resist the temptation to found their views on irrelevant material.
I would think that even trained lawyers need a lot of seasoning before their skills are mature enough to preside.
Jurors for the most part would not be competent to the task. That is not a slight on non-lawyers. For a start, and as I mentioned earlier, even lawyers need time to hone their skills. And secondly, choosing one pursuit often involves the opportunity cost of passing up on another. Tommy Denning MR read mathematics before turning to law. He did dead well at it too taking a first at Magdelene College. But turning to law meant leaving mathematics. Similarly, the absence of legal training and experience should generally preclude people from making decisions where such decision making is to be based on the evidence lead and argument.
Harold, to turn once again to the FUL review application which is certainly causing people to talk: I disagree with the view that the legal points used are a means to hide scocietal or pragmatic considerations.
I think the better view is that some people have made serious efforts to avoid blurring the distinction between legal points on the one hand, and societal or pragmatic considerations on the other.
Non-legal considerations may very well be at the heart of the tension that we see. I think that legal arguments can at times be rendered stronger if they reflect some awareness of societal or pragmatic concerns. But as regards the FUL suit, I think that we should look to chiefly the law. Those considerations which may actually cause the apparent tension here should be delt with in separate discussions.
Leigh, I answer your questions in the affirmative, which is why I regard the JSC’s decion to be of supreme rationality, thank you for asking.
This “real and actual’ tension is present because the same as there lies the difficulty of separating law and morality, here too is it near impossible to divide the concerns. I wish it was also as simple as concluding it to be societal or pragmatic concerns but I have till thus far been at unable to pinpoint the true and definitive one (probably due to the swine flu that hogged my brain for the past few days).
With regards to the Jury system … its functions far exceed its mere determination of a verdict but also the participation of those in the very structures it is meant to serve and protect. I can think of no better way of giving some chest hairs to the maxim, JUSTICE MUST NOT JUST BE DONE, BUT SEEN TO BE DONE …
Judges in our country have had to long of a time in that elevated position and thus to far to see “the interests of justice and the community” when they don’t even have the courtesy like our esteemed politicians to spend a night in our most impoverished communities to get a “feel” for the working man’s turf …. Cough ELITIST Cough!
Respect for South Africa by all South Africans only came about when all South Africans were able to participate in its rebirth. I’m sure our future legal system will gain that respect when fellow South Africans are part of it in some capacity and not merely as the accused.
@Anonymouse :
September 9, 2009 at 12:55 pm
As ek jou promotor vir jou tesis was, het ek jou QL deurgesit.
How in God’s green earth did a discussion on whether the jury system is good or not become a race issue?! Only in South Africa…
Juries are made up of people who are not experts in the field of law. A good lawyer who can play to emotions can sometimes win a case irrespective of the facts and the law. Add to that the kind of people who sometimes find their way on to a jury as mentioned by some bloggers above, and it’s only a recipe for disaster. It will cost more money, be more inefficient (imagine all the hung juries, etc) and ostensibly delay justice for many victims, in violation of basic rights.
This is not because I am racist, or I imagine juries would be made up of black people who cannot think like white people, or any other claptrap that some people here will no doubt start spouting forth from the vacuums between their ears. It’s purely because there is a reason it takes people many years to become a judge – law is complex.
If I went to a doctor, and the doctor gathered a group of random people off the street, asked me what my symptoms were and then asked them for a consensus diagnosis upon which he based my prescription, I wouldn’t be overly happy. Nobody (surely) would want a bunch of untrained lay people diagnosing their medical condition. So why then are people happy to have untrained lay people deciding complex legal cases?
A fascinating read as always people. Prof said “Of course I believe there is a great need to make our legal system more legitimate. This requires a change in the race and gender composition of the bench and a change in the race and gender composition of the advocates profession – from which judges are mostly selected. The vast majority of advocates are still white and male and this clearly hampers transformation.”
No transformation is going to occurr unless the legal profession opens up to the number of LLB students who cannot qualify as lawyers because of a lack of opportunity. To my mind as long as the Law Society and the elitist legal profession generally retain such a strangelhold on entry into the legal profession, you can bleat about transformation but it wont happen.
No, for all those who are about to jump down my throat, I dont mean dropping standards, I mean a genuine effort to allow holders of legal degrees to participate in different areas of society, as professionals. Two things can be achieved, 1) ensuring there are more legal professionals out there and encouraging competition; and 2) broadening the pool of potential jurists to those traditionally (and still) excluded from the legal profession.
If you want transformation you dont start at the top dropping standards to make it work by appointing inapropriate persons, Hlope being a perfect example, you start at the bottom and make sure you have a large pool of properly qualified individuals.
Just a thought
Comrades, fellow countrymen and women what we are currently experiencing is racists taking advantage of Mandela’s overforgiveness and abusing it and throwing it at our faces, Tutu said they must apologise but they never, they only use him when it suits them, kriegler is an old racists, when his fellow board memberts, he was trying to use sees who he actually is, they get villified, let the old racist retire in piecie lest he destroys our country.
Mbeki was good for them when it suited them but now, he is also bad, they will also try to use Zuma, I warn you, we must be caustious, these people are never shy to defend an asylum seeker who vilify our country abroad, how on earth do we take them serious?
Pierre was right before he joined UCT but now he has been called there to meet his fellow brothewr, like Unterhalter in Wits, to destroy our young and unsuspecting students, we cannot allo this we must engage them, they are bigoted to the core under the name of the “independence” of the judiciary,’ they always say “we”, who is ‘”we”, thar Helen zille and them!, just look at krigler’s Sunday Times interview by kim hawkey on page 5 of news in brief, he talks in “we”, yet he voted da, dah!, who he thinks he is talking on behal of?da, of couse!
Care to define “these people” Mdu? Perhaps in coherent language this time?
Slpper, I mean racists.
Mdu … I see you forgot to take your pills today and had a huge bowl of stupid instead.
@Bull John, ha ha, and lol!
John Robert, what useful purpose is served by your last comment?
Leigh et al, I think it would be naive to believe that judges are absolutely above politics and immune from influences relating to their beliefs, experience and ideological commitments. The big difference between judges and members of a jury is not knowledge of law (as juries decide on facts, not law) but the fact that judges are kept in check and made accountable by a system which requires them to produce reasons for their judgments, allows for appeals in which their judgments could be overturned, an the concern for their reputations in the legal (and wider) community. This does not make them immune from the dangers I highlighted, but it potentially tempers the excesses of juries which might allow for unjust convictions or acquittals based purely and solely on emotions, prejudice, hate and fear, and not on the facts and the law. Juries are far less accountable and it seems to me are therefore LESS (not more) democratic than judges. The counter argument is that judges come from the elite and reflect elite values, but if one believes that there are at least some differences between party politics and the law (as I do), having judges decide cases (instead of juries) seems to me to be the lesser of two evils. If we wanted pure democratic “justice” (which would not be justice but majority injustice) we would have given parliament the power to decide on the guilt or innocence of individuals, but this would surely be more unjust than anything judges could produce, as facts and legal principles would have to yield to party political and other loyalties regardless of any facts or legal principles (the JSC decision being a prime example of such). Who one knows, who one is, how powerful one is would play a far greater role on determining guilt or innocence – a profoundly anti-egalitarian approach.
“So why then are people happy to have untrained lay people deciding complex legal cases?”
How about HAPPY that the same people you mentioning are to be trusted with a section 19 right and decide the government of our country which directly relates to your circumstances and (in some cases your detriment)?
Yet the very same people must “JUST UNDERSTAND” when decisions from the “learned jurists” destroys the very fabric of their lives with brilliantly written judgments which gives a new definition to semantics and is praised in law lectures by Professors, who then, just by the way, mention those people died as well.
It is this type of elitist and exclusivity talk that will erode the remaining trust in our current legal system. And then in the same breath rally for more access to justice for the masses??? go figure ……
Mdu, I sometimes think you do yourself a discredit by carrying your emotions on your sleeves but then again, you probably the only honest person in sight, or in this case, on site.
Mdu, I would like to address a few remarks towards you. Only before I do so, I would just apologise for those remarks departing from the topic which the Professor has introduced. I will do what I can to establish a connection between the content of the present post and that which is currently topical which I hope will not be too tenuous.
Can one at once (a) criticise a prominent black figure while still (b) remaining dead set against unfair discrimination based on race or even disregard inspired thereby? This question, although my own formulation, has certainly been asked often enough on this blog. And yet it strikes me that many people who post have just not sought to investigate it earnestly.
I think it is possible. Where one has fair grounds upon which to premise criticism, and where one confines reproachful remarks to those grounds, it seems quite clear that one at once find fault and avoid racism.
I will, however, gladly concede that this exercise can present problems. One must govern thoughts and steer them towards those questions which can lead to the determination of whether the issues at hand can be established or not. And if you will forgive me for shamelessly restating what many have already made out: the skill and mental discipline which such exercises demand suggests fairly convincingly that decision making as to legal matters should generally be the exclusive province of suitably experienced lawyers.
Let us do as lawyers do and clearly define the issue for the brief exchange which I hope you and I can enjoy. As many have pointed out before, I think the reluctance of many black lawyers to earnestly consider critical communications about other black lawyers stems from a general sense among black lawyers that they need to band together. Regrettably, I do not think that this general inclination is unreasonable. Several months ago I spoke to a very gifted black advocate. And even though her ability speaks for itself, she told me during the course of our courteously frank discussion that many of the concerns which black lawyers entertain are not unfounded. I believed her then and I still do.
The very narrow narrow issue which I would ask you to consider runs as follows: let us assume for the moment that it is possible for a black lawyer, despite whatever reasonable reluctance she may feel, to seriously consider criticism of a prominent black figure. My question is: what would it take to convince her to suspend race, and its concomitant concerns, for long enough to dispassionately consider the grounds for the fault-finding?
And in keeping with at least some of the content of my post here, let me say that the difficulty of confining your thought to this fairly narrow inquiry, despite your preconceptions, favours the view that the introduction of the jury system is rather a wretched idea.
Professor, thank you for your contribution.
You make out that it would be naive to believe that judges are beyond politics and allowing their beliefs to influence their decisions. You also set out various factors that temper the extent to which judges can indulge the tendencies to which jurors may give rather free reign. That is, the system contemplates various means whereby judges are held accountable.
I would mention a few points in response to your post. First, I tend to agree that an important difference between judges and jurors is that the former are checked by a system of accountability. I shall also thank you for raising this point.
Secondly, I would not deny that judges do have beliefs and may be influenced thereby. But I would add that I did not argue that judges can boast the immunity of which you speak and that I did not mean for my silence on that specific score to suggest that I did – but I will apologise if any of my posts gave themselves to that construction.
Thirdly, you say that juries decide not on law but on facts. That is true insofar as juries do not set precedents as far as I am aware. But while I cannot speak for other bloggers, I did not argue that they do. My view is that jurors must make factual findings. But they must also understand the elements well enough to determine whether they are properly supported by the facts. This exercise calls for much in the way of mental discipline which even trained lawyers can find challenging.
So my point, at the heart of it, is that (a) thoroughly construing the elements that are to be established coupled with (b) determining whether those elements are properly established represents a task which even those with the relevant training may find challenging. So in addition to your valid point about factors that make for judicial accountability, I think we cannot overlook the point that even decision making which is confined to considering whether necessary averments are established can call for much in the way of skill and that such a task ought to be entrusted to people who are suitably trained and experienced.
Mdu and Kevin are right.
If we had the jury system Judge Motata would be our Chief Justice.
The racist Canadians would have had to restore Ontario to the Inuits.
And our “golden girl” would have been lauded for her graceful stride, instead of being humiliated on the cover of YOU!
Leigh, the comments were good, esp. when you half-swore.
Skhokho, I think what could be far more dangerous than having people who aren’t schooled in law deciding cases would be to have you there. That would be a disaster of monumental proportions.
@Leigh
Who died and made you principal ?
If you consider some of Mdu’s racist diatribe and incoherent drivel to be wise then that’s your prerogative.
I consider it stupid and it’s my prerogative to say so in any fashion I wish.
I cannot believe you all cannot see that Mdu is in all probability a white guy posing online as black.
The purposely misspelt words and cleverly miscrafted grammar together with the creen name are designed to try and make blacks look stupid. He has another agenda altogether.
It’s an old trick, especially on blogs which lack any form of actual ID verification (other than an IP address which could be an internet cafe). I would suggest Prof that you use some form of automated actual email verification which excludes free emails such as Google etc. WordPress has plenty of robust and free plug-ins for this.
Don’t take screen names literally or take anything at face value in cyberspace.
Good point, ‘John Robert’ … or should I say Julius Radebe?
ahhh trial by mob as they say
Well being an american we being using this system for sometime now.
Pierre
“Leigh et al, I think it would be naive to believe that judges are absolutely above politics and immune from influences relating to their beliefs”
Yes but now wouldnt a jury solve this problem?
Juries decide questions of fact; judges decide questions of law. A judge may overrule a jury’s decision in some situations,
Jurors are not required to decide “beyond a reasonable doubt.” They must decide only that there is enough evidence to support the accusations.
The judge and lawyers for both sides in a case question possible jurors. Lawyers try to choose those they think will be more sympathetic to their side. And they try to exclude those they think will be more sympathetic to the other side.
The cons of this system is even for the most simpliest trials selecting juries can take up to 2 to 3 hours
The other con is the internet juries can go on the internet and follow up more about the legalities of a case or go on forums like this and ask questions. this places one jury above the other with regards to info and will lead to a mistrial
But but but but no system is foolproof but it is a better system than anywhere else in the world because it gives average citizens an opportunity to listen to the evidence and make independent judgments the government is not part of and thats important.
one last thing
A jury system is the best marketing tool for citizens to learn about there rights
John Roberts, good morning. I merely asked you a question and did not seek to assert some species of authority as you seem to imply.
You see, on the face of it, your comments seem both counterproductive and mean-spirited. And by asking my question, I merely sought to ascertain whether that face-value determination is right. In addition, you will have noticed that I did not seek to limit whatever right you may have to couch your views as you want to. As I said earlier, I merely asked a question of you.
Another question is: does the fact the we enjoy certain rights mean that we should neglect to think about the most productive ways in which to exercise them? I do not think so. But while we are on the topic of prerogatives, I am sure no one has to remind you that you need not feel the same way.
I cannot believe you all cannot see that this “John Robert” is in all probability John Roberts, Chief Justice of the United States Supreme Court, who has dropped the s at the end of his name as flimsy cover.
Chris, I believe that in societies less traumatised than ours, societies with a shared vision and a stronger sense of community, juries are probably the lesser of two evils as it neutralises to some extent the elite nature of decisions by judges. In such societies juries are somewhat accountable because they indirectly feel accountable to neighbours, friends and co-workers for their decisions. But as President Mbeki once pointed out, we live in a society still largely divided into black and white (with two economies to boot) which makes it far more unlikely that jurors would feel “accountable” to the society as a whole. Coupled with the hysteria about crime and strong feelings about “getting” criminals, it does not seem like a recipe for fair trials (especially in criminal matters).
Leigh is right.
Mdu is clearly a very wise black man.
oh my word … Can there just be just one day that a black man isn’t on trial???
Well done Mdu, I assume you wearing a suit because you just became the accused!!!
Pierre De Vos says:
September 10, 2009 at 9:22 am
I must respect that, your crime levels are rather high, ur culture rather diverse and still healing.
it is rather a complex issue
However one does need to look at the pros and cons and weigh the options so far Ive just been seeing alot of cons.
Like I said one pro about this system is its a fantastic marketing tool to get citizens involved in legal process as well as the chance to learn about your rights.
Your concerns about the high level of crimes and a Jury system would cloud a juries mind and lead to unfair trials, is a concern but it can be checked through an interview process with the judge and lawyers involved.
Firstly how is that mind set about high level crimes any deferent to a mindset of a lawyer? often than not laywers would share the same common themes with juries.
Indeed, jurors share with the parties, the witnesses, and the lawyers a level of wisdom and a set of common values that is a reflection of those held by the overall society. It is those shared understandings that allow the jurors to work together to come up with their verdicts.
Through out history we have shared stories for thousands and thousands of years, we are conditioned to absorb information by story telling and it’s only by keeping our jurors engaged that we can persuade them that our client’s position is the correct one. All cases have the same charactors have the same theme and same motives with that Jurors bring with them the power of collective intuition.
“unlikely that Jurors would feel “accountable” to the society as a whole”
Jurors are not accountable to society, they are the society. The whole concept of Juries is to bring the public into the legal process, that to me is extremely important and constitutionaly correct.
Prof. We note your silence and the silence of Afri-Forum, DA,Ramphele, Tutu, Kriegler and others on recent events in our society. A boy hanged himself because of alleged racism at school, PE Magistrate found guilty of calling someone a kaffir, A boy hangs himself for an ID book. People are attacked in Undeberg by white farmers for illegal hunting in their farms and a corpse has been found hanging on a tree in that town.
This is exactly what is wrong with the way we pick and choose the issues that we want to challenge. The selective process and the interests groups that tend to represent particular interests are suspicious.
Some of us will make it our job to remind you when you conveniently look the other way and demonstrate biasness.
Gwebecimele, Prof and his many bloggers, and Helen zille’s Da of course,would keep quiet about incidents affecting perceived ANC followers, but if it’s a Black victim being supported by a white NGO , you can count on their support, because it promotes DA’s course.
Gwebecimele says:
September 10, 2009 at 11:03 am
a little arragent arnt you?
Last time i checked this is Pierre’s blog. Im sure he can pick and choose what ever topic he wants that feel important to him.
You however do not have that pleasure unless you open up your own blog and talk about the issues you have raised.
I for one im getting sick and tired of some black people on here who constantly bring up race to vent there own frustrations for whatever reason.
“Some of us will make it our job to remind you when you conveniently look the other way and demonstrate biasness.”
Please get a hobby or get a life? pick one and get over this whole racial shit it is boring the crap out of me.
Gwebecimele
Prof is a lecturer in constitutional law. He has set up this blog to discuss issues ‘mostly from the perspective of Constitutional Law’. Therefore by definition he picks and chooses issues to discuss or challenge. I don’t see Prof looking the other way. But he can surely only look in so many directions at once! If any particular one of those instances you mention gives rise to material to discuss in THIS forum, I’m sure that Prof will write about it. It’s his blog. You are surely welcome to create a blog or other forum or find one created by someone else who does discuss those particular issues from whichever angle you would like to. There are tens of thousands of such crimes and such stories in this country. The fact that each of them is not told on this blog does not mean that we are turning the other way.
Snap, Chris!
Gwebecimele, you appear to accuse Kriegler J, Tutu, the Professor and some others of turning a blind eye to certain tragic events that have taken place. I have to say that your criticism of these bodies strikes me as being very unfair indeed. And let me, if I may, tender three fairly brief reasons as to why that is the view to which I hold.
For a start, it is quite unreasonable to expect people to champion every cause. The events to which you refer are no doubt very sad. But there are only so many hours in the day and there are obvious limits on what people can do given the paucity of spare time with which many people have to contend.
Secondly, as regards Kriegler J and the Professor, they both often confine their views to law. And that is quite patently understandable given that they have both dedicated much of their lives to the investigation thereof. Thus expecting them to pick up and comment on a boy hanging himself for an ID book seems misguided to me. And even if that troubling event goes to some sort of legal issue in some sort of way, expecting the above persons to comment thereon seems a bit much for a reason into which I will delve below.
Thirdly (and this is really both the most important and, somewhat unfortunately, blunt reason), it is not the function of most of the bodies to which you refer to try to please ordinary citizens. Thus one way in which to construe some of the views reflected in your last post is that you seek to impose duties upon some of the bodies that you mention which they do not owe. And with all respect, that is not just unfair. It is rather presumptuous also.
But seeing as you introduced to this discourse the unpleasant feature of levelling accusations, might I remind you on this blog we recently discussed the plight of black lesbians from poorer communities insofar as it seems to be the case that police are somewhat disinclined from vigorously investigating alleged sexual offences committed against them. My point here is that perhaps you should spend less time trying to unearth the biases of others and direct more attention to the possibility that your own apparent oversights might just be indicative of an agenda.
Gwebecimele and Mdu, with respect, if you regularly read this Blog you would know that your suggestion that I turn a blind eye to some forms of injustice because of racial bias cannot be sustained. See for example: http://constitutionallyspeaking.co.za/no-justice-for-black-lesbians/; http://constitutionallyspeaking.co.za/fw-de-klerk-needs-a-lesson-on-the-constitution/; http://constitutionallyspeaking.co.za/death-comes-to-the-free-state/; http://constitutionallyspeaking.co.za/714/; http://constitutionallyspeaking.co.za/xenophobic-attacks-what-do-we-do/; http://constitutionallyspeaking.co.za/why-are-equality-courts-closing-down/ and http://constitutionallyspeaking.co.za/reitz-koshuis-get-mad-and-get-even/.
I might be wrong, but what I hear you saying is that because I am white I must shut up altogether about any injustice I believe was perpetrated by a person who happens to be black. Please correct me if I am mistaken.
Errr…Gwebecimele… I suspect you have misspelt your name.
Should it not be Gwimbecile ?
Mikhail, someday I really would like to hear the tale as to why you have such an ‘affinity’ with black people. Is it due to literature? Or maybe comparable experience? Or perhaps even an inexplicable sense of empathy?
Were I to venture a guess (and a guess only mind you), I would say that Eastern Europe was a tough place for some groups. Jews for instance were marginalised in some societies. So maybe it is your origins which place you in such a thoroughly unique position.
@Pierre
I think lets just thrash this out on Raciasm with Mdu and Imbecile, clearly they have issues with white people out to get them. Either they do to not have enough fiber in the diet or not getting laid enough or they have issues with the fact toilet paper is white.
I would like to shove this down there throats
Motata Quoted in a judgement
“How long must we perpetuate the law which was thrown down our throats by whites? You can quote me. I said that because I have a high regard for black advocates, which whites don’t. You can quote me on that…. That white newspaper, because even if it is written by a black man, it is owned by a white man. That is my attitude and I can be quoted on that.” He also stated in this judgment that “whites cannot understand ubuntu”. His judgment was overturned by a majority black bench of the Appeal Court.
you care to comment Mdu and Imbecile?
suppose those majority black bench are house negros?
Not only can you not offer one shred of evidence on white racism in the judiciary but yet you attack your fellow highly credentialed black legal workers as house negos?
you 2 are stright out of an episode of Takalani Sesame Street utterly pathetic.
Okay, Prof I was may be out of line, I bear testimony to the above articles, it’s just that you once criticised Malema for keeping quiet about a certain Advocate’s line of questioning a rape victim whether she enjoyed her experience.
I responded on hi(Malema’s)behalf that may be he was not aware of that case and you never retracted your accusations, and when I saw Gwebwcimele hoisting you with your own pertad, I just wanted to join in and relish the moment and wait for your defensive reaction. We should all maintain principled consistency, so if you accuse others of keeping quiet on certain issues, as if they are omniscience, we will use the same standartd to accuse you, also based on assumed omnipotence!
Chris Mcdee, about hose negros, Moseneke et Langa, specifically, lol! I normally dismiss your drivel with the contempt it deserves.
Mdu says:
September 10, 2009 at 13:03 pm
hey im not the one shooting your fellow black people down dickhead, it appears you are. They may be house negros to you, but better to be a house negro than a stupid negro mdu
A few of this morning’s comments have been disgraceful and I for one will not condone this type of behaviour, even though it gives the thread of my viewpoint on certain matters all the additional credibility it deserves.
I think apologies are in order. If not, as it has been made perfectly clear whose Blog this is, the owner must take some action or run the risk of precedent being set!
Prof. You might have challenged the ANC government every once in a while and anyone of us can always find a fault with our huge complex system of government. It is easy to pick on eldrly statesmen such as Mandela, De Klerk etc and again they do have contradictions in their long political careers.
We have witness attack on black professionals in various sectors namely judiciary, businees, public sector that is systematically susutained via a collective of instruments (audits, courts, NGO’s, Media, Activists) to discredit them and coincidentally all these guys are at the prime of their careers. Ngcuka, Zuma, Mpofu, Ngqula, Gama, Hlophe and the list goes on. Equally so there has been enough damage to society by white business, judiciary and general white public but these are not spalshed in our newspapers and blogs. I am not suggesting that you are entirley responsible for this but I am highlighting your contribution and refusal to accept existence of this campaign.
I am not suggesting that these guys are always innocent and must not be investigated but I am highlighting the different treatment that they are subjected to.
Even the story of Fidentia was sustained because people thought the big fish to be fried was Danisa Baloyi.
There is enough stories out there about white Business Executives who are infringing on peoples constitutional rights with the assistance of white Accountants and Lawyers. You can pick and choose on them.
I am not expecting you to comment on every strory of our lives but I am observing the trend that you exhibit and obsession with certain stories e.g Hlophe.
Leigh, you always make good comments on this blog and yes I have an agenda. I support fairness, dislike greed and do not believe in rainbow nation(we are not there yet) . Lastly I am against white supremacy that we are subjected to in our schools, church, workplace, neighbhourhoods etc.
I hope one day Black people will realise how much power they have to change things around.
To Chris and John, you might need to write to the Canadian Authorities.
It is incredible to observe how South Africans tend to „racialise“ just about anything (yes, and this is a generalisation!). This pervading tendency regrettably also extends to the legal field and to this blog (I’m pretty sure that this cannot be the intention of this blog). I am also sure that the argument for many who argue along these lines will be “well, we live in a racial world or a South African society and a reality plagued by the remnants of apartheid, so therefore one cannot separate law from reality”. However, this perception is devoid of any future-minded South African wishing to show and cultivate a healthy respect of law, justice and equality for all citizens. Besides, the tendency to “racialise” detracts entirely from any factual and objective discussion/debate anyway. I have made two prior contributions to this blog but due to the strong “racialisation” tones/perceptions under discussion, I almost feel I’m in the wrong place here. I’m therefore not sure if I’d like to continue contributing to this blog. I certainly have no problem with discussing/debating issues on race, but then in a proper context and order. Of course, it begs the question as to what is “proper”. I find that those who wish to argue on the basis of race rather tiresome, cyclic and non-progressive in their thinking whilst deflecting their own prejudices on to others.
Tim Modise again addressed allegations of racism on his show this morning – this time in schools. We have so long deluded ourselves that the coming generations will not be affected with the baggage our country’s past comes with. The polarised positions can be clearly identified by the viewpoints expressed right on this blog. Also contrary to popular belief, things are not getting better.
I wish to share a bit of life experience and hope that you would express your opinion on it and I promise you that you will be able to identify what each position is trying to point out.
In a previous lifetime I was a junior naval officer on-board ine of our, then, newly acquired corvette/frigates and had thus became a member of the wardroom – which is the essentially the officers’ club but more of an abstract institution similar to the, say, constitutional court bench.
The expectant behavior and conduct is very much the same that one would demand from all or most vocations – I’d put it on par with Judges though. But with an exception that the bonds that exist is that of brothers/sisters amongst the members of the wardroom. The officer commanding, with the assistance of the executive officer was to ensure that subordinates not only get the training required for promotion but to also make everyone welcome and feel part of this management structure. Of course regular events were held to encourage this and on the surface, as at the time i believed, this was standard and very important due to the top positions being white and lower down black (and of course from different backgrounds) but could be said to be cosmopolitan in its racial makeup.
However on a particular weekend morning I decided to go early to a secluded beach which I knew had a quaint little pub nearby where i could have breakfast and maybe catch some of the super 12 coverage. Walking into the place I was confronted with seeing every white person belonging to my wardroom there!! No indication was given to wardroom previously about the get-together and they were surprise to see me as well and were even more curious that i even knew about the place. I spent the courtesy time but instantly knew that I had busted something that will be done played as but couldn’t if I decided to made a ruckus.
As I said earlier your opinion would be interesting …..
@Professor
Judge Motata has been convicted of a criminal offence whereas Judge Hlophe has not. The accusations leveled at Judge Hlophe cannot be equated to a criminal offence- they are not the same. To group Judge Hlophe and Judge Motata together as the same thing is thus a very sinful thing to do. You must apologise to your future Chief Justice.
Zwakala says:
September 10, 2009 at 14:24 pm
I somehow missed where the Professor compared the two judges – please show your reference and I’m positive that even if he did it hardly can be said to be sinful!
Andy, as regards your last post: fair play indeed. To briefly revisit one of the points which you raised therein: the knee-jerk tendency of many South Africans (and regrettably some of our fellow bloggers) to identify racist subtexts does hinder reasonable discussion as those who want to discuss that which is relevant have to contend with that which is not.
I for one enjoy your presence here and would be saddened to see you stop posting. And it is easy to see that you tend heavily towards (a) staying on point and (b) substantiating your views.
I also think that many other bloggers here would be comfortable discussing a variety of topics provided that discussion is (i) kept relatively civil and (ii) kept fairly relevant to the topic at hand. But I think that it is as you make out: some of the bloggers will not even dare to think beyond their predetermined conceptions. And that it a bit of a shame because they are not only spoiling it a bit for everyone else, they are also missing a great chance themselves. I, for instance, had little interest in public law until I started reading the Professor’s pieces and posting on this blog. That is, much of my growing interest was stimulated by discussions here.
Gwebecimele, I am glad that you are interested in fairness. and with respect, given your interest therein, it is not unreasonable to ask that you show a little of it to the Professor and your fellow bloggers. The Professor introduced the topic of whether Ronald Robert’s view that the jury system ought to be restored holds any water. My sincere question to you is: have your comments pertained to that topic? If the answer is no, then with respect, it strikes me that you have been mightily unfair to the Professor and to people who have opinions which go to the topic which is up for discussion.
Gwebecimele, Prof does not appear to confine himself to issues of blame relating to black africans, it seems to me that he has issues with almost everyone.
Have you ever stopped to consider that there is a very good reason that most of the issues discussed in this forum, and other media in SA relate to black africans? and that is that the majority of SA’s population is black african, it would be an interesting exercise to work out the percentages to see if they match, if only on this blog.
Anyone care to do that?
I completely agree that there is a definate bias in the media when reporting on blameworthy actions by black africans, but I sometimes wonder if that isnt because the white africans, once bust, try to stay out of the limelight and confine their comments through their legal people. Whereas we have a lot of black africans who simply cannot keep their mouths shut.
Racism is alive and well in SA.
Gwebecimele says:
September 10, 2009 at 14:03 pm
it seems to me you trying to find racism under ever rock, just by the pattern you lay out your argument and actually hijacked the thread from Jury system to white supremecy
What you fail to also see is blacks attacking blacks in the professions.
The “judiciary”
Proved me evidence on any racial attacks on Black lawyers and Black judges, that should be easy enough for you?
see i want you to see something have a look at the NPA now, jobloses low moral its a sinking ship doesnt have a head. All due to politcal protection
have a look at the judiciary, backlogs of cases. The judiciary has lost all respect in the eyes of the public.
You have a convected judge who broke the law
Racial slurs at FUL. I dont see Kreigler being racist to anyone do you? but yet seems to be the only group that seems to stand up to what is actually happening to the system which is failing south africans
The JSC is now divided and incompitant to do its task why because the judiciary is still subservent to the executive.
The judiciary is faced with liars sitting on the bench
It is fairly easy to say now the judiciary is clearly in disrepute.
whats even worse is the focus is one racism and not on the very institutions themselfs that is actually braken apart but yet you go out your way to show all of us how clever you are at finding racism under ever rock. such a waste of time and talent to deviate from the real crises at hand and making racism the crises and your institutes still fall apart around you.
You choosing your wrong enemy.
I understand hlophe represents a successful black learned highly educated success and taking on the “old apartheid system” of the judiciary shouting out racism left right and centre. Hell I see he wants his book back back on black robes in the judiciary. I understand he wasnt part of the liberation struggle and now wants to cement his credentials in exposing ghost of the past. and thats all it is chasing ghosts.
but you find me white racism in the judiciary. I dare you actually.
write to the authorites of canada? lol (pvt joke)
Now back to the topic at hand what do you think of a jury system? is it racist?
@ Andy …
Its a pity you have decided to leave as the few posts you’ve added seem to just jump at you with its accurate and honest content, which mine sadly can never hold a candle to.
I do hope that you do not waste your wisdom by not contributing anywhere, which will be an overall disservice.
Zwakala, you have yourself committed a remarkable sin, and played into the hands of the racist liberals.
Yes, Judge Motata and Judge Hlophe are not in precisely the same legal position — as you point out.
But both have felt the whip of liberal racism.
Both have bravely stood up against the Boer. (The JP invited one racist attorney to repatriate himself to the Netherlands.)
And remember, Motata J. was convicted by a minority Magistrate.
Leigh. I have just congratulated the Prof on his latest posting and yes I want to play fair. I do not have strong opinions on the jury or any kind of system. All that I want is a system that serves the majority of the peolple and must reflect aspirations of the majority of the people. The elite and foreign system that we have at the moment is far away from what we deserve.
Suresh’s article talks about the vote results showing an indication that majority of South Africans did not support the criminal prosecution of JZ and Prof dispute that suggestion. That is where I picked up a debate with him.
I believe there is a group of people who chooses to sustain certain cases namely Zuma, Hlophe etc irrespective of what the majority of the people feel in this country and this is done under the disguise of promoting rule of law.
There is nothing wrong with promoting the rule of law but let us see this energy in other initiatives as well. If we want to promote overall good quality of life then lets deal with all the issues that undermine that vision. We cannot waste our energies of trying to prove guilty verdict on Zuma. After 8 yrs what did we achieve 1. Ailing NPA 2. Divided Concourt 3. Dented Justice System 4. Ailing NIA and the list goes on. Was it worth it?
The noisemakers amongst us are shouting the loudest and have taken it upon themselves to derail whatever attempts and discredit as many as possible to delay the promise of liberation.
I am against this sustained campaign against Zuma, JSC, Hlophe etc
Gwebecimele is right.
Let is learn the lessons of history and move on — in a spirit on Ubuntu. A house divided itself cannot stand. The crude positivism imposed by colonialism insists on a mythical “objectivity.” The “rule of law” pretends that legal discourse can autonomous and non-political. These are abstractions far removed from the reality in which most South Africans live.
I say that if a prosecution becomes too controversial, it must be dropped. It is ridiculous to say that the same standard of criminal justice applies to distinguished heroes of the struggle as to an impoverished woman caught shoplifting at Checkers.
These are different classes of people. You cannot put them in the same basket. (As Aristotle says: Justice means treating like cases alike; and different cases differently.)
Gwebecimele, with respect, even though you say that in your view the efforts to press proceedings against Zuma and Hlophe are done under the guise of the rule of law, I think that your views are internally contradictory. I also think that your views, with all respect, betray a fundamental misapprehension.
That is, I do not see how you can claim to see nothing objectionable about promoting the rule of law on the one hand, but condemn the efforts to pursue proceedings against them on the other. Both efforts are, at the core of it, about holding the decision makers to the rule of law. So if you cannot cogently dispute the view that the applications are legally sound, then you tend heavily towards advocating the condonation of apparently unlawful decisions.
I think that both proceedings are of crucial import. This is such an important time for our constitutional democracy. Our commitment to the rule of law is being tested.
And let me make this very clear: I do not mean to insult or antagonise you. I hope you can accept that. But I do want to make myself clear. It seems you do not fully understand why the Mpshe and JSC majority decisions represent such a threat. And insofar as you fail to take issue with efforts to challenge those decisions on legal grounds, you implicitly endorse the taking of unlawful decisions and thus the view that at least some public bodies are beyond fair reproach. In short, and with great respect, your views here are a big part of a grave problem.
Harold Ferwood says:
September 10, 2009 at 14:23 pm
I guess no-one wishes to comment on the scenario I gave. Many have raised the calls of identifying racism and proof there of, but the point that Mdu and Co. have struggled to illustrate is that this system has taken itself underground but still immensely prevalent. It hides itself with coded language – for example when communicating referring to blacks as tires, nuggets, kiwis and countless others to put anyone in earshot off the trial of suspecting the existence of racism in the realm they might find themselves, that being black of course. the burst in social networking mediums allow for more private and confidential discussions which insure the maintaining of the status quo of thinking and rallying others to join.
So when some challenge mdu and Co. to change their attitudes I suggest looking inwards first and finding the disgusting bigot there.
Harold, you are right to raise the concerns you do.
We face two immense problems. One is that, as you suggest, there is a very human tendency to deny fault, Coming to terms with one’s own subjective racism demands more maturity than most people have.
Another problem is that the whole discourse of racism has been trivialised and bastardised by its indiscriminate use in political battles. When Mbeki says that attacks on corruption manifests racism, when Malema claims the treatment of Caster Semenya by the IAAF is also a form of racism, anti-racism as a project threatens to collapse entirely.
Should we re-introduce a jury system? Not in my humble opinion. I am a state advocate in the NPS. I have prosecuted many criminal cases over a period of just more than 15 years. I trust our Judges, black and white, to make the right the decisions, based on the evidence, and the available evidence alone. They are all legally trained minds, who think like jurists, and have the necessary experience. Not to say that they do not make mistakes sometimes, as can be seen from our appeal processes, but when they do make mistakes, they do so, not because they have a racist agenda or political agenda, but for varied other “legal” reasons, i. e. misdirections etc. I hope this comment would be a breath of fresh air to the continues unhelpful “racialization” of this blog.
You are correct in your deduction of those two immense problems but I think the one is simply a manifestation of the other not being severely dealt with.
The more a certain minority continue to deny fault in their subjective racism, the more the latter problem will grow and evolve into a extreme form of Black Nationalism which you are obviously seeing these days to be taking shape in our society.
I have mentioned before the tell-tale signs of the bastardization of some English words which is an effort to undermine the other and almost enforce confrontations when pointed out as being incorrect. Other signs are the increased use of it in political battles you mentioned before and bombard the minority with accusations of racism, which is becoming justified more and more.
I don’t think so GGT, All you did was spray a bit of glade over a stinking toxic barrel. The avoidance of the most pressing issue in our country is what making it fester exponentially.
the important issue is not about politics, is about you and your relationship with god. for we all have sinned and fallen short of the glory of god, therefore sin lead to distruction but through god there is hope
Absolutely Monti …
I deduce you are of the thinking that “we should live in this world but not be part of it”?
But you know it isn’t as simple as that. And for a long time now certain parts of society wish to remove the aspect of God from all influence – in fact adopting Utilitarian ideology to justify their moral and ethical standards, which is very low.
Soon the day is coming when even ….
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika
will be amended or removed.
That’s quite a laarger drawn around Pierre.
All because Gwebecimele and Mdu dared to share their thoughts.
I thought Pierre’s response was rather nifty.
It’s nevertheless drawn some interesting comments.
Chris McDaniel says: September 10, 2009 at 11:18 am – “You however do not have that pleasure unless you open up your own blog and talk about the issues you have raised”.
Nobody owns cyberspace – Pierre probably has administrator privileges so he can turn off/remove/delete comments anytime he wants – that’s as far as his powers will allow him.
It’s wrong to stop people from commenting just cos we don’t like/approve/agree (the exception to that rule was the Minister in the Office of the President in a bygone era).
Sarah Palin says: September 10, 2009 at 11:24 am – “He has set up this blog to discuss issues ‘mostly from the perspective of Constitutional Law’”.
Neatly massaged to make your point “It deals with social and political aspects of South African society – mostly from a constitutional perspective.”
Now where else was the second part dependent on the first part to produce a neutralised outcome?
Michael Osborne says: September 11, 2009 at 9:47 am.
Well said – that about sums it up!