The text of a declaration I wholeheartedly support. Do you?
WE SUPPORT THE CONSTITUTIONAL COURT
Our Constitution is the product of a great struggle for democracy and equality, in which many gave up their lives so that present and future generations of South Africans may have a better life.
In its foundation, the Constitution provided the alternative to civil war. It stands today as a vital guarantor of our individual rights and freedoms against abuses of power.
In its recognition of certain basic socio-economic rights, it provides legal means to support social and political activism, requiring government, now and in future, to proceed progressively to realise the demands of the people for decent health care, education, housing, safety and security, dignity and freedom from poverty. It provides vital means to address the legacy of racial and class-based discrimination and oppression.
With this Constitution, South Africa has been able to hold its head up proudly throughout the world.
Since its establishment, the Constitution – and with it, South Africa – has been well served by the Judges of the Constitutional Court.
While opinions have differed on the interpretation of laws and the merits of cases, integrity has been the hallmark of the work of the Court.
The authority of the Court among the people, its integrity, impartiality and independence from political pressures and executive power, have enabled it during the first 15 years of our democracy to hand down decisions of the utmost importance for vulnerable, poor and marginalised people.
The Court has defended the rights of newborn babies, pregnant women, people without houses, communities without land, pensioners without social grants, women suffering gender-based violence, lesbian and gay people, workers and victims of discrimination in employment and citizenship status.
In the years ahead – and all the more so in harsh economic conditions -impartial and fearless work by the Courts will be crucial in ensuring that the government can and will promote the social justice obligations imposed on it by the Constitution.
No action or judgment of a Court is above scrutiny and principled criticism. Judges who breach the ethics of their office or abuse their judicial powers must be brought to account, however high or low they may be. The object of the JSC complaints process must be to ensure the integrity and independence of the judiciary, so that its necessary authority in the discharge of its public duties can be maintained.
Manipulations and sharp tactics aimed at weakening the Judges in order to advance personal and political ambitions ought to be condemned by the entire people of South Africa. By threatening the independence of the judiciary, those methods threaten us all.
Vusi Nhlapo
Nonkosi Khumalo
Vuyiseka Dubula
Mark Heywood
Teboho Klaas
Noxolo Lobi
Athule Tyelentombi
Atomboxolo Silimeni
Atomboxolo Malengeni
Nombini Zamani
Refuwe Louis
Yoliswa Dwane
Pathixolo Tiko
Zukiswa Vuka
Pierre De Vos
Ann Burroughs
Johann Potgieter
Ahmien Van Der Walt
Pat Craig
Xico Meirelles
Grant Gunston
Kananelo Sexwale
Jennie Pogrund
Wendy Landau
Zani Mazauley
Phumi Mtetwa
Sieraaj Ahmed
Peter Walsh
Thabo Stewart
Sidney Luckett
Bruce Laing
Alive Mpazi
Bave Mpazi
Phatiswa Foloti
Thuliswa Milo
Karen Lotter
Theresa Raizenberg
Lene Øverland
Roberto Millan
Steve Letsike
Moses Masitha
Thoriso M-Afrika
Zelri van der Schyff
Delme Cupido
Deena Bosch
Gugu Dlamini
Emma Peta Holtmann
Stevie Godson
Sandlakazi Mpazi
Nonkosithandile Monakali
Zizipho Nodongwe
Noxolo Labi
Nomvulo Gamedala
Rosemary Lombard
Melanie Motto-Ros
Lubabalo Popo
Warren Tiervlei
Ryan Ross Jales
Nick Groll
Gavin Silber
Louis Fourie
Lukhanyo Mangona
Anjuli Leila Maistry
David Watson
Gabi Richards
Tracy Bailey
Mariette Olwagen
Michael Mbikiwa
Alistair Price
Kirsten Dewar
Wian Jones
Steven Lottering
Jonathan Argent
Zackie Achmat
Nicholas McDiarmid
Sarah Logan
Andries Du Toit
Anso Thom
Gert Ackermann
Dalli Weyers
Bill Rogers
Martin Botha
Meghan Finn
Thandokazi Njamela
Lena Nkonjane
Leduma Goodman Kosi
Andile Ntloko
Siyabulela Kenny Mama
Akhona Siximba
Nolufefe Salman
Busisiwe Quntana
N. Ghomo
Tali Barnett
Shira Copans
Kira Schlesinger
Ugreson Maistry
Shehnaz Cassim
Nozizwe Madlala-Routledge
Gilad Isaacs
Gaby Sanchez
Sharon Gelman
Jennie Pogrund
Tina Espinheira
Julian Simcock
Alana Pugh-Jones
Adila Hassim
Fatima Hassan
Richard Bradstreet
Andrew Ardington
Jonathan Berger
Amílcar Sasha Patel
Emma Julliet Darch
Daniel Barnett
Dustin Kramer
Akhona Bridget Cira
Anco Henning
Nolufefe Salman
Nosandise Chomo
Nosifungo Xabanisa
Nathan Geffen
Doron Isaacs
Fundiswa Nkohliso
Nozuko Mdzelu
Asiphe Mpazi
How I wish this message could trickle down and reach every member of our society; especially the unlettered and unfortunate.
I also wish that it can prick the consciences of our politicians and the supposedly learned individuals, who seem to think because of their connections, they are entitled to the fruit of the toils of our patriots and martyrs.
The Constitution is and should always be for the people, regardless of their race, creed, gender and social status. It should not serve personalities, but every person.
The Constitutional Court, therefore, should be manned by men and women who will protect and safeguard these values.
Noble indeed. But lined with cowardice. Let the games begin! We wait!
I do agree with the spirit and concept of this declaration, but there is a caveat to all of this. It serves no purpose to cover a basket of apples if there is a rotten apple among them.
I have no doubt that the courts have done a lot good for this country, that there must be greatness amongst the judges and that the security of the judiciary is paramount to the success of our country, but I can not shake the feeling that there is an element of rot within the judiciary. This notion can only be expelled by the judges themselves by opening up to the public and addressing all concerns with the professionalism, openness and integrity it deserves.
Unless the constitution is actually changed and the judiciary is stripped of its authority, the actual defence against attacks on the judiciary lies in the integrity and professionalism of the judges themselves. In my opinion, any victory scored by the attackers is directly linked to the nature of one or more people. Keeping questionable individuals away from a corrupt judge does not, in any way, address the risk associated with such nature.
I have lodged complaints of a serious nature against various judges and it is almost a year without any constructive response. The only significant response came from JP B M Ngoepe claiming that it is irrelevant if judges are right or wrong. As a professional person, I would hasten to address any such claims knowing full well that my actions define my reputation and my reputation instils the trust that is essential for a favourable working environment.
The clumsy, probably ignorant, fashion in which these complaints were handled only serves to light the fire of suspicion. Could it be that manipulation of the judiciary has been taking place for so long that it has now become brazen? Is it possible that these wonderful judges have inadvertently allowed the abuse of the courts through some misguided notion that it is for the benefit of us all?
erm … i certainly do support this statement and would have added my name to it given the opportunity, but i see it is already there! do you have any idea how!? i think it might be a group/cause on facebook? (this is not so much a comment for publication as an enquiry!?)
Support the constitution as opposed to what? By whom?
Isn’t this a tad moot? Reminds me of the campaign (ill-fated rather) by the Mail &Guardian and Prof Kader Asmal. Even then I wondered what is the objectives of these things. What do they serve. Why now? Is it mearnt to be an omen? Are we being alerted to some potential evil to be done to the constitution?
“Manipulations and sharp tactics aimed at weakening the Judges in order to advance personal and political ambitions ought to be condemned by the entire people of South Africa. By threatening the independence of the judiciary, those methods threaten us all “
And what is that all about?
Prof, kindly provide the link of Judge Krieglers lecture at Wits
Kindly take this document to Tembisa, Dipsloot , Alexander, Gugulethu , Winnie Mandela Informal Setlement .
The people there are going to fall over each other signing up to it !
Try it Pierre De Vos ! You are the conscience of the nation
I think that I give the CC my enequivocal support. The cynics (I shall call them) would readily have us believe that the CC, and the judiciary itself, is wrotten to the core. I doubt that’s the case.
This support may be voiced at a time that is interesting, maybe co-incidental or even deliberately at a time when the CC and the judiciary are under the spotlight. It may be that very reason that we need to rally support for the CC as the protector of the Constitution. This does not mean that we must blindly agree with or support the JJ but that we respect the office and their critical function. We should understand that the mistake of one Justice does not maen that they are all cut from the same cloth.
Setumo, how does so noble a proclamation amount to cowardice?
Dumisani, I am disappointed that you ask: Support the constitution as opposed to what? By whom?
We should support the Constitution and the Rule of Law above all else. Our statutes, the judiciary, political parties, trade unions etc derive their powers and functions from the Constitution. Supporting it is supporting the vision of a better life. Living it, creates the better life.
This will generally exclude supporting things that are in direct contradiction to the Bill of Rights (racism, sexism etc).
By whom… by ALL South Africans.
Lobengula, such sarcasm… But why are they not interested in signing up to something of this nature?
Setumo, I shall add my voice to Nkululeko’s and ask: what makes you say that this declaration amounts to cowardice?
Dumisani, morning mate. This might be something of a tenuous connection, but I heard the tail end of Tim Modise’s interview with Justice Kriegler this morning. And given that you very briefly mentioned that wise man Kriegler J in your last post, I wondered if I might ask two questions of you – and let me assure at the outset that I am certainly not attacking any views which you might hold. In any event, I do not know what your views on certain topics are so it would be quite impossible for me to attck them
Many people have vilified Kriegler for certain public statements he has made. Some I expect may even have condemned him as one who would impede those who fight for transformation.
My first question is: given that Kriegler worked with the BLA as early as the 1980′s to impart skills – a time well before trasnformation became the catch that it is today – can people reliably accuse him of hindering even the racial transformation of the bench?
And my second question is: given Kriegler J’s readily demonstrable commitment to trasnformation, should we as a society take his views about the courts especially seriously?
The petition from these people is akin to someone warning us about aliens and flying saucers. However, its their freedom of expression and one should respect it even though it borders on madness and confusion.
No i dont support the Constituional Court. It has become an elitist court, presided by people with links to the West, hence the lack of an Africanised jurisprudence.
As to Krigler, This is the same man who forms part and parcel of the old boys’ club that is standing in the way of transformation. He has shown himself to suffer from rabid racism over and over again, but no one dares say a thing. NO! i think his African Lawyers and Judges should not take what he says seriously.
What has he done to advance transfornation since he joined the Legal Profession,???? Nothing! instead, he has worked tirelessly to preserve the status quo, his speech is one such example. Where he tries to confuse people that transformation is somehow a threat to the independence of the judiciary. such men should have not been elevated to the bench in the first place. Those who have vilified him are on point.
I support both the Constitution and the Constitutional Court. I also support the notions of judicial independence and the Rule of Law. Good post – or shall I say, good petition. Isn’t it being circulated for signature?
Nevertheless Prof de Vos – I know we have already dealt with this kind of topic before – balancing freedom of expression with the boni mores – the whole Bullard issue. However, I have now read about Brittain having ‘censored’ the japanese film ‘Grotesque’. See the link:
http://www.news24.com/Content/Entertainment/International/1044/4684b8a645104165b181ab88bcc482f5/20-08-2009-08-00/Grotesque_horror_film_banned
I have a feeling that sometimes, as in this case, freedom of expression can and should be curtailed to defend the boni mores. Any comments?
I caught the a bit of the debate as well. And what it seems to me what is slowly emerging from the stinking heap of convoluted issues surrounding the current Hlophe saga is the fact that their seems to be two different opinions of transformation of the Judiciary!
Question: Why does this petition look different to the one posted on Facebook and where’s the cute disclaimer?
LOL, The way things are going the next petition to go up is either one wanting to put the Con court on the endangered species list or declared a heritage site!
Skhokho, you make some good points. I would fault you only in one respect: that, having diagnosed the ill, you have not identified the cure. As you point out, the CC remains a distinctively Eurocentric institution, mired in the rotting corpus of liberal jurisprudence and manned largely by HUMAN RIGHTS FUNDAMENTALISTS.
Tragically, we have missed the opportunity to cure that all by appointing as CJ whom more and more people are recognising is one of the most progressive jurisprudential scholars of our time; I mean, of course, Hlophe JP.
Skhokho, I must be quite direct with you: Does your failure to expressly name Hlophe JP as the best possible CJ indicate that you are you suffering from a rampant form of HLOPHEPHOBIA?
Seems like we shouldn’t be worrying about Swine flu at all, because we all infected with HLOPHEPHOBIA! (according to Mr Fassbinder …
HLOPHEPHOBIA – Symptoms
- The delusional belief that a Judge receiving a “retainer” from third party is unethical.
- involuntary recalling for a judge when he has amnesia about who pays a member of his household school fees.
….. back later …. got to take my medication!
Skhokho, let me ask a question of you: if judge A helps in the training of black lawyers and judge B does not, then on that relevant score, which of the two contributes to judicial transformation?
Pierre, people who wrote this piece of sublime hogwash are suffering from Hlphephobia and are delusional in hallucinating and immediate and imminent onslaught on the CC where none clearly exists. We need this CC to be in the capable hands of Justice Hlophe, to Johann Krigler, I say good retirement et riddance.I am elated President Zuma is assuring DA and cope that he will consider their proposal when it comes to appointing the real CJ, I think Ngcobo will be weak, indeed let President Zuma reconsider and appoint the Honourable Justice President Hlophe to be our Chief Justice.
Mikhail, I would like to pick up on some remarks which you made in the post which you directed to Skhokho. I shall try to converse with you despite knowing that what little chance I have at a thoughtful answer from Skhokho will be gravely prejudice by doing so.
You say that you think Shkokho made some good points. I disagree. Shkokho’s points are ridiculous.
I would not expect you to take my word for this and I am prepared to tender reasons.
Skhokho claims that the Constitutional Court is an elitist court. He does not even clarify what he means by that. But one reasonable construction could be that it has illustrated a patent lack of regard for the vulnerable members of our society. But if one were to undertake even the most cursory inspection of the Court’s decisions, one would simply have to abandon that view.
Skhokho also speaks of so-called Africanised jurisprudence and he seems to presuppose that the introduction of it (whatever it may be) is unmistakably desirable.
But he does not even demonstrate mindfulness of difficult questions which surround the point. For instance (and perhaps most obviously), from where would we derive this jurisprudence? How would we marry the rules gathered from it with existing legal rules which promote the flow of commerce and allow us to challenge unlawful exercises of public power? And could the injection of such rules in any way discourage foreign investors?
My questions are hardly insightful. And it was not my intention to try to present insights. Rather, I hope to underscore Skhokho’s startling aversion to even basic critical thought.
Finally, it has to be said that Skhokho has not the vaguest idea as to what Kriegler J wishes to defend or why that subject matter is important.
In short, and with sincere respect for Skhokho, if he wants to know why he has lost cases (as he claims he has), he may want to consider the possibility that he speaks and writes before he thinks.
Please notice that I do not say that he is incapable of thinking – only that he apparently does not.
Who will guard the guards.
I look forward to a day when all three arms of our government, namely Judiciary, Legilature and Executive have equal powers and are able to hold each other accountable. We come from an era where the Executives bulldozed over parliament several times and it will be hard to believe that it never did the same to the judiciary. Yes there is enough judgements that were against the state but that is not enough make me comfortable.
We must not make the mistake of promoting the CC higher than the other 2 arms of government.
The fact that court decision are less likely to be scrutinized than parliamentary decision must not mislead us to think that every aspect of our life has to be decided by court. Issues such cross border conflicts and supply of ARV should be easily dealt with by the Executive.
Our Constitution is an outcome of a compromise and elitist. It is failing the poor people of this country. It talks about progresive realisation of Rights and allows govt to have an unrealistic deadlines. Chapter 9 institutions are not properly supported and Legislators have no obligation to represent public popular choices.
Our lower courts are manipulated by the elite, a smal drunken driving case can drag for years if you have resources. A rape case can be postponed 24 times without proper explanations. Waiting trial prisoners can wait up to 9 yrs. Some court transcripts are allegely missing.
The CJ and CC must be the custodian of a fair justice system.
Pierre, Mouse ,et al Hlophephobias, will you go and read a post by Jeremy Gordin on piticsweb and see how stupid and imbecile that article about Hlophe on M & G was.
Suprising that the Prof. never came back and informed us about that Alcock saying he never took notes of his alleged conversation with Hlophe, even though he was quoted on the paper verbatim? What do you say to that Pierre?
Methinks Hlophe should sue their pants off, and of course the JSC would disregard this latest attempt to villify the Honourable one, and thus pave way fro him to take over from Ngcobo, or even earlier than that from langa because it is abundantly clear now, as we have been saying all along, that certain aggrieved( from the racist report ubiquos in the WC Bench and Bar) and dark forces are out to effect revenge on Hlophe for having dared them!
Mdu, yes, I am quite sure the JP will indeed sue the M&G, and that he will relish the opportunity to face cross examination on the ridiculous allegation that he has ever made a racist remark of any kind.
Noteworthy perspectives by Judge Kriegler
“I have had good friends serve at the JSC, people for whom I have the utmost respect. I don’t want anything I say to be tarnished as a backlash… I admire all of them, but the institution has become an impediment rather than an aid,” said
Kriegler. [FORMER CONCOURT JUDGE KRIEGLER : DO NOT SACRIFICE JUDICIAL INDEPENDENCE
Wednesday, August 19, 2009 - http://www.richmarksentinel.com [http://news.iafrica.com/sa/1645778.htm]
[http://jv.news24.com/Beeld/Opinie/Hoofartikels/0,,3-2085-65_2549014,00.html]
mp3: http://www.sabcnews.com/SABCnews.com/Multimedia/Podcast/News/News.xml
Those who advocate for Hlophe to be the Chief Justice, speak like Robert Mugabe during a somewhat rich Zimbabwe, just before he embarked on that ill-advised and ill-fated land grab.
I am glad Zuma and advisors have shown indications of not listening to this bad advice.
ps. by the way – Congradulations Caster Semenya. Way to go, GIRL!!!
Am I the only one here who wonders if Mikhail is being ironic…..?
Mdu:
Have you noticed that HLOPHEPHOBES are conveniently ignoring the fact that the JP has specifically pointed out that when he said he would not shake the hand of a white man he was NOT referring to the CJ. Instead, the JP has apparently now said, he was referring to Thring J, one of the CPD judges that the JP outed as a racist.
This, of course, makes all the difference. Who could object to the JP refusing to shake the hand of a “white man” who actually IS white?
HLOPHEPHOBIA – Symptoms continue ….
Misinterpreting a fellow judge’s intentions when “strongly” stressing their views on a highly sensitive matter in private.
Galvanizing support in an underhand manner, and with ulterior motives, in order to ironically “uphold” the very institution that should stand against that sort of thing.
…….. to be continued
I for one would never object to the JP refusing to shake the hand of a “white man” …. But I would object if I was suppose to allow the same JP to decide my legal fate ….
“Skhokho, let me ask a question of you: if judge A helps in the training of black lawyers and judge B does not, then on that relevant score, which of the two contributes to judicial transformation?”
Judge B (if he himself is black) – is contributing to judicial transformation just by being there!
The content is good except the threat part, it is an allegation that has no substance. If there is a serious case to be presented to the public and the national assembly, let it be.
The group says: “Manipulations and sharp tactics aimed at weakening the Judges in order to advance personal and political ambitions ought to be condemned by the entire people of South Africa. By threatening the independence of the judiciary, those methods threaten us all.”
Pierre de Vos, please tell the public about this statement, what does it say about the national security of this country.
NIA must investigate all of you for trying to destabilize the country.
Harold, if your answer to my question is a serious one, then with respect, I would ask you this: how do you think the words ‘on that relevant score’ bear upon what I sought to elicit by asking the question?
If you checked one of my previous posts where i suggested that there are two different opinions with regards to judicial transformation.
One of the callers put it to Judge Kriegler this morning that if he is such a leading light in the quest for judicial transformation, why is it that he was not aware of the exact number of black males and women in the judiciary currently. That is when he commented on his good Samaritan works during the 80′s till present in training black lawyers in order for them to “fly” as he put it.
The caller was probably unable to stress the gist of his question which was on whose terms must judicial transformation take place. Does not the same perceptions exist, which has been endlessly debated under other topics concerning race, in our other spheres, also plague the judiciary?
If the judiciary is suppose to be independent, then whose duty does it fall on to correct the imbalances when they fall short of the transformation obligation?
If anyone says that the judiciary is on track concerning its transformation imperatives, then why all the debate that it isn’t? Is it merely a case of “crying wolf” or is there legitimacy in the call?
“Judge Hlophe is not the problem; he is a manifestation of the problem. He evidences the underlying problems (in the judiciary),” he said.
– (Judge Kriegler at Wits Tuesday night)
Please correct if wrong …..
“Judge Hlophe was a bright (another adjective) young man who unfortunately was promoted to early (or quickly). This has all gone to his head”.
- This morning on Tim Modise’s show
I for one think this petition is quite wonderful. It may well get a lot of folk thinking about something they don’t presently know what to think about. Even emotional people can see reason in a clear and possibly, rare moment. To me the petition represents a pledge, as in I believe in the Constitution, of its worth in our lives, of its promise, so I do now and for the remainder of my days both support and honor it.
Although I see a distinct difference between the Constitution and the CC, the former being the intent and the latter insuring practice, I note there is little difference between criticizing one or the other as though they are the same, illustrating some confusion in the more emotional outbursts.
Is it possible this ridiculous fight around Hlope is turning his fanatics against the Constitution? Reading their rhetoric, there’s no doubt in my mind that in their mind they have decided they don’t like the Constitution itself. What person in their right mind wouldn’t respect it?
Fanatics vs Phobes …. all this around the Constitution no less!
HUMAN RIGHTS FUNDAMENTALISTS. Gee, now I’m really confused. Am I to feel bad that I am fundamentally in favor of human rights? And equality under the law?
Is it the mother tongue translation thing?
Reminds me of a long sojourn in the US of A during a period the republicans made the word ‘Liberal’ a dire insult. Eventually, virtually everyone, even Liberals avoided the label.
The damage to the country was enormous. Bush junior was only the last example.
HAHA! I was called that just yesterday! Wonder if I can put it on my CV?
Harold Ferwood // Aug 20, 2009 at 3:42 pm
That is precisely why I would like to get hold of the speech. Not newspaper interpretations. Actually this is not the first time Judge Kriegler has expressed these sentiments about a Judge being elected to the bench (or whilst still young)
In fact, I have a sneaky suspicion that these judges are slowly coming out of the woodwork. Kriegler is just a torch bearer. It is noteworthy for him to say the past (struggle credentials) should not be asked at JSC interviews. Another (WHITE)wash of history.
Campaigns of this nature serve only to advance interest of certain minority groups or groupings Poeple who are powerless or percieve themselves to be powerless. Masquerading as enlightened. Some sort of mild subversion couched as galvanising society.
What is the agenda of these groups? a look at some of the signatories clearly indicates where their sentiments lie. It is not enough that they write articles about threats to the judiciary now they want to give prominence to their views by asking such questions.
Shouldn’t you just come out and say the current composition of the JSC is bad. It is not in your interst?
Anyway, lets patiently wait for the storm. Hopefully tommorrow.
“He must create a platform whereby we’ll invite Judge Hlophe to debate on matters that he is so concerned about,” remarked Hlophe’s lawyer Barnabus Xulu.”
http://www.eyewitnessnews.co.za/articleprog.aspx?id=20179
GET READY TO RUMBLE!!!!
I can’t find the original Petition that was on FACEBOOK?????
And I’m finding it difficult as well getting to the sign-up petition. It seems this petition only exists as a read-only text on this site and the Politicalweb one.
Has it fallen on its face like K Asmal’s attempt?
Mdu, that’s what we’ve been saying all along! Hlophe should sue everybody who keeps on coming up with these utterly scandalous allegations!!! He’d make a mint in no time! I just can’t fathom why he hasn’t sued anybody yet – the CC judges, the JSC, the M&G…
Unless he’s afraid his very vocal contentions won’t stand up to scrutiny under proper investigation and cross examination?
Find me an innocent man who wants to avoid a trial to clear his name…
Dumisani, I must agree with you here. We know that Kriegler J (ret.) is desperate tor render Hlophe JP’s courageous struggle history irrelevant — because he knows that the latter will sweep the field once the JSC is made aware of the true facts.
Liberal like Kriegler, and other Hlophephobes cannot escape the fact that their nemesis personally dealt a series of near-fatal blows to apartheid by:
(a) Writing articles on administrative law topics.
(b) Advising several people about their labour rights in Umtata.
(c) Fighting interpersonal racism wherever and wherever he encountered it
Mathys du Preez
“…Find me an innocent man who wants to avoid a trial to clear his name…”
Jacob Zuma.
Pay up – big slipper.
Jabu, I assume you are joking, right?
Mr Fassbinder, iIthink Judge Hlophe would take exception that you have taken it upon yourself to divulge his sterling works in pursuit of judicial transformation when he himself has chosen to remain silent on this rather and just go quietly about his business.
This is quite an enlightened approach as he certainly wouldn’t want to be seen like Judge Kriegler, who seems to remind us all almost everyday about how “selflessly” he coached young impressionable black lawyers “soar” within the legal fraternity during the 80′s.
Mikhail – comment of the day!!
“To me, it’s a pretty sad case of a very promising, bright young man who was promoted too quickly, given too much power and it went to his head. That’s the way I sum up that one,” Kriegler said about Hlophe.”
Correction to my Post …
Harold Ferwood // Aug 20, 2009 at 3:42 pm
This petition is still missing. Where can you report missing documents of this nature? Should I start a petition campaign to ironically “save” the petition to support the Constitutional Court?
@Harold Ferwood, i agree that Judge A contributes to transformation. But disagrees that Judge B does not contrubute to transformation, or the insinuation thereof. Lets take Hlope JP for instance, who found the Cape High A mess and appointed more acting Judges who are women and more acting Judges who are male and back. If this is not a contribution to transformation i dont know what is.
@Mikhali, Dworkin Fassbinder. I’m agree with you and also agree with @Mdu. But i wish to state it as i have somewhere else that i support Hlope JP all the way.
@Leigh, i made it clear in my post what i meant by Africanising our law, i merely enchored Hlope JP in this regard. We are in Africa, we have our unique Constitution, which enjoins us to develop a legal system in accordance with our history and values. i refer you to our pre-emble, also see provisions where it says that the our courts may consider foreign law( English Law, Roman Dutch Law, etc). It goes further and says must consider international law. It does not say must appy international. see sections 39(2), 232, 233 and section 1 of the Constitution.
i attended the Krieger seminar, so unlike you, i do not rely on media coverage. I was baffled by what he said at that seminar. His attack on Hlope JP was unwarranted. i support Mr Xulu( Hlope’s Lawyer) in answering these so-called learned remarks. In addition, Kriegler breached the Rules of Judicial Conduct in South Africa by commenting the way he did about a matter which is pending before the JSC and the Constitutional Court( see Rule 16 dealing with Judges not on active Service). Rule 16(1) A Judge is a Judge for life…., Rule 16(4) states that “a Judge discharged from active service does not accept any appointment that is likely to affect or be seen to affect the independence of the judiciary, or which could undermine the separation of powers or the staus of the judiciary and does not receive any income that is incompatible with judicial office. So what Kriegler said had the impact of undermining the judiciary.
Therefore a retired Judge must conduct himself or herself with the utmost respect for the judiciary. Which Kriegler did not do, this is not the first time that he has done this. repeat, that transformation is never and has never a threat to judicial independence, the claims to the contrary are just claims aimed at stopping transformation in its tracks. We should not lose sight of the fact that the problem of transformation was never created by our Government but by people like Leigh, Kriegler and others. Who are afraid of the unkown and cannot stand the fact that Africans are in power and are on their way to transforming the Judciary and the Legal Profession. I think Leigh must relocate to Orania, where her views will be taken as wisdom.
I take immense offence at your silly comments that i dont think. I see your rabid racism always manifests itself in the face of compelling submissions about the future of Africans in the Legal system. But such does not suprise me anymore, as i think it helps you to deal with your guilt emanating from the problems that your kind created in this country. Including the theft of land, money in the State coffers, opportunities etc. In fact, you are the one who is incapable of thinking, this is the result of growing up in a paternalistic household mired by rabid racism. Get over yourself, tranformation will happen wether you are on board or not. LIVE WITH IT. AFTER ALL THIS PROBLEM WAS CREATED BY YOUR RACE!
Skhokho Radebe, I apologize if any of MY comments offended you. I do sometimes tend to use satire to illustrate a point when it is clear that any other points of departure are both convoluted and forms of what has many times been described here as “intellectual masturbation”.
I do have an agenda! but it not in favour of either the seemingly innocent campaign by those for example who initiate Petitions like above, but are not honest with themselves or us on what their true sinister objectives are (which is as elementary as it gets), or the other which blindly spear-heads a push to canonize a man with clear failings in his character.
My agenda is simply to highlight that the independence of judiciary is a farce and though I do not wish the rise of anarchy, I do want a return to the ideal (if it ever existed at all).
WANTED: Original Petition – “WE SUPPORT THE CONSTITUTIONAL COURT”
Copies last seen on http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71651?oid=140044&sn=Detail
and then again
http://constitutionallyspeaking.co.za/?p=1331&cpage=1#comment-17156
Anyone with any information on its whereabouts are to connect Harold Ferwood.
Skhokho, you say that you made it clear in your post what you meant by Africanising our law. In your initial post, you refer to a lack of Africanised jurisprudence. I shall do you a favour and assume that the difference in phraseology goes to form rather rather than substance.
Now in your initial post, you merely tender your position as to why you think our law reflects a paucity of Africanised jurisprudence. But I advanced that you appear to have given little thought as to the possible practical implications of seeking to inject so-called Africanised jurisprudence into the fabric of our law. And so it seems that you have yet to make an attempt at undermining my contention that would be reasonably recognisable as such.
I make my next point with respect. You claim to have attended the lecture presented by Kriegler J. I shall not dispute that. But with all respect, if you listen anywhere nearly as selectively as you read, I would be very much inclined to ask: did you make an earnest attempt at accurately construing what Kriegler J actually said? Some people may have their doubts – and fairly grave ones at that.
I would like to make my final point clear. Should I fail to do so, I extend my apology in advance for the following sentiment: I am not a racist. That is, I am dead set against unfair discrimination or even displays of discourtesy which are premised on some person’s race.
And in tendering my opinion to you, I would take exception to any inference of racism. I am not making any statements which could reasonably be taken as disclosing racism. I am saying things about you – and you specifically.
And I will add that your contention to the effect that I do not want black people to thrive in the legal profession is (a) very much imagined and (b) possibly a shallowly conceived tactic to deflect attention from what I have actually said.
Does everyone’s comments get moderated?
@Harold, i was not referring to you regarding taking offence, but to Leigh. Sorry for the confusion.
Oh good, Thought for a moment there I was gonna get censored for no apparent reason …
Just for info, the Hlope Saga has shifted to another topic.
I’ll stick around here though. I’m determined to find that lost petition. Maybe someone will report seeing it alive and well. But knowing our country you should actually expect the worse ;-(
You see there is no point in arguing with @Leigh, she just concetrates on the side matters. Eg, she does not answer my contentions above where i raise the Rules of Conduct regarding Judges, and the various sections of the Constituion. Yah! i see why i feel that arguing on this site might be a waste of my time.
Skhokho, it is quite unfair to expect me to address points which you raise without you having dealt directly with the one’s which I have actually presented. Given your apparent conception of dispute resolution, you and I would be at croos purposes indefinately.
Skhokho, so I will address your views – but I shall do so once you have taken the time to investigate mine. Failing that, you and I are just playing at debating. Or do you think that we can make any meaningful headway if, speaking figuratively, you neglect to respond to contentions which I have made?
Thank you Skhokho, I thought you might of reported me for being offensive as I have been subjected to moderation at every turn recently. Glad that this is not the case.
I think everyone has temporarily forgotten everyone else’s points of arguments ..
Is it possible to to reiterate them one more time in order for us all to take it properly into account and constructively grapple with them.
http://www.eyewitnessnews.co.za/articleprog.aspx?id=20203
Former deputy health minister Nozizwe Madlala-Routledge has been able to find it … Is it just me or is this petition moving around only in certain circles???
Harold, I was not in charge of petition so have no idea how you could sign on. On moderation: If your post contain links the software require me to moderate it. I always ok the posts unless it is spam.
Thank you Professor, i kinda slowly figured out the reason for the moderation.
I am aware that you were not at all responsible for the drafting of the petition. But the fact that your name is on it (and of course a few others), leads one to believe that you would most likely be able to lead those interested in signing it, in the right direction. Unless it was a closed list and only certain people were approached to endorse it.
Leigh // Aug 21, 2009 at 1:12 pm
me thinks you won the debate without even beginning it. See this is Skhokho achellies heel
“@Leigh, i made it clear in my post what i meant by Africanising our law, i merely enchored Hlope JP in this regard. We are in Africa, we have our unique Constitution, which enjoins us to develop a legal system in accordance with our history and values. i refer you to our pre-emble, also see provisions where it says that the our courts may consider foreign law( English Law, Roman Dutch Law, etc). It goes further and says must consider international law. It does not say must appy international. see sections 39(2), 232, 233 and section 1 of the Constitution.”
The fact is before south africa was south africa, there was no codified law in africa to begin with no africanised law to begin with. all modern law is was created by the Romans with is still followed in any country. English law and Roman dutch law is far from foreign in south african courts because Skhokho if you truly know your law which you clearly dont you would know that Common Law comes from Roman-Dutch law, English law, and sometimes even ancient Roman law. The way in which the common law has been developed is written down in the decisions of Judges in the Supreme Court.
Originally criminal procedural rules were those of the Roman Dutch law but it was later on greatly influenced by English law to such an extent that aouth african law of criminal procedure and evidence resemble English law much more closely than south african common
So hardly foreign law now is it sunshine?
Hlophe
“If we do not transform the legal system we will have a problem because people will not identify with the system.”
Well how do you indentify a system that was never created in the first place before colonal rule?
South African legal system is not codified; it is a mixed legal system. It is mixed in more than one way: between Western law and indigenous law and between the Romano-Germanic tradition and the Anglo-American or common-law tradition.
what needs to happen is the same way dutch and english law in south africa became harmonized.
see what you and hlophe keep doing is forcing the issue down everyones throatt but not actually talking about how to find common ground between common law and indigenous law?
Infact have you actually even thought about this?
to africanise law apart from using language but the very issue of culture?
will indigenous law offer greater legal clarity for example to protect the position of women in monogamous marriages? How will indigenous law help with regards to establishing one marriage law?
Plans to unify substantive laws will run into a problem of which law to take as the basis for a new regime: the received European law or an indigenous system? And, if indigenous law, which one?
the problem with indigenous law is that it was seldom recorded and thats your achielles heel esp the ones that are recorded are from a western view
Africanizing law isnt going to solve your problems but rather focus on common social problems. like crime
I think you have totally misunderstood Skhokho and his inquiry into “Africanising our law”. Judicial Transformation and “Africanising our law” go hand in hand and with the former, the process will automatically take shape.
For example,when erroneously coming to its judgment in S v MAKWANYANE, the foreign law CC of the time “chose” to consider was solely western and eurocentric. Not once did they look at the death penalty’s application in Africa or particular the east (namely Singapore who has for decades used the death penalty as an effective deterrent to a specifically defined crime).
The casual use of the African concept of “UBUNTU’ is also an instance where there can be argued to have been a somewhat patronizing attitude towards African law when no further inquiry was made into whether the death penalty was justified in certain South African cultures.
Skhokho seems to carry his feeling on his sleeve and should be commended for it as some here merely pay lip service to actual realizing social justice in South Africa.
Harold Ferwood // Aug 21, 2009 at 4:00 pm
im not against africanization of law infact its at the cross road now isnt it?. Im actually asking him questions on how it will strengthen your justice system by giving him an understanding that yes it is achieveable as english and dutch law became horminized, as south african common law are based on them and hardly foreign law.
“The casual use of the African concept of “UBUNTU’ is also an instance where there can be argued to have been a somewhat patronizing attitude towards African law when no further inquiry was made into whether the death penalty was justified in certain South African cultures.”
In deciding which aspects of customary law are to be deemed unconstitutional or constitutional, obvious targets would be rules of the `official’ version that owe little to an authentic African tradition or to contemporary social practice. In so far as they fall foul of the Bill of Rights, they must be deemed invalid.
“namely Singapore who has for decades used the death penalty as an effective deterrent to a specifically defined crime”
Its a proven fact the dealth penelty is not a deterrent for major crimes or specifically defined crime. your information there is abit bullshit.
Im trying to understand when transforming the judiciary and law how much transformation is really taking place when the recorded law in indigenous law was coded from a euorpean and seen through european eyes? kind of makes you think alittle.
“Its a proven fact the death penalty is not a deterrent for major crimes or specifically defined crime. your information there is abit bullshit.”
Of course the death penalty is not a deterrent for major crimes because throughout mankind’s history it has been administered as a form of punishment. Nowhere has it been specifically structured as a deterrent. Therefore any statistics currently about the deterrent factor would not in the least be accurate.
To disregard the potential of the death penalty as a effective deterrent for specific category of crime is both ignorant and callous when thousands have died senselessly. Only when the subject has been dealt with in a fair and objective consideration process, will we be in a position to answer this question.
“In so far as they fall foul of the Bill of Rights, they must be deemed invalid.”
And that is what it comes down too …. Who does the interpretation? Because it seems that “African law’ has become foreign law on the very continent it originates from.
Harold, you are wrong in saying that the Makwanyane Court took no account of African legal systems. In fact, there are references to Tanzania, Swaziland, Botswana, and others. Also to “Ubuntu.” I will give you references if you desire.
Chris, you seem to me to question whether Skhokho has actually thought about even the more obvious practical problems with and implications of trying to Africanise our jurisprudence. And as you will already know, I agree with that view.
Moreover, your views here tie in neatly with two of the more salient contentions reflected in my earlier posts. Those contentions are as follows: apparently, Skhokho (a) rarely thinks his submissions through and (b) habitually fails to directly address submissions which go to undermining his views – which of course smacks mightily of deflection.
Skhokho, on reflection, I might have moderated the tone of my previous posts in the present discussion. That is not to say that I think especially highly of the way in which you apparently approach debates – because, and with all respect, I do not. But I apologise for labelling your views as being ridiculous – that was, in hindsight, quite rude.
I apologize for my incorrect statement.
“Not once did they look at the death penalty’s application in Africa … ”
Though I will not retract my feeling of the patronizing attitude displayed when addressing the African Countries in the judgment.
But what do you expect when the abolition of the death penalty was a forgone conclusion due to political influences on the court.
The current dilemma the CC is facing is a direct result of this allowed meddling. I guess the “hens have come home to roost”!
Skhokho
Its interesting that only now do you recognise that some judge has broken the Rules of Judicial Conduct in South Africa. When did this suddenly occur to you?
I trust that judges needn’t be mutes their whole lives, they simply need to have measured responses. The aregumanet may be that Hlophe JP did not measure his speech but Kriegler J did. I do not, however, intend to follow that through.
I also cannot agree with you on the “Africanisation of our law”. The law will develop in the most natura fashion to suit the people of our country. That should be our only concern. In that way it will South Africanse itself.
You should be careful not to make yourslef seem ridiculous, whether people express it or not.
What do you say of the ex JA (Heath, I think) who is now part of JZ’s dodgy team. The judge’s interpretation of the law seemed rather strained during the debate ahead of what the NPA could do about Zuma’s case. The solution was “ultra vires” or “extra judicial”, you decide which sounds best.
Harold Ferwood
Trust you had a grrrrrrrrrreeeeeaaaatttttt weekend
1st of, the death penelty has been debated so many times and im against it, simply isnt an effective tool for specific crimes…..the best solution is slave labour. Such a shame to destroy a perfect working human machine
On to the topic of Africanizing Law
“Because it seems that “African law’ has become foreign law on the very continent it originates from.”
Africa is very complex with so many different languages and yes customary law among the soooo so many tribes that there very laws amongst themselfs are foreign to each different tribe anyway.
The first challenge whether this has been done or not but african law needs to harmonize with its self first, the traditions of Zulu and xhosa for example im sure are different from each other need to find a common base with each other which also must be inline with the constitution esp on sexism how about witchcraft violence?
Also why stop with africanizing law? south africa is home to easterners, what about easternizing the law?
At the moment there is no comprehensive study which evaluates the ability of customary law to respond to domestic violence against women
Another problem is the changing nature of customs why? no custom is ever older than the memory of the oldest living person. This means that systems of oral customs ‘have the remarkable ability to allow forgotten rules to sink into oblivion
The main source of information about indigenous African law before colonisation comes from oral tradition which makes it porous and malleable.
As it stands now in indigeous law it is actually corrupted one should be suspicious of written evidence of pre-colonial custom because it was recorded by colonial officials and academics who lacked understanding of the practices and customs they were recorded
Even as it stands to day applying customary law is done through the concept of English and roman dutch common law
This is just the start if you want to africanize law
Nkululeko, you seem to me to take issue with the so-called Africanisation of our law.
I think that your sentiments are perfectly consistent with the view that it would make little sense to inject Africanised jurisprudence – which I understand to be features of indigenous law – into our law merely for the sake of doing so.
And if the proponents of such an injection refuse to demonstrate any awareness of relevant practical implications, then it seems that they are indeed advocating precisely that – injection for injection’s sake.
But the foregoing aside, I would add that the alarming point here is that apparently some people will have to spell out that Hlophe knows full well that his utterances about the Africanisation of our law make little in the way of legal sense and, that he probably voiced his sentiments with a view to furthering other objects.
I’m sure you don’t need me to use simple analogies in order to illustrate the simple concept that if something is structured for a specific purpose, it will still have secondary functionaries, but never to the standards expected. This is exactly whats wrong with the deduction with the deterrent factor of the death penalty.
This falsehood is resulting in the senseless deaths of people everyday and can be seen to be as damaging as if a President states that HIV doesn’t cause AIDS!!!
Only crimes that have been pre-meditated and results in murder. (high-jacking, house burglary, bank robbery, cash-in-transit heists) In these circumstances the perpetrators’ intention was to enrich himself and if another human life was to stop him, it will be terminated. This indifference and callousness must be eliminated from society. We speak so highly about constitutional values yet are able to allow “unfortunate” instances of “violations” of the very rights we hold dear!!!
Once people are aware of the threat of their own lives ending, they will leave the knives and guns at home when going on a crime spree.
We go about intellectualizing everything and the latest is the injustices experienced by a young woman who as we debate the issues is far tougher than everyone thinks and doesn’t need our support in this matters. What she does need is us to protect her from a unpatriotic South African who will kill her for her baggage while she is on her way home to her family to celebrate her historic achievement.
@Nkululeko, i think you are being shortsighted in holding that the law will Aficanise itself as if it is not interpreted and appplied by people with no regard whatsoever for the African way of solving problems. In addition, you seem to aalude that the current system is perfect, which is way off the mark.
I think, the RSA Law Commision and other bodies should be approached with a request that they investigate Africanising our law. Once we have a
report, then we can comment and dismiss the idea where appropriate. Right now all i see and hear is people fearing the unknown, and dismissing the idea based on well, fear.
I think @Leigh and others miss the focal point, which is that the ordinary man in the streets does not trust the current legal system, also does not understand it. How can he or she respect it when there are these grave concerns? The case of a Lawyer who in the Western Cape was given instructions by his client that he wanted to conduct his case in his mother tongue is very instructive and serves as an example of the problem with the current system.
Well, i dont hold Heath in high regard for various reasons, one being that he has a rather skewed understanding of the Law and our Constitutional democracy, his involvement in the NPA case is one such example. In addition, The Rules of Judicial Conduct do not allow him to take work, since a Judge is a Judge for Life and earns the income as such for life. See Rule 16(1) of the Rules.
@Nkululeko, i have always expressed these views on Judges breaking rules of conduct, however, i did refer to specific rules as i do now. In addition, i disagree that Kriegler had a measured response, it was rather a platform for hiom to fire the tired rhetoric that has dominated the media on the Hlope matter, and if you read the rules, this is not allowed.
@Leigh, i dont see the point in arguing about semantics, my arguments go to both substance and form. Hence i again try to clarify.
I agree that there is a stark conflict between the Constition and customary Law, which is also protected by the Constitution.
Skhokho Radebe // Aug 24, 2009 at 11:16 am
“I think @Leigh and others miss the focal point, which is that the ordinary man in the streets does not trust the current legal system, also does not understand it. How can he or she respect it when there are these grave concerns? The case of a Lawyer who in the Western Cape was given instructions by his client that he wanted to conduct his case in his mother tongue is very instructive and serves as an example of the problem with the current system.”
Again: legal texts that are understandable to everyone are an impossibility as long as there are people who are more entitled to develop the meanings of the words than others whether its african or european.
There wouldnt be a lack of understanding or lack of trust if society were kept up todate on development of the legal concepts. legal texts can be simplyfied on the surface and make them more accessible and easier to read for everyone but dont be tricked into believing that these texts will ever be fully understandable to everyone whether in african or western language.
Having court cases presenting in zulu is not the issue and im sure everyone is for it
no what you seeing is the poors ignorance of formal law and then, access to credit.
The problem is access to justice which can help the poor, and materials which are understandable and which can help them make the most of their rights. There also needs to be a system to regulate the application of these laws.
Rather deal with the real link between justice and poverty.
if the man on the street does not trust the legal system speaking to him in zulu, chinies or russian in a court case still wont help him to trust the legal system or make him understand it any better.
its amazing how the poor or the everyday joe smith can have and understand health care but not legal care? howcome? its called advertising and promotion.
Skhokho, judging by your last post in the current discussion, I have to agree with Chris: it seems your grievance here goes to a lack of access to justice.
If that is indeed the case, then I share your concern that many people in our country do not have the means to see their rights enforced or protected. And that is a very serious problem.
But if I have the right of your grievance in this regard, then I would say that all of your talk of Africanising our law very much obscures the critical issue. That is, why not just say that many people distrust the legal system because they have grounds for believing that the system does not adequately safeguard their rights? Then we could identify the many unfortunate ways in which people are denied access to justice and we could hopefully come up with some useful solutions.
But to stress that the vague notion of Africanising our law could help solve anything seems misconceived to me. That is not to say that African Customary law has no place in our jurisprudence because it most certainly does. But truly, let us try to be clear about what we mean.
Access to justice is just one part of the whole component. Which is Africanising our Law. The two cannot be seperated. I hope i’m clear enough now.Access to justice is just a snapshot of the bigger problem. the foreign legal system that everyone likes so much is flawed in the extreme. If people believed in it, why do we have vigilantism for instance.
I detest a legal system that tries to solve my problems by reference to systems in first world countries. Whereas i’m in the developing world, or whatever you might want to call it. So i think @Leigh and @Chris Mcdaniel you dont understand. I do not propose to write a thesis here or reherse one, i just wanna mention the deep problem briefly.
Africanisation entails having our truly South African legal system not some mix massalla that is exported from foreign countries. Whose situtions are by far different from the situation in South Africa.
Skhokho Radebe // Aug 24, 2009 at 2:02 pm
“I do not propose to write a thesis here or reherse one, i just wanna mention the deep problem briefly.
Well i actually want to dive deeply into this “africanization” and problems with access to justice and making the every day john doe understand there rights as this is a very important subject.
“Africanisation entails having our truly South African legal system not some mix massalla that is exported from foreign countries. Whose situtions are by far different from the situation in South Africa.”
Again, what does africanization of your truly south african legal system contain of? are you talking about getting rid of roman dutch law and english law and replace it with indigenous law? or are you talking about when it comes to civil matters or criminal matters and south africa’s laws doesnt have an answer for a legal problem and the courts and legal jurists should not look at international law for the answer or trends or guidlines but instead must try find an answer in indigenous law or come up with own law?
I hate to break it to you, crime is crime, doesnt matter what country your in its the same problem. So if there is a country who has strong laws and good laws that punish the criminals and there crime rate is down well one would need to look at that?
Its also funny how south africa belongs to the UN and just recently got blasted for not enough contribution to international crime?
Also when it comes to technoledgy…south africa is a 3rd world country it would be foolish to ignore first word country’s technology laws since they invented most of it.
and last but not least south africa is part of a world village not an isolated island. it would be foolish to not study other country laws.
Personnaly I dont think you understand yourself what you asking for africanization of law?
Yes we need to get rid of the Roman Dutch and English Law elements, By incorporating elements of indigenous law that are not contrary to the Constitution. Legal Jurists would still look to other systems, but they are not forced to apply it, the Constituion does not say must apply international Law, and Foreign law( see section 39).
I accept that this would be a gradual introduction, and it might be difficult at first but is not impossible.
Skhokho Radebe // Aug 25, 2009 at 9:44 am
“Yes we need to get rid of the Roman Dutch and English Law elements”
Like what elements? honestly lets get deep into this give me examples you want to get rid of elements and incorprat elements of indigenous law, like what elements of indigenous law? and how do you go about incorporating this.
Section 39(1)(b) of the Constitution provides that courts must consider international law and 39(1)(c) that courts may consider foreign law when interpreting the Bill of Rights.
yes thats great but you forgot about section 233 of the Constitution which states that when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative that is inconsistent with international law. The latter provision is clear that use of international law as an interpretive tool does not only apply to the interpretation of the Constitution, but also applies with regard to the interpretation of any other domestic law. Therefore international law is an integral part of the South African law and your courts are under an obligation to consider international instruments in the process of interpreting human rights.
Basicaly Skhokho you fail to understand the important role of international law in Human rights (the bill of rights)
Lets look at childrens rights. All the tiers of the South African courts, with the Constitutional Court being the highest, take on the obligations placed on them by section 39(1)(b) and 233 with seriousness and it is interesting to note that the international law that they consider in children’s rights matter range from treaties to guidelines and general comments, and all these have produced profound judgments on the role of international law in South African Child Law and the development of Children’s Rights.
Please spot the word “treates” a childs right goes far beyond the state! think about UNCRC and Protection of Children and Co-operation in Respect of Inter-Country Adoption
Skhokho you down playing the important role of international law esp on human rights, I dont think you truly understand the bill of rights and that international law runs throughout you very own constitution.
Now that we got international law sorted out and the importance of it, lets get back to your issues with certian elements of roman dutch law and english law?
Skhokho, let me apologise to you again for my earlier rudeness. That was wrong of me. But with all respect – and I really mean that – the more you go on, the more I become convinced that you just do not know what you are talking about.
Let me explain: you say that we ought to get rid of the Roman-Dutch and English principles which have informed the development of our law.
I shall confine my remarks here to one very patent shortcoming of your view. Our courts have developed principles gleaned from the sources which you seem to despise over many generations. If we look at only delict, we can see easily that it is a rich and sohisticated area of law which owes its depth to the efforts of many fine jurists who have tackled some difficult problems.
And yet if we were to adopt the approach which you advocate, we would simply jettison a great deal of excellent law all for the sake of a vague notion which you, a vehement proponent thereof, cannot even convincingly defend. And no, imputing vigilantism to the sweeping view that many South African’s distrust the content of the laws that govern them is not a convincing argument at all.
So my question to you is simply this: can we really discard principles which have had to develop when confronted by difficult problems just so that we can replace them with principles which (a) may well not be recorded in writing and (b) which have not faced the same problems? I think the answer here has to no.
African customary law is constitutionally contemplated. And besides that, it is a very welcome aspect of our broader legal system.
But advocating the replacemet of tried and tested principles – in the context of so many commercial, administrative, labour-related and other realities – for law which simply has not had to deal with a great many of the issues that crop up in modern societies is plainly and thoroughly misconceived.
Leigh // Aug 25, 2009 at 1:09 pm
I would like to carry on with this debate, as I feel indigenous law can play a major role and should have the same status as common law and not be supervised in a sense.
However I do think Skhokho is very lost on this subject at hand as I would understand he is part of the “masses” questioning a concept of africanization for the legal system.
Im afriad there is no such meaning. A south Aricanization of law would have a heaver meaning even so this has been taking shape for a very long time.
However what needs to be understood and were Skhokho has gotten it horribly wrong to begin with is confusing south african common law which is based on english law and roman dutch law principles as international or foreign law and not a making of south african law, is really due to being stuck in historical thinking. The common law as it stands has transcended into a vision of south african law. Hence why its called south african common law
Infact the common law must be developed in terms of section 39 of the Constitution in the light of the duties imposed on the state to protect the public against violent crime and sexual violence.
To get rid of elements in common law for the sack of introducing Indegionous law or Africanization (whatever that means) is extremely dangerous, extremely wrong and actually against the very section section 39 Skhokho uses in his arguments.
The Bill of Rights embraces a substantive conception of equality, which demands the state that those who are most vulnerable be afforded special protection.
To get rid of certian elements in Common law will infringe on those rights of the citizen. This is a horrible road to take.
No, Indigenous law must be added to not replace existing laws but instead must be promoted along side common law as this gives the citizen more legal tools to protect him or herself.
This isnt an essence of balancing western law with indigenous law but is an essence of adding more scope more protection in legal tools for full effect of the Bill of Rights.
This is exactly why Skhokho will get resistance for his approach as he seeks to replace and not add on.
For this very reason the constitution does not leave the fundamental rights it seeks to entrench to chances.
Justice for the victim can, however, not be realised as long as the state plays the victim surrogate and the real victims of crime are treated as pieces of evidence.
Now ive highlighted the challenge facing indigenous law and if south africa wants to make it a realization for a truly “South Africanization of law” it will first need to be constitutionaly compliant.
These are the issues it must deal with first
The levirate, which is the continuation of the deceased husband’s marriage through a brother or male relative
• The sororate which is the practice where a younger sister bears children for an older one in the case of barren marriages
• Polygyny which is a practice that allows a man to marry more than one wife
• Child bethrothal and forced marriages linked to family obligations
• Women’s status as minors that deprives them of the rights to land and economic decision
• Lobola or bohadi that exchanges women and cattle between families and lastly
• Inheritance laws that follow patrilineal pattern through which family wealth passes from father to son. Fortunately, as the honourable members know, this issue has been adjudicated upon by our constitutional court in 2005 in the matter of the & others v the magistrate, Khayelitsha and others
Chris, thank you for your post. I certainly did not mean to suggest that African Customary law should be regarded as some subordinate body of law. But if my posts have given themselves to that interpretation, then (a) I apologise and (b) I will thank you for helping me to clarify that.
Skhokho, you are being too cynical.
You forget that we have a new constitutional order and it is not that hard to get the law to change to reflect the current notions of justice etc (so long as they conform to the Bill of Rights).
Your assessment of the judges is a terrible one. Where the law would benefit more from an interpretation founded on “African” law then I do not believe that the courts would refuse it. The iterests of justice are the key factor.
No system is perfect but getting there is a process. A quick-fix solution of making the law “African” or using labels to make it seem nicer will not help. The law should develop naturally and not be forced to what may be unnatural at that point in time.
I think that the “African way of solving problems” has been dealt with by someone (chris). I should clarify that I am NOT opposed to the law becoming more suited to Africa and our people.i am opposed to a forced or surface change that has little effect.
Leigh // Aug 25, 2009 at 4:07 pm
Far from it Leigh not accusing you of anything, your thoughts are progressive so dont stress.
I would like to see indigenous law take its rightful place alongside common law.
So lets bump ideas, lets look at the challenges of indigenious law itself (understand the beast so to speak) compare the pros and cons and compare with common law and look at harmonizing it along side common law and then lets look at promotions of law to get the “masses” interested in getting to know and learn there rights.
Harold Ferwood // Aug 24, 2009 at 10:22 am
so sorry i missed your post
“I’m sure you don’t need me to use simple analogies in order to illustrate the simple concept that if something is structured for a specific purpose, it will still have secondary functionaries, but never to the standards expected. This is exactly whats wrong with the deduction with the deterrent factor of the death penalty.”
by all means please use simple analogies. I dont think the death penelty is the answer even for treason. Just keep in mind you dealing with a pure capitalist here