Constitutional Hill

E-tolling and the separation of powers doctrine

Today the Constitutional Court is hearing oral arguments in the appeal by the National Treasury and SANRAL against the interim interdict granted by Prinsloo J in the North Gauteng High Court in April to stop the introduction of e-tolling on several roads in Gauteng.

The case is being billed in some quarters as another battle in an ongoing war that the executive is waging against the judiciary. It is said that the arguments advanced by the Treasury and SANRAL that the High Court had not sufficiently respected the separation of powers doctrine when it granted the interim interdict is something of a smokescreen being deployed by the executive to attack the power of the courts to enforce the Constitution and the rights of ordinary citizens.

In my view, this characterisation is dead wrong. In fact, I am far from convinced that the granting of the interim interdict by Prinsloo J was legally sound at all. On the contrary, the decision of the High Court represents a far-reaching and even dangerous intervention by the judiciary in policy decisions taken by the executive and I would not be surprised if the Constitutional Court overturns the High Court decision.

This is a different question than whether it was politically wise or whether it was sound policy to finance the upgrading of highways in Gauteng through the imposition of a system of e-tolling. It might well be that financing this upgrade via e-tolling was a terrible idea. Given the high cost of operating the e-tolling system, one could plausibly argue that there were far better ways of paying for the road upgrades than through e-tolling. But this is not the constitutional issue that the Constitutional Court is being asked to address.

The High Court found that when granting an interdict in a case like this the usual requirements for the granting of an interim interdict should apply, namely whether the applicants had shown that they had a prima facie right, that there was a well-grounded apprehension of irreparable harm if the interim interdict was not granted, that the balance of convenience favoured the granting of an interdict, and whether or not the applicants had an alternative remedy available to it. Prinsloo J stated that:

There must be a prima facie right on the part of the applicant to the relief sought. The degree of proof required to establish this right is less exacting than in the case of a final interdict. It is usually recognised that the applicant must prove a right which, though prima facie established, is open to some doubt.

In the original application, OUTA applied to set aside the toll declaration decisions on various grounds. At the heart of its contention was the argument that no reasonable administrator could have opted for tolling as the appropriate funding mechanism for the upgrading of roads in Gauteng because of the costs of tolling and the practical difficulties — including difficulties with the enforcement — associated with tolling. The substance of these arguments will only be argued later, but because the case dealt with the granting of an interim interdict to stop the introduction of e-tolling until the case proper had been heard and because the judge merely required OUTA to establish a prima facie right, although open to doubt, Prinsloo J granted the interim interdict.

However, the High Court might well have erred when it applied the ordinary rules for the granting of an interim interdict to a case like this which dealt with the implementation of government policy. In President of the Republic of South Africa v UDM the Constitutional Court held that courts should be slow to grant interim interdicts stopping Government from fulfilling its constitutional and statutory functions. The test in such cases, said the Court, is whether it is “strictly necessary” for the court to do so, on compelling facts.

And in International Trade Administration Commission v SCAW South Africa (Pty) Ltd The Constitutional Court also warned that Courts should be slow to interfere in drastic ways in the work of the other branches of government. The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings or executive decision making. The principle  of separation of powers has important consequences for the way in which and the institutions by which power can be exercised.

Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the Judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution…. When a court is invited to intrude into the terrain of the executive, especially when the executive decision-making process is still uncompleted, it must do so only in the clearest of cases and only when irreparable harm is likely to ensue if interdictory relief is not granted. This is particularly true when the decision entails multiple considerations of national policy choices and specialist knowledge, in regard to which courts are ill-suited to judge.

Similarly, in Bato Star the Constitutional Court made the point that a “court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government”.  As the Treasury argues in its papers before the Constitutional Court, these cases seem to lay the foundation for a test with a much higher threshold when granting an interim interdict that would stop the implementation of government policies and where the granting of such an interdict might have potentially far-reaching consequences for the credibility of the government in financial markets.

In such cases, argues the Treasury quite convincingly, the courts may only grant interim interdicts impinging upon executive policy decisions in “the clearest of cases” and only where material and irreversible harm is likely to result if the interdict is not granted. A court cannot grant an interim interdict to stop what it believes to be measures that do not embody sound policies. That judgment is entrusted to the nation’s elected leaders. Granting an interdict before a court has actually decided whether the legal actions by the Government are unconstitutional or illegal must be a last resort only.

The Treasury argues that the interdict has unprecedented, wide-ranging and irreparable consequences to Government’s ability to raise sovereign debt and to allocate national revenue to other developmental programmes. They claim that irreparable harm will be cause to Government. Not only did the granting of the interdict open the government to the risk of an immediate R20 billion liability, but also the risk of an adverse national credit rating. Because of the interdict, Government must allocate R270 million to the Gauteng roads upgrade project per month instead of allocating this substantial amount to education, health, infrastructure investment and poverty alleviation programmes.

The effect is immediate and final — children who are not optimally educated during the months of review, patients who do not receive adequate medical treatment, necessary infrastructure development projects which are not started or completed, and cutback on poverty alleviation programmes have acute and irreversible effects on hundreds of thousands of people throughout South Africa.

I find these arguments persuasive. E-tolling might have been a bad idea to start with, but to stop its implementation after the money was raised on international financial markets and already spent on upgrades, was even worse. It exposed our government to financial risks and to possible consequences far beyond the imagination of a mere lawyer like Prinsloo J. Sometimes the demand that our judges should respect the separation of powers doctrine is not used by our government as a stick to beat off a pesky judiciary. Sometimes, just sometimes, our government might have a point.

Of course, there is one problem for the Government. As the High Court was about to hear the application for the granting of an interim interdict and while the Treasury and SANRAL were both arguing convincingly that it would be hugely detrimental to the country to stop the implementation of the e-tolling system, the ANC leadership met with Cosatu and agreed to halt the implementation of e-tolling. Apart from the fact that this move once again blurred the boundaries between party and government, it undermined the authority of Treasury.

The e-tolling saga suggests that in our government the left hand truly does not know what the right hand is doing. While ANC leaders were reaching an agreement with Cosatu to postpone the implementation of e-tolling, the Treasury was issuing dire warnings of the cost implications of such a move. But because the real power in our country seem to lie at Luthuli House and because decisions there are often taken on the basis of whether this would enhance the re-election chances of Jacob Zuma and Gwede Mantashe at Mangaung, the government was forced to go along with a decision which might well have dire consequences for our economy.

I believe the journalistic cliche is that it revealed our government as being in shambles.

  • Vuyo

    Good article. The mere fact that such obvious propositions do not find light of day in our right-wing media shows the extent and influence of the right wing (pro-big business, anti-poor , anti-middle class & anti-labour) lobby. The poor and indebted are facing ruthless class warfare and have no champions (both the ANC, DA, UDM, COSATU, SACP, COPE, etc, have been co-opted by corrupt big business). Let us pray sanity will prevail. Perhaps AZAPO may one day stand up for us against the Koch-backed right-wingers?

  • Vuyo

    The shocking thing is that the political desk of big business (commonly called the Democratic Alliance) shamelessly scrambled to join this assault on trias politica. They know fully well that those who are exploited and oppressed by DA governments are unlikely to litigate (or even afford to if the wanted). So crippling government through a multiplicity of court applications and interdicts would only affect the poor of ANC controlled municipalities. Nzimande (noxious as he is) is right, there’s a right wing onslaught against the long suffering masses and their treasonous (and supposed) defenders (in the form of the tripartite alliance).

  • George Gildenhuys

    Vuyo, ease up on the use of ( ), people might just not take you seriously…

  • Gwebecimele

    Quote of the Week, by NPC. If you believe it.

    “By 2030, no one should live in poverty. The so-called Gini co-efficient [to measure income inequality] should be reduced from a very high 0.69 to 0.60 by 2030.”

  • Gwebecimele
  • Gwebecimele

    What is wrong with one arm of government or some pressure group for that matter requesting the other to properly consult and convince majority of the stakeholders or citizens that their decision is the best for all.

    Whose money are talking about here? To hell with markets this is an internal matter? How do you “unscramble the egg” stop this tolling once it is implemented?

    Recently we made a national decision to sell Vodacom pressured by courts and markets. Two years later you will hardly find an individual who supported that deal, needless to say the cash raised evaporated in Telkom and 8ta. Nobody asked (Telkom and government ) Why sell Vodacom only to start 8ta? More than R10bn down the drain.

    The debate here is also about toll fee vs. fuel levy.

    Neither the courts nor government will have a final say on this matter. Citizents can always correct these decisions at election time.

    This R247million is most money well spent if it is paying for loans to build the roads unlike the the R8.8 bn spent on parked submarines.

  • Graham

    Dierre Pierre (or liewe Pierretjie, as Brett might say), you are, in my view, essentially correct in your analysis. However, the concourt itself has not been shy to set uncomfortable precedents when it comes to interfering directly in government policy decision-making. One example was telling the executive that it had to supply or roll out ARVs (nevirapine) to the masses who needed it. There are probably other additional examples of such “interference”. Which now makes it difficult for them to argue along your lines.
    The other aspect not mentioned is the generally accepted assertion that this e-tolling project is compromised by corruption which would then make it illegal and criminal in scope. That alone is probably sufficient reason for an interim interdict, a final interdict, the throwing out of the government’s case, and the immediate progression to criminal prosecution of the thugs involved.

  • sirjay jonson

    From following the argument on twitter today and reading your blog above, it does initially appear that the cc will find in favor of government, especially with reference to the BIG issue of the courts overruling government. That’s my early uninformed guess at best. However, we have a government which doesn’t listen. And I struggle to recall decisions they have made which are wise or beneficial to the people.

    If they win, what will Cosatu do?

    I can’t speak for others but I’d prefer that I help pay for this through a fuel levy, even though I don’t live in that area, which I believe I heard required about 14 cents a litre, and which government adamantly refused to consider. In my view it goes without saying, proof or not, that there is corruption in this deal. For example, the cost of billing equaling the cost of the actual road production. We do know how things work in SA afterall.

    The even greater threats to all of us is that this process becomes the norm for development of roads, and that the tolls could be the straw which proverbially break the camel’s back in terms of our economy. As for example, I never drive into Capetown, haven’t for three years now because of the toll at Paarl combined with the increasing price of fuel. I’ll rather, and do shop online.

    The government doesn’t think in terms of service. How much was stolen last year? With respect to the toll expense I gather close to 30 billion was stolen and wasted.

  • Zoo Keeper

    Its a good point you raise about the court interfering in policy decisions. Unless the policy is contrary to the constitution (which it isn’t), all there really is left is the age-old procedural challenge. Won’t change the outcome but will defer it.

    Not sure the majority will do anything different in 2014 though. The ANC will win again in 2014 notwithstanding this mess.

    Better challenges may lie in the exclusion of certain groups, for example the taxi industry. I don’t believe any group should be exempt from tolls if they go ahead.

  • Zoo Keeper

    Prof

    Here’s an interesting one:

    Could someone challenge the decision taken by COSATU and the ANC to suspend the toll implementation and not the Treasury? The Treasury quite cleary didn’t order the suspension and the interference by non-governmental institutions such as COSATU should be wide open to a challenge.

    What happens in Parliament? We all know it is all Luthuli House but the charade is falling apart and this could open some wonderfully interesting constitutional arguments don’t you think?

    Is there not some meat there to get behind the democratic farce we currently have?

    Why doesn’t your constitutional protection group have a go?

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Graham
    August 15, 2012 at 16:37 pm

    Hey Graham,

    You make two very profound observations for which I (and I am sure all the other readers of Pierre’s blogs and Pierre too will) appreciate.

    1. “Dierre Pierre (or liewe Pierretjie, as Brett might say), you are, in my view, essentially correct in your analysis.”

    2. “The other aspect not mentioned is the generally accepted assertion that this e-tolling project is compromised by corruption which would then make it illegal and criminal in scope. That alone is probably sufficient reason for an interim interdict, a final interdict, the throwing out of the government’s case, and the immediate progression to criminal prosecution of the thugs involved.”

  • Vuyo

    (George Gildenhuys, I write what I choose and as I choose. You are well entitled not to read what I write based on any reason, including any element of grammar. If you, on whatever basis, choose not to take me seriously, it’s also your entitlement. The reality nonetheless remains that there’s an onslaught against, mainly, the poor that is seldom spoken off in this country. Interestingly, the most powerful tool of its advocates is simply to dismiss people on the basis of arbitrary factors such parenthesis and such similar non-issues. Presumably, therefore, you are one of the many instruments of this right-wing onslaught.)

  • Chris (Not the right wing guy)

    I agree that Government will probable be victorious in this case. The BIG question is, what will our government do if they win?

  • sirjay jonson

    For all those who think there is a right wing onslaught. Jeesh, what are you thinking, or drinking, or smoking. Most folks, easily the vast majority, just want SA to work for all its people. Its time to let go this right wing, left wing nonsense. The people just want to eat, to advance, to be what SAfrica can be, to see their children succeed. Its only our government who is further right than right wing, and doing little for the people, regardless of your color loyalties.

    Can’t fool all of us all of the time. Nor can you stop those who care for the people continuing the struggle. And you, you know who you are, you think only of yourselves. Your time is limited. History and the present is not supportive of vultures.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Chris (Not the right wing guy)
    August 15, 2012 at 18:43 pm

    Hey Right-Wing Guy,

    “The BIG question is, what will our government do if they win?”

    Same thing government will do if it loses.

    JR will explain!

  • Lisbeth

    Maggs -

    You mean SFA will happen?

  • Brett Nortje

    Graham says:
    August 15, 2012 at 16:37 pm

    Your second paragraph expresses my view comprehensively. Save for the addendum that besides the suspicion of bribery and corruption there appear (from watching the media) to be several provisions in the series of agreements which provide the basis for E-tolling that are entirely inconsistent with a constitutional ethos which stresses values like openness and transparency and adherence to the rule of law.
    Like confidentiality agreements.
    Mystery over who gets the balance left over from tolling.
    The PFMA and E-tolling agreements? Who isn’t in the dark but watching anxiously like me?
    So, the lawfulness of the underlying agreements is going to be tested on a whole host of grounds in a couple of months.
    Given that d-day for imposition of E-tolling has been extended before what great inconvenience follows upon making the state wait until it has shown the Court that the underlying agreements are not tainted? WHat happens if E-tolling goes ahead tomorrow and we find out in two months that the whole process stinks to high Heaven?

    This is a Rechtsstaat, I hear it said?

    Add the caveat that Onse Liewe Pierrot might be no great admirer of Judge Bill Prinsloo. Wasn’t he really hissy when Judge Prinsloo interdicted this putrid government from starting to arrest gunowners who have the old green card licences which we did not renew?

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Lisbeth
    August 15, 2012 at 20:26 pm

    Lisbeth,

    JR is not known to use crude words like “Sweet”!

  • jeffman

    Personally, I hope the Govt wins, not because I support e-tolling, but because of the massive damage I believe e-tolling will do to the ANC politically. Viva DA viva!

  • Kenneth

    “Sometimes the demand that our judges should respect the separation of powers doctrine is not used by our government as a stick to beat off a pesky judiciary. Sometimes, just sometimes, our government might have a point.”

    The only reason we are seeing this happen is that, every attempt by the government to better understand the judiciary is viewed with great suspicion and as an attempt to compromise the independence of the judiciary. In light of the fundamental principles of the doctrine: separation of power doctrine, this cannot go be. The room for error that constantly opens for government can also befall the judiciary and it remains in the best interest of democracy to often revisit the doctrine.

  • Zoo Keeper

    I think we need to separate government policy and corrupt practices.

    If the government makes a policy decision to toll the roads around Gauteng I can’t see how the courts can really interfere beyond the procedural consultation stuff.

    If it is implemented in a corrupt manner, that is a different story but it is not a constitutional issue but a criminal one. It may lead to the end of the tolling project but not as a result of constitutional principles.

  • Bookman429

    The impact of these tolls on people who need to get to work on public roads, and earn less than R15,000 or even worse R10,000 per month will be severe. The high tolls will have a significant and unfair impact on their lives.

    The very late announcement of a toll rate R1.76 per kilometre for those who are not registered for e-tolls also will have a significant and unexpected effect on people’s lives. It is also clear that this high toll was intended to have a punitive effect and is a political action in response to the political action around the boycott call for e-toll registration.

    I think these issues are significant and the question whether it is appropriate for state policy to operate in this way should clearly be tested in court, and the fact that it impacts on ordinary citizens who have limited options in response to these demands made on their purse by the state raises for me the point that interdicting the tolls pending a court case is necessary.

    And as a political aside, if the R20 billion is supposedly such a big issue, for roads serving hundreds of thousands of commuters and conveying products for millions of consumers, why was government planning to spend R2billion on a Boeing 777 jet for President Zuma and his entourage?

  • Gwebecimele
  • George Gildenhuys

    Vuyo, yes you have me all sussed out. Just because I poke fun at your comment, and didn’t engage in an off topic debate about something irrelevant, I must by definition be an AWB member. How did you know? So smart. I bet your parents are proud.

  • Henri

    I don’t begin to understand your argument. The e-tolling is done in terms of certain empowering statutes – which brings implementation within the definition of “administrative action” in PAJA. Then it can be reviewed.

    It might be a policy decision [with financial implication for treasury] to use the empowering legislation to do e-tolling, but that is so in well nigh all instances. That can’t be a reason to say its not reviewable or that an interim interdict on that background should not have been issued!
    Then review under PAJA can just as well be scrapped.
    Section 33 guarentees “just administrative action”.

    Just because it was a policy decision to do some administrative action [introduce etolling] with financial implications cannot be a reason to exempt it from review and normal interdicting beforehand based upon a prima facie right to just administrative action….

  • Pierre De Vos

    This case is not about whether the decision can be reviewed or, if it is reviewed, whether the decision should be set aside. The case is about whether an INTERIM interdict should have been granted before the actual review application was even heard and before any court made a definitive ruling on whether the implementation of e-tolling was illegal. No one is arguing that a court cannot set aside a decision that was unlawfully or unconstitutionally made. That is not the issue here at all. The issue is whether an INTERIM interdict should have been granted and what criteria should apply when an interim interdict is granted in a case like this.

  • Gwebecimele

    So Cosatu and ANC can delay the project but our courts can’t. How long will it take for any court to declare the etolling illegal? At that point, how do you reverse the contracts, billing and all other aspects of the e-toll. BTW only the tolling part of the project has been stopped.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Judge ‘debarred’ from practice as attorney; JSC apologises for not knowing http://post.ly/8iDx9

  • Lisbeth

    @ jeffman:

    “Personally, I hope the Govt wins …”

    So do I, but not for the reason you give.

    Moody’s Investors Service has downgraded Sanral’s credit rating following the e-tolling brouhaha. Downgrades push up the cost of government borrowings and add to the government deficit. Ultimately, this is funded by the taxpayer.

  • Lisbeth

    @ Gwebecimele:

    “BTW only the tolling part of the project has been stopped.”

    I don’t know what you mean – “only” the tolling part. Isn’t that the object of the exercise? The raison d’être, as it were?

    Correct me if I’m wrong, which I usually am.

  • Gwebecimele

    @ Lisbeth

    Let me warn you, I am not a lawyer.

    PdV says:

    “the decision of the High Court represents a far-reaching and even dangerous intervention by the judiciary in policy decisions taken by the executive and I would not be surprised if the Constitutional Court overturns the High Court decision.”

    Hence my argument that only the (inefficient) tolling part of the project NOT POLICY is being challenged. This thing was stalled 3 times before and nobody died.

  • Gwebecimele

    “Ecuador has decided to grant political asylum to Julian Assange following the request sent to the President,” Patino told a press conference in Quito.

    He argued that Assange’s personal security was at risk, extradition to a third country without proper guarantees was probable, and legal evidence showed he would not have a fair trial if eventually transferred to the United States.

    “This is a sovereign decision protected by international law. It makes no sense to surmise that this implies a breaking of relations (with Britain),” Patino added.

  • Lisbeth

    @Gwebecimele:

    Your reply regarding e-tolling: thanks, but it’s all about the money.

    BTW, what has Julian Assange got to do with the subject under discussion? Hmmm?

  • Gwebecimele
  • Henri

    @PdV 14:08 :
    But what’s in a name?
    It’s called an interim interdict, but it’s simply an interim review. For if not done in the interim the “final” can just as well be aborted.
    To set a higher threshold for interim interdicts re review of implementation of policy through empowering legislation would be to seriously [dangerously] water down/emasculate section 33 and PAJA. That’s a serious threat for/in an impending failed state and would hasten the implosion.

    But watch this space – the cadre-deployed lackeys at constitutional hill will certainly do it…….
    And would further prove the uselessness of a constitution in Africa.

    Just sad that the press and ordinary people don’t understand the seriousness of the situation.

  • Gwebecimele

    @ Lisbeth

    Blogs are like market place. If you are not here for the potatoes just move along unless you want to be the editor.

  • Brett Nortje

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=319233&sn=Detail&pid=71616

    “Several reports confirm that a handful of families linked to FRELIMO elite, including former President Joaquim Chissano as well as Graca Machel (widow of founder of Mozambique Samora Machel and current wife of Nelson Mandela), control most major business deals in the country, resulting in a situation where political and business elites are synonymous.”

  • Gwebecimele

    Dworky

    What is your comment on the fact that the parties in this e-toll saga are not using black SC’s? Is this what Minister Radebe was talking about?

  • Gwebecimele
  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Lisbeth
    August 16, 2012 at 15:55 pm

    Haibo Lisbeth

    “BTW, what has Julian Assange got to do with the subject under discussion?”

    Julian knows everything.

    About everything!

    p.s. But not enough about girls!

    :evil:

  • Lisbeth

    Maggs -

    “Julian knows everything.”

    Small wonder, then, that the South African government didn’t offer him political asylum …

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Lisbeth
    August 16, 2012 at 18:26 pm

    Lisbeth,

    Pah – you missed the fine print which explains why “the South African government didn’t offer him political asylum …”.

    See p.s.!

  • Brett Nortje

    Maggs Naidu – (maggsnaidu@hotmail.com) says:
    August 16, 2012 at 17:45 pm

    Carte Blanche Sunday? Disgusting. It is all about politics.

  • Peter L

    Quote “Because of the interdict, Government must allocate R270 million to the Gauteng roads upgrade project per month instead of allocating this substantial amount to education, health, infrastructure investment and poverty alleviation programmes.”

    Oh phuleeeze, Pierre – grow up!

    When it comes to collecting our tax money, governments always cite the need to build schools, hospitals and spend on social welfare.

    They tend not to mention Frigates that we don’t need, submarines that remain in dry dock, fighter aircraft that we have no operational budget to keep i n the air, overseas “fact finding” trips (counting building cranes in Dubai).

    R270 million per month is a drop in the Ocean compared to the waste, inefficiency and theft of taxpayers money that the Auditor General has reported.

    I will also not be concerned if the interim interdict is rescinded – let Coastu and their alliance partner fight it out to the bitter end, I say.

  • http://www.ozoneblue.co.za/ ozoneblue 6

    “Because of the interdict, Government must allocate R270 million to the Gauteng roads upgrade project per month instead of allocating this substantial amount to education, health, infrastructure investment and poverty alleviation programmes.”

    None of that makes any sense. Roads are part of “infrastructure” spend. In fact our roads have slowly been going to shit, without proper roads we cannot deliver any of the other “social” spend. That is why we need a proper national planning commission, one of the very noteworthy improvements under the Zuma led government, in contrast to Mbeki’s just leave it to the freemarket dogma.

    I have no ideological problem with toll roads as long as the entity that takes custody of them are government owned and therefore accountable to the people.

  • http://www.ozoneblue.co.za/ ozoneblue 6

    Brett Nortje
    August 16, 2012 at 16:34 pm

    “While President Guebuza campaigned five years ago on a platform of fighting poverty, corruption, and crime, it appears that these were simply campaign promises. Most observers predict Guebuza’s reelection, though the appearance of new opposition party Democratic Movement of Mozambique (MDM) could change the equation somewhat.”

    So one mob of gangsters are going to be less corrupt than another mob of gangsters?

    Please explain that neoliberal assumption. The problem is really not which pro-Western gang is going to rape and pillage the country, the problem is the fact that bourgeois Western-style democracy is an inherently corrupt political system.

  • Zoo Keeper

    Prof

    Apologies for being sidetracked.

    On the interim interdict it is interesting because it raises the balance of convenience argument. The citizens of Gauteng were essentially held to be more inconvenienced by having to pay than the government who holds the debt.

    I really like that aspect because it prefers respect for the citizen over the government and convenience to the citizen before the government. Really a libertarian (NOT liberal) view and one I quite like. Hope that part survives intact.

    Its about tax-spending and the government has faced its first real tax revolt. Policy is one thing but irrational tax spend may not be beyond constitutional review, what do you think about that?

  • StevenI

    @ Ozoneblue

    “I have no ideological problem with toll roads as long as the entity that takes custody of them are government owned and therefore accountable to the people.”

    Government owned by the ANC?

    Accountable to the people?? – Ha!

  • Gwebecimele

    Apparently our police are not only capable of explaining service delivery issues to toyi-toying masses, they also negotiate labour issues.

    With help of apartheid tools such as barbed wire and that famous instruction of ” 5 minutes to disperse”

  • http://www.ozoneblue.co.za/ ozoneblue 6

    StevenI
    August 17, 2012 at 10:48 am

    Whether you like it or not our government has been democratically elected by the people.

    I would say even the African National Criminals with all of their Mafia connections remains a couple of notches more transparent and accountable to our people than Goldman Sachs, Henry Paulson and Lloyd Blankfein will ever be.

  • Vuyo

    I previously said there was an onslaught against the workers by a right-wing (comprador) state and right wing corporations. Counterrevolution is afoot.

  • http://www.ozoneblue.co.za/ ozoneblue 6

    The silence is deafening. I would have imagined the author of this blog, had he been nonpartisan, would have launched another tirade against the secrecy bill by now.

    “When Deputy President Kgalema Motlanthe requested the Public Protector to probe allegations that Gugu Mtshali gave political support to an Iranian oil deal in return for R104 million, he was hailed as an example of moral upright
    leadership. But now that the report is ready and has been submitted to
    the deputy president, the silence is deafening. Why is Motlanthe sitting on this report when it is clear that the public wants to know if the girlfriend of the country’s No 2 has indeed used her proximity to the office of the deputy president to solicit bribery?”

  • http://www.ozoneblue.co.za/ ozoneblue 6
  • Lisbeth

    @ozoneblue 6

    “Why is Motlanthe sitting on this report …”

    Oh, come now, o6. If the PP’s report had cleared Motlanthe’s partner we’d know all about it by now.

  • Brett Nortje

    Vuyo says:
    August 17, 2012 at 12:29 pm

    Big deal. You talk crap all the time, almost as prolificly as OBS.
    It is always someone else’s fault, isn’t it? Usually, a nasty mhlungu?

    Before Sharpeville there was Cato Manor.
    The ANC did not like competition from the BCM then or during the eighties, Cosatu does not like competition now.
    Lonmin sends NUM a notice telling them their representation has dropped under 50%, AMCU sees a gap. Being the people in charge of a Rbn investment fund – therefore being first in line to eat the money – can appear attractive.
    NUM urgently has to get its membership up. AMCU organises a wildcat strike. Sure vote-getter, membership drive by other means.

    Someone needs to be taught a lesson. Looks to me as if the cops decided on brute force response Wednesday irrespective of whether it was proportional to the threat. Anyone else watch ENuus/ETVnews? See the interview with the North West Commissioner?

    The ANC does not take kindly to being challenged, Cosatu does not like competition.

    Are the main conspirators going to get a get-out-of-jail-free card?

    1) Kgalema Motlanthe
    2) Gwede Mantashe
    3) Frans Baleni
    4) Zwelinzima Vavi
    5) National SAPS Commissioner
    6) North West Commissioner
    7) Dennis Adriao

  • Brett Nortje

    The ZANUfication of South Africa is complete:

    http://www.sowetanlive.co.za%2Fnews%2F2012%2F07%2F18%2Fkzn-prosecutions-boss-axed&ei=DmguUIm_EYvW9QTYh4H4Bg&usg=AFQjCNF5ZIcHHMebncss1K-86rskqndTog

    http://www.citypress.co.za/Politics/News/Four-Amigos-walk-free-20120817

    Four Amigos walk free

    2012-08-17 11:32
    Paddy Harper

    Four accused in the high profile Amigos fraud and corruption case are set to walk free.

    Natasha Ramkissoon, spokesperson for KwaZulu-Natal director of public prosecutions Moipone Noko, confirmed that charges are to be withdrawn against KZN legislature speaker Peggy Nkonyeni, economic affairs MEC Mike Mabuyakhulu and lawyers Ian Blose and Sandile Kuboni.

    The four were arrested along with senior KZN civil servants and Uruguayan businessman Gaston Savoi for allegedly inflating the cost of water purifications units sold to government through a crooked procurement process.

    They were due to have appeared in court next month.

    Nkonyeni and Mabuyakhulu are both senior ANC provincial leaders.

    Mabuyakhulu had allegedly been involved in receiving a R1m kickback from Savoi on the ANC’s behalf.

    Nkonyeni was MEC for health when the transactions took place.

    It is not clear at this stage whether or not the case against the other accused will be withdrawn.

    - City Press

  • Mikhail Dworkin Fassbinder

    I say the so-called massacre is the product of a DA-funded Third Force.

    Far worse things happen in Zillestan very day – but you would not know that from the liberal press!

  • http://www.ozoneblue.co.za/ ozoneblue 6

    Lisbeth
    August 17, 2012 at 15:30 pm

    The real question really is : why would a Stellenbosch born-and-bred White liberal, who has a B Comm (Law), LLB and LLM (cum laude) from the University of Stellenbosch, an LLM from Columbia University in New York, and an LLD from the University of Western Cape (while Apartheid struggle heroes where incinerated on RI) ignore this as he ignored the gross state sponsored excesses committed against Jacob Zuma/ Mac Maharajah way back in 2001?

  • http://www.ozoneblue.co.za/ ozoneblue 6

    So le3ts put it mildly. The socalled NEW SOUTH AFRICA

    is

    a

    Mafia

    sponsored

    LIE.

  • Mikhail Dworkin Fassbinder

    @ Ozoneblue

    I say it demonstrates the urgent need for a complete TRANSFORMATION of SAPS.

  • http://www.ozoneblue.co.za/ ozoneblue 6

    Mikhail Dworkin Fassbinder
    August 17, 2012 at 23:06 pm

    “TRANSFORMATION of SAPS”

    I catch your drift. Sicilian, American or Nigerian ?

    “Today is a very special day in America’s history. The fourth of July. A celebration to mark our indepdence in the world, and in this Editor’s opinion there is no better day to mark the emergence of The Mafia Gazette under new ownership. I can only apologise for the recent lack of editions but this will all change now as we mark a new era in our World’s history. The Mafia Gazette aims to live up to its moniker of bringing you all the news that is news, and what a time to do it? Cities are once again at war, others are on the rise and the fall of our nation’s greatest leaders is allowing a whole new generation of Mafiosa to rise.”

    http://mafia.org/gazette.php?issue=19

  • http://www.ozoneblue.co.za/ ozoneblue 6

    The good news however is that although it may henceforth be impossible for Whites to become aeroplane pilots in the new “nonracial” South Africa

    http://www.fin24.com/Companies/TravelAndLeisure/No-more-white-cadet-pilots-for-SAA-20120817

    - it is quite possible for Black Female police commissioner (with zero experience but perhaps another friend of the Mafia) to shoot dead 30 odd mine workers.

    http://news.iafrica.com/sa/811697.html

    such are the demographics.

  • Maggs Naidu – (maggsnaidu@hotmail.com)
  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    August 17, 2012 at 22:26 pm

    Dworky,

    The revolts (and deaths) are symptoms of the increasing chasm between political and union leaders and their core constituencies.

    It can only get worse before it gets better.

    But it’s only poor people who have been killed.

    So FUCK THE POOR!!!!!!

  • Michael Osborne

    Maggs, I suspect you are right, but MDF may be wrong.

    But imagine that the massacre had happened under under the aegis of a DA-controlled government (provincial or national.) First, cities and townships across the nation would rise up in rage. Second, it would be interpreted as proof positive that the DA was the true and legitimate heir of the apartheid regime.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Michael Osborne
    August 18, 2012 at 11:01 am

    Hey Prof,

    It’s hard to speculate what would have been the response if this had happened under a DA government, save to say that there can only be a DA government if that is the will of the people in which case the response will probably resemble that of now.

    Sharpville intensified the anti-apartheid campaigns.

    Boipatong expedited the transition to democracy.

    Maybe this massacre will expedite “the second phase of the first transition”. Whatever that may mean!

  • Michael Osborne

    Maggs, point taken about the “will of the people” at the national level.

    But suppose then that the massacre had happened under the aegis of a DA-controlled provincial government. I suspect that the level of popular anger across the country would be incomparably higher. I suppose this reflects that, for better or worse, and despite everything, the ruling party has a deep reservoir of presumptive legitimacy.

  • Maggs Naidu – (maggsnaidu@hotmail.com)

    Michael Osborne
    August 18, 2012 at 11:45 am

    Hey Prof – it seems that everyone is waiting for Malema at Lonmin!!!!!

  • http://www.ozoneblue.co.za/ ozoneblue 6

    Dejavu. 90 years ago.

    “The Rand Revolt was a calamity that inflicted suffering on every section of the community. It cost many lives and millions of pounds. About 200 people were killed – including many policemen, and more than 1,000 people were injured. Fifteen thousand men were put out of work and gold production slumped. In the aftermath, some of the rebels were deported and a few were executed for deeds that amounted to murder. John Garsworthy, leader of the Brakpan commando, was sentenced to death, but he was later reprieved. Four of the leaders were condemned to death and went to the gallows singing their anthem, ‘The Red Flag’. Smuts was widely criticized for his severe handling of the revolt. He lost support and was defeated in the 1924 general election. This gave Hertzog’s Nationalist Party and the Labour Party, supported by white urban workers, the opportunity to form a pact. The white miners were forced to accept the mine owners’ terms unconditionally, and gold production again increased because of the use of a higher proportion of African labour, lower wages for whites, and new labour-saving devices which had come into operation. After this, as South Africa grew increasingly industrialized, the government came under stronger pressure to protect skilled white workers in mining and in the manufacturing industry. ”

    As I have said. The African National Criminals are a profoundly anti-revolutionary movement.

  • http://www.ozoneblue.co.za/ ozoneblue 6
  • Miikhail Dworkin Fassbinder

    Maggs & Ozone

    I say the police should have held their fire and accepted their fate — being hacked to death with machetes, as their colleagues were the previous day. These SAPS would have been heroes of our democracy, and buried with full honours!

    Thanks

  • Brett Nortje

    Brett Nortje says:
    August 17, 2012 at 15:38 pm

    Nope, guess not. Our esteemed President – who has the instincts of a black PW Botha (except for the fact that no-one suggests PW-783 was a crook) – Was very quick to sense this is a splendid opportunity to get rid of the Presidential challenge from the bozos formerly from NUM.

    Even Cde Godfather will have to STFU for a while:

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=319919&sn=Detail&pid=71616

  • http://www.ozoneblue.co.za/ ozoneblue 6

    Miikhail Dworkin Fassbinder
    August 18, 2012 at 13:54 pm

    Maggs & Ozone

    “I say the police should have held their fire and accepted their fate —”

    Or perhaps we had a Police Commissioner who had some proper training, understanding and experience on how to best defuse such a situation based on years of dedicated work instead of being appointed on her gender and her colour we might have had a different outcome.

    You don’t need to be a butcher to OWN a slaughterhouse

    http://dailymaverick.co.za/article/2012-06-15-you-dont-need-to-be-a-drunkard-to-own-a-bottle-store-phiyegas-first-day-at-the-office

  • http://www.ozoneblue.co.za/ ozoneblue 6

    How about a classless society “comrade” Zuma?

    “We will continue with our task of consolidating our hard-won freedom and democracy. And we will continue working tirelessly, to build a united, non-racial, non-sexist and prosperous South Africa.”

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