A far cry from the past, where as Rhodesians and then Zimbabweans we treasured the South African law reports as our bibles.

Judges of the modern South Africa, (even the uncle Toms left in the ConCourt;) appear to have no aptitude for nor apply the Bill of Rights to any cases. Hell, they don’t even read the pleadings properly.

Until a set of rules that generally sets out that which follows; is published and judges are trained in fundamental rights motions, this will sadly, persist:

LACUNA – NO DOCUMENTED ‘RULES & PROCEDURES’ FOR FUNDAMENTAL RIGHTS LITIGATION.

1.Given the peremptory procedural requirements set out in De Waal, Currie and Erasmus, Bill of Rights Handbook, 4ed Juta and Co 2001, at 311; the following is obviated:

2.The rules required in regard ‘fundamental rights’ proceedings and, subsequent due process is not contained in any formal legislation. There is a lacuna.

3.There are however, peremptory procedures which must be applied in fundamental rights litigation and, which are contained in, inter alia:

South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC);

Moise v Transitional Council of Greater Germiston and Others 2001 (8) BCLR 765 (CC);

Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others 2004 (5) BCLR 445 (CC);

Billiton Aluminium SA Ltd t/a Hillside Aluminium and Khanyile & 3 Ors Case CCT 72/09 [2010] ZACC 3 at 37;(but not limited hereto.)

4.i.e. Billiton4 at its paragraph 37, gives an example of the ‘rules and procedures’ both an applicant and a respondent must adhere to in the compilation of their respective pleadings; and,

5.Highlighting just two of the many differences – the onus is completely different5 and the final order is not restricted to the prayer;

6.Notwithstanding failure of its onus by the respondent, a court may still defer to policy considerations in order to reach an alternative conclusion to that sought.

7.But, this all requires formal due process under peremptory ‘fundamental rights’ procedures.

8.If any claim of justification is based on the pursuit of policy it is a question which must first be cogently set out in a respondent’s pleadings; and,

9.Must be determined by express reference to the requirements and parameters of section 36 of the Constitution of South Africa.

10.In order for section 171 of the Constitution to have been materially complied with a full and formal set of rules and procedures must legislated; and,

11.Published in regard ‘fundamental rights’ applications in the High Court of South Africa; and,

12.Judges of the divisions of the High Court of South Africa, be compelled to follow these peremptory rules and procedures; and,

13.Which are completely different to the ordinary rules and procedures in motion hearings; and,

14.In order for section 171 of the Constitution to be properly complied with, I further respectfully state that the uniform rules of the High Court must contain -

15.A full and complete set of written ethics / conduct to which judges, advocates and lawyers are expected to comply.

16.In this regard the dictum of Gubbay C.J.14 and the SCA ratio of Van der Berg v The General Council of The Bar of South Africa must be incorporated; (but not limited thereto.)

17.This is so that any member of the public is not left guessing and, knows exactly what is required in any court room in the High Court of South Africa; and,

18.In order to regulate the conduct and procedure of the said courts and dramatis personae therein.

19.The necessity for this is well-entrenched by the requirement of openness, transparency, accountability and responsiveness and justification within the 1996 Constitution and can only advance the administration of justice, not hinder it.

20.This Constitutional Court has itself expounded the value of open justice and accountability.

21.One of the material requirements under these rules is that a judge must be compelled to read and understand the pleadings and heads of argument; and,

22.To demonstrate the same; and, to have properly researched all the law which applies to any given case.

23.If ‘peremptory procedure’ is published then erroneous judgments which hold the common law ahead of the Constitution would be avoided i.e. TBP Building & Civils (Pty) Ltd vs East London Industrial Development Zone (Pty) Ltd & 5 Others.16 (In which, in my subjective opinion, was wrong.)

24.This requirement is peremptory by virtue of: “In this process every relevant consideration should receive the most scrupulous care and reasoned attention;” and,

25.The question which it is necessary to be fully answered by every court, is: “has the party been given the full measure of the Bill of Rights protection?”

That is just beyond imagination. And it is the poor who probably suffer the most, in such cases… Actually it’s sickening.

I am not sure if I want to know what happened to the magistrate…

NB. I asked: “isn’t it true that most judicial officers have
not yet tuned-into the more EQUITY based view of post ’94″ ?
But all your disagreements with the prof. mention EQUALITY.

Which leads to the punch-line, which they considered too
improper to answer: “what mechanism to use to safely tell
the judicial officer, ‘look boy, if you are so lazy as to
just take the old-60′s precedents, I’m going to take this
matter higher, where they DO understand considerations
of equity, and not just the 60′s ‘kak en betaal’ simplistic,
literal interpretations.’…?”

Related [IMO]:
Does the concept of force majeur, [I think it's called - act
of God, & beyond our reasonable control] apply, so that,
without being formally recorded, because of the general
incapacity in the nation, and therefore also the Court
systems’ incapacity the statutory time-limits are relaxed ?
Re. equity it’s not ‘fair’ that a party is able to prevail
with unjust actions by manipulating procedural stuff
like time-limits.

It’s well known that Indian cases can go on for
generations, but I doubt that they don’t have statutory
time-limits ?

Re. equity, I observe that the SA ‘natives’ have a
‘better’ sense of natural justice, but they accept
the reality that money trumps justice – in SA.
———
Re equity:
SA follows UK company law, with a big time-lag.
So a company’s internal bussiness is controled by
majority-rule. So, if you, I & my wife save the life
of the wealthy old American, and he, as a reward
gives us [one third each] his Pty before he retires
to US, then your share is worth zero, by the strictly
technical [non equity] old-SA paradigm.
This because my wife & I will will vote ourselves as
directors and extract all profit as directors’ fees.
By contrast, UK had a number of equity-based jugments,
over-ruling [making exceptions to] the Foss v Harbottle
rule, which is the kind of technical [rather than equity]
concept that the 60′s-paradigm-SA-law-people love.

AFAIK, only the 1992 SCA Hullett case finally used the
UK equity precedents. And later cases still unjustly
screwed the minority, because the Judges are looking
for a simple/safe mechanistic paradigm, where they
don’t have to THINK/JUDGE what is fair & equitible,
even when statute allows them to use discretion.
Perhaps it’s part of the view: ‘die wet’ is handed
down from a higher, not to be understood power.
And the “that’s how we do it – understanding why, is
not for me” attitude.
————–
Related [IMO]:
I attended [the only of my life] fixed property execution
sale/auction. After the price was bid up to 3 times
market, and the genuine buyers had left, the sheriff
casually anounced that “there was a mistake and the
sale would be rectified”. So after the other stuff was
sold and most bidders had left. The scammed [IMO]
re-auction took place. I bid up to market. And when
I had a look at the applicable HC rules I couldn’t
see anything ‘illegal’. That the equity consideration
of a genuine free-market auction was to exist, was
[IMO] replaced by the 60′s-SA ‘dit is die wet’ view.

Am I right that the CC hopes that these little unjust
quirks of SA law will be ‘brought in’ for scrutiny and
fixing, hence increasingly cleansing the statute-set ?
An example being the CC:’Prince Albert execution of
RDP houses for near zero prices’, after the ‘sommer
maklik’ procedure of moving it along without even the
oversight of a magistrate. CC tightened up the rules.

BTW, this is all irrelevant/academic, since SA too is
transforming: ZA -> Zimbabwe -> Zambia -> Zaire: home!

PS. I seek JHB attorney/counsel who’s familiar with the
principle: “a Pty. [especially small & family held] is
a quasi partnership, and hence fiduciary duty applies
inter se”. SALR of 1992 SCA Hullett… cited
P. Rabinowitz, who I can’t locate.
Perhaps he packed for Perth.

Shocking and scary. (And I don’t know the half of it!)

Things like this make me sick to my stomach.

Somewhat presumptuous I would say!