The South African Human Rights Commission (SAHRC) were lambasted by DA leader Helen Zille for finding that the City of Cape Town had violated the dignity of residents of Makhaza by not enclosing the toilets it had provided to them and for not adequately consulting with the community about the issue. Zille said in an interview that the City of Cape Town was being “selectively targeted” by the Human Rights Commission.
Her informal side-kick, Rhoda Kadalie, went further, saying that the finding of the SAHRC demonstrated that the the body was singing the ANC’s tune.
Such attacks on the integrity of the SAHRC are rather startling, as the body is an independent watchdog created by the Constitution. The Constitution states that “other organs of state, through legislative and other measures, must assist and protect” the SAHRC to ensure its “independence, impartiality, dignity and effectiveness”. The Constitution also states that “[n]o person or organ of state may interfere with the functioning of these institutions”.
Like any court judgment, a decision of the SAHRC is, of course, not beyond criticism. Anyone – including the leader of a political party – is entitled to analyse the reasons given for a decision by the SAHRC and to criticize that decision on the basis that the legal principles set out by our courts were not applied correctly. But in the absence of conclusive proof that the decision by the SAHRC was biased and hence tainted by political considerations, a personal attack on the integrity of the Commission undermines one of the constitutional institutions and hence undermines respect for the Constitution itself.
Are there good legal reasons to argue – as Zille and Kadalie in effect did – that the decision of the SAHRC can be dismissed because the SAHRC was selectively targeting the DA? This view can be sustained if similar complaints lodged with the SAHRC regarding the failure of ANC-run municipalities to provide access to adequate housing, health care and sufficient food and water were never investigated, or investigated and dealt with differently than the complaint against the DA municipality.
I have been unable to find any proof that the DA or anyone else had indeed lodged such complaints against ANC run municipalities in the past, let alone that such complaints were dealt with differently than this one against the Cape Town City Council. Maybe the DA can provide proof of such complaints being lodged and can demonstrate that the SAHRC dealt differently with these complaints, but they have not yet done so. If they are unable to do so, the statement by its leader seems deeply troubling and disrespectful of the Constitution.
But are there nevertheless, despite a apparent lack of proof that the SAHRC has not dealt with similar complaints against the ANC in the same manner, good reasons to find fault with the SAHRC finding? Can one argue, without fear of being accused of undermining a constitutional institution, that the body was overzealous in its finding because the DA city council was involved?
After studying the SAHRC Report, it is difficult for me to come to that conclusion. The Report correctly points out that the rights in the Bill of Rights place both a negative obligation on the state NOT to interfere with the existing enjoyment of rights and a positive obligation on the state to take steps to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures toward the full realisation of the rights.
The SAHRC report also correctly points out that in the Grootboom judgment the Constitutional Court held that “the Constitution required the state to put in place a comprehensive and workable plan in order to meet its socio-economic rights obligations…the program must,…, be balanced and flexible and must make appropriate provision for attention to short, medium and long term needs” and that the Court held further that the “programme must be reasonable both in conception and implementation…”
In Grootboom, the Court argued that where a programme failed to take account of the needs of the most vulnerable and marginalized, either in the manner it was devised or implemented, it might well be unreasonable and hence unconstitutional. The following conclusion by the SAHRC is therefore entirely plausible (although not the only conclusion that could possibly have been drawn):
while the City’s project to provide flush toilets for all residents is reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable. Furthermore while it is accepted that the measures employed were intended as temporary solutions to a situation that needed to be urgently addressed, the situation persisted from 2007, a period of just under three years….No provision was made for those who were unemployed and poor and could not fund the enclosure of their own toilets. Issues of access for those with disability and issues of safety for those most vulnerable to violence in terms of the structure such as ensuring they were well lit do not seem to have featured in the planning and implementation of this project.
One might argue that the SAHRC – like some High Court judgments dealing with cases regarding access to water and electricity – went slightly further than the Constitutional Court jurisprudence (strictly applied) would allow. Its reliance on human dignity – instead of the social and economic rights provisions – to find that the Cape Town City Council had failed to meet its constitutional obligations, is not particularly plausible. And like the South Gauteng High Court in the water meters case, it seemed to imply that the state had a duty to provide a minimum core of services – something that the Constitutional Court had rejected.
However, to my mind the SAHRC should be applauded for this pro-poor approach – not derided for being a lackey of the ANC. In cases where the High Court made innovative use of the social and economic rights jurisprudence, I have applauded the relevant judge for advancing a pro-poor agenda, so it would be hypocritical of me not to applaud this decision of the SAHRC for doing exactly the same thing.
Certainly, if the ANC had derided the various High Court judges who had found against ANC controlled municipalities in social and economic rights cases and if an ANC leader had labelled the judge involved in such a case a lackey of the DA merely for using an innovative approach to social and economic rights enforcement, few right thinking people would not have been outraged by this attack on the integrity of the courts and the disregard for the Constitution.
A political party (or anyone else, for that matter) who is truly concerned about the plight of the poor and about a lack of service delivery would have applauded this finding of the SAHRC and would have relied on it in future to try and expose the possible unreasonable and unconstitutional failure of other municipalities. A pro-poor political party would not have acted in the paranoid and defensive manner of the DA leader and would not have alluded to alleged conspiracies to excuse their own actions which the SAHRC found wanting.
The SAHRC finding is of course not binding, but that body has a constitutional mandate to monitor the enforcement of social and economic rights. In the past the SAHRC has not always fulfilled this mandate with sufficient vigor. This is partly because it has not received many complaints about the failure of municipalities to fulfill their social and economic rights obligations. But with this finding the SAHRC has shown that it would be willing to push municipalities and to call them out where they fail to implement service delivery programs in a reasonable manner.
This willingness on the part of the SAHRC to fight for the interests of the poor and marginalized is something to be celebrated. The fact that the DA leader saw it differently, will reinforce the perception that the DA is more interested at scoring cheap political points and defending its own political brand in a paranoid and defensive manner than in advancing the rights and interests of the poor. No wonder the DA has been unable to capitalize electorally on the infighting, nepotism and disarray in the ANC.
What poor person is going to believe that the DA is truly fighting in their corner if this is how the party reacts to a pro-poor finding from an independent constitutional institution?
Prof: I don’t know how you consistently get out your blogs, you must be so busy. But then you know the old saying: “if you want something done, ask he or she who is busiest.
And Rhoda Kadalie, we could do much worse, and are.
And which of these special bodies such as HRC, may I ask, isn’t kowtowing to the ANC? And who can you say within the elite is admiring, or supporting, the Constitution. Please. I think we need knee pads for Lady Jusitce at this point.
Me, I can’t vote, although I’m now here 10 years, but if I could I would vote for that and who, is better than ‘[as in positive politics) and as espoused and lived by the DA. Geesh, how could I think of you as a man with your intellect, intent and desire, and think you are not seeing the reality. No Guilt! No Blame! No Shame! And, Who can do what needs done.
And if you will forgive me, I think it’s time to forgive the forefathers and just get on with things.
Thanks so much for this analysis. It’s good to have the context and background with which to think about Zille’s remarks and the SAHRC’s report.
Just for my own edification, in which court case was the “minimum core of services” rejected?
Rebecca, the minimum core approach was rejected by the CC in Grootboom and again in TAC case, but the court said it could be taken not account as one of the factors to determine whether the state has acted reasonably. In Phiri water case the High Court used the last argument to hold that the municipality had a duty to provide a certain minimum of free water to those who needed it because if they did not they would be acting unreasonably. As I see it the SAHRC did much the same thing here but in a less articulate manner than the High Court.
Eish Pierre, now you’ve gone and done it again.
Better get out the heavy raincoat and umbrella – the storm is on it’s way.
Great response Maggs: lets .see what comes up.
Thanks for the quick response. Forgive my perhaps naive analysis. I too am now curious about the SAHRC’s choice of logic in reaching the conclusion that “the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable,” based on the issue of dignity
The report indeed cites the Grootboom case, saying that the state has “substantial discretion” in choosing how to realize the socio-economic rights in the Constitution. This seems to be an implicit reference to the rejection of the “minimum core.” To this end, the report lays out multiple constitutional arguments besides the one for human dignity (Section 9(2), 12(2), 26, 27, and particularaly privacy in Section 14). But in the end the report is concluded only in the context of dignity. At two points the SAHRC takes the intersection of socio-economic rights with the right of dignity as a way to dismiss socio-economic rights as the argument. The report says “the right to human dignity is very closely linked to socio-economic rights” and then “In the matter at hand the question of privacy is inextricably linked to the question of dignity and is accordingly viewed from this perspective”
Perhaps this is because of the context of the original complaint which was framed in terms of dignity. But it also really raises the question of evaluating material conditions based on dignity rather than socio-economic rights. What is the precedent for evaluating (or rather, de-contextualizing) what is “reasonable” dignity?
The sheer intangibility of the right to dignity seems to open it up to the most debate–and perhaps the most abuse. Although I personally agree that the situation in Makhaza was an afront to human dignity, how could one go about proving that in a legal context? While finding that the city didn’t uphold the dignity of its residents is a strong and emotive conclusion, wouldn’t the response have been more effective, legally, if it were based in socio-economic rights and the well-established precedent for access and the progressive realization thereof?
Rebecca M, your questions are well taken.
I wonder if it might not be said that the right to dignity is acting a kind of surrogate for the “minimum core” floor that has been rejected by the CC?
To get philosophical about if for a moment; could we say that the “minimum-core” notion was abandoned in recognition of the fact (?), that socio-economic rights are always subject to utilitarian trade-offs. (More schools = less toilets; whose to say which is preferable?)
Deontology returns with a vengance when the value of “dignity” is imposed as a floor beneath which services may never sink.
I remain sceptical. The a-contextual invoking of “dignity” does not really save us from the ultimate and invetiable trade-offs. Suppose building rudimentary latrines (no walls), really could free up the money to build ten classrooms that otherwise would not be built? Is it so clear then what the value of “dignity” dictates?
One thing that all this does not effectively take into account is the very, very real problem of resources.
You do what you can with what you’ve got. Yes, the more expensive suburbs get more effective services but then they are the people actually paying for the poor to get their’s for free.
So yes, it is “undignified” to have to take a dump in public. But even at that level of poverty, a plan can be made. All it needs is a little effort to find trash and use it provide a screen.
I can understand Zille’s irritation with the commission’s report. When you’ve provided 1300-odd toilets and only 50-odd are too useless to make a plan, why should the whole effort be reduced to the lowest common denominator? Then you will also get the natural community tension if some are provided with free shelters when everyone else made a plan – that leads to community resentment of the beneficiaries. From what I’ve read that was done but the community were so pissed off they broke them down for exactly that reason – before the ANCYL did that to the replacement shelters!
I suppose what also informed her opinion was that the negotiations with the community were done in conjunction with the very same ANCYL members who then went and broke down the structures!
Who’s really treating the poor with contempt here?????
There is also a very important aspect here and that is not only providing the free toilet, but the pride that goes with building one’s own enclosure. That gives a real sense of ownership to the person who has taken the time and effort to enclose the toilets. Those who did so have real dignity. Those who didn’t probably will never have much no matter how much free stuff you throw at them.
These are hard things to say but you need to avoid knee-jerking. Even the poor need to take responsibilty for the direction of their lives. Taking that responsibility leads to gaining real dignity, interfering with it destroys dignity.
A line has to be drawn somewhere, and from that point on people are solely responsible for their own destinies. This a key concept of dignity that the commission has missed.
“What poor person is going to believe that the DA is truly fighting in their corner if this is how the party reacts to a pro-poor finding from an independent constitutional institution?”
The truth of the matter is that it seems that the DA went into it (providing the unenclosed facilities) with the best of intentions but perhaps poor political (and apparently legal) judgement. I suppose some strong reaction to being “found guilty” despite trying to do the right thing is probably only natural.
Rhoda as a “side-kick”? A term derived from pickpocket slang? Anyway, I think the CT council should just have built the one-per-5-family toilets and have done with it. The trouble is, trying to go the extra mile does not seem to work if you turn back after 1759 yards.
I would agree with the principle assertion that anyone who “takes a pro-poor stance should be applauded”. The very future of this country depends on an overall improvement in the life of the poor.
I would suggest that when the DA decided to build one lavatory per family in consultation with the community that this was decidedly pro-poor behaviour. The ANC government guideline is one lavatory for every 5 families. By any reasonable measure 1 lavatory per family is more pro-poor than 1 lavatory per 5 families.
In other words this started off as a decidely pro poor initiative and there is nothing in the HRC finding that acknowledges this reality. Instead the HRC rather carpingly finds fault with the DA and effectively condemns their good intentions.
By the way, even if the DA has not complained formally to the HRC about the manifest and growing poor delivery by the ANC, many people in the township have done so via service delivery protests. The DA has used parliament and various public fora for the same purpose. There is no sign that the HRC have considered this bearing in mind your comment…..”that body has a constitutional mandate to MONITOR the enforcement of social and economic rights”. Have they done so, or are they twiddling their thumbs waiting for the DA to complain.
To my mind any reasonable person or party would be disgruntled. You have demonstrated a profound dislike for Helen Zille regardless of the fact that if your dislike helps to undermine her and her party this may prove to be very ANTI-poor.
I am sure this vindicates the ANCYL in the Western Cape for militantly defending the plight of the poor. It was indeed insulting to build “open toilets”. You either build proper toilets or you wait until you have enough money to do so. I mean, We just hope that the same radicalness (if there is such a word) of the Youth league will extend to all municipalities run by the ANC.
So tell me Spuy should all those 95% of poor residents who enclosed their lavatories per agreement have been forced to wait whilst the council accumulated “enough money” to build “proper toilets”?
Have you even been following this saga? You are in effect arguing for the wellfare of 5% of the community whilst ignoring the wellbeing of the other 95%. Is this your idea of democracy.
No need for “radicalness”. The Minister for Co-operative Governance and Traditional Affairs has his hands full placing ANC run municipalities under administration.
@ anton kleinschmidt
“You are in effect arguing for the wellfare of 5% of the community whilst ignoring the wellbeing of the other 95%.”
Where does the responsibility lie to ensure the welfare of the 5% that are unable to care for themselves?
Spuy says:
June 22, 2010 at 11:45 am
Agreed that several of the ANC run municipalities are in a mess and it’s getting worse in many instances – and it’s a damn disgrace.
The SACP and Cosatu fortunately seem to remember that they have a role to play.
@ Maggs……the wellbeing of the entire community lies with the council which made a genuine effort to cater for this wellbeing. Unfortunately only 95% benefitted to the full extent in this particular case. What Spuy is suggesting is that the entire 100% should be disadavantaged because of the behaviour of 5%. There are never perfect solutions in life but 95% comes close.
@ Prof De Vos.
I’ve read your blog for sometime now…
I’ve have a question for you! What is your solution to the toilet problem?
The question starts from the lack of toilets, the type of toilets etc, to building, installing them etc…
What do you think you would have done different? Do you think the issue is about toilets at all???
@ Anton,
The points that Spuy seems to make (which I agree with) is that the responsibility for the welfare of those who are least able to care for themselves lies with society in general and government in particular; and secondly that someone should be the voice of the voiceless (in this case that was the ANCYL).
As an example, supposing that I were to go out tonight in the freezing cold and find homeless people under some bridge who I know don’t have access to pots or pans, firewood, matches or anyone to loan them such stuff and I give them some raw meat and say to them that they should cook it and have a hearty meal – would that be kindness of sheer callousness?
I agree with Zoo Keeper. There is simply no good legal or political solution to service delivery in circumstances where the objective needs of the poor vastly exceed available resources.
Even with the best of intentions, goverment all at levels (whether ANC or DA controlled), are in a damned-if-they-do-and-damned-if-they-don’t situation. If they provide extra toilets by spending less per unit, they will be rightly criticised for installing too few units. If they provide better facilities in smaller quantaties, those left without toilets will rightlycomplain.
But the distributional problems go wider than that. Tbe more public funds you spend on latrines, the less is left over to spend on schools, medical care and water reticulation. Who is to say which is a more fundamental attack on dignity – not having an enclosed latrine, or having not having books in your school? It is asking to much of the HRC or the Courts to decide such a question.
@ Maggs
“Supposing that I were to go out tonight in the freezing cold and find homeless people under some bridge who I know don’t have access to pots or pans, firewood, matches or anyone to loan them such stuff and I give them some raw meat and say to them that they should cook it and have a hearty meal – would that be kindness of sheer callousness?”
Depends. If by virtue of not providing pots and pans, you have enough resources left over to assist a much larger group of people, albeit in a small way, perhaps giving the homeless only the meat is in fact the better option. (Maybe some other kind soul will give them some firewood.)
The same question of distributional justice arises in the even simpler case of deciding whether to give R100 to one person, or ten rand each to ten. There is simply no clear answer to the question.
This is what happens when you reduce Quality of Life to toilet services. You can erect top of the range toilets for these communities who sleep in shacks, unemployed, hungry, poor etc that will not change thier circumstances.They might shit in style but that’s all they will get. I doubt if toilets are highest priority of this community.
Michael Osborne says:
June 22, 2010 at 13:11 pm
Hey Michael,
Our country is not short of enough resources.
I must disagree with the view that equates the poor with “people who are unable to care for themselves”. That’s a very condescending view in my book.
This would imply that they are mentally challenged in some respect and lack the basic capacity to have a life. This is wrong I’m afraid. Those people are poor and thats it. They are quite capable of taking care of themselves: if they weren’t they’d be dead by now. So there’s no need to go and run their lives for them, all that does is address some of your own guilt for being better off financially than the poor for whatever reason.
Once you begin to create a culture of dependency, i.e., don’t worry about houses, toilets etc, someone else will build them for us, someone else will provide food parcels and feed us, someone else will pay me a monthly poverty grant/pregnancy grant, you create a vicious cycle. The more you hand out the more dependent people become. The more dependent people are, the further away they are from obtaining any form of dignity because they will achieve nothing in life because there’s nothing to do except wait and receive.
Independence brings pride and purpose.
The DA’s approach is arguably correct if I understand it properly: “Here’s a basic start, now go and do the rest. People who do it for themselves have more pride and dignity.” People get a basic start for the sake of hygiene so they can begin to do other things in life and hopefully expand their horizons.
No-one else can do it for the poor except the poor themselves. The poor need to be taught how to use the tools and then the infrastructure provided to allow them to use their tools to prosper.
We need to stop thinking of the poor as some conglomeration of persons without any brains or ability, and just people who need an education and infrastructure like everyone else.
@ Maggs
“Our country is not short of enough resources”
Hmmmmm.
I think this will come as a surprise to many.
Maggs is right.
We are a rich country.
One gold mine, if nationalised, would finance 175,500 fully enclosed latrines!
(Dividents should not flow into the pockets of rich whites, but rather into our toilets!)
I wonder how many enclosed toilets could have been built with the legal/admin costs that were run up by taking this issue to the HRC.
Zookeeper makes a moot point about Dignity: the 97% (not 95%) probably experienced a sense of personal pride and accomplishment in building their own enclosures. Dignity is not something that is doled out to you. Its something you actively work for.
@ Michael,
It will indeed come as a surprise to those who are unaware of the squandering, looting and wasteful expenditure across various sectors.
But if our President did not know that many of our people live in abject poverty, it’s possible that there will be those who will be surprised to learn that our resources could be more effectively utilised – that excluded our Auditor General though as that institution reports regularly on these matters. Maybe the hawks too could be excluded from the to-be-surprised list.
@ Dworky,
Are you walking around with the Bafana flavoured vuvuzela today?
I did not quite think of the mines as a solution to toilets – but simpler things, like say 5% less to “executives” of SOEs and less spent on consultants in some municipalities.
It’s kinda hard to understand why even in the extreme, building 1000 properly enclosed toilets would have cost say R5 million – compare that to nearly R1 billion spent by the city on “consultants”.
Well put, Anton!
anton kleinschmidt says:
June 22, 2010 at 11:34 am
Can someone from the DA give us an update on the progress made to bring a meaningful prosecution against Andile Lili for say….conspiracy incitement public violence intimidation….
Has there been any liaison with the Provincial Commissioner in this regard? Any contact with E-TV News to get copies of the footage where Lili threatens violence?
What? Too busy persecuting people with more than 2 dogs????
Exactly Belle
Dignity can only come from within and cannot be given out on a plate.
@ Maggs
“5% less to “executives” of SOEs and less spent on consultants in some municipalities”
Maggs, you could fire every SOE executive and cancel every consultants’ contract; there still would not be enough money to make more than a dent in the terrible poverty.
Corruption and waste must indeed to be curbed. But the more fundamental problem is that the South African tax base is just too small relative to the overall population.
Anyone got good links to how much the World Cup has cost SA? Is the figure of R420B the best available estimate? R10 000 a head?
@ Michael,
Agreed.
But we could have built 1000 proper toilets at least.
BTW I read somewhere that the value of our mineral resource reserves puts us into the league of super rich nations.
Anyone heard of the HRC going head-to-head with Michael Sutcliffe?
Must read!
http://links.org.au/node/1684
@ Maggs
“But we could have built 1000 proper toilets at least.”
But we could also have built 2000 less “proper,” but still usable, latrines.
Or set up 100 public water sites.
Or bought 10,000 schools books.
Or paid 200 extra rape counsellors.
Or built two extra post-natal clinics.
Is not the failure to provide each of these facilities a violation of the right to dignity?
Michael Osborne says:
June 22, 2010 at 20:48 pm
We could have done all those things and more just with the money we paid just to Coleman Andrews for selling our aircraft!
Overall I think that the will to create a better life for all is more of a slogan than a call to duty.
More good sources
http://www.ukzn.ac.za/ccs/default.asp?2,40,5,2037
Whilst we are in the cost saving mood and pride driven, can we also give the elite half built infrastructure and expect them to do the rest by themselves.
@ Maggs
It does not help any local authority (whether ANC or DA controlled), to say that IF Coleman Andrew did not get his bonus or IF we did not buy the submarines, of IF the Gautrain was not built — there would be enough to build everyone a toilet, or a school or a clinic.
The fact is that, for whatever good or bad reasons, the funding that has been budgeted by the legislatures for social services is tiny, relative to the huge need. You can only do so much. Difficult choices must be made. And no matter how you allocate the money, the dignity of tens of thousands will continue to be violated.
Any debate about distributive justice is a waste of time, unless it starts with this sober premise.
Michael,
Agreed.
I don’t hold the view that we ought not to have bought arms, or built the soccer stadiums or the Gautrain or upgraded our airports. Rather I think we have not done enough.
On the other hand I think that some of the issues (not all, just some carefully selected in a few different areas) that affect the poor in particular ought to be handled with the same zeal.
The notion that dignity is earned and that poor people earn it by doing things for themselves and not by relying on the state to assist them (as this breeds a so called “culture of dependency”) is both conceptually spectacularly wrong and deeply reactionary and offensive.
The Constitution says everyone has an inherent human dignity. They have this because they are HUMAN, not because they are rich or poor, self-sufficient or dependent on the state for their survival. Humans do not “earn” human dignity – they possess it because they are human. Because they are human and because they thus have an inherent human dignity, the state has a duty to treat them as such, to assume that everyone has an equal moral worth and to act accordingly. Where the state pays billions of Rand to build world cup stadiums, to buy fancy cars for politicians and pay for their stays in 6 stars hotels, to subsidise the education of the rich and skimp on education for the poor, the state is failing to respect the inherent human dignity of all. Thus, conceptually, the argument that human dignity is earned is based on a notion that some people do not have an inherent human dignity because they are poor or cannot do everything for themselves that rich people take for granted. In other words, it assumes that some people are sub-human because they are poor and cannot afford, say, the building material to enclose their toilet because they are already hard-pressed to pay for the food that will ensure that their children would not starve.
This view is rather reminiscent of nineteenth century colonial attitudes towards the colonized which still seems to be all too dominant among certain rich white South Africans who have never spent a day being hungry, wet, cold and confronted with choices between, say, which of their children they should allow to starve and which they should allow to live. This attitude is primitive and reactionary, as some humans are viewed as sub humans who are primitive and should be blamed for their own destitute and inability to buy a Rolls Royce and live in the Mount Nelson, while others who happen to have had all the opportunities – because of their birth, class, race and other attributes – are seen as inherently superior and more human because of their often undeserved privilege. I for one think this view is deeply immoral and callous beyond anything one would expect any human being with even a smidgen of humanity being capable of. I find it disgusting, in fact. But I guess saying that will bring out the defensive howls of those who do not like to look in the mirror.
OK, so the DA led council violated the dignity of the 50 odd households by not enclosing the toilets. (Possibly also that of their neighbours who must see their neighbour’s dignity being violated.) Enclosing the toilets with sink also violates their dignity – it must be brick. But then, by not providing enclosures to everyone of the 1300 households, the CT council effectively violated the dignity of all. 97% of them decided that their dignity will not be violated and enclosed their toilets. 3% of them decided not to, but fight the injustice of this through the legal system.
But herewith my question: does the 1 toilet for 5 households policy (and its implementation in the other 280-odd municipalities affecting 5million+ people) not also violate people’s dignity for them to have to go to their neighbour in order to access a toilet?
Pierre is right.
The 19th Century colonialists who still live in our midst, and want to attribute so called “agency” to the poor are, I would guess, the very same reactionaries that want to ban pre-colonial musical expression in our stadiums.
Let the tedious details of distributive justice look after themselves, I say!
pierre,
on dignity:
i suspect the point that your commentator was trying to make is simply that the terms “dignity” and “self-worth” may often, depending on context, be used interchangeably
at the ideological/political/legal level the debate is about “dignity” (as per definition proscribed in the constitution etc); however, at a practical level, the debate is really about self-respect and self-worth (more or less “self-concept” in psychology)
now, the constitution is a very powerful document, but it can hardly order an individual to have and/or display an arbitrary level of self-worth
(it may try, but it won’t work, right ?)
so, your contributor is right; in his/her context, increased self-worth is attained by the warm, fuzzy feeling that follows accomplishment…even more so, when self-accomplished (even if only partially)
and by “accomplishment”, in the context of self-concept, i mean to say anything of merit e.g. writing a poem, grouting the shower tiles into a perfect mosaic, helping a stranger overcome adversity, mastering a musical instrument, creating and nurturing a small vegetable garden, attaining a PhD in law, and, indeed, building an enclosure to a council-provided toilet…the list goes on
Mikhail Dworkin Fassbinder says:
June 22, 2010 at 23:48 pm
Hey Dworky,
Pierre may be right, but I think that you are more so than Pierre by suggesting that the 3% who are unable to care for themselves should care for themselves because the democratic processes say so – after all the majority has to be correct.
Maggs, would you care to rephrase?
The 3% were unable to care for themselves or preferred not to care for themselves?
Thank you for clarifying my point on Dignity, etienne marais: the sense of Dignity generates from within the individual; it cannot be bestowed.
I wonder whether those 1250 enterprising shackdwellers who enclosed their own toilets, feel their dignity has been undermined by the HRC finding. Effectively the ruling implies that they were dumb enough to actively improve their own lives. It also implies that they have no ability to generate their own sense of Dignity: they should have relied on the government to dish the stuff out to them.
We don’t know why 3% of the community failed to enclose their own toilets. To assume that it was due to lack of resources/poverty is but one assumption. If we are going to play the Assumption game then we can lay a few more assumptions on the table: did they choose to squander their resources in shebeens or on drugs rather than toilet enclosures? Does this 3% group reflect the percentage of dropouts/layabouts/dysfunctional persons normally found in broader society?
Its a relevent question because, if this group are simply wasteful of their resources, and cannot be bothered to invest in themselves (or their dignity), then it stands to reason that dignity can never be inserted into them through the simple act of enclosing their toilets. Dignity comes from within. If u don’t inherently have it, nobody can give it to you.
@ Brett,
No – I would not care to rephrase
But you make the point effectively that a prevailing view is that all of those families who did not comply with the “agreement” preferred not to.
It may well be true that those 50 families had the spare R1000 or R5000 or whatever amount was needed but just defied the agreement because they could.
On the other hand, it may just be that they live in squalid conditions because they are really, really poor.
Do you concede that their neighbours might have had a better grasp of their circumstances than you?
Thanks for the back-up Ettiene Marais
What the good professor fails to realise is that life is many shades of grey and his reply is stupendously glib. To try and lump those who disagree with the fuzzy hand-out theme as psychotic Nazis is intellectually lazy – I expect better from you prof.
In fact, most of the prof’s views are consonent with mine. The poor are very, very human. The poor are very capable. The poor are actually incredibly inventive. The poor are anything but stupid. The poor need some assistance, and its in this detail where my actual difference with the prof arises. The assistance in education is critical, there are many CEO’s in the squatter camps being denied because of the absence of this tool.
The Constitution is a body of Law, it is not a description of the Human Condition. Law is primarily there to regulate interactions between humans and stave off social chaos. The Constitution assumes every human has inherent dignity to set a benchmark for measurement. But anybody who has succeeded or did not but had a big a challenge (even if it was the Grade 2 egg-and-spoon race) will know the self worth that flows from that.
Perhaps the prof should spend some time investigating real poverty in the inner city slums of Joburg, leaving his ideals at the door and getting a solid dose of REAL LIFE and what it takes to get those communities self-sufficient and proud. The prof might be surprised to learn that everyone pays rent in Joburg, a surprising amount for even the most horrendous of situations. Real life is very dirty and sometimes very nasty and terrifying.
I’ve trudged those streets, basements, splashed my way through rivers of raw sewerage and directly interacted with the occupants of the most horrendous places on earth so I know very much what I’m talking about. Nothing in the Cape comes close to the inner city of Joburg, the conditions in the township under discussion are, believe it or not, positively palacial!
There has to at all times be a bottom line – to here and no further. Once that bottom line is established, people have a certainty in their lives and they can effectively measure their challenges. If the bottom line keeps moving, or there is too much cushioning, the path of least resistance is taken and getting people to be self-sufficient becomes nearly insurmountable.
I assume that the people who left their toilets unenclosed cannot afford to purchase materials. I also assume that those who did also cannot afford to purchase materials. If you go to a landfill or rummage around any poor area you’ll be amazed at the amount of material available. Try it, I have.
Many, many challenges. But at the end of the day, the poor will have to pull themselves out of their situation. What must be provided by the State is excellent education first and foremost. Next must be soft loans for first time small businesses like the Land Bank should be doing and a reduction in regulation and red-tape to starting businesses. Settlements must be managed so that things work, but the communities must be given a real sense of ownership. Policing must be especially sharp because they have so little to lose and what they have must be protected so they can make it grow. Those are some of the keys. Tax regimes must then be altered to give the tax-base a larger tax break to encourage registration and then taxes kick in at a higher threshold, etc, etc.
The poor must become wealthy enough to pay tax. What we see as slums today we must see as our middle class tomorrow.
But you don’t create a middle class with hand-outs prof. Its called tough love. Its not pretty I grant you, but it works. Quite frankly I’m only interested in what really works and not what makes rich people feel better about themselves. Welfare states make rich people feel better about themselves but they imprison the dependents – how else do you think the ANC maintains its voting base?
I care about those poor people, but I actually want them to do a lot better than you’d care to imagine.
Pierre, your habit of labelling people who present opposing views as colonialists/imperialists etc does you no favours and simply indicates that your objectivity is failing in the debate.
I too, could retaliate with insulting labels, but I won’t stoop to your level.
For what it’s worth here’s an extract from an interesting read
—————————————————————————————
There is little doubt that members of the Good Club have done amazing work. The Bill and Melinda Gates Foundation, with a current endowment of more than $30bn, is the biggest philanthropic organisation ever. Just one of its projects, the Global Alliance for Vaccines and Immunisation, is estimated by the WHO to have prevented 3.4 million deaths in just eight years.
The Soros Foundation has done valuable work setting up democratic institutions and independent media across the former Soviet bloc. These titans of philanthropy have also started a trend among the slightly less wealthy. While Gates’s and Soros’s efforts bestride the world, major philanthropists have emerged in specific regions like India or Latin America funding their own pet ideas and projects. Gayle Peterson, co-founder of Headwaters Group Philanthropic Services, recently gave advice to a businessman who wanted to set up a foundation to give away $280m annually in south-east Asia. “He told us: I want to be just like Bill Gates,” she said.
But there is a potential downside to the growth of these “über donors”, especially if the whims of individuals start to take precedence over the expertise of professionals.
The strange truth is that giving away billions of dollars is difficult and fraught with risk. There can be waste, mismanagement and poor investment. At the same time it can actually do harm. “If you are putting enormous amounts of money into a community that can’t cope with it, then you can implode that community,” Peterson said.
Others are even more outspoken at the growing dominance of a tiny handful of billionaires in the development sector. “The problem with any Good Club is that all the people might not be ‘good’. Or at least not ‘good’ in universal definitions,” said Louise Uwacu, the Rwandan-born founder of the Canadian education charity Positivision.
There is also the issue of accountability. Even the most repressive of national governments is on some level beholden to its own people, or has the capacity to change and reform under popular pressure. But who votes for the Good Club?
http://www.guardian.co.uk/world/2009/may/31/new-york-billionaire-philanthropists
Brett Nortje says:
June 23, 2010 at 10:03 am
Hey Brett – I have no idea what neighbours may or may not know about each others circumstances.
I certainly don’t know much about my neighbours beyond face recognition – do you know about yours?
What Michael has been trying to tell everyone is that it is the basic economic equation at work. Many wants and few means. So choices have to be made and priorities set.
One thing is clear: We cannot leave ensuring a better life for all to the ANC! It has to be hijacked.
Etienne, I think you and Pierre are at cross purposes. You are speaking of “dignity” as a subjective sentiment. That has little to do with dignity as an objective status that is inherent in being human. This is neo-Kantianism, with suspicious resemblence to the Christian idea that all are created in the image of God. Lke it our not, it is a secular faith that underpins the entire Constitutional enterprise. And I am happy to live in a society with such a faith, even though I am too sceptical to share in it myself.
Where I think Pierre’s argument is vulnerable is that he at times does not recognise that, even if one starts (as one must), with the premise of irreducible dignity, vexing questions of distributional justice remain. That is because, unless one’s premise is an extreme individualism, there will necessarily be situations where the particular welfare of some is subordinated to the welfare of others. By and large, the Const Court has ruled that such allocative decisions are the province of the legislature.
Maggs, I know it is hard for you, but do try to keep it real!
I know more about my neighbours than I want, but that is besides the point. Have you ever been in a township or squatter camp? (I do not want to make the same assumptions made by those who had an epiphany because they saw Orlando Stadium….)
From some places I’ve seen one had better watch the end of the broom for the neighbour’s eye.
Gwebecimele, do expand on what you said? I may not agree but I’m always interested in what you have to say.
Can we have conceptual clarity on what constitutional dignity is, please?
Brett, the concept of dignity is akin to (and descended from), the Christian idea that all are created equal in the image of God; the spark of the Divine within each man and woman, and the fact that God loves each one, entitles them to be treated as ends not means, etc.
All this talk of the poor acquiring dignity by doing it for themselves reminds me of the quote by Anatole France who said “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Of course we all have some agency. Of course no one has full agency as our actions are always circumscribed by our circumstances and by who we are. But if one is poor, this agency is more circumscribed. Those who talk about the poor doing it for themselves (“why don’t they just plant a vegetable garden and enclose their own toilets?”) do not have a cookin clue what it means to be poor and what that means for one’s own ability to just get on with it.
It seems to me that there is “inherent dignity”, that which says, simply because you are, you are entitled to a certain respect and to be regarded and treated in a certain way.
Then there is “self dignity” which comes from the achievement of that which you accomplish. Into this category falls that sense of worth which comes from having a job and supporting your family, being a good painter or a superb singer. It has many facets and degrees of richness.
Inherent dignity I accord you simply because you are. Self dignity is something only you yourself can achieve or establish.
That is the explanation I prefer too, Michael. (I thought everyone here scoffed at my idea of treating everyone one comes across as created in the image of God….)
Is it the constitutional concept ‘dignity’ though? Or is the best we can do ‘if it walks like a duck’ or ‘I know indignity when I see it’?
Brett, I should add, though, that I do not myself accept the concept of dignity as I outlined. I am an atheist. I find it difficult to understand why others who likewise claim to be atheist can be so loyal to a world view manifestly theistic in its foundations.
But then, as Voltaire supposedly said, I do not believe in God — but I am glad my tailor does,
Michael, I think your values were shaped by that world view. You might thank the way you were brought up….
Where would any of us be without that world view?
Whatever happened to all those toilets that were so infamously dumped/erected in the veld during apartheid years? Why doesn’t someone ship them to a township?
@Prof. De Vos.
This argument I think now is mute… Poor? what does it mean to be poor!!!! You are defining being “poor” as someone who does not own a rolls-royce??
Poor people can do it for themselfs? Why cant they do it for themselfs? your argument is even MORE insulting than saying they should do it for themselfs, because it assumes that they can only live in hand-outs… I think the argument is mute, as so far as, that you have a point but so does everyone else…. The matter here is that if the colonials didn’t come here , say 300 years ago, then what would be the definition of Poor and primitive…. The fact that you and everyone else refer to “colonials” as a term to show their prejudice, but also neglects to mention that if it wasn’t for the importer slaves, and colonials, who brought the law, you now practise, and the books, and the roads etc, none of these arguments would be possible.
I agree fully with you regards human dignity, but only as far as it applies to humans. What should apply is different to some degree…. Of course all humans deserve dignity, but how does one measure this. Clear a toilet is a toilet, whether brick/clay/concrete/mud/sink etc. The dignity seems to be protected when its enclosed??? OR NOT!!!
this is the problem with south africa I think. EVERYONE has a critique, but just ask them for a solution and nobody wants to help or think of one. NOT EVEN THE POOR. if it was about diginity, WHY BREAK IT IN THE FIRST place.
And before you say im colonial, im not white either. This has nothing to do with white or black. It has do with education and respect. education to know that if its public property it belongs to all, and shouldn’t be abuse, and respect for rule of law, however negative it might affect one.
I dont understand this country. really. everyone is peddaling their own agenda, everyone. Even on this blog. The DA/ANC, whatever, they are all human, and given the current politcal and economic system in the country and world, you are actually voting for one evil over another.
The DA will make the same mistakes as the ANC. its a matter of who makes the least amount of mistakes for a specific time period. I think Prof. you need to revisit that trusty old scientific notion of being subjective, and obtaining data, correct data, before making a statement or give and opinion in an open forum.
Michael, you are of course correct that my argument is vulnerable on the basis that there are always going to be resource constraints. However, relying on the CC jurisprudence, I have something of an answer. Yes, the state cannot immediately provide everyone with the basic necessities where they cannot provide this for themselves. But the state must take steps progressively to provide this and when it does it has to do several things. It must have a plan that deals with the short medium and long term. The plan must not exclude the most vulnerable. In implementing the plan the state has to engage in a meaningful way with the community. The plan must be reasonable in conception and implementation. As I see it the city council had no medium or long term plan. It said we will provide these open toilets for now, and then forgot about the problem – it had no plan to deal with this in future. Its plan also failed to take cognizance of the fact that some people (the poorest and most vulnerable) would not have the ability to enclose their own toilets. Thus, given the available resources, it dealt with the matter in a way that was not reasonable as conceptualized by the Constitutional Court. The city did not have a constitutional obligation to provide every household immediately with a closed toilet but when it decided to provide toilets it had to do so in a reasonable manner, which it dd. not, most notably because it had no long term plan to deal with the open toilets and failed to address the needs of those most desperate in need.
Pierre,
The council has a stated long term plan: convert the informal settlement into formal housing. The long-term plan was unacceptably delayed by complexities (some shackdwellers would have to move to reduce congestion and make way for necessary infrastructure) and ‘red-tape’ issues (read national government obstruction) involved in planning and building registration)
So, the council came up with a medium term plan: provide interim basic infrastructure (water, toilets)
In implementing the medium-term project they consulted with the community who rejected the national norm of 1 toilet per 5 shacks, wanting instead a toilet per shack
The council agreed that a toilet per shack would be more DIGNIFYING. The bugdet was increased to more than quadruple the number of toilets provided.
The community agreed to come to the party and enclose the loos themselves (not such a big deal considering they had erected the shacks themselves in the first place)
So, to summarise, Pierre. The council has both medium and long-term plans. Plus it consulted with the community. Plus it took cognizance of the community’s preference for private toilets.
An added bonsella was that here we have the perfect example of local government and community actively working together. The project was, after all, 97% successful.
Did the HRC take cognizance of these facts?
What a sad, tired old story this is becoming.
Pierre:
I am not especially familiar with the facts, and whether or Belle’s rendition is that taken as true by the HRC.
But just to analyse the principle, can we assume that:
1. There is a given budget for the provision of latrines in a defined, very poor, area. (We leave aside for now whether the budget is too small, what the financial responsibilities are of different levels of govt, etc.)
2. This budget could finance either (a) 100 brick units, with hand baisens, and allow reasonable privacy; or (b) 300 rudimentary units, with no wash facilities, and little or no privacy.
We are agreed that the entire situation is a standing affront to the dignity of the people, and that neither (a) nor (b) adequately addresses this. That having been said, it is not all all clear to me that implementing option (a) better serves the right to dignity than (b).
Please give me your view on this.
Just to add to the above fact pattern. In practice, much would turn on whether there had been adequate consultation with the affected community. I suggest that we leave that heavily fact-dependent issue aside, so as to isolate the pure socio-economic rights question.
Add to that Michael, if you tkae Option (a), where are those placed?
It is a very real question because if given to the care of a particular household what normally happens is a system of toilet rental emerges.
Now the already poor will have to pay their neighbours to use the john. A bit of spice to the equation…
Belle says:
June 23, 2010 at 15:11 pm
“Did the HRC take cognizance of these facts?”
Probably not.
The report report is clear “2.7 …. The complaint before the Commission relates to the remaining 51 unenclosed toilets.”
In any event, the City cannot be correct in claiming that it provided one toilet per household – from everything that I have read so far it seems that the City provided, at most, a portion of a toilet per household.
My last, tired, comment …
There are more than 200 informal settlements in Cape Town alone, housing perhaps half a million shackdwellers.
Countrywide there are around 14 million people who have no toilets. A further 6-7 million rely on the bucket system. And a few million more share communal toilets.
Pierre applauds the HRC’s ‘pro-poor stance’ for ruling on a mere 51 (Fifty One) fully functional flush toilets provided to individual shacks were lacking dignity because the householders (who had originally constructed the shacks) failed to enclose them … ergo the council is found guilty for providing these facilities without walls in the first place.
Seems to me like the HRC has gotten lost up its own scaffolding and needs a heavy dose of Objective Perspective if it wants to play a serious role in poverty alleviation or adjudication.
Belle’s points bear thinking about.
Especially if it is true that the toilets are an interim solution as part of an ongoing development strategy. In this case, the HRC’s findings might well be incorrect. How can you have a situation where you are damned if you do and damned if you don’t?
The whole mess cries out for a certainty of definition that is entirely absent from this matter. If there are no toilets, no dignity, if there are toilets but no enough cash for walls, then no dignity. If neighbours charge each other, monetary or labour, for use of the one toilet per 5 households then there’s no dignity.
No certainty equals a mess. With the current lack of certainty both the HRC and Zille are potentially right – how ridiculous this has become!
Belle, I don’t think Pierre is terribly interested in the factual details that underlie the dispute. (I say that while confessing that I myself have not studied the facts.) Unfortunately most commentators are interested primarily in using service-delivery controversies like this as sticks to beat the local govt concerned (whether DA or ANC-controlled). So, the inconveniently complicated facts are not usually studied very closely.
@ Michael,
6.2.1 In terms of the reasonableness of the project, which aimed to achieve the facilitation of access to sewerage systems to all in the community and to avoid the impact of budget constraints on the housing project that was to follow, the following conclusion is reached: while the City’s project to provide flush toilets for all residents is reasonable and indeed commendable, the manner in which the project was implemented (no enclosures or walls for the toilet facilities) was not reasonable. Furthermore while it is accepted that the measures employed were intended as temporary solutions to a situation that needed to be urgently addressed, the situation persisted from 2007, a period of just under three years. it also failed to take into consideration the gendered impact on women and girls , both in terms of different biological needs as well as their vulnerability to high levels of gender-based violence. No provision was made for those who were unemployed and poor and could not fund the enclosure of their own toilets. Issues of access for those with disability and issues of safety for those most vulnerable to violence in terms of the structure such as ensuring they were well lit do not seem to have featured in the planning and implementation of this project. Such an omission does not fulfil the constituent elements of access, namely, physical and economic accessibility as well as non discrimination. The Respondent was constitutionally obliged to come to the aid of those who, due to poverty and their particular disadvantaged socio-economic status, could not afford to enclose their toilets. The Commission notes that such action violated the right to dignity of the community members. Consultation processes appear to have been inadequate. The aforementioned considerations in this instance are of particular significance in light of an Apartheid past in which the least amount was spent on basic services for those classified “African’.. It is indeed a sad legacy that remnants of the past system remain in the form of previously disadvantaged communities still being exposed to the indignities of the bucket system. …
It is accordingly concluded that the provision of the unenclosed toilets was not reasonable and nor was the full impact (financial and otherwise) thereof effectively conveyed to the community.
This finding is premised on the fact that no conclusive evidence was placed before the Commission that all parties had been adequately communicated with and consulted with before the programme was implemented. The Commission’s observations are accordingly that the consultation processes embarked upon by the Respondent were neither adequate nor sufficient.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=182297&sn=Detail
Thank you, Maggs, for remind[ng us just how biased the HRC is! Those unrehabilitated Cape Town whites with one foot still in the Apartheid past still exposing previously disadvantaged communities to the indignities of the bucket system….
“The aforementioned considerations in this instance are of particular significance in light of an Apartheid past in which the least amount was spent on basic services for those classified “African’.. It is indeed a
sad legacy that remnants of the past system remain in the form of previously disadvantaged communities still being exposed to the indignities of the bucket system. …”
Michael, your assertion that I am not interested in the facts is rather puzzling. The HRC made some factual findings. The DA apologists dispute these findings (as they have a political interest in doing). In the absence of proof (bald assertions is not proof) that the HRC made incorrect factual findings, I go with those findings (as I would if a court had made a finding, say, about the payment of a bribe to Jacob Zuma). But hey, if the DA can show (not by making claims but by bringing proof) that the HRC was wrong, I would be happy to entertain that.
Brett, I find your assertion rather revealing. You are saying because the HRC mentioned the legacy of apartheid they are anti-DA, which suggests you view the DA as pro-apartheid. IN any case, our Constitutional Court very often refer to the legacy of apartheid when it interprets sections of the Constitution (I even published an academic article on this), and they do so when they find against the ANC government. So your assertion seems less than logical to me and rather damaging to the DA. (I do not share your view that the DA is pro-apartheid, by the way.)
Hey, it is the ANC/HRC reredeployees who are inferring the DA are still clinging to the remnants of the Apartheid past, still exposing previously disadvantaged communities to the indignities of the bucket system…I gathered that was what the DA wanted to change.
Someone, remind us quickly of the job title of the ANC deployees who were redeployed to the HRC.
One thing that is conspicuously NOT mentioned is who were the people of Macasar’s predecessor in title and how they came about that title. I would like to know that, for interests’ sake.
OK, Pierre, perhaps I was unfair of accusing you of not being interested in the facts. But I did notice that Belle and Zoo Keeper etc. came forward with long factual expositions, that you do not appear to have engaged with. (On the other hand, I take your point that observers like ourselves are entitled to presume that the HRC and Courts get the facts right.)
But you also did not engage with the fact pattern I posed yesterday. Doctrinally, the more interesting question is whether the HRC should have ruled against Council, even if it had accepted the Council’s version of the facts.
I myself am agnostic on this — but I do tend to think that some of us on the outside never come to grips with the terrible constraints faced by local governments, both ANC and DA. Like President Obama, we would learn how agonisingly difficult many public policy issues only if we were thrust in positions of responsibility, and lost the luxury of carping from comfortable opposition.
Maggs is right.
I say one private but well ventilated latrine, with marble counter tops, hot air dryers and triple-ply papers, yields more dignity per capita than 400 fetid go-carts in the veld.
(These people are mostly unemployed anyway, so they have plenty of time to stand in line for a single, centrally located facility!)
brett,
just to illustrate how far removed your referential framework is from the actual facts in this case; the “dispute” in question relates to an area called makhaza not macasar (sic) as referenced by you in your previous post
a fair assumption would be that you have not actually read anything on the issue, since if you had, you would not have made the mistake of confusing the two homophonically similar areas
Mikhail Dworkin Fassbinder says:
June 24, 2010 at 11:22 am
Hey Dworky,
Thanks for that.
It’s been a while since you have clarified what I mean and as we previously established you always know more about what I intend to say than I do.
Now that you are back in action, how about you write my comments for me – that way we could both save time and effort.
Michael Osborne has a very important point which is often missed in these types of debates.
A lot of assumption is made on the resource capabilities of State authorities – the political party in charge being irrelevant. It would appear from my experience that those making these decisions still remember the Apartheid era when State resources were represented as being nearly limitless, especially militarily. This has created a mindset where assumptions are made that overreach resource contraints actually faced with the result that Municipalities are then brought to a state of virtual paralysis.
Now you have the ridiculous situation where the City Council has removed the unenclosed toilets because of the indignity caused saying you can have them back when you’ve erected enclosures. Bear in mind that they have, apparently, enclosed them twice only to have them destroyed by the balance of community who’d made the effort, and then by the ANCYL who needed some publicity.
Yes, authorities have to take care of the most vulnerable, but there is a definite balancing act and managing community conflict is also a very real consideration.
So has the City Council done the right thing? Or is there actually nothing it can now do? If it erects shelters the community or political rivals will bash them down. If it leaves open toilets then it infringes dignity. If it removes them then it infringes dignity cause they have to use buckets again or pay their neighbours.
This is completely screwed up now because the approach is, to my mind, to theoretical to make practical sense.
I never thought we would even resort to below the RDP Housing standard and start providing services to shacks. I would rather stay in a mud house than a shack. There is something very wrong with our human settlement approach.
Thank you for your kind assistance in correcting my spelling, Etienne.
I trust you are engaged in writing to the other 25 000 people newspapers commentators and investigators who have used the two names interchangeably?
hi brett,
as usual, the pleasure is all mine !
in future, please do not hesitate to ask for assistance in correcting your…ummm…”spelling errors” (or any other such misconceptions)
alternatively, instead of just commenting on comments of comments on comments, read the actual source documents; that way you might avoid these embarrassing (ummm) “spelling errors”
Michael Osborne says:
June 24, 2010 at 11:12 am
This particular matter is not as complicated as made out to be.
The HRC ruling is that the City should build the 51 toilets.
That’s it!
Cool, Etienne, now, what are you doing about the other 25 000 people newspapers commentators and investigators who have used the two names interchangeably?
Would you have any further information for us, like, what are the origins of the name like ‘Makhaza’?
Someone, remind me please what Pregs Govender’s job description was before joining the HRC?
May I be the one to recap?
Here we have:
o A finder of fact and the law topheavy with deployees from government and legislature from one political party
o A complainant whose members are members of the youth-wing of that same political party, who threatened violence on E-TVNews but have still not been charged with crimes relating to those threats – which were carried out!
o A respondent from another political party which is the complaining party’s political opponent and unseated them as the provincial government in the province the complaint comes from
o A crime/offence/infraction which is very loosely proscribed and largely subjective…
Have I got it right so far? May I say this is starting to stink to high heaven?
@ Maggs
“How about you write my comments for me – that way we could both save time and effort.”
Flattered that you ask, Maggs. But no, please keep up your inimitable constributions. I may not always agree with everything you say. But it is in the very CONTESTATION that I learn the most from you.
Many thanks, again.
Maggs assures:
“This particular matter is not as complicated as made out to be. The HRC ruling is that the City should build the 51 toilets.”
Oh. I thought I heard back-and-forth about resource constraints, Chapter 2 of the Constitution, polycenticity, consultation (or lack therof), etc.
Probably, I was confused by Belle, Zoo Keeper, and other masters of obfuscation.
My bad.
Brett asks:
“remind me please what Pregs Govender’s job description was before joining the HRC?”
I believe she ran a lathe at the VW plant in Uitenhage.
(Joke). No, actually, she was an ANC MP.
But I seem to recall that she left Parliament in disgust over the arms deal. And that she has been a relentless critic of the govt on especially socio-economic issues since then.
You’re right, Michael. She is pretty principled as far as ANC members go.
I might be being a tad unfair, considering my own experience of HRC bias.
The HRC conclusion that Maggs posted indicates the key criticism was that the DA failed to communicate its intentions or adequately consult with the community.
Here’s the irony: the ANCYL member who laid the charges initiating the HRC investigation, one Andile Lili, was employed by the DA council to consult/negotiate with the community regarding the installation of toilets in the first place.
The very same Andile Lili who threatened violence on E-TVNews?
… the very same Andile Lili.
Obviously the HRC did not think his violent behaviour was a human right issue.
hi belle,
there is no inherent irony in the City-Lili-Community communication breakdown
it would only be ironic if Lili was solely responsible for the actual lack of communication; but we simply don’t know where in that path the breakdown occurred – it might have been due Lili’s apparent arrogance, or his implied incompetence, but it could also (conceivably) have been due to the City’s belligerence…we simply don’t have those facts and neither does the HRC (if i read their report correctly)
the reason why the City is the party that has been rapped on the fingers is simply because they are ultimately responsible for delivery
Agree, etienne … the City is ultimately responsible. But the irony remains.
Just heard on the news that Andile Lili gate-crashed a meeting and again threatened Helen Zille with violence intended to make the City ungovernable.
Of course that didn’t make the SABC news … instead their Big Item was that Helen Zille (subsequent to threats of violence) walked out of the meeting with Minister Sisheko aimed at resolving the community toilet issue.
Belle: I will assume that you watch a different SABC news than I do. Helen Zille was given an opportunity to talk on the news I watched. She expressed her view of what happened. I don’t understand what more the SABC could do to tell the story.
Belle – don’t agree too quickly with Etienne on ultimate responsibility of the City. Under the Constitution, National, Provincial and Local Government are all responsible for socio-economic rights.
Brett Nortje
What experience did you have?
Michael Osborne
I’ve never been called a master of obfuscation before – thanks! Maybe we’re a bit at cross-purposes somewhere along the line but the facts (as reported) in this case make it a very complicated matter as far as I am concerned.
I don’t think there’s an easy answer.
Zookeeper, the HRC refuses to extend the same protections everyone else enjoys to gunowners because we are evil.
I was the first in the country to apply for compensation for firearms I sacrificed for that purpose. (The cops had no procedure or guidelines for handling compensation claims which are provided for in S137 of the Firearms Control Act. I printed the forms for them…)
I would not believe that of the HRC so I complained to the HRC when nothing was done about my application. The HRC dismissed my complaint. I asked Jody Kollapen to review the HRC’s decision (it was a bit of a slam-dunk so anyone who tried to defend it was in for a hiding to none. The investigator made a note where the cops had confirmed everything I complained of. I.o.w. an admission of all the facts.) I C.c.ed Jody Kollapen on everything I did. He did nothing. For years. I asked for a copy of the HRC complaint which I am entitled to ito PAIA. Nothing.
It took the Western Cape High Court just 15 minutes to characterize the conduct of the Minister of Police and his Dept towards gunowners as unlawful and inconsistent with the Constitution.
Zookeeper, I was making a weak attempt at irony.
I agree with you of course that the facts are complicated and contested.
But most of the contributors here would rather make political points than address the interesting doctrinal issues at stake.
Michael Osborne
Darn, I was basking the glow of being a master of something!:)
Brett
Before I get pigeon-holed I don’t own a gun but the issues of the gunowners are of interest to me.
It would appear that there is a definite bias against your group and a complete lack of rationality in the State’s approach. Why this matter wasn’t resolved circa 2000 when the FCA came into being is beyond me.
But on the other hand, the gunowners’ approach is pathetically weak although I know they’re doing what they think is best. It really is surprising. I have studied both GOASA and GFSA reports and there are interesting points in both sets but in some cases, mostly GFSA, the logic is not conclusive and jumps appear to be made between argument and conclusion without sufficient traceability. It also seems that the funding of the research determines the outcome in a lot of cases and this evident when the logic takes some big jumps, a bit like asking the tobacco companies to tell us smoking is OK for your lungs!
If you are going to hold onto your rights your strategy needs some tactical overhaul or else it will be too late she cried for you.
Zookeeper, if you have any suggestions they will be more than welcome. Our contact details are out there.
I am confident we are a hair’s-breadth away from crushing the idea of gun
control for ever.
Internationally, the pendulum has swung the other way.
We have fought this government to a standstill using our own meagre resources – it is only because EVERYONE pays lipservice only to the idea of the constitutional state that the Billion-Rand Black Hole Firearms Control Act has not imploded. Selfdestructed.
Give it time. The more apparent the catastrophic failure of the implementation of the FCA becomes, the more likely it is that we can expect equal justice from the ConCourt.
Everyone laughs off PAJA; Auditor General Terrence Nombembe won’t do his job and tell us how much this disastrous Act has cost (read up a bit how costs of its Canadian blueprint skyrocketed); Parliament won’t do its job of Parliamentary oversight, there are 5 year backlogs in gunlicense renewals, the SAPS are trapped like impala in a bakkie’s headlights not knowing how to move forward or backward without losing face, the second phase of license renewals is overdue to start but it is taboo to mention it,,,,
The list of failures are endless.
Meanwhile, more members of the SAPS abuse their service firearms in crimes of passion and property crimes than do the owners of licensed firearms.
SANCO shows the way:
http://www.news24.com/SouthAfrica/News/Toilet-war-may-be-over-soon-20100625
@ Etienne…….on the face pof it this seems like a reasonable solution by SANCO. I wonder whether this will suit the agenda of the ANCYL. I also wonder how those residents who have erected their own shelters, at their expense, will react. Will they want improved lavatories and a refund of their outlay. It is quite likely that the existing self-help shelters will be seen as inferior to the new free SANCO shelters.
Unfortuanetly I suspect that there are people who do not want to see this problem resolved.
It seems quite likely that this incident will create a situation where municipalities will not make any special effort to help the poor but will act within national norms to the detriment of poor communities. The national norm of 1 lavatory for 5 families is a crap arrangement
Those lackeys of the ANC at the Human Rights Commission strikes again, finding…. of wait… in favor of Zapiro! http://za.mg.co.za/article/2010-06-25-zapiro-wins-round-one-on
yes pierre,
but surely you are aware of the fact that zapiro is actually an anti-counter-revolutionary decoy, secretly deployed and paid for by the anc
(just ask brett, he’ll provide you with the documentary proof)
anton,
we’ll have to wait and see how this plays out
don’t forget that SANCO and the ANCYL are more or less broadly aligned on this issue, with SANCO probably being the more legitimate representative as the voice of “the people” in this area…so, i would be quite surprised if the ANCYL does not welcome this latest initiative unconditionally
you might be right though; there could well be spoilers…everywhere
i think the real question is rather: how will The City respond to this intitiative ? will they welcome it, or will they attempt to find some reason to delay and obstruct the proposed solution ? i certainly hope (and believe) that they will not be party to any further politicking on the matter and that they will just get on with facilitating ultimate resolution
i have lots of (balanced) respect for helen zille, but i’m not one of her blinded fan-boys; the premier does a lot of good, but sometimes she makes mistakes, occasionally mega-mistakes…it would be good for her to just admit to those mistakes from time to time, instead of trying to maintain the infallible iron-lady image
thursday’s walk-out was one of those mistakes:
it was a serious tactical error to exit the talks and thereby leaving the narrative-making to the militantly belligerent; it is exactly what they wanted, she played right into their hands, and i would not be surprised to learn that it was pre-planned that way by the one-dimensional tacticians of the ANCYL
(it is not as if her and her delegation’s lifes were under threat ! they were just being subjected to the usual verbal terror tantrums)
instead, the impression that i get is that premier zille huffed and puffed (in the face of the adversity) and decided to go for the old, clichèd counter-attack; “renounce violence or i refuse to speak to you”, much like the previous regime’s attitude in the late eighties towards nelson mandela and the rest of the ANC leadership (relating to their unbanning)…it was counter productive then, as it is now
instead she should simply have rolled with the blows, waited for the tantrums to subside, thereby using the opportunity to illustrate to minister shiceka just how naughty “his kids” really are
an hour or two after thursday’s walk-out helen zille was interviewed on capetalk; she was not her normal self and surprisingly and uncharacteristically stumbled over her own words a couple of times; she had clearly lost her cool and given in to her emotions (and who can blame her), but the immediate political outcome is not a good one for the The City nor for The Province (read DA structures within)…a sustained savvy approach might have won hearts and minds
as for dan plato’s involvement: i could not believe it when i saw footage of The City ripping out toilets soon after the previous “engagement” – in my view this action was as spiteful, arrogant and destructive as the ANCYL’s prior demolition of the enclosures, and The Mayor’s rhetoric as to their motivation was no less venomous than that of andile lill & co
(i make no excuse for the fact that i hold The Mayor, The Premier, The City and The Province to a much higher standard than i do the leadership of the ANCYL)
now The City has lost the initiative in this matter and regardless of how good their initial intentions might have been (?), there is no way for them to even appear as wholly benevolent in the eyes of those that really matter: “the people”
if we are to build a truly pluralistic society it matters little what you (anton) and i (etienne) think; the space where the real change will happen is in the hearts and minds of “the people” (e.g. the people of makhaza)
and this change will not be effected via strong-arm tactics
this was an opportunity missed !
Ettienne – “the “dispute” in question relates to an area called makhaza not macasar (sic)”
rather long after the fact, but Macassar has 2 Esses, not one. As a resident of Cape town living very close to Macassar I was totally flummoxed when I first hear of the toilet drama in Macassar (that is how the news presenters pronounced it) as I didn’t know that there were sizeable squatter camps in Macassar. Once I saw the spelling of Makaza I understood.
I’m one of those Luddites who long for English to be pronounced properly on the news. I have no issue with non-first-language-English speakers speaking on the air, though sometimes their intentions would be better conveyed in their home language and translated, but I hate having to decipher what is meant as in “the bed is singing bedly in the tree’ or “the wakkas are unloading the ships from the sheeps”
@ Etienne…..you are quite correct with all your comments. From time to time I become quite frustrated with the manner in which HZ and the DA deal with issues. The lack of political maturity in their opponents seems to rub off on them. I’m not one of her blinded fan-boys either, but I tend to see the DA as the preferred imperfect option to some rather ghastly alternatives.
@ Pierre….Just because someone / body gets it right about one thing does not mean that they get it right about everything. If I get a decision right in my job does it mean that all my subsequent decisions should be blindly accepted.
Only in SA that you can call/host a meeting at huge cost amongst the attendees, Premier, Executiive Mayor, Minister and others just to discuss 50 toilets.
Why not host a meeting to discuss the millions of pit latrines around the country or else the thousands of bucket toilets.
We have our priorities sorted!!!
gwebecimele
sorry gwebecimele; fingerfault
(i thought about responding to your post in detail, but you clearly have no conception of what being poor means…so, i’ll just leave it there)
That raises another important question, EagleOwl. Are ‘s’s double in Arabic?
Brett
The State’s stated aim is to slow poison the gun-owning population. You’re playing it at its own game as it wants to make owning a gun theoretically possible but practically impossible. But I do agree that you’ve let it run for long enough to prove that the CFR is a failure.
I know the resources are limited but there’s also a whole lot of people doing the same thing separately. I don’t know if that’s an ego thing or just a bit of dis-jointedness?
Perhaps you should start with an order compelling the government to compensate gunsmiths for lost business as a result of the State’s inability to adhere to just administrative action?
The next thing is the reduction in licenses from 14 to 4 which dispossessed people by beaurocratic fiat. I know the compensation issue is underway but what of the Act facilitating such beaurocratic power to a minister? Has it not gone too far? This doesn’t seem to be argued in court papers.
I just see aspects of the FCA being challenged and not the whole thing in one go.
Its quite ironic that one of the main imperatives of the Apartheid government was to ensure that black people were disarmed. If the black community was well-armed I’m sure CODESA might have started on about the 17th June 1976, although the initial fight would have been more bloody. In fact, our history would have been vastly different in any event.
Now black people can legitimately own guns (and have purchased them for mainly self-defence purposes legally by the million up to about 2003) the government now wants to restrict that just the like previous one did.
Zookeeper, have you seen this?
http://www.news24.com/World/News/Right-to-bear-arms-constitutional-20100628
Like I said, internationally, the tide has turned.
Of course, it would be nice if we could get people like Pierre to explain why the protections in Mistry are not extended to South African gunowners whose homes are invaded by the SAPS in regulatory inspections; why the privacy-protections Case provides pornographers are not available to gunowners, why PAJA does not protect my sister who has been waiting for 5 years for her license renewals, etc etc etc. The list is endless.
Of course, one of my favourites is the one you raise: How the arbitrary numeric cut-off point between 4 and 5 guns can be justified.
Oh, well, in the US you would have found plenty of shysters who would argue that the Second Amendment to the US Constitution merely guaranteed the right of the govt to raise militias. Of course, the cheap crooks interpreted none of the other clauses in the Bill of Rights as a collective rather than an individual right, but that is the gun-grabbing mentality for you….
And then you have the case of WillemDuBuisson who was sentenced to 15 years for making jakkalskanonne.
That was low, even for the Gun Gestapo.
Brett
Not sure what you mean about the tide turning, that is an enshrined right in the US Constitution and the fight is about limiting ownership.
The problem is fraught with ideologies because of the nature of the subject. Guns are primarily designed to kill and their image does touch on the emotions. However, it is just a piece of metal and the trigger finger is the problem. A bit like taking away someone’s pen because they can’t spell. Not going to solve violence or murder by removing a tool because it just gets replaced by another tool. GFSA’s motives are noble but their target is misplaced. Would be better if they spent their time and energy dealing with the psychological origins of violence and not the tools. Stolen weapons are probably sold more for home defence than criminal work too because market forces would make that a sensible business strategy – supply and demand.
But you are right about the FCA and the invasive nature of the legislation. I cannot fathom how rights can be limited or restricted based purely on ideology. Rights are universal – bit like opposing the attitude which objects to homosexuals marrying but allowing the attitude which infringes another’s rights because you don’t agree with their choices. Can’t have it both ways.
If your associations are going to succeed though, and I’m watching the recent court case with interest to see what the judge decides, you really do need a coherent structure and plan across the board. Much like there’s a Law Society which governs its profession etc.
I’m all for responsible ownership and perhaps the various gunowners associations should set up a national training standard? If you own handguns or other self-defence weaponry like shotguns then you should have completed x-number of training exercises per year? Like keeping your pilot’s licence? For sport and hunting guns a certain number of training exercises per 5 years?
The cost could be subsidised so that poorer owners are not prejudiced somehow?
If you don’t keep your training up you must hand in your gun until you’ve done the time on the range.
Take the initiative and make the State’s case irrelevant – especially on the safety side.
Media and academic elites in the US denied that the right to bear arms was enshrined in the US’ Bill of Rights just as they deny us the protection of the Constitution and the rule of law here.
Unfortunately, the US Supreme Court is not leading but following. (US v Miller was the only Second Amendment case heard during the 20th century and the Supremes held that only guns similar to those used by the US armed forces were protected.) Public opinion (against gun control) swung a decade ago. Conventional wisdom then was that most constitutional scholars interpreted the Second Amendment the way David Ignoramus does in yesterday’s Washington Post. Now they don’t. Most of the states have highly successful concealed-carry laws which makes shall-issue licensing (what we had befoore 2000) mandatory and the US is the only western democracy to see crime levels fall beneath 1970′s levels.
The gun control argument has been won. In Brazil, the population voted overwhelmingly against a gun ban in their referendum once gun owners got equal access to the media. 2 Weeks ago, simplistic knee-jerk reactions to call for more gun control were quickly dismissed in the UK following a mass shooting. (Here, perpetrators of such shooting sprees are usually cops. Hard luck for the media and the Gun Gestapo….)
I’m completely opposed to the idea of mandatory training. It is the antithesis of the rights culture. You do not have to be Rambo to ‘qualify’ for rights – a rights culture is supposed to protect the weakest among us, not the strongest. The idea of plucking firearms from wrinkly arthritic hands by means of bureaucratic sleight-of-hand disgusts me.
It is nothing short of fraud that not one cent has been paid in compensation for surrendered firearms 10 Years after the FCA was enacted. An absolute disgrace. I have an idea there is a lot of money to be made for members of the legal profession bored with road-accident-fund claims.
Hey, our guys who spectated from the gallery say the state got SPANKED in the hearing. Incoherent, illogical, “klei getrap” “borrels gehap” are words that spring to mind. LOL!
On the whole though, I am grateful the FCA was enacted. It made our side much more militant and activist, and it turned out a massive failure.
After all. What is a billion-Rand black hole among friends?
Brett
You have a point about mandatory training but don’t you think that such training should be required at least when purchasing a gun – where’s the safety for example (glib I know!)?
There is absolutely no way the State is going to be able to resist paying compensation, it has to lose this case but I’m looking more for the reasons than the result (the result is a forgone conclusion).
There certainly is plenty of litigation forthcoming on this when people have to be paid back – how many firearms were handed in 100 000 if I remember correctly? at an average of R5k per item that’s R500 000 000 not budgeted for.
Why not a class-action?
I also read that many owners are intimidated by police and threatened with arrest if they ask about renewals etc? Why not get an interdict forcing the Minister to place massive posters in each cops shop declaring what a person’s rights are to avoid anything like that in future, rather than on a case-by-case basis?
Perhaps you’re right though, maybe the FCA will settle this issue once and for all?
My best friend got killed in a shooting incident. Christo Landman. Shot by another of our friends, Sarel Badenhorst. Christo and Otto used to drag me into gunshops where they used to tell me “you know you want one!” I used to tell them I refused to identify with an armed ruling class where everyone else was disarmed. So. Guess what the first thing is I did when the ANC was unbanned and our politics were ‘normalised’?
I have zero tolerance for people who are careless with firearms, and I think anyone who has a gun is stupid if he does not become proficient and safe with it. He might need to get my back at a traffic light – or watch as I get shot by a hijacker. Or his daughter outside his home, or she her elderly parents as they arrive for a visit.
The simple truth of the matter is that guns can be an unqualified public good, the more law-abiding people who have them at hand the better and that we need to look closely at why people who reject the idea of God and an objective morality buy in emotionally to the extent they do in disarming the God-fearing.
Making people jump through hoops to keep their own property is just not right, especially, given a background where fatal shooting accidents never exceed a dozen a year. Also, how does one balance this Messiah-complex, the urge to save other people from themselves, with a rights culture?
I far prefer an program like the NRA’s Eddie Eagle (which has won several US child-safety awards) which teaches children, that, if you come across an unattended firearm, or a little friend is playing with one, “Stop! Leave the area! Tell an adult.”
@ Brett says he supports a program:
“[w]hich teaches children, that, if you come across an unattended firearm, or a little friend is playing with one, “Stop! Leave the area! Tell an adult.”
Yes, this makes perfect sense to me.
Kids just love voices of authority!
We all shudder to think what a little horror you were, Dworky! A walking endorsement of corporal punishment.
Don’t you dare extrapolate yourself to all children.
BTW, a ‘kid’ is a baby goat!
Brett
Accidents do happen, especially car accidents. Being a fool with a dangerous piece of equipment, be it a gun, car, chainsaw, welding macine etc or being careless will lead to injury or death.
You can’t legislate against idiocy, but then if the odd idiot’s misfortune is too much for the emotional then why stop at guns? Why not ban kitchen knives, angle-grinders, chainsaws, cars, welding machines, heavy materials weighing more than, say 50kg, in fact most of what you’ll find in Builder’s Warehouse will kill you if used improperly!
I also have a problem with the question of a disarmed public. What it essentially does is surrender the populace to the institutions of the State. That action severely reduces civil liberty – just look at the UK, the oldest modern democracy with very little actual freedom!
We’ve also just escaped the clutches of an abusive State machinery that flourished in the absence of armed resistance (MK doesn’t count at all). How can our memories be so short? Like I say I’m not a gun-owner and probably won’t be, but I sure don’t mind that my neighbours are probably armed to the teeth!
Its quite an interesting question as to why people want to surrender themselves to a State – surely the State should be at the mercy of its citizens and not the other way around?
There are other examples closer to home of guns being a bulwark of democracy. The night De Klerk fired his generals for right-wing activities? Why did they not revolt? Quite simply, those generals knew 50% of the white population was armed and those gun owners believed in their democratic institutions, exclusionary as they were.
The ANC must have looked on and shuddered. Imagine warlords being fired by the elected government and having to take it because the people are armed. Their plans to disarm SA might very well have been hatched there (although we know the way people like Steve Tshwete would pander to the Emperor was by appealing to his paranoid apocalyptic world view). The facts are that the ANC surrendered none of their arms caches as they promised under the Peace Accord.
In countries where there is a high rate of civilian gun ownership, both people and government respect their democratic institutions and the rule of law – even where there is no written constitution.
That initself is a compelling reason to go out and buy a gun. Of course, there is a great deal of fun to be had with a .22 pistol or revolver. And, you might save a neighbour’s life with it.
Perhaps it is never mentioned because it is not very PC.
What is one of the main reasons Jan Smuts was kicked out in 1948? Was it not anger, because he had tried do disarm his own people? That heralded the foundation of the Apartheid state.
The National Party themselves tried several times to restrict the right to own firearms. That right became part of our constitutional law when the English guaranteed the right to own firearms to the Boers in the Peace Treaty of Vereeniging which was taken up in the South Africa Act along with all the other rights and privileges guaranteed in the Treaty, but was never excluded in our various constitutional frameworks.
Your second past above is very interesting – why have the various associations not pursued those points?
Whilst I don’t own the things I do appreciate them. My mother handed in a Colt Peacemaker in 0.22LR for destruction – if I was going to own one it would have been that one! A Peacemaker is quite an engineering masterpiece.
The penalty for owning the weapons the ANC never surrendered is 25 years apiece if I recall correctly. If our governing party does not surrender its arms, how can it expect its citizens to do the same?
In essence though, the right own firearms confers responsibility upon the citizenry and to my mind those types of rights show a respect for the rights of the citizen. If you try and legislate and regulate the minutae of life, like nanny States like Australia and the UK, you move away from the rights culture and into the culture of dominance and depedency where the citizen’s life is controlled and freedom is factually, although not theoretically, limited.
This is something I have a problem with as I believe that citizens must have as much freedom as possible, which includes the freedom to take full responsibility for all of their actions.
I’m not going to be able to sleep tonight thinking of that Colt!
The irony is there is more gun crime in both than when handguns were banned.- the UK surveillance society is facing an epidemic of gun crime.
Meanwhile, back in SA, new moves are afoot to disarm the cops:
http://www.timeslive.co.za/local/article527669.ece/Disarm-killer-cops
@ Brett
“What is one of the main reasons Jan Smuts was kicked out in 1948? Was it not anger, because he had tried do disarm his own people?”
You are so right, Brett.
Also: What is one of the main reasons why De Klerk surrended in 1990? Was it not because he knew that MK was supplying AK’s to the black masses, who would imminently start shooting back at the police and army?
While we are busy arguing about 50 toilets, today Finland has declared access to internet broadband a basic human right and aim for 100% coverage by 2015. You don’t have to guess which nations will come out better in this knowledge based econpmies. This week, our biggest operators are arguing against reduction of interconnect rates which are one of the most expensive in the world.
http://www.cnn.com/2009/TECH/10/15/finland.internet.rights/index.html
Dworky, fear is such a negative thing. I prefer to think De Klerk was motivated by hope in 1990.
To cover his bets, though, one of the last things he did before leaving office was signing the Firearm Regulations that had been gathering dust, into law.
Was De Klerk’s hope misplaced? Well, the girl he grew up with made history by becoming the first former First Lady in the world to be murdered.
Has the last month been a figment of our collective imaginations? That hope/reality thing again.
If you prefer easy answers you should have insisted the stork drop you in another country!
Ah, our cellphone operators.
A captive audience, given the poor infrastructure provided by Telkom. No access to credit. Sky-high pay-as-you-go rates which are little more than an additional tax on the poor. Overnight, black billionaires.
And, a ruling party which insists on ‘independent’ communications authorities and ‘independent’ broadcasting authorities to ‘regulate’ how those nasty mhlungus excercise their freedom of expression.
Sorry Brett, didn’t mean to bring you into my sadness!
I don’t know if you’ve ever handled a Peacemaker as they are pretty uncommon. Not a fast reloader like later models but properly stunning!
The crazy thing is I can go out and buy a black-powder Colt Navy 1851 replica no problem.
Clearly then, its the type of weapon and not the concept of weapon ownership that is the question.
I can’t think why semi-automatic rifles are also restricted, especially if they have limited magazine space – like a maximum of 10. Criminals use firepower and easily carried and concealed weapons. A rifle, even an old M1 Garand, is large, bulky and difficult to wield making them practically useless in the fast-paced criminal world. Fully automatic weapons are completely banned but there’s no let-up in their use. In fact their use has steadily increased!
The whole idea behind the attack on ownership just doesn’t sit right in the concept of a rights culture.
Well Brett a 70 yrs old has been appointed to lead our broadband revolution and juniour managers from operators are appointed as councillors to regulate their respective CEO’s.
http://www.itweb.co.za/index.php?option=com_content&view=article&id=34488:icasa-gets-new-head&catid=75&Itemid=96
Gwebecimele, did you see this?
http://www.businessweek.com/news/2010-06-22/belgian-mobile-phone-operators-face-first-rate-cut-as-of-aug-1.html
You mean you HAVE NOT got a muzzleloader yet? Great fun. I’ve got several.
The Field Marshal in charge of the CFR tried to get muzzleloaders reregulated because we told him to get stuffed when he tried to attach all kinds of conditions to buying them after the Act was finally promulgated in 2004. (Reregulation by bureacratic feat.)
The cops had not realised deregulating airguns and muzzleloaders would save a remnant of the gun trade.
Despite being confronted with the Gazette changing the definition of firearm the CFR refused to acknowledge the de iure deregulation of muzzleloaders for 4 years while the deregulation of airguns was achieved by agreement, if you can believe that.
So much for the Rechtstaat.
I have to content myself playing with clones while dreaming of a genuine Peacemaker. I have a set of Tanfoglio Buffalo Scouts.
Destroying a Peacemaker is the act of the worst kind of cretin.
Thanks Brett, I was not aware.
It seems as if we are moving in the right direction, ICASA(Govt) must be brave and sort out big business for once. In Belgium, I doubt if operators will run to court and disrupt government regulations.
Brett
The whole thing is such a mess. The State should just go back to the old AAA and be done with it.
Nothing was broken so why fix it? I still cannot see the reason behind the whole deal and why the new FCA was ever necessary beyond emotional knee-jerking. I see the Times said SAPS should be disarmed before going home. Yes, they are 4x more likely to murder their spouse, but what’s gun got to do with? Surely the remedy is in extensive psychotherapy for the SAPS and security industry?
Wouldn’t the cash laid out for the CFR be better spent on an army of psychologists to deal with the trauma? That is the way to stop the cycle of violence.
Maybe I’ll have a look at the muzzleloaders.
Hopefully one day you can get your mitts on a real Peacemaker.
The bad news is the Minister has instituted another in-house inquiry into the working of the CFR when he should clearly have asked the auditor-genl to conduct an audit of the functioning of the CFR and implementation of the FCA.
I agree about support for the police. Lisa Vetten and the Jaynes girl have clearly taken leave of their senses. Imagine even contemplating sending the cops back unarmed into the areas they policed that day. The busibodies have done a lot to destroy effective policing in this country – this could be the straw that broke the camel’s back. It is hard to imagine a police force that faces more daily trauma than the SAPS. We need to approach this problem holistically while holding out a hand not pointing fingers. That there is a problem – about that there cannot be any doubt. Thank goodness gunowners do not abused their registered guns at the rate the SAPS do service firearms. The bottom line though is that the police do a terrible job; but they have a terrible job to do under terrible working conditions.
Precisely Brett
I read Vetten’s comments and wondered if she was 2 years old.
The problem is the job, working conditions, future uncertainty and trauma. Add to that the loss of faith from the community which means that the sacrifices are not appreciated.
If you take away his service pistol, he’s going to kill his partner with something else. You can’t chop off his limbs at the end of each working day.
The problem is psychology. If they spent the money on resourcing counselling centers, training and creating a police force which the community loves and respects, the real problem will be addressed.
But its easier to have a “bogeyman” with a simple solution to a complex problem than to face up to the real problem. Path of least resistance I believe it is called?
Brett
To rewind a bit:
This FCA thing has been going on for 10 years now. Whatever the aims of the Act were, surely by now there is a measureable yardstick against which to measure its success or failure? To me it has been a failure – it has done nothing about illegal arms and has only prejudiced normal economic activity for the industry.
I can understand things like a competency certificate, and the requirement for training does have its benefits. If you are going to own a hunting rifle, a couple of courses should be fine like it is now. If you are going to own a self-defence item, is it not a good idea to have new buyers undergo a 5-year training programme? What this means is that the item is bought, licensed and handed to the purchaser. The purchaser must then attend his local range once or twice a year to do some training in safety, handling and tactical use. After 5 years the license is then unconditional. Those licenses currently held are exempt from this requirement – no disarmament.
Importantly the requirements and qualification must be done by the industry and then vetted by the Magistrates Court – and not the SAPS or it otherwise it will go the same route as the CFR.
If you have a previous licence that is unconditional following completion of the training course then all subsequent licences are unconditional for the same category.
What you then have is a better trained owner which satisfies the gun-gestapo a bit (they will never be satisfied until everyone is taking ecstacy and smelling flowers in a warm and fuzzy field of dreams) and more involvement at the range which means a more involved and organised community.
Its quite clear that the FCA says one thing and the SAPS and State do the opposite. The FCA is aimed at illegal guns and the SAPS/State is aiming at legal guns, using the FCA to strangle ownership into a quiet death.
Surely by now the various organisatins which represent the interest groups could get their act together and approach the State to amend the Act? Or have it removed and revert back to the AAA, which worked fine as there is also the CPA to back it up for illegal guns.
Also, surely regulations should be made in consultation with the industry and stakeholders? If so, why haven’t they approached the State the amend the Act so that the Minister only passes regulations after vetting by a council made up of stakeholders and the SAPS? Isn’t that a sensible solution?
Basically the industry is being held hostage by the State and the State is failing because it took on a task far greater than it could possibly handle. Which is why it seems the State now just wants to remove all arms because it cannot do the job with the current set-up.
The industry should take control of the situation instead of sitting back and waiting for yet another court battle.
A very strange conspiracy – Zille
Helen Zille
05 July 2010
The DA leader on the emerging truth about the Khayelitsha toilets saga
Another step closer to the truth behind the toilets saga
One of the ground rules of political communication is captured in the aphorism: When you’re explaining, you’re losing.
But like all rules, there are exceptions. When things are not what they seem, I believe it is important to explain why. During the Erasmus Commission for example, people advised me to stop talking about the matter because I was merely playing into the hands of those trying to smear me.
I didn’t listen and instead used every platform to get the truth across. That we were vindicated of any wrongdoing, coupled with the High Court’s finding that former Premier Rasool had violated the Constitution in setting up the illegal Commission, justified my breaking this rule.
I have decided to break it again by explaining another poorly-understood issue: the “open toilets” saga.
Let me be clear at the outset: nothing justifies an open toilet. It is an affront to human dignity. But that is precisely why this saga, as it has been told and re-told over the past six months, makes so little sense. There are too many contradictions and unanswered questions. And too few facts.
The media have reported, again and again, that 55 families in Makhaza were forced to relieve themselves in full public view for over two years. This has been repeated so often, in various ways, that I believed it was true. I apologized in Parliament. And I asked myself: how was it possible for this to happen under a DA administration, and on my watch as Mayor?
But the more I thought about it, the less the story hung together:
If this project started in 2007, why did I only hear about it in January 2010? Why did no-one protest sooner?
Why did none of the numerous DA public representatives in Khayelitsha, ever raise the alarm?
Why had the vigorous local Khayelitsha media never reported on so newsworthy a matter?
During that period, I had participated in numerous talk shows on the local Khayelitsha radio station. Why had no listener ever called in to complain?
Even more mystifying was why the ANC didn’t use the “open toilets” against me in the run-up to the 2009 election?
And most puzzling of all: why did Andile Lili, the project’s paid facilitator since 2008 (as well as a local ANC Youth League leader), only start to protest against the project when it was 96% complete? Indeed, given that he was the project facilitator, why was he protesting at all?
The answer is simply this: there were, in fact, no open toilets in 2007 or 2008 or indeed until the end of 2009. The 55 toilets that remained open were those installed in the very final stage of the upgrading project — in November 2009 — when 96% of the 1,316 toilets provided for each family had already been enclosed. For some reason, the last 55 were not.
Following a newspaper photograph of an open toilet in January 2010, Mayor Dan Plato immediately ordered them to be covered, despite the objections of the 1,261 families who had enclosed their own toilets. But on January 25th, when the City arrived to enclose the toilets, they were prevented from doing so by a small group of people claiming to represent “the community”. Two subsequent attempts by the City to erect enclosures, were thwarted when the ANCYL tore them down, despite almost all the individual families requesting, in writing, that the City enclose their toilets.
During the time that the 55 toilets remained open, no person was “forced” to use them. The community is well serviced with an alternative option – one enclosed toilet for every five households which is the national norm for incremental upgrading projects. Given that 96% of the families in the project now have their own toilets, the communal toilets are free most of the time.
In other words, the repeated allegation that – “for two years, 55 families in Makhaza were forced to relieve themselves in full public view” – is entirely without foundation. .
Furthermore, as soon as the City learnt about the open toilets, they attempted to enclose them. But the ANCYL wanted them open, because it suited their agenda. The 55 open toilets happened to be located in the precise area where the ANCYL’s leading “thugocrats”, Andile Lili and Loyiso Nkohla, conduct their reign of terror. Given the contradiction between the community’s wishes and the ANCYL’s actions, there is only one conclusion: the open toilets were a direct result of the ANCYL’s intimidation in order to drive their political agenda.
I experienced this first-hand when I visited the area to speak to members of the community. I was informed that the last person to openly express opposition to the ANCYL, had to live with the consequences. Despite their palpable fear, the first two families I spoke to said they wanted the City to enclose their toilets. But then a menacing individual arrived, refused to give his name, and said people could only speak to the community through the “committee”. It was an instructive, if devastating, glimpse into life in a closed, fear-driven community, run by the “thugocrats” of the ANC Youth League.
Many people understand the political motives of the ANCYL, but argue that we should just put this to rest by providing the concrete-enclosed toilets?
This sounds fair and reasonable. So why can’t we erect concrete enclosures for the 55 families? And why did the 1,261 families who enclosed their own toilets, not demand concrete enclosures as well?
I put this to the officials working on the project. And I found the answer instructive.
The upgrading of informal settlements has two phases. The first involves the provision of infrastructure services: roads, stormwater, water, sewage etc. The second is the erection of a top structure (the house). It is essential to ensure that the two phases are aligned. If concrete toilet enclosures are provided on each erf during phase one, they must be removed in phase two in order to incorporate the toilet into the house. This means an additional cost of R4,000 per erf. This amount has to be deducted from the R75,000 subsidy for each family’s top structure. This means, in practical terms, that a concrete enclosure in phase one, will result in a house in phase two that is two square meters smaller than it would otherwise have been. If you enclose your own toilet in phase one, it can be incorporated into your house in phase two, and you will reap the benefit of a bigger house. This is why families choose to enclose their own toilets in phase one. It is an empowering and logical choice. That is, until the ANC Youth League decides otherwise.
The saddest aspect of this saga is the pitiful report of the Human Rights Commission, which is full of the factual inaccuracies required to reach the conclusion that the Council violated the human rights of the residents of Makhaza. It is the clearest possible demonstration of what happens when the ANC deploys its parliamentary cadres into institutions that are supposed to be independent of the ruling party. They become extensions of its power abuse instead of limits on its power.
Three years ago when the City was locked in a make-or-break battle with the Province over the unconstitutional Erasmus Commission, Professor Pierre de Vos took me to task for saying: “some judges allow themselves to be used and, unfortunately, (Judge) Nathan Erasmus is one of them.” Today, I repeat that in relation to the SA Human Rights Commission: Some Chapter Nine institutions allow themselves to be abused and, unfortunately, the SA Human Rights Commission is one of them.
I am sorry, this is just Zille RACISM. The Madame would certainly have given whites proper latrines. FINISH AND KLAAR!
Mikhail Dworkin Fassbinder says:
July 5, 2010 at 14:16 pm
And here I was thinking that Mad Bob was mad!
Well if Zille is right then that’s a big thumbs-down for the ANC, ANCYL and HRC.
If this is right she wins, hands down.
Well if Zille is right then that’s a big thumbs-down for the ANC, ANCYL and HRC.
If this is right she wins, hands down.
Zoo Keeper,
You make some elegant and prescient points vis a vis the entire ‘disarming of the good’ saga.
Why didn’t society or the firearms industry rise up, you ask?
Quite simply we had all been cowed by decades of propaganda and social grooming (right back from the National Party days) to believe that we were guilty of some form of anti-social disease. The Nazis of the NP and later the ANC (different skin tone, same jackboot) and their useful idiots in the so-called Gun Control Alliance/GFSA have been insinuating evil into the simple act of owning a firearm for sport or self defense since pa fell off the bus.
It was perhaps necessary (however unfortunate) that a million gunowners were uillegally deprived of their property before the Phoenix started to rise from the ashes. Recentily People Against Gun-Free South Africa was formed via Facebook to begin to counter the lies and misinformation spread by GFSA, and membership swiftly topped the 4000 mark. More folk are becoming alarmed and involved on a daily basis.
Paul
That’s cool but you guys are forming too many groups and are too disparate in your efforts.
You need to form an over-arching organisation to represent your interests until this is sorted out.
You should also let the black gun owners lead it because they have the political clout you require.
Good luck out there
Brett, Paul and others
I’ve often wondered about whether the right to own a firearm is constitutionally defendable. If you take the emotion out of it, the arguments seem thus:
I need it for defence against criminals vs If you have one it will be stolen and used for criminal purposes.
Guns are tools and can be used for a variety of purposes vs guns cause people to do bad things and accidents happen.
More guns equals a safer society because criminals are more cautious vs more guns equals a violent society because criminals become more violent to overcome armed citizens.
Guns are necessary to defend the citizen against the State in the event of a rogue State vs that won’t happen (although it just did and ended in 1994).
Anything else I’ve missed. I just want to collate the arguments to see what the test would be.
Zookeeper, apologies for the late reply. ISP problems.
Pierre thought the FCA would be saved by the proportionality test
in the limitations clause on any constitutional challenge.
I looked at the separate component rights (which is why, the
Constitutional Assembly said, gun ownership per se did not need
to be protected) like ownership. Privacy. Tissue evidence.
Administrative action. Access to the Courts. With many component
rights the Cons have laid down guidelines already. Go through the
FCA point-by-point and it becomes clear long before you reach the
end of the Act that, when seen in totality, there are massive
problems with the constitutionality of this Act. And we usually
look to the limitations clause to save limitation of ONE of the
rights in the Bill of Rights. NOT FREAKING ALL OF THEM. Also,
there are so many internal qualifiers in the property clause, as
an example, how much room is there to limit it?
I do not want to trivialise the whole pro-anti debate which is
sure to be touched on. In FNB Ackerman stressed the public
interest of property ownership, which is why we should be ready
to draw pictures for the antis that guns are an unqualified
public good. (That is why I said before that it is a saving grace
that implementation of the FCA is such a spectacular failure. Do
you remember the Cons’ reaction to the NP Education-Bill suit
over Afrikaans in schools? This Court has made it very clear that
people with whom it has root philosophical differences should not
expect the red-carpet treatment! Add to that that the ConCourt
has hosted Gun-free art exhibitions….)
When you start going through the Act section by section, with
your Bill of Rights open next to you…
How do you justify an arbitrary numeric cut-off point like 4 not
5 guns? How is that consistent with S25?
How are 5-year waiting periods for licence renewals consistent
with the administrative justice protections in the Constitution?
Administrative sentences?
In Case Didcott wrote that what pornography people keep in the
privacy of their homes for their own use is no-one else’s
business and certainly not the business of the state. Why do
gunowners not enjoy the privacy protections pornographers do?
Similarily, in Mistry Sachs wrote (besides confirming the
protection of informational privacy) that the moment a regulatory
inspection extends to the private personal domain like a home
prior independent authorization is necessary…. The ConCourt
re-emphasised privacy protections during regulatory inspections
in Mahanjane. Yet, we had the SAPS question neighbours and
inspect safes in homes, the Act requires the Registrar to be
notified when gunowners split up with the girlfriend or have a
row with the boss.
You will have a whole book full of violations of fundamental
rights by the time you are finished with the Act.
I’ve told our guys Pierre is still going to argue my amicus
curiae submission to the ConCourt. He is a true believer. He is
not going to be able to help himself!
For the life of me I cannot understand why everyone is fixating
on Selebi taking money from Agliotti when it is far more
dangerous that he told Parliament that he was refusing to comply
with S137 of the FCA and our MP’s applauded. Do you understand
that?
Hi Brett
Had a read of the FCA the other day. WOW! This probably the most invasive and BOR destructive piece of legislation I’ve ever read.
Talk about a police-state! It is fundamentally flawed in any number of respects. From the ability of police officers to search, sieze and arrest without warrants and minimal objective reasoning, amending the Criminal Procedure Act from a distance (how the hell does that pass work???), expropriation of property without compensation, arbitrary and non-rational limitations on ownership, ridiculously short prescription periods – which have been overturned in all sorts of other legislation.
Phew – its a real mess that Act. Nobody can defend the invasion of civil liberties that this Act embodies, not even the true believers like the good Professor.
It is inconceivable that this type of legislation is even passed. The Apartheid aparachiks would be especially proud of this type of legislation. Maybe even a bit jealous…
I see a guy just got an order for a licence to be issued in 30 days because it had been lodged in 2007, with costs in the NGHC.
When I said Pierre was a true believer in constitutionalism I meant that. There are few of us around. His buddy Storey jnr painted him into a corner by saying Pierre said the FCA passed constitutional muster. I am confident if Pierre really got stuck into the FCA he would pull it to pieces.
What did you think of the compensation provisions in Ss134-137? There is no ambiguity in Chapter 19, now is there? The Minister had to draw up guidelines and start paying compensation. Jackie Selebi told Parliament he refused to pay compensation claims. So did his stoolie Nqakula. Nathi Mthethwa’s so-called guidelines providing for compensation only when the state wishes to acquire firearms for its own use is nothing but a thumbsuck and defending it an abuse of process. Just thumbing their noses at S137. When one connects the dots like 10 months out of time in filing a plea on the merits. Then the state defends the Rule 30A application. Then the state basically proffers no defence. Then the thumb-suck guidelines. Then the state does not file a reply. Then the state’s defence is described by lay-persons in the gallery as ‘borrels gehap’ and ‘klei getrap’.
De bonis propriis. It is the only appropriate costs order, don’t you think?
De bonis would only be hurting their lawyers and not the State. Unless the lawyers were blatantly mala fides I’d leave them alone, especially given the nature of their client! Long delays are part and parcel of litigation, its up to the Plaintiff / Applicant to force replies/pleadings if it gets out of hand.
However, allowing so much time will obviously bite them if this is all they can come up with despite all the time allowances.
Attorney and own client is what you’re looking for – that’s every cent paid by the loser.
The current case by the hunters will win. Of that there can be no doubt, the legislation is horrific, but the reasoning is going to be the interesting part. It is the worst example of a State seeking to trample all over the rights of its citizens since Apartheid. Even if you are ideologically opposed to the ownership of firearms by the citizen, you cannot allow the means to justify the ends.
Even if you lose your licences through one of the bureaucratic fiats in the FCA you still don’t get compensation. That is equally wrong as you are losing what was originally legal property and not the proceeds of crime.
I think the Prof should have a go at actually reading this piece of legislation and considering what allowing legislation like this to exist means for the culture of civil liberties and rights.
C’mon Prof, check it out. If you allow this then what is next? “The scourge of drugs” means another piece, then “the theft of copper” then “suspected criminal activities”, then “wearing a loud shirt in a built-up area”, and finally we lose our rights entirely. There’s an iceberg heading the way of the good ship SAS South Africa and the tip is called the FCA. The problem is way, way bigger than ownership of firearms, its a fundamental attack on the citizen’s freedom.
So even if you don’t agree with the concept of ownership – the principles of protecting the citizen against the State must be paramount in considering any legislation. Any legislation which comes within a barge-pole of this concept should be rejected out of hand.
I see the Registrar is to be kept up to date with all your movements in a ridicuously short space of time. In the event of corruption, a criminal can access the database and target individual owners for certain items – like online shopping.
What guarantees does the citizen have that his information is 100% secure? If it is 99% secure then that’s not good enough. GFSA says gunowners are targetted by criminals – how do they know which house in the street to hit…?
Surely there’s enough evidence form your constituency of owners being targetted after complying with the FCA – I have heard of a collector who had an attempt 1 week after showing the SAPS his safe as the FCA requires – this after 40-odd years of safety. If this is so then the CFR must be done away with because it places the safety of a law-abiding citizen at risk because its confidentiality cannot be guaranteed.
What also boggles the mind is that a case for declaring the FCA unconstitutional wasn’t launched in 2000/2001. Anyway its never too late and by now the implementation is such a mess that its unlikely to survive.
You still need a political solution though, and in this regard I cannot fathom why the Black Gun Owners Association hasn’t been backed by the rest of the various associations to lobby for the return of the perfectly adequate AAA?
The end of this sorry saga lies at the political level.
Sections 134 to 137 are shocking.
E.g. if you lose your gun to a criminal and it is recovered and forfeited to the State or destroyed you don’t get compensation. Why not extrapolate that to all categories of crime? If you have your car stolen and it is recovered it is forfeited to the State and you or your insurer don’t get compensation or the car back.
Is the State then benefitting from the proceedings of crime?
I also do not like criminalising people for knowledge. That doesn’t sit well…
How is de bonis split between counsel and he who gives instructions? LOL! You can guess who is instructing counsel in this case.
Zoo Keeper, the scenario you sketch there is no mere hypothetical. Devi had an insert on Carte Blanche 2/3 months ago where registered-firearms-printouts were given to home-invaders. By the local cop-shop. Makes a mockery of S14 of the Constitution. Add that to the incidents the last month where a couple of farm-attackers were found to be SAPS members?
That is the thing about the FCA. Until you actually sit down and actively read the thing and close your eyes and think through the implications of what you are reading what you hear others saying about the Act sounds like an exaggeration.
The worst part of the whole sorry saga is Nqakula and Selebi telling Parliament they were not going to pay compensation ito S137.
That was a coup d’etat. Pure and simple. We should actually be referring to the compensation case in the Western Cape High Court as ‘the Treason Trial’.
There’s no split in de bonis orders. De bonis makes the firm of attorneys (not counsel) themselves pay the whole bill, not his client. His client gets off scot-free and the attorney talks to his insurance company.
‘Attorney and own client’ though whacks the client for the full fees of the winner. I think that’s what you’re after?
Lack of compensation is perhaps the least worrisome aspect of this legislation to my mind. Its the incredibly invasive powers granted to “authorised” personnel and the amendment of the Criminal Procedure Act by remote. Basically it makes the citizen a prisoner of the Registrar and SAPS. The rights of the citizen are removed almost entirely.
Lack of compensation was actually the last thing on my mind when I went through it. The violations of civil liberties and civil rights far overshadow anything to do with cash.
If you leave the compensation out of it, it is a truly terrifying document because of the potential for abuse.
Regarding the insert on Carte Blanche – why haven’t the owners’ associations picked up the ball and run with? If your information is not safe at the Police Station then it cannot be left there. A licence must be granted the old way and the only way of finding out is if your licences are discovered. One of the primary deterrents of criminal behaviour is if they do not know who is armed and who is not.
What are the owners’ associations doing about this problem of confidential information being sold off to anybody with cash? The SAPS, from what I can gather in the press, have lied through their teeth in numerous court applications – isn’t it time that these were collated and presented as an over-arching case to destroy this piece of legislation and the CFR and replace it with the AAA?
Surely there’s enough energy in the owners’ associations to get this done?
Zoo Keeper, you’ve opened up a very interesting can of worms. What if the client is a Minister and his state department but the instructions to counsel are coming from a ‘civil’ servant who is also an admitted advocate although obviously not practising as such?
LOL!
Sadly, there are few excuses to be made for gunowners or the industry. When we were looking for a perfect Applicant mostly women had the balls to go head to head with the state. The industry has been devastated by the de facto unlawful gun ban instituted by the Register. Like most white South Africans, the survivors are demoralised and despondent and never had much of a idea how to fight for ones rights in a democratic society or a rights culture anyway and think the alternatives are violence or surrender.
One can lead a horse to water…
You know what most white South Africans are like. There is no such thing as acting in the public interest when there is no cash on the table.
That makes people like John Smyth and Peter Hodes and Anton Katz even more special. Bless them!
Unfortunately, counsel don’t get de bonis against them – only the attorneys!!
That might explain how the industry has paralysed itself. That’s also why it’s time for the white owners’ associations to wake up and smell the coffee. The solution lies through the Black Gun Owners Association. They had a very angry march in about 2004 and the government sat up and took notice, you’ll probably find they’re nervous of provoking such emotions from “their” constituency. The government will not take any notice beyond the obvious court motions of the white sector of the owners’ associations, that is a fact. Accommodation by the white owners’ associations is simply seen as a sign of weakness.
Whilst you are searching for the perfect applicant, the industry and ownership is being strangled to death. That’s why in earlier posts I lamented the approach by the owner’s associations – its too reactive.
This is the worst piece of legislation I have seen since Apartheid, and the angriest people are actually black. Under Apartheid blacks were obviously denied ownership of firearms and when restrictions were lifted in 1994, the biggest buyers by volume were blacks, purchasing about 1 million items in double-quick time. Don’t underestimate the emotion attached to self-defence and the helplessness of unarmed protestors during struggle days. So when the FCA was introduced they got angry, very angry – and their approach is no accommodation, just remove it.
They can also make a material impact and the government will listen to them. I’ve been through the various websites and you are all doing the same thing separately! Its madness and a sure-fire way to ultimately lose.
Perhaps, when the hunters win their case you should organise a march under the auspices of the Black Gun Owners and start the political game properly?
I hope BGOASA keep the mhlungus at arms length. It would be typical of some white South Africans to try to use tokens. Mac Maharaj hinted at that in the Sunday Times. LOL! Hopefully, the cantCOPE experience would have taught them a lesson. The only people I know that voted for cantCOPE were whiteys who acted like they had discovered tactical voting.
I’ve met the leader of BGOASA maybe 3 times and it is as you say. Working-class people with no other effective means available at a working man’s price to protect themselves and their families. And, those newly affirmed gun owners do not abuse their firearms at the rate the SAPS do, and the accidental shooting death-rate has not spiked. WHat more can anyone ask of them than ‘don’t victimise others’?
You have to keep 2 things in mind and not judge us harshly:
We are ordinary people off the street fighting the state with our own very limited resources, not full-time paid activists
and
There is no culture of resisting unjust laws among white South Africans. We tend to go along with authority and have been socialised that way since childhood. Rendering unto Caesar, Romans what is it?12? All authority comes from God? It has been a massive struggle for Gun Owners of SA to prod the other organisations into fighting this Act and we have created bad blood along the way.
We see our mission as articulating issues and creating the ideas. Not a numbers battle, which we are doomed to lose anyway. We believe in the supremacy of ideas and have done a pretty good job of keeping the idea of the Constitution up front in this fight. The truth is prevailing, although it has taken time.
Now, if only we could stir our Auditor General into doing his job and auditing implementation of the FCA!
Perhaps you should interdict the AG into doing his audit? Can it be done I wonder?
A mandamus instructing the auditor-general to do his job? That could be hugely embarassing for the auditor-genl. I’ve given that a lot of thought, but once again, it means a lot of money, out our own pockets.
Here is a media-release GOSA issued last week on the subject. It is interesting in that Sheila Fraser saved the Canadians a lot of money once she started asking hard questions. Of course, South Africa has a lot more money to throw around than Canada…..
http://www.gunformation.co.za/viewtopic.php?t=2248
More work for HRC.
http://www.citypress.co.za/Politics/News/ANCs-open-toilet-shame-20100711
Brett
Why not aproach the lawyer dude, Hood isn’t it? Ask him to go on contingency and get an attorney and own client cost award. Then you litigate for free, if he’s prepared to take the risk and can find an SC who’ll help out.
Gwebe
Going to look forward to the HRC’s findings. Massively embarrassing for the ANC this!
Having thought about it, I cannot help but agree that the most important allocation of pro bono hours and civil society mobilising right now is to preserve the right of all South Africans – but especially blacks – to own their own guns.
The ANC government is attempting to revive arbitrary apartheid-era restrictions that arbitrarily kept AK-47′s out of the hands of many blacks!
Something must be done!
Thanks.
Gwebe and Zookeeper:
I view this as a liberal attempt to distract attention from the Zille’s disgraceful conduct.
Here is the difference: The failure to enclose the CT latrines stems from the DA’s RACISM. By contrast, any ANC failure is this regard is a result of a lack of resources.
Brett
You have access to major funding – you just have to ask for it from the companies who sell affected products.
Perhaps they’ll also help fund a marketing campaign to educate the citizen from the owners’ side of the story so that Joe Public can make an infomred choice.
@ Dworky
November 19 is a World Toilet Day, can we make sure that we close all “open toilets” before that as a gesture from our World Cup Profits or lotto handouts.
Dorky, a million black South Africans got licenced handguns between 1994 and 2000 and the homicide rate has come steadily DOWN.
Why would you fear registered guns in black hands when they are not being abused?
Please explain.
Thanks.
Thank you, Zoo Keeper. Will do.
That is definitely a source of funding we should look at.
Brett
Just had another thought – maybe you should contact the NRA in the USA and ask for ideas, guidance and maybe even a bit of help if necessary? Those types of organisations have a lot of relevant experience that is not available locally.
Good luck – we need some balance in this equation; not to mention getting our civil liberties back from the brink!
Dworky
Have a read of the FCA. No matter what the target of the legislation, that type of legislation runs counter to a civil rights and civil liberties culture. It basically makes the citizen helpless at the hands of the State.
In light of that, it probably is the best place to concentrate pro bono hours and civil society mobilisation.
Its the tip of an unpleasant iceberg.
Thank you, Zoo Keeper, for more excellent ideas. GOSA did receive some assistance starting up from Gun Owners of America. Advice etc. The other important consideration is that it would be a bit embarrassing taking money from external sources like the foreign-funded victim-disarmament groups like Gun Free SA.
Yes, Dworky! Have you actually read the FCA?
Brett Nortje says:
July 12, 2010 at 16:49 pm
Dorky, a million black South Africans got licenced handguns between 1994 and 2000 and the homicide rate has come steadily DOWN.
Why would you fear registered guns in black hands when they are not being abused?
Please explain.
Thanks.
———————————————————————————
Hey Brett,
That’s inspiringly broad minded of you.
You really ought to be engaging the crazy fellow who said the following :
“Why do I go on and on about white people being murdered? First, it is the truth. Why should I live with the lies of those made profoundly uncomfortable by this unfortunate truth, who prefer to live in denial? Then, I am white. I would really prefer not to be murdered. It has been close. Forgive me for starting to take near misses with black men personally. It has been really close, too, for members of my family, who are also white. I like having them around. Do you have family?
For 20 years ‘progressive’ whites have been silent in the face of the ANC’s racial mobilisation. You allow the Gwebecimeles of this country to stoke the fires unchallenged. Silence is assent. You live with their lies. Become accessory to it. Not only is that the worst kind of paternalism, that gives the lie to professed ideals of equality… (What about intellectual egalitarianism?) What has the effect of this refusal to engage the Gwebecimele’s as they play the racial blame game meant in terms of threat escalation to your own family? The people you grew up with? Have you done ANYTHING to make the ANC recommit to the modus vivendi between black and white in this country, this time without ANC fingers crossed behind ANC backs?
Have you done ANYTHING to make the ANC realise the ‘us’ v ‘them’ blame game; the ‘they’ game, is a loser’s strategy, unhelpful, one they will get spanked for consistently as long as they keep stoking the fires of racial animosity?
No?
So, now we have Afrikaners approaching the Courts twice in one week for protection and the worst caricature of Afrikaners murdered to show how valid whatever they put in their affidavits was.
Am I arguing that there is a conspiracy to murder white people in particular?
I have already answered that. ‘Zeitgeist’ is logically inconsistent with, almost oxymoronic with ‘conspiracy’.
Quite simply, with 20 years of racial mobilisation the godless, shameless ANC has created a zeitgeist in which murder of white people is easily justifiable. That is what Gwebecimele is doing.
I further do not believe genocides are as much the product of conspiracy as acquiring a logic of their own once the individual body count has obviously, visibly started to rise.
Michael, we never “agreed that the relative chances of a black person being murdered are much higher”. I hesitate to accuse you of being mischievious but the idea of an equation, a ratio – implied in your use of the words ‘relative chances’ and ‘much
higher’ has always been the bone of contention between us.
To avoid the appearance of misrepresentation you ought to list which assertions you feel we agree on.
I think we have admittted the lamentable paucity of relevant helpful statistics but agreed that we have to use the statistics at hand, poor as they are, because that is all we have?
That the vast majority of perpetrators and victims of homicide are black is no great revelation as 80% of the population is
black. (An ISS study has found 80% of homicides are acquaintance murders and therefore virtually unpoliceable. It might be
productive to look at a ban on alcohol. A 10/100 000 intimate femicide rate is an indication of a massive problem.)
That admission hardly constitutes an agreement “that the relative chances of a black person being murdered are much higher”. Do we agree that whites are overwhelmingly murdered by black perpetrators? Do we agree that the rate at which whites murder other whites is relatively low, taking into account an intimate femicide rate of 2,8/100 000? Do we agree that instances where black victims are murdered by white perpetrators are statistically insignificant?
Lets use the latest murder statistic we have – last year’s murder rate of 38/100 000? I see no reason to pre-suppose that Antony Altbeker’s hypothesis that the rate at which whites are murdered is 2/3 of the rate at which blacks are murdered should be downsized. The reverse seems a more logical assumption. That means that the rate at which whites were murdered last year is at least 25/100 000. (We do not know for sure whether inter racial homicide have changed still further.)
We do know that the intimate femicide rate where the victims were white was pegged at 2,8/100 000 in a (highly flawed) MRC study on intimate femicide. Intimate femicide is likely to be the category most inter-white homicides fall into. Men in drunken rages beating their wives to death.
Who killed 22/100 000 whites last year? 38/100 000 global black homicide rate – give or take few percentage points – as the
majority of South Africans are black. Blacks were killing other blacks (not their wives) at a rate of 3,8:1wife.
The rate at which whites were killing their wives compared to which the rate at which whites were being murdered for other reasons was at least 1:9. (One needs to look at how the MRC compiled those figures as women are 50% of the population
and wives and girlfriends are again a section of the female population.)”
Really, Maggs? How are the ‘facts’ in A inconsistent with the ‘facts’ in B? Do you have any ‘facts’ that suggest the home invaders and farm murderers I pointed at are armed with registered firearms?
You really ought to stop grasping at facile answers. It is hardly a sign of intelligence.
Given the instances over the last month where members of the SAPS have been busted for farm attacks after farmers defended themselves I hardly think anyone will fall of their chair if it comes to light that a significant number of home invasions and farm attacks involve SAPS, SANDF members and other ANC irregulars. Do you?
Brett Nortje says:
July 13, 2010 at 9:18 am
“It is hardly a sign of intelligence”.
Agreed.
But then engaging with you does not require much
.
Sure thing Brett
I know you would be “lowering” yourself to GFSA levels but it would be tactically incorrect to ignore it.
The pendulum is swinging in favour of your side internationally but not here. Even the English are wondering what their bans ever achieved and are starting to acknowledge that the achievement is precisely the opposite of what was intended – those laws being passed in a knee-jerk response typical of a Labour government! Observe the headline in The Times the other day – all quotes from GFSA with remarkably glib assumptions and logical flaws quoted freely as if the undeniable truth. You have to match them quote for quote, stat for stat and engage in a marketing strategy that’s bigger and better than theirs.
Just make sure what you punt is truthful, otherwise you’ll lose badly.
Maggs
I think the enquiry into legislation like this must start with the assumption that the citizen is absolutely free. Any constraints or regulations on this freedom have to be absolutley necessary in order to pass muster. Regulating firearms ownership is a key component of a citizen’s freedom because it places the citizen on an equal level as the State – firearms have long been the “great equaliser”. In the world of Real Politik, a well-armed educated population keeps a State at bay by its very physical existence. It is a very, very important and real aspect of civil liberty.
The question must be asked why any regulation is required at all, and if so, it must be kept down to the absolute minimum of interference.
Reasons such as the Prof’s: “you can’t own it because a criminal might steal it and use it” are not good enough. That kind of reasoning can be extrapolated to encompass every single commodity on the planet which renders it unreasonable and accordingly useless.
Certainly, the SAPS and authorities should be legally treated with suspicion and their jobs made legally tough in order to “guard the guards”. Laws must be passed to the benefit of the citizen and not to the benefit of the State.
Currently, the FCA is almost a State of Emergency in disguise and is not cool.
We’ve just emerged from 48 years of State-sponsored oppression. How long do think this oppression would have lasted had the black populace been well-armed from the start? White rule took advantage of black inferiority in weapons development and military naivety (Isandlwana being the result of a tactical error by the British in pushing their line out too far – yes, yes I love my military history!!!!) and pursued that by removing firearms from blacks at all costs.
Would Apartheid have even taken place had the black population matched the white population gun for gun?
I can’t remember who said this but it remains true, and will reman true as long as there are humans: “Democracy is two wolves and sheep voting on what to have for dinner. Liberty is giving the sheep a gun.”
Dworky
Why shouldn’t a citizen be able to own an AK47?
Zoo Keeper writes:
“Regulating firearms ownership is a key component of a citizen’s freedom because it places the citizen on an equal level as the State – firearms have long been the “great equaliser”"
Zoo Keeper, the fact is, side arms and rifles will not act as an adequate “equaliser,” given how well equipped are modern armies, and the vast resources of the modern state.
Would you, therefore, just like the NRA, demand that private persons be entitled to own automatic rifles? And what about RPG’s, artillery and even tanks? (And private air forcesm and navies, for that matter.)
If you are serious about citizens having, as John Locke envisaged, a residual right of rebellion against an arbitrary sovereign, you would not want the citizen militia to operate at a terrible disadvantage.
Zoo Keeper says:
July 13, 2010 at 11:35 am
It all sounds very interesting.
Brett has been pushing the line though, that Whites need guns because Blacks are murdering Whites – even going so far as to infer that there is some kind of racially orchestrated campaign.
The decline in homicide rates post 1994 being attributed to the increase in Black people owning firearms is without foundation. It could be argued that the decline has to do with our maturing democracy.
The solution to bad politics is good politics, not threatening to shoot politicians on sight (although there are some politicians who may well deserve to be more than shot) – we have better than guns once every five years.
I will repeat that mine is an anti-gun stance. And I take comfort in that it is Brett who pursues the pro-gun line
.
Michael
Why not? Modern armies will always be better resourced than a citizen, the sheer cost of the resources will see to that. Of course, modern armies are limited by their size and cannot be everywhere at once. They also have limited resources and will loath losing them.
Its a game of risk – always has been.
But the question still begs – why not let the citizen own a tank? If he can afford the horrendous cost of the thing, service costs and ammunition? After all the costs are taken into account only a handful, literally, of persons could afford to buy, let alone operate one. To train a mortar crew takes months and costs millions…
Economics will take nearly all tactical weaponry out of reach. But the psychology of being allowed ownership mustn’t be underestimated.
But still, if you are going to limit, you need to justify the limitation. Its not for those who want to own to justify why they should own.
Maggs
Its quite clear that whites have borne the brunt of criminal attacks. But I don’t buy the calculated total onslaught line and I differ with Brett there.
I believe that it is a consequence of a few things – one is racism. Not from Brett’s side but from the black attackers who do not like white people and take out their lives’ frustrations on the white victim. Its a fact that the violence associated with some attacks points to real psychological issues on the part of the attacker. Its real.
The other is economics, at the moment white people in general have what the criminals want. Add into that racial anger and the mix is explosive.
Taken together our society is still fractured and individual citizens do need the means to protect themselves against each other, if only to keep the precarious balance. We had a good time in 1994, but if you watch the Xeno stuff going on now, Rwanda is not inconceivable (although unlikely).
I know you’re on the anti-gun side of things but remember, if you take away the legal gun, illegal guns will continue to flourish and gun crime will actually increase – as it appears to happen in every instance.
Besides Maggs, when things go bump in the night – do you call unarmed response (let’s face it, no-one calls the police for an emergency anymore)? I believe every anti-gun who has security should dispense with that private security if those security personnel are carrying guns.
Michael
Arnold Schwarzenegger is a well-known tank collector. Not sure if the guns are operable but there you have it!
Maggs
Our democracy can be called mature when the ANC is voted out peacefully. Until then its still in the prototype stage.
Zoo Keeper:
Three questions:
1. Should the police be armed with tanks, artillary, etc, just in case they come up against a gang that is wealthy enough to stock sophisticated firepower?
2, On your logic, what would stop wealthy corporations buying tanks and guided missiles to equip private armies?
3. Would you support municipal zoning that would ban citizens laying land mines and Claymores in their gardens?
Michael
1. If the gangs can arm themselves like that they would have already, laws or no laws – that’s the thing about criminals. Police already do have armoured vehicles and automatic weapons anyway. Have done for years. In any event, things like artillery have nominal use. They really only have long-range capabilities, are large and cumbersome and difficult to use more than once. Artillery is only useful for a regular army which has a tactical need and use for such weaponry. For any civilian other than a collector its a waste of good steel.
2. Private armies already exist and have done for centuries – see Iraq for the latest, but not even the likes of Microsoft could arm themselves as you suggest without bankrupting themselves unless being a mercenary company is the business proposition. In any event, nearly all of those are built by private corporations in the first place!
3. Landmines and claymores in your own garden! If you’re dumb enough to do that then in all likelihod you’ll remove yourself from the gene-pool when pruning the roses!
But these are moot points in this discussion (at the moment) because you’re still asking me to justify why someone should be able to own something.
My point is you have to start from the point where a citizen can own anything and then if you want to limit ownership – you, as the limiter, must justify the limitation. Not the other way around.
@ Zookeeper:
“Private Armies already exist and have done for centuries – see Iraq for the latest.”
Yes, this is a very good point! Given that there are already private armies everywhere, there is no reason they should not be able to get the best and latest armaments. And why should our own private armies have the same fundamental rights to RPG’s and heavy machine guns as the Iraqi private armies?
Speaking of Iraq: You have not mentioned another very good reason why private citizens and corporations should be encouraged to stockpile whatever weapons they can afford. Suppose we were invaded by the US or China. We would have no chance in a conventional war. But a well-armed citizenry could make the occupying army feel very unwelcome!
OK, Zookeeper, how about nerve gas? Why should a private citizen not be allowed to stock some in his basement?
And should corporations be allowed to keep tactical nuclear weapons? (Please don’t raise cost as a factor; I guarantee you that Bill Gates afford quite a few small warheads.)
Michael
You’ve missed the point: justify why not, don’t ask me why not.
(Justifications for the limitation of random weapons like nerve gas, landmines and nuclear weapons abound.)
Dworky
See the Liberator, a cheap 9mm pistol developed in the 1930s to be dropped by air by the thousand into occupied territories for exactly that purpose. Piece of rubbish if you ask me though – I’d rather surrender than risk my hand firing it!!!:)
Zookeeper, what s. 36 limitations would you raise if you were defending a ban on the private possession of nerve gas or nuclear warheads?
Those types are random and limitable in my opinion. By that I mean once you let them off you have no control over the who’s the target, and if your target is in the mix, the collateral damage outweighs any other consideration.
Zoo Keeper says:
July 13, 2010 at 13:39 pm
“Our democracy can be called mature when the ANC is voted out peacefully. Until then its still in the prototype stage.”
Let’s hope that the opposition parties up their game.
Maggs
Couldn’t agree more!
Zoo Keeper says:
July 13, 2010 at 13:31 pm
“Its quite clear that whites have borne the brunt of criminal attacks”.
How did you arrive at that?
Zoo Keeper, I am happy that you accept that there may be limitations on the right to own dangerous weapons, whether they be guns, nerve gas or nuclear bombs.
But I am still puzzled by your citing of the rationale for the private possession of guns – that an armed citizenry is necessary in order to defend against state tyranny.
If that is indeed your rationale, it would follow that the scope of private possession must be determined, at least in part, by the strength of the army. Now, a small amount of nerve gas could be the cheapest and most efficacious way for a private militia to hold off the armed might of an oppressive state.
Does it not follow that, in certain circumstances, private possession of small quantaties of nerve gas should be permitted?
Maggs, I have been forced to call you on your intellectual dishonesty several times before! Where have I argued that whites need guns because they are being murdered by blacks? If I argued that would it not have been more logically consistent to try and remove guns from black hands (which is what the lefties are trying to do)? Rather, I have argued the opposite: That a million guns in blacks hands has been an unqualified benefit to society. That gun control is the disarmament of the godfearing by the godless. That this is a simple equation. More good people than criminals have guns and are encouraged to use them to defend the common good = less crime.
Yes, I have argued that the rate at which blacks murder whites is double the rate at which blacks murder blacks and many times the rate at which whites murder blacks. I believe the best available facts bear this out and it is typical one Maggs Naidu that this unpalateable truth should be buried. I do not think registered firearms are used, and I do not think many of those murders would have been committed were it not for the ANC’s (and people like yourself) constant othering and racial mobilisation.
Do try distinguish between right and wrong even if your political vehicle cannot. At least: STop lying.
Brett Nortje says:
July 13, 2010 at 18:17 pm
Hey Brett,
I see you are not a complete idiot, but you will stumble on the missing parts soon.
It’s good though that at least you stopped to think. Remember to start again soon.
Zoo Keeper, awesome job! That is just about the most succinct and rigorous rendition of the ‘monopoly of force’ argument I have seen. I can’t wait for your take on the utilitarian response to gun ownership as a right.
What? More ‘how many Angels on the head of a pin’ arguments, Michael? The basis of the ‘right to keep and bear arms’ argument has always been that it is a right that accrues to individuals therefore not weapons that require a crew. I referred you to US v Miller a couple of days ago. The Supremes (wrongly, in a lot of peoples’ view) upheld an argument similar to yours – that only arms similar to those used by the US armed forces were protected.
IMHO Zoo Keeper has been quite clear: Once the right is asserted the balance of proof shifts to those trying to justify the proportionality of the limitation of the right. The burden of proof does not rest on those asserting the right, surely?
Snip
I think the enquiry into legislation like this must start with the assumption that the citizen is absolutely free. Any constraints or regulations on this freedom have to be absolutley necessary in order to pass muster. Regulating firearms ownership is a key component of a citizen’s freedom because it places the citizen on an equal level as the State – firearms have long been the “great equaliser”. In the world of Real Politik, a well-armed educated population keeps a State at bay by its very physical existence. It is a very, very important and real aspect of civil liberty.
The question must be asked why any regulation is required at all, and if so, it must be kept down to the absolute minimum of interference.
End snip
Michael, why did De Klerk’s generals not revolt when he fired them for right-wing sympathies? May I quote myself? “Why ? Quite simply, those generals knew 50% of the white population was armed and those gun owners believed in their democratic institutions, exclusionary as they were.”
All things are possible, Maggs.
It is even within the realm of possibility that you might actually make a contribution to some debate some day.
Or, not try to justify a slip on the wrist for some ANC apparatchic who shoots a little kid while trying to shoot a cellphone thief in the back while you laugh off a 15 year sentence for a guy who made jackal trapguns in his garage.
brett,
please provide a clear and credible source for your statement:
“the rate at which blacks murder whites is double the rate at which blacks murder blacks”
please define re your statement “That gun control is the disarmament of the godfearing by the godless”:
a) godfearing
b) godless
brett,
whilst you at it; can you sommer source this for us too:
“Quite simply, those generals knew 50% of the white population was armed and those gun owners believed in their democratic institutions, exclusionary as they were.”
or would this have been “original research” ?
etienne marais says:
July 13, 2010 at 18:45 pm
etienne marais says:
July 13, 2010 at 18:53 pm
LOL!
etienne marais says:
July 13, 2010 at 18:45 pm
Thank you for your kind interest, Etienne!
Do you know how the blog’s search function works?
I’m sure no-one feels like another 10 000word Brett v Michael on the comparative rate of black-on-black v black-on-white v white-on-black homicide!
etienne marais says:
July 13, 2010 at 18:53 pm
My conclusion. What is yours?
ah, i see brett; so your source is, ummm, yourself (as usual)
just remind me again…which, the left or the right (thumb) ?
and what about a quick snap-definition of the “godfearing” and the “godless”
(just to remind those of us, like me, who are of slow wit)
brett,
the alternative is that those potentially mutinous generals realised immediately that history was against them, and that in the event of their own insurrection, the remaining generals (who made up the vast majority) would sort them out quick sticks
(or maybe because they realised that “god” had turned against them ?)
i dunno…my thumbs, like yours, are aching now
@ Brett
“The basis of the ‘right to keep and bear arms’ argument has always been that it is a right that accrues to individuals therefore not weapons that require a crew.”
I assume that you and Zoo Keeper are invoking, inter alia, the right to property (s. 25), as the basis of the right to bear arms. Why should Bill Gates not be permitted to pay some minions to look after (or operate), his property?
So, if Gates wants to pay people to run his tanks, why stop him?
And, if Zoo Keeper really thinks that private parties must bear arms to countervail potentially, should they not be allowed to own heavy machine guns, mortars, even tactical nuclear weapons?
Michael, do you accept that the enquiry into legislation like this must start with the assumption that the citizen is absolutely free and is free to own a gun if he chooses to?
Have you read the Act yet, Michael?
Really, Etienne? Generals who make decisions based on their perception of ‘history’?
god-fearing : Hitler, Verwoerd, and those white-sheeted people with pointy caps.
Thanks for the City Press link, Gwebe … I would have missed that story because, evidently, its not going to make national headlines and talk-show debates for weeks on end.
Yes, Belle, and Martin Luther King and Mother Theresa…
… point is, Brett, using out-dated medieval terms like ‘god-fearing’ and ‘godless’ kinda damages your arguments, some of which are pretty sound.
Michael
If you want to limit you must justify the limitation.
Lets leave aside things like nerve gas (outlawed by Geneva Convention) and nuclear weapons (who’s going to sell even if you can afford it?) because there is very little scope to justify their legality – see my comments on the random effects that those weapons have. Tactical nukes only have value as a deterrent (M.A.D.) – besides once you’ve let one off the whole world will hunt you into your grave. Same with nerve gas.
What are your arguments against allowing the ownership of machine guns, including heavy machine guns like a .50, in private hands?
Brett
Belle is right, if you leave out the religious aspect it concentrates the mind more on the substance and less on the theatre. Gives your argument greater clarity and more punch. Use it, don’t use it.
Maggs
Its the economics of crime. Whites are on balance, and perception, wealthier than blacks and therefore have things the criminals want.
Just like choosing a shop really – you go where you can get stuff.
Simple but unfortunately an arbitrary characteristic (skin colour) is still an indicator.
Belle says:
July 14, 2010 at 7:55 am
@ Gwebe and Belle,
Maybe our Minister of COGTA will also soon discover, like our President did, that some of our people live in appalling conditions in some ANC dominated areas.
“A week ago, during a visit to Khayelitsha’s infamous open toilets, Shiceka claimed such things only happened in the Western Cape, not in the rest of the country.”
The Minister, if media reports are correct, also was surprised to learn that he does not have a Masters degree.
This cuckoo land thing is very contagious!
Bell, the level of activism that is needed to keep this in public space until resolution is seriously wanting.
Zoo Keeper, as I understand your argument, the fact that nerve gas is internationally outlawed and that nukes are expensive cannot be relevant.
Your only real argument against their posssesion is that these weapons have, as you put it, a “random effect.” Are we agreed, then, that the state has the right to ban any weapon that has a “random effect”?
Belle, it damages my arguments among post-Christians?
Michael, do we agree that
“the enquiry into legislation like this must start with the assumption that the citizen is absolutely free. Any constraints or regulations on this freedom have to be absolutley necessary in order to pass muster”
and
“The question must be asked why any regulation is required at all, and if so, it must be kept down to the absolute minimum of interference”?
Michael
Its just a suggested test. You asked me how I would justify a limitation.
If you have another idea to test for limitation please share?
Brett, no, I do not think we start with the assumption that the citizen is “absolutely free.” But I do agree that, as a general matter, the scope of rights must be interpreted broadly, and that the burden is upon the state to justify s. 36 limitations.
And no, I have no read the Bill. That is why I have addressed none of my comments to the Bill itself.
Michael
What constraints do you believe exist on a citizen as the starting point?
Zoo Keeper says:
July 14, 2010 at 9:23 am
Hey Zoo Keeper,
Maybe I should ask the question differently.
Is there any reliable way of supporting that view?
Exclude Brandon Huntley’s submissions to the Canadian authorities.
Maggs
I think Huntley’s views have been consigned to the scrapheap!
Its very difficult, Brett seems to have some stats and then there’s what each of us can glean from various sources in the media. I support the view on an economic basis with skin colour still a determining factor of perceived economic status.
The stats might also be skewed as I’m sure a heck of a lot of crime goes unreported in the townships and squatter camps. Most likely the poor have given up on reporting crime in general and resort to community justice.
Zoo Keeper: As far as I know, there is no constitutional right to “absolute freedom” in the SA Const.
Please point to any text to the contrary.
@ Maggs
There is another World Cup on our way its MDG Report, we must report as countries on how far we have gone to meet the Milleniun Development Goals. I hope even this time all dignitaries will pronounce on the findings and as a country we will react accordingly.
Open toilets will not assist in this regard, call Blatter to sort them out.
http://www.un.org/millenniumgoals/
Zoo Keeper says:
July 14, 2010 at 12:30 pm
Brett’s stats?
Nevermind.
If we start from the point that most crimes go unsolved, then it is safe to conclude that not much can be deduced especially about any kind of racial profiling around crime.
Where Whites are the victims and Blacks are the perpetrators, there are “some among us” who project that as the evidence of a racial onslaught.
Where Blacks are victims and Blacks are perpetrators then the lopside gang calls that Black on Black violence.
Our crime rates are high, way too high – finding solutions will require sober considerations.
And then there’s Brett!
Brett is right.
It is hard to see the mass murder of whites as anything other than genocide.
And never forget: the first step in Hitler’s plan to exterminate the Jews was to make them surrender their AK-47′s (1934-35.) From then on, it was a slippery slope …
Mikhail Dworkin Fassbinder says:
July 14, 2010 at 14:05 pm
I just read that dogs are shooting humans.
We need people to be armed to stop this K9 onslaught!
http://www.timeslive.co.za/world/article549474.ece/Dog-shoots-man
Gwebecimele says:
July 14, 2010 at 13:50 pm
“call Blatter to sort them out”.
Blatter for President.
Better life for Blatter or Stop Blatter?
On a serious note, the cracks are starting to show – I really wonder the MPs are doing in their constituencies.
Maggs, your doggy example is, with respect, absurd. The incident to which you refer is very rare; dogs seldom shoot at humans. A much better argument for wider gun ownership has to do with more common incidents. Do you really think there would be so much bullying at school, swearing at motorists, intimidation by club bouncers, and rude or boorish behavior by sales staff and waitrons, if, in each case, the target of the abuse was armed?
In a small but significant way, allowing more opportunities to ordinary South Africans to carry small-calibre firearms could thus improve the civility of our everyday discourse, and even promote UBUNTU!
Mikhail Dworkin Fassbinder says:
July 14, 2010 at 15:56 pm
“dogs seldom shoot at humans”.
Maybe.
But it’s increasing in frequency.
Your point is taken, though, that is we we allowed to freely bear firearms rather than the vuvuzelas at the games, then perhaps Bafana Bafana would have won the world cup.
And what’s more ayoba than that?
LOL! Maggs, I’ve pointed out to Dworky before that he is not very ayoba.
Listen, chuckleheads: Why the deflections? Why do you have so much invested emotionally in gun control? Why did you – in alarm – start to participate in this thread when other people started to join in? To fillibuster as usual?
Dworky: Homework! http://www.jpfo.org/filegen-n-z/stroop.htm
Do you think the cops would be murdering motorists at random if they thought a lot of the surrounding motorists and pedestrians were also armed and might fight back?
Is our police “force” out of control and what is there to control them?
Legislation like the FCA effectively grants State of Emergency powers to the police and places the citizen at their mercy. Read the darn thing before commenting on control. Surely this type of legislation is abhorrent in a civil rights culture?
Michael
Come to think of it, if you can store those types of weapons safely then why can’t you own one?
Having thought about it, I must say that Zoo Keeper’s proposals seem very sensible; the best way to restrain trigger-happy police is indeed to have a properly armed citizenry.
One caveat though: It would not be fair if only those who could afford to purchase powerful firearms wield them against our out-of-control cops. For that reason, I expect Brett and Zoo Keeper to join my demand that each and every adult citizens be equipped with high calibre weapons, at state expense.
Zoo Keeper, by adopting the position that private citizens be allowed to keep nerve gas, tanks and tactical nuclear weapons, if they can “store them safely,” you have exposed the absurdity of gun-ownership absolutism.
Michael
Please dude. You can’t start at the glib end of the spectrum and expect to win an argument! Its like saying that because its a bad idea (for whatever reason) for someone to privately own an Airbus A380 that now no-one can own an aircraft of any sort, not even a remote-controlled toy.
You haven’t come up with one single argument against ownership. Nothing.
I don’t even own a firearm in case you were wondering which may seem strange to some people given my position on this subject!
The principle that we’re debating starts that the citizen is absolutely free. Limitations are then placed on the citizen (obviously otherwise there’d be social chaos) but each and every limitation must be justifiable and the limitation kept to the minimum with the least interference.
So what are your arguments? I have asked you before but you’ve come up with nothing except placing more questions stating fanciful scenarios like nuclear ownership (for heavens sake not even a whole country could get its hands on these weapons without extreme resistance and possibly war), and then you draw a conclusion from nowhere without drawing on any basis that you have put forward.
The burden is on the limiter not the limitee to do the justifying.
What is the absurdity? YOU have to explain “why” it is absurd and what limitations are justifiable.
C’mon Michael. Please explain your position because right now it is unreasoned and therefore unsustainable.
Zookeeper:
1 I have challenged you with extreme example, like RPG’s heavy machine guns, nerve gas, etc., to test what appears to be your claim that there is no limitation on the right to own weapons.
2. I rebutted you yesterday on your assertion that a citizen is “absolutely free.” I do not know of any provision on the Const. which provided that a citizen is “absolutely free.” You are correct in saying that there is also a limitations analysis to be done under s, 36, and that this is a second-stage analysis. But many rights in the Bill of Rights also contain “internal” limitations. S. 25 is one of them.
3. As I mentioned yesterday, the fact that nukes are expensive is irrelevant to your positing an absolute freedom to won weapons Also, other weapons, like nerve gas, are relatively cheap. Also, Bill Gates could easily afford a nuclear weapon. You suggested yesterday that the latter might be restricted because of their “random” effects. But this morning you appear to have withdrawn even that.
If you are serious that one of the reasons to allow private weapon ownership is to allow citizens to stand up against a repressive state, then your view that citizens be allowed to own the kind of weaponry that would allow them to stand a chance against a modern army makes sense, in your own terms. But this principle would, indeed, lead to the absurd result that private corporations could have private armies with tanks, artillery, etc.
Is this becoming a GUN LOBBYING BLOG!!!!!!
Michael
Tell me on what basis you would limit such ownership and why such ownership is absurd.
You bear the onus here, not me.
The Const. is drafted to protect rights from abuse by others as a first point. The fundamental assumption must be that the citizen is free and this freedom must be protected, otherwise why invoke protective clauses?
Yes, there are limitations, but each and every limitation must be justifiable and reduced to the minimum possible.
This debate is now over, we thank you for your participation.
The Winner is: Michael Osborne
The Losers are: Zoo Keeper, Brett Nortje, et al
Zookeeper:
No, the onus is upon you to articulate a right that support your right to own a gun.
If you invoke s. 25, I draw your attention to the fact the right to property has an internal limitation — before you get to the s. 25 stage.
Gwebe
Not sure about that!
A freedom lobbying blog maybe. You should read the FCA and see the invasive nature and extent of the powers granted to the SAPS, as well as the arbitrary deprivation of property without compensation.
Regardless of the target of the FCA, legislation of this type should simply not be allowed on the statute books. It is very reminiscent of Apartheid-style legislating where the citizen had little or no freedom and was under the power of the State – all races.
Michael, don’t be jajjerig! We’re debating the principle of being free to own firearms. The foundational values in S 1(a) & 7 of the Constitution being?
How many of the artillery pieces and tanks standing outside Moth Halls have been used to victimise others, pray tell? It sounds like you’re associating yourself after the fact with Nqakula’s raid on the National Museum of Military History in Saxonwold and the detention of the management.
Dworky, what exactly is a high calibre weapon? A .700 Brown Bess?
You’re exactly right, Zookeeper, about the FCA granting the SAPS emergency powers via the back door.
Brett:
1. Please explain why the internal limitation in s. 25(1) (specifically allowing deprivation of property by a law of general application), does not torpedo Zoo Keeper’s claim of an absolute right to own firearms.
2. Re artillary, etc, please see my response to ZK as to why I challenged him on how far he was prepared to push his thesis.
Come onnnn, Michael! You’re not honestly stating Zoo Keeper’s position. That is the kind of tactic one expects from Maggs. (Whose absurd prohibitionary arguments have been redirected from ‘Guns should be banned because their owners abuse them’ to ‘Guns should be banned because they are stolen from their owners and abused’ to ‘Guns should be banned because dogs use them to shoot their owners’ as those absurd arguments have been rebutted, one by one!)
Please try find the time to read the FCA.
I value your opinion even though I wish you were correct more often. VBG!
Brett:
1. You say I misrepresent your ally ZK’s position. But he wrote this morning “Come to think of it, if you can store those types of weapons safely then why can’t you own one?” This was in the context of our discussion of nerve gas, nukes, HMG’s etc.
2. I note you and ZK both continue to evade my question re the fact that s. 25(1) specifically says that the property may be deprived by law of general application.
3. You may have a procedural or other argument on the Bill. I will take a look at it. But don’t flog a dead horse property-based argument.
@ Brett
Here is our target, at least we have moved on from toilets.
See below
All South Africans will have a public internet access point offering at least 256kb bandwidth within two kilometres of their homes by 2019 if the government achieves targets set out by the communications department.
Siphiwe Nyanda, the minister of communications, published his “Broadband Policy for South Africa” this week, setting out the goals of his department and some targets.
Michael
You’ve got S25 back-to-front.
S25 says no-one may be deprived. This means that the property is already under a citizen’s ownership. It says nothing about limiting the ability to acquire ownership of a thing. This in turn means that the freedom to own something is automatic.
If you want to limit the ability of a citizen to acquire – you need to justify the limitation.
Michael, I would not be ashamed of ZK as an ally – the most principled person on the blog!
The Zookeeper also said:
“You bear the onus here, not me.
The Const. is drafted to protect rights from abuse by others as a first point. The fundamental assumption must be that the citizen is free and this freedom must be protected, otherwise why invoke protective clauses?
Yes, there are limitations, but each and every limitation must be justifiable and reduced to the minimum possible”
WRT S25, Property
“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
Property may be expropriated only in terms of law of general application-
for a public purpose or in the public interest; and
subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
The amount of the compensation and the time and manner of payment must be just and equitable”.
You’re arguing a hypothetical: The state has complied with NONE of the qualifcations in S25(1)(2) or (3)!
No public purpose
No public interest
No compensation!
The licencing process (or, if you will, the renewal process) by which a bureaucrat decides whether you may keep your property?
Do you not think that deprivation is arbitrary? Do you think the beloved ANC strategy k.a. constructive expropriation complies with S25?
Gwebecimele, what do you say of the revelations about Nyanda Bus Day published (Pierre designated “Brett Nortje says:
Your comment is awaiting moderation.”)?
Guess who is going to be the internet service provider?
Brett Nortje says:
July 15, 2010 at 12:49 pm
Hey Goofy,
Rebutted?
My butt!
The arbiter
I think you jumped the gun a bit there…
Brett, I specifically said that I was not addressing the Act, but rather the principled issue as to whether there was an absolute right at stake to own a gun. (We can discuss separately the question of whether this particular act involves arbitrary deprivation etc.)
The point is that there is not, because, unlike,the right to free expression under s. 16, the right to property has an “internal” limitation provision, which renders its application uniquely restricted. ZK seems to think that s. 25 is subject to the traditional two-stage analysis. That is true of most constitutional rights; normally, limitations are considered only at the second stage, under s. 36.
But property rights are different. See Currie et al Bill of Rights Handbook (5th ed) p 561: “The difficulty with applying the two-stage analysis to the limitation of s. 25 is that many of the criteria which justify the limitation of rights have been included in the demarcation of the s. 25 rights themselves.”
And let me ask you this, Brett: do you think the right to own weapons includes the right to own:
(a) High powered rifles.
(b) Machine guns
(c) RPG’s.
(d) Artillery.
(e) Nerve Gas.
(f) Nuclear weapons.
(g) All of the above?
Michael
There is a limitation on the ability to deprive under S25, not on the ability to acquire.
Where do you get an ability to deny acquisition of property under S25?
Please indicate the text because I can’t find it.
I know what you’re getting at, Michael – I am conflating whether one has in principle the right to own the things called guns with
Zoo Keeper, you beat me to the punch. The guarantee is against deprivation. However, there are various other component rights of the right to own property protected in the BoR (remember, in the FNB case Laurie Ackerman made it pretty clear the constitutional property concept was not irreconcileable with ownership with all its entitlements which was at the core of the concept property in our law of things) and then freedom as one of the foundational values of the Constitution. I wish I could have heard the boomkoppe case Pierre referred to, being argued. I wonder whether they touched on dagga as property….
Anyway, I am conflating whether one has in principle the right to own the things called guns with the specific effects of the Act which I should not have for purposes of this point… It is difficult not too. But you are right – you said you could not address the Act specifically. I accept the caution in Currie about internal qualifiers.
Then, you say the Zoo Keeper is making the mistake of applying the two stage enquiry that is used under S36 to S25 where it is excluded because of the internal qualifiers…
But, see, Michael, by first asking whether there is a right under S25 to own property (which is moot, anyway, because S25 is a constraint not to deprive) you are yourself applying the first half of the first stage of the S36 enquiry.
Perhaps we should be looking at interpreting the right to acquire property like the 9th Amendment to the US Constitution?
All adjudications are final, no correspondence will be entered into.
As previously decided, this debate is over and the winner has been announced.
(Whatever comments followed that decree is simply gaseous regurgitation from the losing parties and good natured, humble humouring from the winning party)
Brett, I fear your distinction between prohibition upon acquisition on the one hand, and deprivation – in the sense of expropriation – does not assist your cause much, insofar as we are talking about restrictions upon the possession of firearms.
A government’s power to deprive you of ownership – in the sense to taking away what you already have – necessarily embraces the right to preclude you from acquiring it the first place.
To illustrate: the right to acquire a weapon is of little use to you if the government has the right immediately to take it away, viz confiscate it as you walk out of the gun shop.
In fact, deprivation is arguably constitutes a greater burden upon the right to property than the banning of initial acquisition, since, once one has a gun in one’s possession, one arguably has a vested right therein.
Brett, please answer my little quiz as posted last time around. Don’t worry. This is not a trap. I would just like to test whether you are prepared to push the matter as far as you comrade ZK.
Can I split hairs first? Conceptual clarity, understand the definitions we are agreeing on and all that?
What is a high-powered rifle?
Brett, OK, forget high power rifles.
Let us settle for the question of whether you would support a ban on the private possession of:
(a) A 7.62 Bren.
(b) A .50 Browning.
(I might add that I have some personal familiarity with both of these weapons, from my glorious youth with 6 SAI in Ovamboland.)
Michael, you need to step back and rethink this issue. You are moving further away from the light. Compensation is mandatory under S25. That would exclude potential, future, acquisitions, surely?
You also state “insofar as we are talking about restrictions upon the possession of firearms”. Clearly, the fact that we are talking about guns is a distraction. Talk ‘property’ in general.
I would like to answer your checklist.
I would like to know, first, how what why ‘high-powered rifle’. What are the criteria? Emotive? Velocity? Do you mean my 9,3×64 or my .375? My beloved 6,5s which can really be made to move? .22centrefires which use the same bullets as AKMs or R4s?
I would love a Brengun! Please Please Please!
Why not a .50 Browning? (At least, that is what the Pretoria High Court said in Lazarides?)
I know an old lady who offered me an armoured car (she offered me a whole blackpowder Africana collection at the same time.)
Her late husband’s collection.
Do you really regard that nice old lady who has spent her entire life collecting beautiful icons of SA as a villain? And, you have not addressed the ‘innocent’ howitzers and Tanks outside Moth Halls?
Nerve gas and nukes? Dunno. Can one like, control the blast, like a shaped charge? If I aim one, at, say, for arguments sake only, UCT? (My cousin lives in CT and I am quite attached to Glenda…Would hate to vapourise her!)
Brett:
1. Just to be clear: I am not actually offering you a Bren as such. Just asking whether you would have any problem with a ban on private possession thereof.
2. Please also answer my questions re artillery, nerve gas, nukes, etc. What I am looking for, of course, is for you to articulate a principle under which you would draw the line on private possession. (Unless he corrects me on this point I take it the ZK’s position is that the govt may not ban private possession of any of these “provided they can be safely stored.” This is a position so facially absurd that I decline to argue against it.)
3. I do not follow your fourth sentence. (“That would exclude …) Is there a missing negative here?
4. You want to talk about property in general. OK. A ban on the possession of cocaine (viz, allowing confiscation thereof), must necessarily include the right of the govt to prohibit the acquisition (and sale), thereof. (A familiar principle in law: the greater power includes the lesser.) Or, to take another example. The prohibition on the possession of child porn is, so far as I know, nearly universal.
5. Another example: If the govt is constitutionally empowered to confiscate, it is by necessarily implication also empowered to prohibit the acquisition and sale of child porn. So, it would hardly help to argue that, although the govt arguably may preclude you from possessing child porn, the govt may not stop you acquiring it in the first place.
Michael Osborne says:
July 15, 2010 at 22:15 pm
“A government’s power to deprive you of ownership – in the sense to taking away what you already have – necessarily embraces the right to preclude you from acquiring it the first place.”
Well, you’re drifting further away from S25. Compensation is mandatory under S25 – which is a constraint not to deprive. If payment of compensation is mandatory under S25 how do you reconcile the right to preclude the acquisition of property (as part of the power to deprive under S36) with the duty to pay compensation under S36?
It is far more consistent to read the freedom to acquire property with freedom as one of our foundational values, S25 and S39(3), and the equal protections clause….
Did anyone ask for arbitration?
To nail my colours to the mast, Michael:
Yes, I believe people should have the right to own artillery, nerve gas, nukes, etc! If you do not like it justify the limitation, or resort to the protection of the law of neighbours.
Yes, I should be allowed to own an AK or a Bren. (It was pretty unayoba to offer me a Bren with your fingers crossed behind your back, btw!)
As an aside – if anyone has one I am looking for the trigger assembly of a BSA Airsporter Mk1, circa 1950 – 1954.
Yes, if some idiot insists on sending that sh1t up his nose he should be allowed to own cocaine. Having a rights culture is not for sissies, you know! As Lord Atkin said in Liversedge: Freedom is a timerous thing!
And, if some sick FAH wants to own pics of children being perverted I say the principle of the WE being allowed to own any kind of property WE want outweighs the utility of a couple of convictions every year where said sickos are caught with the photographic evidence of their crimes in their possession. How nice for a prosecutor! The perpetrator has filmed the crime and you get your hands on it! Where are the cops during your little scenario, Michael? Why aren’t they doing their jobs? Getting their fingers out? Enforcing the sexual offences statutes?
I have to accept the principle of my liberties being infringed with little justification in legislation because the politicians and cops cannot or will not do their jobs?
Man, I’m gatvol of that!
Michael Osborne says:
July 15, 2010 at 23:09 pm
Hey Michael,
Brett’s gone bonkers.
That aside he seems to making two points. Firstly the right to own guns to defend himself against, as he calls it, the “godless, shameless ANC” – that’s a lost cause.
Secondly, if the state now wants to take those thingies away from our resident Lone Ranger, it (the state) should pay for that – that sounds reasonable. Consider the taxi recap – the state pays for the death traps that are taken off the road under that programme.
Brett is right.
In my experience, there is no better way to induce convulsion, paralysis, and then death, in a traffic policeman who arbitrarily pulls me over, than a short, sharp, spray of nerve gas.
As for nuclear weapons, I have no need of a bomb right now. But I am building a small reactor in my basement – just to heat my pool. Brett: will your organisation help me resist the nanny-state communists in the local council who insist that zoning laws do not allow private nuclear power startions in built-up areas?
Maggs, my argument with Brett and ZK has never been about whether compensation should be paid for confiscated firearms. As to that, your analogy with deathtrap taxis is a good one. I have no problem with compensation being paid for anything confiscated by the state — if the possession had hitheto been lawful.
No, the real argument is whether the state may prohibit possession of firearms (which necessarily also entails a ban on acquisition.)
Brett, as it happens, I do have 2 (two) trigger mechanisms for a BSA Airsporter Mk1 (1952), in my kitchen drawer.
Tell you what: I will trade them both for the rear decondensation filter for the Excocet missile (circ 1982), that I am rebuilding for my friend’s 50th in September. Can you get me one?
Many, many thanks!
@ The Big Dwork,
LOL!
@ Michael,
Let’s extend the thinking on the compensation bit.
Suppose we eventually get around to a sensible policy on end-of-life vehicles like is done in the EU – that presupposes that the vehicle manufacturers are responsible for final disposal but it does mean that the last owner has to be ‘deprived” of the property.
In that case should the state compensate the last owner (it’s not done in the EU as far as I know)?
Michael
So you agree there is no express text in S25 which provides the meaning you ascribe to it?
In this case you’re stretching S25 too far and going beyond the principles of interpretation of legislation. You do not guess what should be there you only apply what is there (in a nutshell).
If you want to limit the ownership of a thing, that limitation has to happen under S36, which brings it back to the point of the limitation being justified not the ownership.
You cannot read in implied sections into legislation. You may not go beyond the wording to include things or meanings which are not there: this is not a contract with a missing term that can be tacitly read in.
S25 protects and / or regulates deprivation of property, meaning property first has to be in a citizen’s possession before it can be deprived. To argue that it has an inherent limitation against original acquisition does not make sense in the face of the wording of the section.
That would have to be expressed clearly in the section to be a valid argument.
S36 limits rights in the BOR.
If you want to limit, you still have to justify the limitation under S36.
So you start from the proposition that anyone can go out and buy a nuke. Then you use S36 to say why Citizen X cannot buy his nuke – not S25.
So Michael, Brett wants his .50 Browing. Why can’t he have one?
Thank you, Dworky, I am not into radio control modelling, but I would be grateful if you would take cash. I’d like to get my pellet gun working again.
BTW, I must say the death penalty for asking for Kentucky-money is a bit OTT!
(You see, in the spirit of the new reapproachment between us I am not making sarcy comments about you being too much under the influence of what you read about MOSSAD….)
Maggs, before I accuse you of an Ivory Tower mentality, pray tell, what would ‘a sensible policy on end-of-life vehicles’ be?
This being a country where what everyone else thinks belongs in a scrapyard means a hand-up out of grinding poverty for a rural family who can now get their tomatoes to an intersection near a highway?
Damn! I fell for it. Another Maggs misdirection in the face of an argument on principle being lost by his side.
Maggs, I have the right to own property. The onus is on the state to justify any limitation, and keep any limitation to my right as narrow as possible, not so?
Dworky
I might need some plutonium to power up the weather machine in my garage.
I expect to be able to induce a southern hemisphere spring in early September. Unfortunately, it wll have the effect to forcing the northern hemisphere into autumn and then winter. Better stay in the south after September.
@ ZK
1. You do not appear to accept Brett’s concession that s. 25(1) contains an internal limitation provision. (Or do you?)
2. You are just flatly wrong when you say that you “cannot read in implied sections into legislation.” Read any book on statutory interpretation.
Michael
No I don’t accept that S25 has an inherent limitation on the right to acquire ownership of a thing at all.
If you read implied sections into an act of parliament the courts will become legislating bodies and that is not their function at all. It is fundamentally opposed to the clearl doctrine of separation of powers in the SA Const. and that principle of interpretation insofar as it exists must fall away as it is in of itself a violation of consitutional principles.
See this principle of interpretation: each and every word in an act of parliament is deliberately placed there and each and every omission of a word is deliberate. From there the courts must interpret the meaning of the section, they cannot add to or delete any word of a section – that is legislating whihc is why when an act is found to have problems the act is returned back to parliament to be amended. In the interim the offensive provisions are unenforceable. But the change in wording has to originate from parliament, not the court.
Section 25 does not, anywhere, allow the State to limit the ability to acquire a thing. The limitation has to occur through S36.
If you want to limit – you have to justify the limitation.
Please tell me why Brett can’t buy a Browning .50?
Brett
What did the High Court say in Lazarides?
Brett Nortje says:
July 16, 2010 at 10:55 am
“This being a country where what everyone else thinks belongs in a scrapyard means a hand-up out of grinding poverty for a rural family who can now get their tomatoes to an intersection near a highway?”
hahahaha – Brett, you have really gone nuts.
And delusional too, if you think that you have made any convincing arguments.
But you are correct that if the state wants to limit or take away an existing right, they sure have to justify that – although in your case for the reasons you have given to have guns, it won’t be very hard for the state.
In addition to all the crap you posted here, if I recall correctly, you are on record as having said a while back, that little children should be allowed to have guns or thereabouts.
Maggs, having thought it over, I am convinced that Brett is right in saying that kids should, where possible, be introduced to firearms as early as possible. There is no reasom why a child as young as four of five cannot learn basic ballistics. Indeed, the reason one hears of tragic accidents involving children is because they have not received proper safety and marksmanship training early on.
Hey Dwork,
That will make play areas very safe for kids – nobody will mess with well trained and armed little snipers.
Now here’s another interesting insight from Brett :
“And, if some sick FAH wants to own pics of children being perverted I say the principle of the WE being allowed to own any kind of property WE want outweighs the utility of a couple of convictions every year where said sickos are caught with the photographic evidence of their crimes in their possession.”
Dworky has a point Maggs
The more a kid knows the better. Educate, educate, educate.
If its a forbidden mystery then any normal kid is going to explore the thing – with potentially disasterous consequences.
It is a bit counter-intuitive for the anti-gun brigade to accept but it is a fact of life.
@ Maggs
“But you are correct that if the state wants to limit or take away an existing right, they sure have to justify that – although in your case for the reasons you have given to have guns, it won’t be very hard for the state.”
Maggs, you have unhelpfully undermined a concession that I dragged out of Brett only after many agonising hours. There is simply no “existing right” to own a gun that is not subject to a law of general application. See s. 25(1). There is, however, a right not to have your gun expropriated except for a public purpose or in the public interest, and to obtain compensation therefore. (S.25 (2).) Now it may well be that the Bill that Brett and ZK are complaining about falls foul of s. 25(2). But that is not what we have been debating.
In any event, from their position on Bren guns and nerve gas and nuke and heroin, it is clear that Brett and ZK are ideologically libertarian. Their problem is that the SA Constiution simply is not a libertarian document — and I would challenge them to name one constitutional theorist or political scientist who says that it is.
Libertarians and classical liberals may have sought to draw some support from s. 12 (“freedom and security of the person.”) But I am not sure how they would deal with the awkward fact that the majority of the CC expressly rejected Ackermann J’s classical liberal interpretation of s. 12 in Ferreira v. Levine 1996 (1) SA 984.
Alas, Michael, you are right: This flawed Constitution is not a libertarian document. It still beats the hell out of not having a Constitution and not living in a Rechtstaat.
That is the only instance where you are right: Please explain where Brett conceded that s. 25(1) contains an internal limitation provision? I argued that S25 contained internal qualifiers that made application of S36 to S25 untenable, didn’t I?
Zoo Keeper: Very interesting reading.
http://www.saflii.org/za/cases/ZAGPHC/2007/155.html
Maggs, you bonehead: Is it news to you that the mobility provided by having transport can uplift one out of poverty? Never given it a thought? Why would you want to put that kind of mobility outside the reach of the poor?
@ Brett
Yes, Brett, the term “internal limitation” is just another way of stating “internal qualifier.” And you are right, it makes ZK’s insistence that s. 25(1) be tested against s. 36 dubious.
@ ZK
I hate to pull this one, but have you actually studied constitutional interpretation? If you had, you would know that the “plain meaning” interpretative methodology of the Const. that you seem to advance has been universally rejected. Anyway, as a libertarian, I do not think you should be too eager to reject the possibility of implying rights into the constitution that are not expressly stated therein.
Michael Osborne says:
July 16, 2010 at 16:36 pm
“There is simply no ‘existing right’ to own a gun that is not subject to a law of general application.”
Accepted and oops!
Brett Nortje says:
July 16, 2010 at 16:51 pm
Hey dunce,
“Is it news to you that the mobility provided by having transport can uplift one out of poverty? Never given it a thought? Why would you want to put that kind of mobility outside the reach of the poor?”
What are you going on about?
Help! Help! Is there a cartoonist on the blog?
We need to help Maggs understand the implications of what he is saying….
Maggs, at the very bottom of the motoring-market are the very poor, who can only afford the oldest, cheapest, worst discards. End-of-life to me and you, but not to them!
You understand?
If one of those families can get their hands on a 1970′s era Datsun bakkie, with the money they have collectively put by out of pensions, grants, migrant labour and piece-jobs, they might actually be able to get more tomatoes than they can usually carry in two hands, on back and head, to the nearest busy crossroads.
Still with me?
That 1970′s era Datsun bakkie might provide a family with the first meaningful income – independent of the state – that it has had, while it lasts. You want to scrap it? (Presumably you are thinking of branching out into the motor trade and want a captive new-vehicle market…)
The same point can be made with firewood (although I hate the idea of the bushveld being destroyed for saleable combretum mbebe) or mielies. Or compost. Or, as a contractor – for paint jobs.
Really, Maggs! Do switch on that organ between your ears!
Maggs Naidu – maggsnaidu@hotmail.com says:
July 16, 2010 at 10:22 am
Suppose we eventually get around to a sensible policy on end-of-life vehicles like is done in the EU – that presupposes that the vehicle manufacturers are responsible for final disposal but it does mean that the last owner has to be ‘deprived” of the property.
Brett Nortje says:
July 16, 2010 at 18:30 pm
Ok – I withdraw dunce.
Hey DONKEY,
Which part of “suppose” and/or “sensible” is difficult for you to get?
Anyway, here’s the EU policy link – read it sometimes http://www.europarl.europa.eu/comparl/envi/…/end_of_life_vehicles.pdf
It’s written in there in bold in the preamble – Brett is a twit!
@ Maggs and Brett:
Any chance you two will quit this name-calling buffoonery (“twit,” “donkey,” “bonehead”)?
Follow Dwork’s example. He is obviously a raving idiot. But at least he is consistently polite to everyone, and freely acknowledges when they are right.
Thanks.
Somewhat off the point, but relevant to FCA, the Black Gun Owners intend to sue the Govt.
http://www.newstime.co.za/SouthAfrica/Black_Gun_Owners_outrage_over_job_losses_catalyst_for_suing_Government/7813/
@Michael I agree that it would be “nice” if we stopped trading insults. Surely we can disagree/debate without behaving like clowns?
Zoo and Brett are right.
A friend in Zagreb started teaching his little boy basic ballistics almost as soon as he could walk.
Now, at only 11, he is a keen amateur demolitionist!
Thanks.
Actually, Eagleowl, one sometimes has to tailor the message to fit the audience. There are people who visit this blog who had to be bludgeoned into accepting that people with whom they have root philosophical differences have recourse to the protection of the Constitution as well.
Very few are actually interested in constitutional subjects – some are here to make a political point or two and some to provide comic relief.
So, Michael, we are in agreement then that there are so many internal qualifiers in S 25 which limit the power to deprive and that the power and circumstances under which someone can be deprived of property are so narrowly circumscribed that there is very limited under S25 to deprive anyone of property?
S25 Property
o No one may be deprived of property except in terms of law of general application
o no law may permit arbitrary deprivation of property
o Property may be expropriated only in terms of law of general application in the public interest or for a public purpose
o subject to compensation
o The amount of the compensation and the time and manner of payment must be just and equitable
o For the purposes of this section the public interest includes the nation’s commitment to land reform
o property is not limited to land.
o A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
Dworky, I have a dog born in Rijeka, Croatia. Shall I compose an ode to him too?
@ General Brett ala Rey,
I see the fraternal troops have begun to mobilise in support of their beloved one – so I will refrain from saying how smart I think you are (up to a limit that is).
I shall now consider you the Lionheart – something about your comments makes me think of you as Richard, the short version of course.
Brett, I have three questions:
1. Does that Croatian doggy of you work with munitions?
2. Has he ever shot at you?
3. Is 12 too young to let my son – who is already a staunch libertarian, and a great fan of Ayn Rand –take his hand grenade to school?
brett shrieks:
“…means a hand-up out of grinding poverty for a rural family who can now get their tomatoes to an intersection near a highway…”
brett,
this article was initially about the plight of the poor
that you have again highjacked an entire thread in order to bellow you obsession with guns, speaks volumes on your particular brand of libertarianism
for you to, now, feign an interest in the lot of the poor displays an absurd level of hypocrisy (much like the majority of the ruling elite)
one can only hope that you (and they) will one day realise that the plight of the poor is not to be used as cannon-fodder
Blah blah blah, Etienne!
Have you worked out yet what the origin of the name ‘Makhaza’ was? Where it was borrowed from?
Wrt end-of-life vehicles: Was I wrong?
Mikhail Dworkin Fassbinder says:
July 17, 2010 at 15:21 pm
Aw Dwork,
Play fair now.
When Brett said “I have a dog born in Rijeka, Croatia” it was probably the result of Brett being on holiday in Croatia at the time – so spare him having to provide more details in public.
Morning Michael
This has been fun hasn’t it?
I’m arguing that an interpretation cannot insert words into an act of parliament to create a meaning or even a new section or power of the executive. If it has been universally rejected then I’m afraid that is plainly the incorrect approach because it seeks to amend an act by interpretation and that violates the principle of the separation of powers.
Perhaps that point has never been put to the CC before?
To be perfectly honest I don’t believe our CC judges are the best judges about, they have made some serious errors before. We still don’t have an Innes or a Corbett on the benches I’m afraid.
My proposition is that S25 has no internal limitation. Laws of general application that limit a citizen’s rights have to find their feet through S36 – so the law which regulates gun ownership (and nukes and nerve gas gas and other glib examples) finds its authority in S36, not in S25.
That our Const. is not libertarian is another point for another day and I must admit I am disappointed that it is not. One would have thought that the freedom of the individual would have been paramount in the minds of the drafters after the Apartheid experience.
This argument started out as being based on gun ownership and I expanded it to any type of ownership of any thing.
The FCA as I read it is legislation straight out of Apartheid. No wonder the SAPS think it is a magnificent piece of legislation! Perhaps you should give it a read?
Brett
I see the Hunters’ association appear to have gone for the co-operation model (again) and left the court action pending.
Is this correct?
IMHO the Hunters know that their members will be absolutely disgusted if they sell out this country’s gun owners again. They are probably doing the responsible thing – to try and resolve the issues in dispute between the parties so as not to waste the Court’s time.
Reading between the lines, those pathological liars in the SAPS are trying as hard as they can to avoid letting this thing end up in a court while trying to BS their Minister about the reality of their situation. Difficult juggling act. Mthethwa should be trying to avoid going down the same route as Nqakula. The careerist bureaucracy is the problem. They lied merrily to the Portfolio Committee (which has done a shocking job of Parliamentary oversight anyway.)
In what other country would licence renewals be 5 years behind?
Sooner or later Mthethwa is going to have to bite the bullet and do what any responsible member of Cabinet would have done on walking into the job – tell the Auditor-genl to get his finger out and do a forensic audit of the implementation of the FCA.
Notable quote I stole from Liberator Online:
From 1976:
“Our ultimate goal — total control of handguns in the United States — is going to take time. My estimate is seven to ten years. The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors-totally illegal.”
– Pete Shields, July 1976, President of National Coalition to Control Handguns (which later became Handgun Control Inc. and then the Brady Campaign).
Now, from 2010:
“It is settled law. If I were taking a law school exam today, I would say, yes, you have got an individual right to have a gun in your home for self-defense.”
– Paul Helmke, President of the Brady Campaign, June 28, 2010.
Brett
No way.
They are not doing the responsible thing as far as their members could possibly be concerned.
Their court application has the SAPS and the State on the rack. There would be no negotiation or anything if the SAPS or the State was confident of anything in their papers. Its a slam-dunk win for the hunters and massive defeat, embarrassment and financial cost for the State and SAPS. The entire FCA edifice could be brought to its knees as you want it to.
But that’s not going to happen now.
Instead of putting the boot in and forcing the issue, they’ve gone for another dose of the slow poison again. This committee (dominated by SAPS) is going to do its best to do nothing concrete for the next couple of years.
Do you have to drop 100 IQ points before joining that hunter organisation’s exco?
Looks like the owners are going to have to back the black gun owners’ class action suit – another 4-5 years of lost momentum and financial loss for industry players. It will also take that long because the black gun owners case would have been unimaginably bolstered by a win by the hunters.
It goes back to my first point on this issue – the reaction of the gun-owning fraternity, when faced with such a piece of legislation, abuse of rights and unlawful arrest and dispossession of property has been pathetic. I can’t think of another word for it I’m afraid.
Brett is right.
That is why I am renewing my demand that it be made mandatory for every adult South African to carry a gun on his person when he enters a public open space.
Only then will the the promise of the Freedom Charter “There shall be Peace and Friendship” be vindicated.
This may seem paradoxical. But the paradox dissolve if we appreciate that:
1. “If you want peace, prepare for war.”
2. “The price of liberty is eternal vigilance.”
I agree 100%, Dworky!
Si vis pacem, para bellum.
Were it not for my libertarian views I would advocate that gun ownership should be mandatory. As it is I believe pressure should be put on every single person who does not have a criminal record to own a firearm.
Have you subscribed Dworky Jnr to Liberator Online yet? Done the other homework I gave you?
Zoo Keeper, the compensation case is probably going to make it to the ConCourt first. The Big Show. Why alienate the other guys when they should be amicus curiae? I agree that the Hunters have a slam dunk and that the SAPS are there simply to fillibuster, but I think the Hunters are doing the responsible thing. I also believe this Minister is light-years ahead of his predecessors where competence, insight, basically managerial skills are concerned and he may be bona fide in his search for a solution. He simply has to swallow the bitter pill that any other head of a state department would have asked for an audit ages ago.
The BGOASA case addresses the tip of the iceberg. 800 gunshops forced to close down by simple feat of bureaucratic stonewalling, a de facto unlawful gun ban, dragging feet when issuing licences, keep those people waiting years between the sale of a gun and granting a licence – the gap between ownership and possession. That works out to R4M per gunshop with 8 to 10 employees. Not much per capita. I know of gunshop owners who tried cashing in their retirement annuities to try stay afloat. Kids who had to drop out of university.
The cheapest handguns sell for R2000. You’re not going to have change from R10 000 for a hunting rifle.
See why I say this is going to outgrow the Arms Deal?
Brett
It would be responsible if the hunters had finished the application or if they were to postpone they had used their powerful bargaining position to force a civilian majority on the review commission including reps of all the various owners organisations.
They messed up big time there.
They are stunningly naive.
The problem is time. An urgent solution was necessary and this prime opportunity has been suspended indefinitely.
It looks like our friend RW scored an own goal.
http://www.thedailymaverick.co.za/article/2010-07-22-rw-johnson-shames-himself-disgraces-london-review-of-books
Gwebe
had a look – talk making a mountain out of a molehill. Ridiculous reaction. This RWJ dude was quite clearly talking about two very different things.
Mikhail Dworkin Fassbinder says:
July 23, 2010 at 10:14 am
Hey Dwork,
“That is why I am renewing my demand that it be made mandatory for every adult South African to carry a gun on his person when he enters a public open space.”
Do you think, now that the topic is current, that a victim of “assisted suicide”, would be “assisted” if he carried a gun (a big one say a Magnum like in the movies or a small nuke)?
Cool Dworky idea, wouldn’t you say, Maggs?
If everyone carried guns in public the deterrent effect on crime would be even more pronounced than that of 1 million black South Africans getting registered handguns and the homicide rate would decline even more sharply.
Everyone carries guns + more good guys than bad guys = simple math!
FYI, a ‘Magnum’ cartridge simply has an added ‘belt’ around the ‘base’ of the brass ‘case’. This reinforcement allows the cartridge to headspace on the belt not the shoulder of the case.
Self-loading of such a belted case becomes very complicated which makes the use of a firearm using ‘Magnum’ cartridges in the Kebble murder improbable (although, obviously, it is not impossible that this is what caused the problems Schultz complained of).
Tell us more about the INSTRUMENT USED by the murderer? Since we have actual humans on trial for murder it seems unlikely that the murder instrument had little hands, went around on little feet, and activated itself?
Brett
I watched an interview with the forensics. They said the weapon used was an underpowered 9mm and not a magnum.
The underpowered weapon is designed to stop inside and not exit and wound a bystander.
Maybe he was nervous and just forgot the safety catch?
Brett Nortje says:
July 27, 2010 at 10:19 am
Ok, ok.
All that sounds interesting, but why did the car get stuck?
Ammunition is often downloaded for use with a silencer (defeats the object of suppressing the muzzle-blast just to have the bullet break the sound barrier).
Problem with subsonic downloaded ammunition is, once the first shot has been fired, it will often not cycle a self-loading firearm (that is, blow back the cocking piece or slide, strip a cartridge off the magazine and go back into battery.)
Maggs, tell me you at least have an airgun?
Brett
I believe the weapon has to be adjusted to suit the ammo as you say. Its a specialised piece.
It would be interesting to know what make the pistol is. I would be very sceptical about everything Schulz says.
Brett
You’d have to ask the forensics dude from the TV – his name will come up shortly when he has to testify. It is a specialist piece fairly commonly used in the security industry from what I could gather.
Afterall, the security guard wouldn’t want his round to exit his target and hit his boss! I suppose we’ll find out in due course as this trial goes on.
I hope one of the prosecutors knows guns.
See why I say world-wide the pedulum has swung? Gun control was an idea f or which the time had come – now it has gone because the idea was found wanting.
Irish gun owners can now shoot intruders
http://www.irishcentral.com/news/Irish-gun-owners-can-now-shoot-intruders–98813794.html
Irish gun owners can now shoot intruders
New bill is welcomed by police, rural groups
By JAMES O’BRIEN, IrishCentral.com Staff Writer
Published Tuesday, July 20, 2010, 5:51 AMUpdated Tuesday, July 20, 2010, 10:26 AM
Irish homeowners can now legally use guns to defend themselves if their homes are attacked under new legislation.
The new home defense bill has moved the balance of rights back to the house owner if his home is broken into “where it should always have been”, say top Irish police.
The police association of superintendents and inspectors, the AGSI, stated that “the current situation, which legally demands a house owner retreat from an intruder, was intolerable”.
The new bill was published by Justice Minister Dermot Ahern yesterday. Under the bill homeowners will be allowed to use “reasonable” force against intruders to defend themselves, others or their property. This includes lethal force, depending on the circumstances.
Justice Minister Dermot Ahern stated that house owners could use guns in self-defense, especially if the intruders were armed but said it would ultimately be a matter for the courts to resolve.
The bill also clarifies that a house owner will not be required to retreat from an intruder. and that intruders injured as a result of reasonable force won’t be able to sue the house owner.
“The bill is welcomed because it aims to clarify the entitlements of a homeowner when faced with the situation where an uninvited intruder has entered the home,” AGSI vice-president Dan Hanley told the Irish Examiner.
“The bill aims to shift the balance of rights back to the homeowner where it should always have been. It is intolerable a homeowner should be compelled to retreat in front of an intruder who has entered the home and who may have malign intentions towards the homeowner, the family or the home owner’s property.”
Hanley added: “It is ridiculous to suggest the bill, which attempts to redress a serious legal imbalance, would provide a license to kill or a `have-a-go’ charter for homeowners, the vast majority of whom will continue to act with good sense and in a peaceful way.”
Minister Ahern also dismissed the suggestion the bill was a “license to kill”. He stated it merely allowed for lethal force provided it was justifiable.
Rural Link, the national network of community groups in rural Ireland welcomed the bill, saying it was “sensible legislation giving much needed clarity to homeowners on their rights when confronted by intruders”.
The Irish Council for Civil Liberties however, stated it would inspect the bill to establish that it was “human-rights compliant”.
The need for new legislation became evident after an intruder, John Ward, was shot dead while on the land and dwelling area of Mayo farmer, Pádraig Nally.
Nally was convicted of manslaughter, but his conviction was later overturned after a public outcry.
Burglaries in Ireland increased from 23,600 in 2007 to 26,800 in 2009. Violent burglaries rose from 255 to 363 in the same period.
South Africa’s courts are starting to get gatvol of the Central Firearms Register.
Judge Bam’s remarks are quoted by Martin Hood in the August
Magnum (p34):
“I have read the decision by Prinsloo J. It is clear from his
remarks that he was very much perturbed by the unexplained
reasons for the delay in issue or considering applications for
licences in the offices of the [CFR]. To say the least I am
amazed that applications for licences were delayed….for periods
of time up to two years. No reasonable explanation for the said
delays was released by the [CFR] in this regard. To my mind these
delays are totally unacceptable.
The judge went on to state:
“This case before me is but one in a series of cases in which the
courts of this division have made findings and passed remarks in
that regard criticizing the situation. However the continuing
situation has apparently not been satisfactorily addressed.”
Brett
The SAPS and CFR aren’t going to budge no matter what the courts state in obiter.
You guys need to sort out your strategy. Trying to play ball has not worked. Your organisations have to take a stand sometime. The hunters messed up by playing ball and losing valuable time.
Seems like the organisation out there with the biggest set of nuts is the black gun owners association. Certainly, they’re not taking the appeasement approach!
A perfect applicant does not exist, use one of your many, many examples and go on the offensive for real.
http://www.news24.com/SouthAfrica/News/Gun-owner-wants-Cele-jailed-20100805
Gun owner wants Cele jailed
2010-08-05 23:26
Sonja Carstens, Beeld
Pretoria – A business consultant is asking the North Gauteng High Court to send national police commissioner Bheki Cele, to prison for 30 days, for the alleged disregard of a court order to make a decision about his firearm licence.
Nicolaas Korb, from Irene, Centurion, alleges in court papers that the registrar of firearms and Cele were “purposely or alternatively grossly negligent” by not abiding by a court order issued by Judge Natvarial Ranchod on March 2.
According to court documents, Cele is the registrar. The summons was served on the registrar’s office on March 10.
Ranchod ordered that the registrar has a further month’s grace period to consider Korb’s application for a licence for a .22 rifle.
This means Korb should have been informed before or on April 10 whether his application had been successful or not – four years after it was submitted.
According to the documents, Sylvia Khumalo of the central firearm register’s call centre on Wednesday confirmed to George Nell, Korb’s legal representative, that his licence has not yet been approved.
According to Korb he did everything within his power to bring the summons under the attention of the registrar as well as Cele, but there was still “a refusal and/or failure” to comply with a “simple order”.
The court documents state he initially applied for the licence on December 14 2005 at the Lyttleton police station.
Start all over
When he checked in middle-2006, he was told he hadn’t paid the necessary fees. According to Korb he has since repeatedly submitted copies of receipts with the police.
On June 21 2007 Christel Viljoen told Korb they couldn’t find any evidence of his payment, and that he had to follow the process from the beginning again.
He refused to do so and asked Nell to at least take up the matter with the minister.
According to court documents a letter was served to the registrar of firearms by hand on September 11 last year, in which he is told to give Korb’s application final consideration.
Nell also served the letter on the office of the minister of police on September 25 last year.
In a last-ditch attempt to get “the necessary reaction”, Korb sent the sheriff with a copy of the court order to serve on Jaco Bothma, head of the central firearm register.
The case was also repeatedly discussed with Jenny Irish-Qhobosheane, secretary of police.
A copy of the court order was handed over on June 24 to a task team which was to investigate problems with the execution of the Firearms Act and which Nell was invited to address.
According to Korb, he was under the impression that his case would be taken up by Nathi Mthethwa, minister of police, to prevent “possible embarrassment” for the minister and the chief of police.
“Even this attempt, has not produced a positive reaction yet,” according to Korb’s statement.
Brett
What happened there? I’ll bet he got his licence in a few hours and the case has been dropped.
Nothing yet. I agree, they’ll try to settle this on the QT. The media have a short attention span and are pretty stupid anyway so I doubt they’ll cover the outcome.
The important thing, though, is that people like Judges Bam and Prinsloo would have seen the article and gritted their teeth.
Well done to the DA on this.
And to those who attacked the HRC and or anyone/thing “attackable” in defense of the indefensible – eish!
The city of Cape Town is to launch an investigation to find out which official was responsible for agreeing to building toilets without enclosures in Makhaza, with one councillor calling for disciplinary steps to be taken against the official.
City manager Achmat Ebrahim has ordered his officials to investigate after receiving a complaint from mayoral committee member for social development Grant Pascoe.
“In January this year, the perceived failure by the city to build the enclosures was widely reported in the media, and is reportedly being investigated by the SAHRC (South African Human Rights Commission).
“It has come to my attention that the city’s decision to build toilets without proper enclosures was unlawful,” Pascoe said.
He quoted Section 9, of the Water Services Act, which states that “the minimum standard for basic sanitation services is a toilet which is safe, reliable, environmentally sound, easy to keep clean, provides privacy and protection against the weather”.
“These actions have prejudiced the administration and are tantamount to negligence. It has brought the city into disrepute. I therefore request that an investigation into the decision and circumstances surrounding this decision be launched, followed by consequential disciplinary action.”
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100824050247218C659368
@ Maggs
Do they really need an investigation to identify the individual? What has been happening all along (may be rubbing fingures) ?
Gwebecimele says:
August 24, 2010 at 10:30 am
Hey Gwebs,
It’s interesting that for the first time the law, s.9 of the WSA, is quoted as having been violated.
Until this there was just mud slinging and more mud slinging.
All arguments given to us previously as to why it was done are rendered nonsense.
Maggs
If the legislation was actually violated then that is where the argument will lie. Pretty easy to measure up what ought to be provided, it anything is to be provided against what was provided.
One hopes the same courtesy will be extended to the ANC’s open open-toilet saga.
However, I feel in the WC someone will lose their job but in KwaZulu nothing will happen.
Brett
What happened with your hunting dudes and their idiotic appeasement policy to work with the SAPS?
Haven’t seen anything in the press so I assume its a lot of meetings going nowhere.
Yes, looks like we’re being kept out of the loop because we were rude enough to point that out.
I do not think that Gun Owners of SA’s submission – that the first, basic step has to be a forensic audit of implementation of the Act so we can see where we are and what can be salvaged, anything else being an exercise in futility – went down well…
Brett
Your organisation should launch an interdict forcing the audit.
Asking will get you nowhere. Ever.
You need to work backwards from your end goal to how you are going to get there and launch court applications apprpriately.
From reading your posts you have an established case and you are your own perfect applicant.
With the BGOSA summons for R3.2bn on the table, and interdict from you forcing an audit would dovetail with the BGOSA lawsuit and corner the CFR into revealing its purpose.
The purpose of the Act is to eliminate unlawful firearme ownership. If this is not the case, and from your posts it would seem strangling the firearm industry is the purpose, not unlawful ownership, having the entire Act set aside is in reach.
Call your lawyers, the BGOSA’s lawyers and have a brainstorm.
Your analysis is spot-on.
I have told our guys that several times.
The problem is funding, unfortunately. Our donors are ordinary working people (whom we look at like the widow with two pennies). We have to take one step at a time. The JASA compensation case comes first. We bully people regularly for donations. Praise the Lord for leading us to the principled world-class JASA team.
That is, looking at the issue of a forensic audit from our narrow self-interest only, leaving aside the huge public interest in knowing how many billions have been poured into the the FCA black hole because of the unprincipled activism of the gun free zealots.
So sad that no organisation or even corporation has defended our Constitution with the fervour that gun owners have.
Brett
Funding is always the Achilles Heel of litigation. Have you approached gun/ammo manufacturers for donations? The likes of Colt, Browning, S&W, CZ, SAKO, PMP, TCR, etc., etc., must surely have a few dollars lying around?
Even as a non-gunowner I know of these companies!
Litigation in SA is dirt cheap compared to USA or Europe. $100 000 or R850 000-odd isn’t much between a lot of big players. $5 000 or $10 000 each and all of a sudden you’re in the game big time.
You may even find US organisations like yours will stump up the cash in a heart-beat for you.
Open a trust account with reputable attorneys and give them access to full audits.
Even if you got $20 000-odd that’s plenty to get going and get the interdict for an audit in play while you get more funds. If you win you will get (if you ask of course) a costs order on the attorney and own client scale for unlawful activities – i.e. not complying with legislative prerogatives. I know as I have been party to such findings on cost orders. Even on appeal you will still be able to execute the costs order in the interim and use that to fund further litigation.
Worry about the rest of the cash from there and be aggressive on recovering your cost orders.
With success will come more donors as they see you mean business. Using the application procedure should see an order being granted in about 3 months so you will be able to display success relatively quickly.
If you try and build a war chest to fund litigation from start to finish before you start you’ll never ever get out of the starting blocks. Its a demoralising strategy as I’m sure you’re experiencing – its also self-destructive because you place too many barriers in front yourself.
Just take a deep breath, pin your ears back and go for it.
Check out how the SAPS and CFR panicked before the final hearing of the hunters’ case. They absolutely soiled themselves.
What do you think will happen when you get an order compelling an audit?
What do you think will happen to the whole system with with the BGOSA case brewing?
You might, just might, only have to go to court once…
Brett
Have you given my post some thought?
It looks like a very, very simple application:
1 Law says State must do X
2 State has not done X
3 State must do X
And that’s all you do for now. Don’t try and bring in the bigger issues just focus on the audit only.
Application affidavit should be about 10 pages of big typing. Probably cost you R50 000.00 to run maximum.
Look at it from a strategic point of view in tandem with the SA Hunters’ case and the BGOSA case and you can force your organisations into a powerful bargaining position. I would go for licencing people to own certain classes of firearm and then they can buy as many as they want, with each one just being registered to the owner – just like vehicles.
I have given your proposal a lot of thought. We’ve been looking at this issue for a long time. It has a lot of potential. (I’m not just saying that because I’ve proposed it before – the possibilities are huge.)
A simple straightforward Mandamus. Compelling the auditor-general to do his job. In and out. But, what happens when the state takes 10 months to file a defence on the merits? But wants to defend a 30A application?
We’re working on raising funds. The timing is almost right. I’ve also been toying with the idea that (given the window of opportunity that is a consequence of the police secretariat’s inquiry into the functioning of the Firearms Register and implementation of the FCA) that the Minister ought to be compelled to ask the auditorgen to audit implementation of his department’s Act not mess about asking the Secretariat to do the ‘audit’ (although, i.t.o. S 208 of the Constitution, that is exactly what they arfe there for, which, once again, shows how much better a manager Nathi Mthethwa is than his sorry predecessor).
Want to volunteer your services, Zoo Keeper? Its a good fight – a good cause – get in it?
Yup, a simple mandamus.
Even if the State takes its time on the defence I wouldn’t stress.
You must look at the bigger scheme of things. The BGOSA case must be a chronic headache for the SAPS. Can they afford the claimed R3.2bn? Can they afford the embarrassment of losing that case? Not a chance.
The Hunters were fools and I don’t see how I can change my mind on that, you never embrace the python back because it has agreed it might be a bit uncomfortable for you. But their app is as yet unresolved too and if it wasn;t for the predictable outcome, none of that would have occurred.
Two potentially catastrophic lawsuits are out there and the SAPS are not looking comfortable. You drop yours on the table and what room they had begins to close in.
Compensation amounting to billions, and unworkable system that cannot achieve it stated aim being threatened with exposure through an audit. If that is exposed the FCA could come crumbling down.
The central question is: How does registering a firearm reduce illegal firearms? For an illegal firearm to be registered it would be an act of self-incrimmination, ergo, no criminal would ever register and therefore the registry cannot achieve its aim. In the event this is true, the registry is over. Dead and buried.
Of more importance is that it gives you political muscle, especially through the BGOSA, to change the ball game entirely. And that is want you really, really must aim for.
You also need to get your point of view out there and compete with GFSA in the market place. They are well-funded but you have to take them on at their own game. I checked out all the research on both sides of the coin and, discounting the emotional quotient, the firearm proponents have the upper hand in the debate.
Perhaps you should approach POWA? Ask them to consider supporting the introduction of a law forcing women to carry concealed firearms for self-protection – use the example from the State of Florida. If they support you, they’ll make a proper noise!
Volunteering… hmmmmm. What’s your organisation? I’ll need to think about it, hours are very, very thin in the spare time.
Zoo Keeper, your advice has been really energising to all of us. We have been working on the ‘nice’ alternative one more time. Watch the media.
Hey Brett
I hope my advice is decent, but thanks for the compliment!
Just remember one of my first comments – there are a lot of groups seemingly trying to do the same thing however many are thrashing in the dark, expressing anger but without a gameplan.
You need to unite these groups somehow and use political muscle and media exposure. The BGOSA’s standpoint on the disarmament of black SA like Apartheid SA carries massive political and emotional clout. It is perhaps your greatest ally and must be used shamelessly.
You all want the same thing so you need to present a united front. If your various organisations can get united, you’re in with a chance.
Understand your end-goal: universal access to firearm ownership of the citizen’s choice in terms of type and quantity, and work backwards from there. Don’t let pride get in your way either (like not using foreign funds like GFSA), rather let the pride flow from winning the war, not minor battles.
Let me know your organisation and if I have a chance I might help out in some way.
I’ll be watching the media with interest.
Good luck.
Zoo Keeper, here is an article you’ll enjoy – from the NRA’s website:
http://www.nraila.org/legislation/read.aspx?id=6026
Déjà Vu, All Over Again: “More Guns, Less Crime”
Friday, September 17, 2010
Paul Helmke and Dennis Henigan — spokesmen for the beleaguered Brady Campaign these days — are old enough to know what a phonograph record is, so for their benefit we’ll put it this way: At the risk of sounding like a “broken record,” gun ownership has risen to an all-time high, and violent crime has fallen to a 35-year low. Coinciding with a surge in gun purchases that began shortly before the 2008 elections, violent crime decreased six percent between 2008 and 2009, according to the FBI. This included an eight percent decrease in murder and a nine percent decrease in robbery.
Since 1991, when total violent crime peaked, it has decreased 43 percent to a 35-year low. The murder rate, less than half what it was in 1980, is now at a 45-year low. Throughout, the number of guns that Americans own has risen by about four million a year, including record numbers of the two types of firearms that the Brady folks would most like to see banned — handguns and the various firearms they call “assault weapons.”
Predictions that increasing the number of guns would cause crime to increase have been proven profoundly lacking in clairvoyance. One of our favorite gems comes from the Brady outfit, when it was known as the National Council to Control Handguns: “There are now 40 million handguns. . . . the number could build to 100 million. . . . the consequences can be terrible to imagine,” the group warned in the mid-1970s.
“Terrible consequences” indeed, for gun control supporters. The number of handguns has reached almost 100 million; waiting periods, purchase permits, and prohibitions on carrying firearms for protection have been dismantled in state after state; gun ownership has soared; and violent crime has plummeted.
Interesting stuff.
You need to make this front page news – when can I see this on the front page of The Sowetan or The Times?
It must be on the front page.
This is where you will get your way.
Everyone is terrified of crime. If owning a firearm is proven to be a crime deterrent as the studies would appear to indicate – the public backing for your position will soar. People back gun restrictions because they think it will reduce crime.
If the opposite is true fickle Joe Public will be your greatest ally. Get this on the front page.
Brett
I may have had a light bulb moment last night.
We’ve been discussing symptoms not cause – you need to attack the cause directly.
(If you are launching the mandamus carry on with that, its part of the overall pressure plan.)
Talk to your sponsors and discuss with your lawyers doing a TAC on the GFSA.
Do you remember the TAC took that doctor to court to stop him vending vitamin pills as a cure for AIDS – Raath I think it was? The TAC won and he disappeared with his bunkum remedies – I haven’t heard of him again so it must have worked. It also placed massive political pressure on then Minister Manto and Mbeki as they exposed as fools for believing Raath. The AIDS denialism is now a famous Mbeki & Manto-beating instrument.
You should do the same with GFSA. If what GFSA is sprouting is utter rubbish and not backed up by any real factual evidence but rather an emotional reaction (and this does appear to be the case), and if what GFSA recommends threatens the security of people (as the studies appear to indicate), you may have a real right to approach the court and order them to desist from their actions.
This would be on application but it will be a long and expensive one. Massive amounts of evidence will need to be produced by your organisation to prove that what GFSA recommends is false.
It will be an expensive action because of the evidentiary burden and length of argument so you’ll need proper funding from the big boys. You’ll need to run senior and junior counsel too. Expect the first application process to cost in the region of above R1million. The appeals will add to that, but if you win and win costs, you can pursue those costs from GFSA and financially cripple their litigation.
If you win this type of court action, and you get a court order invalidating GFSA’s position as being factually unsound and deleterous of personal security you may get everything you want. The political arena will now be wide open.
The BGOSA case would be significantly bolstered and that could well lead to a political solution as the State and SAPS begin to stare down the barrel of an embarrassing defeat.
Take that to your organisations and especially your sponsors. I have no doubt they have tons and tons of evidence waiting for you.
Just remember to keep the question narrow – GFSA recommends disarming the law-abiding public to reduce gun-related crime and crime in general. Is this true or false?
The senior and junior will be able to find the essence better than I can.
It will also keep the question out of the ConCourt as it is not a constitutional matter. This means that the hippies on Constitutional Hill who believe everyone is a saint won’t hear the application, only the hardened judges of the High Courts who know more about real humanity.
Just take it long and slow – play Devil’s Advocate consistently and rip your own case to shreds before you launch.
Matthias Raath! That is a ‘Eureka’ moment….
Perhaps Helen Zille and Ms Khadalie were not just being paranoid in believing that the HRC is not altogether fair in their dealings. Considering how quickly they heard the complaint against the DA and their lackadaisical response to other complaints, one might be led to believe that complaints against the DA get dealt with far more quickly than complaints against the ANC.
Below is an article from Farming SA – October 2010:
“After six months, Agri SA is still awaiting a response from the Human Rights Commission on letters requesting a ruling relating to what Agri SA deems hate speech by the Minister of Human Settlements, Tokyo Sexwale, and the president of the ANC Youth League, Julius Malema. Sexwale made the following statement on SABC2 on 3 November 2009: “… people are kicked off farms by very, very evil farmers…”. On 28 January 2010 the Minister had the following to say at a portfolio committee meeting: “… many people who now find themselves in squatter camps are there because farmers have chased millions of blacks from their farms…”. The Minister was asked to provide Agri SA with information to substantiate these allegations, but no reaction was received from him.
On 9 March 2010, Malema sang the infamous song “Kill the boer, kill the farmer” in front of students at the university of Johannesburg’s Doornfontein Campus. The song was declared hate speech by the Human Rights Appeal Tribunal in 2001.”
Makes one wonder, doesn’t it?
Samantha says:
September 27, 2010 at 12:19 pm
Hey Sam,
What’s makes the Ministers comments hate speech?
Sexwale made the following statement on SABC2 on 3 November 2009: “… people are kicked off farms by very, very evil farmers…”.
cannot be denied.
On 28 January 2010 the Minister had the following to say at a portfolio committee meeting: “… many people who now find themselves in squatter camps are there because farmers have chased millions of blacks from their farms…”.
at worse is an exaggeration of numbers.
Maggs Naidu – maggsnaidu@hotmail.com says:
September 27, 2010 at 13:19 pm
I am not debating the merits of the case, merely the fact that nobody at the HRC is either!!
But, if I were to offer an opinion, I would have to say that given the politicisation of land, the whole “Boer” issue etc., it is somewhat irresponsible to refer to the farmers as “very, very evil”. There are a number of reasons why farmworkers are no longer living on farms but to ascribe it to “very, very evil farmers” is unnecessary and uncalled-for.
Again, to blame farmers for the squatters is appalling – particularly as there were never “millions of blacks” living on farms.
You obviously do not see that these statements are inciteful and politically-loaded. Whether or not they amount to hate speech needs to be determined, but obviously, nobody is bothering to address it.
There are times when Maggs has problems with objectivity and truthfulness.
This post, Sam, might belong under the patriarchy-blog since there are those who seem to think male white South Africans have a duty of maintenance similar to that under family law.
Samantha says:
September 27, 2010 at 13:46 pm
Hey Sam,
Our country is highly politicised – the land issue is high on the agendas.
And we are racially segmented.
Neither can or should be wished or pretended away.
If the really horrible things that are happening to farm workers cannot be ascribed to the “very, very evil”, what in your view lies at the centre?
What, where, when, why, who?
Brett Nortje says:
September 27, 2010 at 14:00 pm
Hey Brett,
“Maggs has problems with objectivity and truthfulness”.
This is one of the rare times when you make sense.
Both objectivity and truthfulness are very difficult concepts and, in my view, are at best relative.
What Maggs does not have a problem with is generalisation.
Maggs Naidu – maggsnaidu@hotmail.com says:
September 27, 2010 at 15:46 pm
Can you cite an example? Can you cite examples of every farmer being “very, very evil” to every farm worker?
I live in a rural community where we have one or two farmers who are racist and horrible to their workers. The rest of the farmers actually treat their workers well, pay them properly, give them a roof over their heads, educate their children, cover their medical costs, feed them and treat them well.
In return, the farmers are going bankrupt as a result of the drought, vermin and stock-theft. In fact, stock-theft accounts for a 20% loss of stock every year and there is evidence that farm workers are involved. Add to this the fact that a number of farm workers have major substance abuse problems (and no, we do not live in an area where a papsak is used as remuneration), as well as domestic and normal violence problems.
So, please tell me how you can support a statement that says that farmers are very, very evil.
Samantha says:
September 27, 2010 at 16:09 pm
Hey Sam,
“Can you cite examples of every farmer being “very, very evil” to every farm worker?”
Did I say every farmer?
Did I say every farm worker?
Let me hasten to add that neither was intended nor implied.
Maggs Naidu – maggsnaidu@hotmail.com says:
September 27, 2010 at 16:20 pm
Maggs, I have noticed that you often choose to selectively respond to posts.
Can you cite one example?
You did not say “every” and neither did Tokyo Sexwale, but by not citing examples or specifics, you laid yourself open to a generalisation. This is, perhaps, the issue that Agri SA had with Tokyo’s statement.
Where farmers are seen to be the embodiment of so much of the racial hatred in this country, it is extremely dangerous to make generalised statements such as this.
Maggs is right.
Tokyo went too far by calling farmers very very evil.
But they are “very” evil.
They can prove otherwise by simply desisting from feeding workers to the wolves, lions, etc.
Thanks.
Samantha says:
September 27, 2010 at 16:28 pm
Hey Sam,
“Maggs, I have noticed that you often choose to selectively respond to posts.”
Well spotted.
“Can you cite one example?”
I know a farmer who’s staff are very well treated and the work force are very stable. The farmer recognises that treating people as people is a fundamental requisite of humanity. They have had no security issues over decades whilst neighbours have.
On the other hand, a friend who worked as a security guard on a farm for about 18 months said after a few months that the conditions were extremely horrible and inhuman. He, according to what he said, remained on the farm because it was the only option between not working there and his family (wife and three young children) starving. 6 months ago he quit – again according to him his family starving was the better option.
BTW does Agri SA raise the issue of mistreated workers seriously?
Mikhail Dworkin Fassbinder says:
September 27, 2010 at 16:48 pm
Hey Dworky,
“Tokyo went too far by calling farmers very very evil”.
The exception are those farmers who grow the stuff that you smoke!
Dworky
Isn’t there an argument for evil being in the eye of the beholder, even if that eye is about to be dislodged by the pressure of a large incisor behind the orbital cavity?
The Romans fed all sorts of folk to well-meaning lions and it was not evil in those days, at least no-one complained about it in marble relief.
If a farmer is decended from a Roman, could he not defend such practices as a cultural imperative? In this day and age of respecting everyone’s culture, including the very presidential culture of lifting any kanga within blue light reach, should farmers not be left in peace to enjoy their cultural practices too?
Maggs Naidu – maggsnaidu@hotmail.com says:
September 27, 2010 at 17:02 pm
Thanks for the response. And I agree, some farmers are horrible. I have a CCMA case that I have taken on for 27 workers against a local farmer for unfair labour practice and then unfair dismissal (on the basis that they had consulted me and I had reported him to the Department of Labour).
I also work with the Southern Cape Land Development Commission who work with farm workers who have bad living conditions etc. So, I am well aware that some farmers are horrible.
I am not aware whether or not Agri SA fight for the rights of farm workers, and perhaps this is something that should be addressed, although, they are an organisation which works on behalf of their members ie. farmers to address their issues.
I do know that the farmers’ organisations in our district do not take kindly to farmers that mistreat their workers and work closely with SCLDC in this regard.
The thing is that farmers are portrayed as “very, very evil” racists on the basis of the behaviour of some farmers. There are businessmen, people who employ domestic workers and other employers (of all colours) who treat their staff and labour appallingly, but do not get labelled as a group in the same way as farmers. I just feel that we cannot continue to demonise farmers in this country.
Maggs & Samantha,
Tokyo’s comment was a cheap shot at making political capital
you both know it, Tokyo does, and so does AgriSA
we also all know that AgriSA’s complaint was similarly an attempt at making cheap political capital, and so does the HRC
move on…
etienne marais says:
September 27, 2010 at 17:24 pm
Hey EM,
I think Sam has raised a very valid issue – that of perception of the HRC (and if I may add the other Chapter 9 institutions) as rather partisan and ineffectual.
If I recall correctly there was a review of the Chapter 9 institutions by some very smart people commissioned by one very smart former Minister – not sure if that report went into any more than adding to the carbon footprint though.
Maybe the Casacians will tell us more.
etienne marais says:
September 27, 2010 at 17:24 pm
Maggs is correct. While he and I are merely debating the issue for interests’ sake, the post to which I attached my comment was an attack on the DA for daring to question whether or not the HRC is partisan.
My point in posting the article from Farming SA was to highlight that there may be merit in the DA’s argument in that the HRC came to a decision within weeks of the DA being reported and yet has taken over six months, without any sign of a decision on a report against ANC members.
Funnily enough, while Pierre has much to say in this post against criticism by the DA of the HRC, he certainly has no such qualms about doing the same against the Gender Equity Commission in his latest post.
Samantha says:
September 27, 2010 at 18:08 pm
Hey Sam,
“Funnily enough, while Pierre has much to say in this post against criticism by the DA of the HRC, he certainly has no such qualms about doing the same against the Gender Equity Commission in his latest post.”
It’s not solely Pierre’s responsibility to raise issues, especially issues that others feel strongly about.
In my view creating the forum and the space is already enough (even though it’s entertaining reading the assaults on the character and soul of our resident Almustafa for daring to share his thoughts).
maggs:
“I think Sam has raised a very valid issue”
samantha:
“Maggs is correct”
see, there now….so next time the two of can’t see eye to eye just gimme a bell
etienne marais says:
September 27, 2010 at 20:08 pm
Three’s a what???
Samantha, you are, sadly misguided. I did not say, not now or ever, that the CGE is a lackey of the ANC or the DA and hence cannot be trusted. I am merely pointing out – perhaps in more emphatic language – what the Asmal Commission found, namely that the organisation is not doing its job properly. If they do something I will not critique their finding by casting aspersions on its integrity. But if they do nothing I have every right to complain that it is not working as it should. It is like pointing out that the judiciary is not working very well because of long delays experienced by litigants (Something the Chief Justice did a week ago at the lecture that I organised). This is very different, than calling judges “drunken judges” or counter-revolutionaries or lackeys of the governing party. If one cannot understand this distinction, well, I do not have the time for the necessary lessons in logic and constitutional principle to assist.
Pierre De Vos says:
September 27, 2010 at 21:01 pm
I apologise. You did not cast aspersions on the integrity of the CGE, so to compare this post with your latest one is a little unfair.
That being said, however, I still believe that the SAHCR are being extremely selective about which cases they handle and how quickly.
Brett Nortje says:
September 27, 2010 at 16:08 pm
Hey Brett,
“What Maggs does not have a problem with is generalisation.”
I missed your post.
Anyway, these terms you use are very confusing.
Is generalisation what happened to the SAPS Commissioner and senior officers?
I see the HRC has not yet provided a report on the ANC toilets-without-walls scandals.
Comparing the alacrity with which it responded to the WC issue Zille may have a point.
The HRC are also looking at the Hangberg issue but not one iota of effort at the evictions and shack-burning in ANC provinces.
Looking at it from that perspective, Zille is right about the HRC.
Brett
Why don’t you submit your constitutional issue to the new CASAC and see if you get a response or some assistance?
Surely the arbitrary deprivation of property, deprivation of property without compensation, invasion of privacy, regulation of private activity, warrantless searches, presumptions of guilt / deeming provisions, etc., are matters which this erstwhile body must provide help and advice? If not litigation in your name?
Their response, or lack thereof, will show whether they are ideologically exclusive in the matters they will entertain.
I wouldn’t stray from your current course and hang your hat on CASAC but it could either get some help or if you are ignored, you’ve can expose it as being a bunch of PC posers looking for publicity and with no real value.
Otherwise approach the Kriegler bunch for help – at least he seems unafraid of what the PC brigade think and won’t bow to lefty self-censorship like our academics.
Did the BGOSA actually serve their summons?
Hi Brett
Out of curiousity I read the SAGA submission to the SAPS – you guys are the perfect applicant. Your organisations have more than enough in hand!!!
Again, you need to co-ordinate the disparate efforts. I quick bit of googling showed me about 6 apparently credible organisations doing the same thing alone.
Also, another idea for a simple and cheap mandamus popped up – get an order compelling the SAPS to release their policy directives on issuing licences. Asking will obviously not get you anything so you have to force the issue.
The contents are being withheld for a reason and must be explosive – otherwise it would be freely disclosed as the law requires.
So the cheap stuff – a mandamus enforcing an audit and a mandamus enforcing the release of the policy directives. Allied to that, you need to put pressure on the hunters to pressurise the SAPS or return to court by the end of the year for the final compensation hearing.
Those three things will make things happen.
If Agri-SA has done its homework on the constructive expropriation issue there might also be usable precedents.
This might get even easier.
Brett
I agree. The Agri-SA case will be very, very interesting.
However, the Agri-SA case is also going to take a very long time.
BTW, why haven’t SAGA forced the SAPS to disclose their policy?
There seems like a lot of complaining and little concrete action in the right direction. Does SAGA really believe, after all this, that the SAPS are reasonable and “on their side”?
Brett
I see the Hunters have dropped the rest of you guys properly. It seems they have gone for a preferential helpline to help their members get their licenses in decent time.
The rest of you are on your own again – I can’t believe in situations like yours that an organisation purporting to represent you and fight for your rights would cosy up like this.
It is incredibly pathetic.
You’ll have to start from scratch because they have effectively been “bought” out by the SAPS. Perhaps you should start a media campaign to expose this and shame them? You must force them back to the court to get the decision the SAPS are so terrified of. Maybe their own members will ask what the hell their exec did and replace them with doers.
Cause a rumpus in their campus, Brett.
Brett
I have another idea – plenty of licenses seem to be rejected at the first hurdle because the applicant has not proven to the SAPS that the firearm is necessary.
What is the burden of of proof? Surely if the SAPS cannot place another version on paper then the applicant’s version must be taken as the accepted version of the truth. In fact, by applying that, you could nullify the process of requiring proof. All the applicant neds to say is: “I want one. It is necessary because I have decided it is necessary”.
What argument could counter that? A functionary is required to decide if a citizen has “proven” a necessity to purchase an item which the citizen wants. Surely the act of wanting and being able to afford is proof enough? Surely the limitations clause also comes in when a fuinctionary determines a citizen’s choices?
This argument can be inserted into any one of the challenged refusals and let the game be joined from humble beginnings. Ask that lawyer of yours – Hood isn’t?
What do you think?
Yes, ZooKeeper! The old philosophical question about who decides what preferences of free people are justified.
I actually put in license applications that I wanted a rifle because rifles are property and S25 guarantees my right to property.
Perhaps that is why I have been waiting for more than 10 years for it?
Martin Hood is the very capable spokesman for the South African Gun Owners Association (SAGA). He has an encyclopaedic knowledge of firearms legislation
SAGA decided its members would be best served by trying to make the best of the system by working from within the paradigm of the FCA.
Our point of departure is that government can take their legislation and shove it. We started Gun Owners of South Africa because – as a matter of principle – we will never rest until the Firearms Control Act is gone. Repealed. Pulp paper. Finish and klaar.
No compromise.
Interesting.
No wonder SAGA have not moved the FCA an inch despite what appears to be access to excellent resources.
I am dumbfounded that after all this time SAGA have have not seen the error of their ways. Perhaps that is also the approach the Hunters adopted? Try and work from within?
Maybe they have “battered housewife syndrome”? They know they shouldn’t but they keep coming back.
At what stage do you think SAGA will wake up and smell the coffee?
Perhaps the BGOSA is a great ally – they appear as militant as you?
Brett
Did the JASA get their judgment handed down yet? It was due in August if I remember correctly?
ZooKeeper, I believe judgement is still being awaited in the JASA case. It might go big. Working on your amicus curiae submission yet? Pierre is going to argue mine before the ConCourt.
I have tried to get more detail of the BGOASA case for you, but have got no feedback yet. This is another issue I see exactly as you do. Unfortunately, people have a knack for making things far more difficult than they are. Then, we have the further bedevilling issue of the rights culture not having penetrated that far in the white community and some almost seeing themselves as traitors if they do resort to the Constitution’s protection. There is no sense of ownership of the Constitution nor its rights.
That is why – from an outsider’s perspective – I also hope the Black Gunowners give the state revs.
It all adds to critical mass and brings us closer to the tipping point.
Cool, at least there’s one iron in the fire.
Are you serious that Pierre will argue your case in the CC???
I don’t think BGOSA has served their summons yet, checked their website and they spoke of intetnion, not actual service.
Which judgments referred to and affirmed the right to own firearms?
Of course! Pierre is a true believer. There are few of us left. We’ll hang together. (Although my support for the Wishlist is a default position because I believe so strongly in the idea of constitutionalism – all those American gun magazines like Gun News Digest, you know…And, while I have made it clear although the idea of transformative justice appeals to my Christian ideals it is pie-in-the-sky that is dangerous in that it provides cheats for poor governance….Small beer considering the big picture, if that was what astonished you.)
While Pierre could balance one flagrant abuse of gun owners’ rights against notions of judicial non-interference in policy and being saved by the limitations-clause the cumulative effect of constitutional inconsistencies in virtually every provision of the FCA is to create a piece of legislation that belongs in a dictatorship not a constitutional state….
Add to that the bureacratic collapse of the administration and farcical implementation of the FCA…
Add to that the coup d’etat by proven thugs and incompetents who told Parliament flatly during the Mbeki regime they would not obey its laws by paying compensation for surrendered firearms….
Was it not always a fait accompli?
Brett
Phew, what can I say!
I suppose your case is such a strong one and a clear example of what should not occur in a modern democracy.
That and the Brady bunch et al actually don’t have an argument at all. I went through the lot and its, well, emotional rubbish.
What was the one abuse?
Hi Brett
I see the SAPS have admitted their FCA is a mess and are trying to fix it. What have your organisations done – except perhaps tried to help the SAPS work the unworkable?
Do any of the organisations who represent you have any brains?
Hi ZooKeeper
Absolutely right – the organisations are going to help the police sort out the administration issues to try and make the Act work efficiently. That rights-culture-penetration bit again.
No-one is asking how much the fiasco cost – the second part of the two-part question.
It may interest you to know that the Western Cape High Court struck down the minor issues with respect to compensation on Friday but stopped short of finding that the SAPS had to offer compensation for the guns that are handed in.
Hi Brett
Did the WCHC strike it out as unconstitutional? That’s a big one, stopping short of stating that compensation must be not be viewed as a loss, rather that the door is now wide open for claims for compensation.
The Courrt might have felt that a broad expression was inappropriate in the current forum, given that seizure of an originally unlawful firearm from a criminal might not be compensated. Perhaps the Court left that for another, more specific court action?
I did comment above in very broad terms, having done some more googling I see there are some guys who are working – like you for instance at GOSA. Very sorry if you got lumped in with the stereotype – didn’t mean to.
The well-resourced SAGA and Hunters are chiefly responsible for the appeasement process to my mind so I must be more specific in future.
But anyway, if the non compensation section has been struck out, the SAPS will be nervous. Very nervous.
The cost of compensation plus the cost of a “workable” FCA…? Something’s gotta give.
I still think you should lobby hard for the licensing of the individual to replace the FCA. The individual has to undergo training on a particular class of firearm (like semi-auto hanguns, revolvers, long arms: single shot or semi, shotguns, sport or tactical, etc.) and pass tests on competency just like a vehicle licence.
Once issued the holder should then be allowed to own whatever he chooses, and however many he chooses, of that particular class of firearm. All that needs to be done thereafter is licence the firearm to the owner just like a vehicle. And just like a vehicle licence, it doesn’t expire, although under strict circumstances a court may determine the holder to be unfit, in which case his licences are revoked and firearms forfeited with full compensation.
I think that type of licencing arrangement is far better than now or previously.
Well, not really, the minor issue the WCHC struck down was your mom having to pay the state valuators to value her Colt .22 as well as her own if she wants compensation for it.
ZooKeeper, Pierre is being selfish not giving us a blog thread of our own
to discuss these issues under. The HRC blog is growing huge and unwieldy.
I propose we hijack the BloemfonteinBraamfontein blog to save bandwidth since it is going nowhere.
A show of hands?
ZooKeeper, Judge Saldanha’s Judgement was a huge setback for us.
I also thought Saldanha was kicking the main issue up to a higher Court deliberately when I first heard about the Judgement.
Then I read it.
Judge Vincent Saldanha’s judgement has to be the most peculiar and one-sided I have ever read.
Remember that when all these firearms were handed in by elderly white South Africans who had never used them to commit crime there were no compensation guidelines in place because the cops quite simply refused to draft compensation guidelines?
Their guideline was: There is no compensation finish and klaar?
This is the compensation scheme Saldanha says did not amount to arbitrary deprivation of property by its deliberate non-existence for the purposes of S25 of the Constitution.
Here’s the compensation-scheme-after-the-fact-Saldanha gave his stamp of approval: Your mom hands over her .22 Colt Peacemaker to the cops. They go (Look, I know this is a pretense….That Colt, in the real world, lies around in a police storeroom or if my brother is to believed on the floor in the charge office until – if no-one steals it – it is dumped in a bin and taken to a smelter) decide in a back room whether the state is going to acquire the firearm or not and if. If the cops ‘decide’ to destroy the Colt they publish a notice in the Gazette inviting anyone with a valid claim to make representations.
Only: Judge Saldanha never asked to see even 1 notice, I believe?
Anyone seen one before Nathi Mthethwa became Minister of Police?
If the cops decide to keep the firearm: You and I understood S137(2) of the Act all wrong. The Registrar is not exercising a discretion whether or not compensation is payable. The Registrar simply makes a factual enquiry whether the firearm was destroyed or not!
Can you believe that? Completely circular reasoning.
Those thinking about ‘voluntarily surrendering’ their firearms do not get to make an informed choice. They are not told when they are gone the cops get to decide whether their firearms will be sorted into the S136 pile and the S137 pile and the 136 pile can forget about compensation and the S137 get to apply for compensation ‘whenever’.
Those gunowners do not get an opportunity to make representations or head off home with their guns clutched in their hands.
I doubt Judge Saldanha ever opened PAJA.
There were no administrative enquiries required with respect to the compensation issue because so many members of the public were affected.
Before your mom’s Colt is destroyed there is no notice procedure, there is no right to be heard, there is no opportunity to obtain representation, there are no written reasons.
I had this stupid fantasy the Constitution guaranteed the right to lawful, reasonable and procedurally fair administrative action. It seems whether you have that right depends on a factual enquiry – whether your mom’s Colt was destroyed or not.
Saldanha has struck a blow at the equal protections clause as well.
An old widow who surrenders the 38 special she inhereited from her husband gets no compensation. A rich widow who inherited her husband’s gun collection gets compensation for the valuables her husband might want to keep.[41]
Kind of turns the parable of the widow with two pennies on its head, huh?
Skimming through the judgement quickly I must have counted the phrase ‘voluntary surrender’ 20 times. Judge Saldanha tells us at [42] we must ascribe the ordinary meaning of ‘surrender’ to the word. He never defines it nor quotes a dictionary, which leaves one wondering whether that is because of the compulsion implicit in the word ‘surrender’ which would open the door to raising the huge intimidation campaign that accompanied the surrender of those firearms which would, in turn, make a finding that these people were not arbitrarily deprived of their firearms for the purposes of S25 of the Constitution impossible.
After all, Judge Saldanha accepted SAPS assurances that “there was neither any obligation nor were firearm owners compelled to hand their firearms over to the state to dispose of by way of destruction”….
I can give more detail regarding the massive campaignin media with threats of 15 years imprisonment aimed at intimidating especially the elderly into ‘voluntary surrender’ of their firearms if you like.
Someone should tell Judge Saldanha that ‘voluntarily surrender’ is an oxymoron.
http://dictionary.reference.com/browse/surrender
-verb (used with object)
1.
to yield (something) to the possession or power of another;
deliver up possession of on demand or under duress
http://www.thefreedictionary.com/surrender
1. To relinquish possession or control of to another because of
demand or compulsion.
http://www.merriam-webster.com/dictionary/surrender
Definition of SURRENDER
transitive verb
1a : to yield to the power, control, or possession of another
upon compulsion or demand
I thought it was necessary to give 3 definitions of the word because Maggs appreciates proper citations.
The most important peculiarity in the Judgement is that Judge Saldanha mentions but does not really follow the structure of analysis in First National Bank nor the algorithm he could easily have found in de Waal and Currie and followed.
The Minister and the SAPS’ conduct can easily be shown to fail the FNB test for procedural fairness – there were no guidelines, the cops just flatly refused to consider compensation for the guns they took through threats, fraud and intimidation.
After mentioning procedural unfairness in [38] Saldanha seems to forget about the requirement that the deprivation may not be procedurally unfair. He just repeats the SAPS’ justifications for depriving the elderly law-abiding of their firearms and the SAPS’ flat denials that there were arbitary deprivations of property….
The rest is more of the same. Like not asking the Treasury why they do not cost legislation before enactment but when they try to screw the victims out of compensation.
Hi Brett
I suppose we have to look at the papers first and see what he was given and what he was asked to decide.
Did the Applicant lead evidence of the intimidatory tactics at all?
On the face of though, as you say, it seems a very poor judgment. Perhaps he was taught by Nicholson
!
However, maybe Saldanha was under pressure for a pro-executive judgment?
It is a potentially explosive judgment if it went the other way. I’m reminded of the CC bending logic like quantum physics to hold landlords liable for their tenants’ contractual debts, which is uncomfortable…
Is this going on appeal? – answer me in Bloem/Braamies – easier than going back to June the whole time!