Does Michael Hulley really believe the things he says in his replying affidavit to the application by the DA to have the decision of the NPA to drop the charges against President Jacob Zuma reviewed? Did he have one cup of tea too many before drafting this affidavit or does it reflect Hulley’s – and by implication President Zuma’s – sinister view of the Constitution and the constitutional position of the President?
The document reads more like a political campaign brochure than a legal document – like something the majority of members of the Judicial Services Commission (JSC) might have drafted in a less rigorous moment. If it really reflects the views of the President and his legal team about our constitutional democracy, we are in big trouble because it would suggest that they believe some animals are more equal than others in our constitutional state.
The heart of the application deals with the question of whether the DA has the necessary locus standi to bring the review application, arguing that the DA “is incapable of acting in the public interest if it does not itself have any legal interest in the matter”. Why is this? Well, because the DA is not the ANC, is thus anti-ANC and therefore cannot possibly have the broader public interest at heart:
The DA is a political party which always, since its formation, has been a minority and opposition party. Since its establishment its public comments have often expressed its sentiment that it is a self-appointed political watchdog as opposed to a party attuned to actually governing South Africa . . . The DA has thus adopted a role in South African politics where it seeks to retain and / or broaden its voter support by undermining the ruling ANC party in every conceivable way and to seek to discover whatever negative aspects it can about National Government, the ANC generally and all prominent ANC members. In short, its approach is not to work towards solutions but to carpingly criticise Government, the ANC and prominent ANC politicians using whatever material they can obtain in this regard and then to procure maximum publicity for such adverse comments.
Whatever one’s view of the DA is, it still is the official opposition in South Africa and it has a constitutional right to carp as it likes and to expose whatever negative aspects of the ANC it can find. Whether this is always wise is besides the point. That’s called democracy, something MR Hulley does not seem too familiar with. This affidavit suggests a profound disrespect for multi-party democracy and contains party political propaganda that does not belong in a legal document.
In any case, the argument is completely fallacious. The DA application is premised on the right to a fair administrative hearing, guaranteed in section 33 of the Constitution, and the right to equality, guaranteed in section 9 of that self-same Constitution. Section 38 states that:
The persons who may approach a court are: anyone acting in their own interest; anyone acting on behalf of another person who cannot act in their own name; anyone acting as a member of, or in the interest of, a group or class of persons; anyone acting in the public interest; and an association acting in the interest of its members.
These standing provisions are so broad and all-encompassing that it would be close to impossible for any court to make a credible finding that a political party has no standing to bring a review application of this kind. Unless, perhaps, the application is motivated by a vexatious and vindictive harassment of an individual or group and no right in the Bill of Rights could possibly be implicated in the case, a court must grant locus standi.
Hulley must know this, so why make the argument? Perhaps because the affidavit constitutes an attempt to bully and intimidate the judges who will have to decide on it? Incredible, ridiculous, and – yes – very dangerous.
Even more remarkable is the argument put forward by Hulley that the the President is above the law and the Constitution, that he would be too busy to face charges, that the law should not be applied to the President because it would have dire consequences for the country, and thus that the whole application is academic.
[A]n incumbent State President (sic), like the President of the United States, cannot be charged with criminal conduct (or continue to be prosecuted) during his incumbency. Charges can only be brought if he is successfully impeached in terms of the Constitution or after his term of office ends. . . .
[A] prosecution of an incumbent President will, inter alia, offend the doctrine of separation of powers by seriously interfering with the Executive and thereby subverting the entire constitutional framework. Moreover, it is simply inconceivable that a National Director of Prosecutions would exercise his prosecutorial discretion so as to indict a sitting President in the light of these considerations. That power is vested elsewhere, that is, in Parliament, which is the only body vested with power over the President.. . . These considerations are linked also with the principle that the law will not allow a legal act to be voided if the consequences thereof result in far greater harm than the strict enforcement of the requirements of that legal Act. The dire consequences of what the applicant seeks, speak for themselves, especially in view of the 2010 World Cup, the economic recession and the need for all to address these issues responsibly.
One could of course make a plausible political argument that a sitting President should not be charged with serious criminal conduct while in office. But there is a very simple solution for this problem. The President facing such charges can resign to deal with the prosecution. A new President may even pardon the former head of state in terms of section 84 of the Constitution after such a resignation. That is what happened with Richard Nixon during the Watergate scandal.
Or, more radically, the Parliament can amend the Constitution to make clear that a sitting President is above the law. This would be more tricky as this would fundamentally undermine the founding value in section 1 of the Constitution, which states that the Constitution is supreme and is based on the Rule of Law, so a 75% majority in the National Assembly would be required for such an amendment, a majority the ANC does not have.
But as a legal matter, the argument that the sitting President (unlike apartheid South Africa, democratic South Africa does not have a State President as Mr Hulley seems to think) is a shocking absurdity. In a long line of cases starting with the Hugo case, the Constitutional Court has affirmed that the President is subject to the Constitution and the Law. This is a necessary consequence of the supremacy of the Constitution and the principle of the Rule of Law.
As part of the doctrine of separation of powers, courts have the power to enforce the Constitution and the law which binds everyone – even a self-styled State President.This is not an infringement of the separation of powers, but a manifestation of it. Mr Hulley’s argument is very dangerous indeed. It would mean that the prosecution of the members of Parliament for the Travelgate scandal is unconstitutional because it interferes with the separation of powers. It would also mean a sitting President could order the torture and killing of all his political opponents without having to fear any legal consequences – at least for as long as he remains President.
The President would also be able to breach any provision of the Constitution or legislation passed to give effect to the provisions of the Constitution (even when this constituted a criminal offense) and would not be able to be prosecuted for as long as he remains President. For example, the NPA Act prohibits anyone from interfering with its work and states that it is a criminal offense to do so. If the President has the head of the NPA assassinated or if the President illegally and criminally orders the National Director not to prosecute a political crony, the President would not have to face any criminal charges – until such time as he retires.
If Hulley’s argument is accepted, it would constitute an invitation for abuse of power of the most serious kind. Such a view is in fundamental conflict with the principle of the Rule of Law. The Hulley affidavit suggests that our President (or at least his legal representative) does not believe in the Rule of Law at all, that he thinks he is above the law, and that courts cannot sanction him for breaking the law while he is a sitting President.
This seems to me like Banana Republic stuff. Incredible. Ridiculous. More importantly, dangerous.
@ Pierre,
I heard our President on TV last nite saying “I am not above the law” and that if he is summonsed he will go to court.
Hulley, though, seems to be struggling to make a case, not even a strong one at that.
I would be surprised if a single South African, even Hulley, who thinks that the President is above the law.
Maggs, if this is correct, the President and his advisers should have told Hulley not to make the arguments he did. One need not be a lawyer to understand the gist of the affidavit prepared by Hulley. Either the President is not in charge of his own case, or he is (again) playing the “good cop bad cop” routine.
Pierre De Vos says:
September 18, 2009 at 8:28 am
The gist to me, seems to be setting a basis to buy lot of time.
To again quote Michael from elsewhere “(t)his strikes me as a truly exotic argument”.
@ “Perhaps because the affidavit constitutes an attempt to bully and intimidate the judges who will have to decide on it? ”
It would be most unfortunate if any judge succumbs to bullying and/or intimidation.
Pierre,
You worry yourself too much, let it go. You can write as many blogs at your time and broadband allows, still President Zuma will not go to court.
Again, I tell you, there is more coming. One of these days you are going to wish that that other guy, was still in charge at Luthuli house. In fact Sidumo Dlamini of Cosatu had a bit of nostalgia this week when he was quoted saying:-
” The Mbeki regime allowed the unions to exist, he said: “They did not speak to them, but at least they never banned them. Terror [Mosiuoa Lekota, the former defence minister] did not [ban them], so why should Lindiwe do it? ”
You see, Pierre, many times, amongst the good, life is about the lesser of two evils. What social good will sending the president to court do? At this point that will certainly please people like yourself, but just as I was dead against Pikoli arresting Selebi on TV, I am dead against our president being tried for the world to see. It would be an extremely harmful spectacle.
@first sentence : at = that
khosi says:
September 18, 2009 at 10:04 am
No self- respecting court would allow a citizen such as Jacob Zuma, who has been prejudiced in the harshest manner by some of the most powerful organs of state, to be expected to make a defence against politically motivated charges.
Very interesting debate on the presidential immunity.
I have read a judgement from the botswana high court on that.
it seemingly has evrybody up in arms after the court declared that the president is totaly immune from civil and criminal suits so long as he remains in office.
Harold Ferwood says:
September 18, 2009 at 10:21 am
Surely that is a different argument to suggesting that our President is beyond the law?
For once I agree with Pierre de Vos’ perspective on the present issue. Allow me to comment on some aspects:
1. Mr Hulley makes an interesting comment he added on the website to the link of his affidavit: “The President is presently 66 years old. Full legal argument on this aspect and why such a prosecution will be unconstitutional will be addressed to the Court at hearing hereof”. My question: what has the age of the President got to do with a hearing and on what basis does he wish to argue that prosecuting a 66 year old man is unconstitutional?
2. He also says “I have been advised that the incumbent State President, like the President of the United States ….” It appears, by implication, that he’s not convinced (or hasn’t convinced himself) of the argument himself that the President could be charged with criminal conduct. Perhaps he is better advised to seek qualitative advice and not quantitive advice.
3. On to his affidavit and without going into the specific merits of his argument (to which I have a lot to say in respect of the individual points raised): I cannot help but laugh aloud reading an argument that sounds as if it may have emanated from some boulevard press story. If anyone’s really interested in having a good Friday laugh, then do click on the link provided by Pierre de Vos and enjoy some visions of sadness, intrigue, victimisation, the fight of one lonely man (Zuma) against a poisonous campaign of a woman called Zille and the venomous (minority) party called the DA etc – all of these wonderful elements making for a good crime story are present. Michael Hulley would do better to write trashy pop novels for David Grisham; no Hollywood script writer could have done better!
4. But on to the more serious side: unlike Khosi, I think it is precisely this kind of public debate which South Africa needs to keep its democracy alive and dynamic and to prevent anyone from considering him/herself respectively from acting above the law (keyword judges, politicians etc). And of course, one needs to take issues like these seriously. It is precisely this “… don’t-worry-too-much and let-it-go attitude…” in South Africa which often bothers me. Why should one let important issues like these go?
Khosi
I beg to differ. Why should SA be judged by the rest of the world? Do you think that the Constitution was written as a performance piece so that all around the world people could stand up and applaud and shout ‘Bravo! Bravo! Encore!’? Or do you think it was created as the bedrock on which to build a strong democracy for the citizens of this country? You would have us hide inconvenient or unpleasant truths so that we can look good with the neighbours. The problem is when the neighbours find out – look at the Semenya story: she’s humiliated, SA is embarrassed and people in the country are furious.
The President is not above the law. In fact, if anything, as you are worried about world opinion and spectacle, many would see this as a sign of a strong democracy. America survived Nixon, so why shouldn’t SA survive Zuma?
And as for Hulley’s 2010 argument. Aren’t we all sick of all decisions being made in this country based on how they will affect a bloody World Cup football tournament? Why are houses built, crime fought, transport systems created? For the long-term betterment of SA’s people or to impress a bunch of overseas sports fans?
@ Maggs
Ok, how do things stand at the moment?
The NPA’s decision to drop its case against the President is being challenged, If successful then what?
@Harold Ferwood,
Prejudiced or not prejudiced, the president of the country should never have to worry about anything other that taking care of our needs as citizen. Conspiracy theories can take a back seat, JZ is the president of the republic and the presidency is an institution that must and cannot be dragged through the mud. As citizens we must have an unwavering belief in that institution.
Now if we spent time trying to prove some conspired theories, we will have unravel things such as the source of the evidence for the very conspiracy theories. Lets move on, lets heal.
@Sarah
How old was the United States as a democratic country when the Nixon story happened. And how old is South Africa as a democratic country today. Surely, common sense, tells us that an adult can take more blows than a child.
Harold Ferwood says:
September 18, 2009 at 10:34 am
“Ok, how do things stand at the moment?”
- that the NPA was within its rights to decide whether or not to proceed is less of an issue than whether or not our President is beyond the law )our President himself said yesterday that he is not and if summonsed to court he will appear).
“The NPA’s decision to drop its case against the President is being challenged, If successful then what?”
- Then the decision by the NPA would have been incorrect and the law must then take its course.
Khosi
I have much the same attitude to my husband’s endless affairs. I know about them, it upsets me, I’ve asked him to stop, I’ve reminded him of our vows, but you know, he keeps on having them. I’d like to divorce the bastard but the public humiliation for him! The man’s a major CEO and politician in the making. So charming. More than that he leads our household, setting a shining example to our children who have an unwavering belief in him. Just imagine the heartbreak for them. All the shattered illusions.
No, I can’t do it. So I continue to live the lie. I mean it’s a very small sacrifice to allow my husband and everyone else to continue to be very very happy.
@Maggs Naidu,
JZ is saying what he said because he knows that the NPA under whoever is appointed by him will not make the decision to recharge him. Remember that, even if Mpshe is found to have erred in dropping the charges, the decision to re-charge would still lie in the hands of the NPA and not the courts. The courts can only please Mpshe detractor. Thats it.
Sarah, your answers were super-cool
Hulleys comment on [A]n incumbent State President (sic), like the President of the United States, cannot be charged with criminal conduct (or continue to be prosecuted) during his incumbency.
There is no provision in the US constitution explicitly grants a US President immunity from criminal prosecution. The only provision that provides any explcit immunity, for limtied purposes is for members of Congress while they are in session
Article I, Section 3, Clause 7: “Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
So if Hulley is to take this approach that an incumbant South African president cannot be charged due to the president must be impeached first is also nonsense
Impeachment proceeding and criminal prosecution are two distinct, separate processes.
What also can be argued back to Hulley is criminal conduct is not part of the necessary functions performed by public officials.
You also forget about President Clinton in his perjury case, the reason why he didnt land up in court, is Clinton struck a deal with prosecutors and was forced to admit his perjury to the public, never the less…it still shows a sitting president of the most powerful country in the world can still be prosecuted.
In any event after WW2 international law dictates that no sitting president is immune to prosecution fr serious violations.
Basicly there is nothing in international law and in South Africans constitution that the president has blanket immunity. South Africans constitution clearly states all is equal before the law.
@Sarah Palin,
Its called ‘the lesser of two evils’
I agree with Khosi – we should move on. Any prosecution or legal action against Jacob Zuma is in any event tainted. He can never receive a fair hearing. For that we have to thank Mr Mbeki and his cohorts.
It is certainly not in the best interest of the country to persist with the review application. Let Mr Zuma do his job – if anyone thereafter wishes to proceed – do so, but not whilst he is President.
Most of Hulley’s affidavit left me flabbergasted. And scared. But our President made me laugh, once again, when last night on TV he said something to the effect that if the court asked him to come to court to answer (to charges?), he has to do so, because, as mentioned by Maggs Naidu, he “is not above the law.” But he spent the last few years trying, succesfully, to avoid answering any questions in court. Now what must we understand, as ordinary citizens, as to what he understands about equality before the law? More to be scared of!
To argue that “The King can do no wrong” is indeed a dangerous thing to do. The history book on the shelf always repeats itself. Just see what happened to Charles I (1625-1649) of England – tried for tyranny and treason and executed; Louis XVI “The Sun King” (1643-1715) and Marie Antoinette of France – tried (no, not really!) for tyranny and executed; and, a little closer to home (an example our President might remember from his cultural heritage) Dingane KaSenzangakhona Zulu (1795-1840) Overthrown by Mpande and assasinated by Zulu Nyawo. At the turn towards democracy in 1992, the ANC might remember, there was the Bisho masacre. The leader of Ciskei Brig Oupa Ggqozo, when charged, also tried to argue that “The King can do no wrong”. His argument was however not successful, since the Court ruled that the English common law notion does not apply in South Africa. Fortunately for him, however, he was acquitted on 13 December 1993 on other grounds.
Clearly, therefore, Hulley’s argument is flawed and wrong. In a poll on News 24 this morning, 62% voted that this move is clearly unconstitutional; 29% that it is just a smoke screen; and only 8% voted that it was fair enough. Dangerous, I’d say. Of course Jacob Zuma now says he will stand trial since no one is above the law, but why does his lawyer then go and argue differently in the High Court?
@Mouse,
What the president said is simple misleading. Court technicalities have been part of his gameplan all along. But really, can he be re-charged? You are an officer of the court, whats your take?
I said this to Maggs earlier: – “JZ is saying what he said because he knows that the NPA under whoever is appointed by him will not make the decision to recharge him. Remember that, even if Mpshe is found to have erred in dropping the charges, the decision to re-charge would still lie in the hands of the NPA and not the courts. The courts can only please Mpshe detractor. Thats it.”
Anonymouse says:
September 18, 2009 at 11:08 am
, but why does his lawyer then go and argue differently in the High Court?
Maybe Zuma should use his new hotline as there seems to be a communication problem
@khosi
“Surely, common sense, tells us that an adult can take more blows than a child.”
That’s just a completely fallacious wild sweeping generalisation with no factual support.
In any case… we should take the blows now for the sake of our children and their future.
Chris – “In any event after WW2 international law dictates that no sitting president is immune to prosecution fr serious violations.”
Well, in Congo v Belgium (Warrant arrest against Ndombassi case), the ICJ held that sitting heads of state and government officials have immunity against prosecution for “international crimes”. I think that case was wrongly decided though, and I know that international law knows no rule of stare decisis. However, one cannot lose sight of the fact that the ICJ opinied that to be the position at international law.
khosi says:
September 18, 2009 at 10:53 am
It’s not our President’s role to ask the NPA to charge him.
If the decision by the NPA not to charge our Prez is overturned, it’s up to the NPA to do or not do as is appropriate at that stage.
GGT says:
September 18, 2009 at 11:00 am
Are you suggesting that our President acted outside his constitutional rights?
Thank you, Leigh. You are too kind.
@Maggs Naidu says:
September 18, 2009 at 11:19 am
I think you misread what I said, plz re-read.
Anonymouse says:
September 18, 2009 at 11:17 am
That is correct it is the ICJ general trend
still there is no international law that government officals have immunity against prosectution.
Otherwise we would not see the trend in:
Indictment of then-President Charles Taylor of Liberia
Indictment of Sudanese president Omar al-Bashir
However Hulley will be playing the impeachment card.
khosi says:
September 18, 2009 at 11:13 am
Oh, now I’m “Mouse” again, not “Rat”?
Nevertheless, I have always argued that Zuma clearly has a case to answer (regardless of whether the forces of darkness were behind the initial decision to prosecute or not); that he is not above the law (not because he was deputy Preasident at the time, and not because he is now [not State!] President); that Mpshe’s argument to withdraw and stop prosecution altogether was flawed in law and wrong; and, that the DA (or whomever) has a good case in argueing that way. If the decision is set aside, there would simply not be a decision not to prosecute (a so-called certificate nolle prosequi), and the NPA would have to decide again whether to re-charge Zuma or not. And, if it does not do its constitutional duty to prosecute him to answer to the available evidence, then there is a good possibility that private prosecution might be instituted (the current provisions of the CPA clearly being unconstitutional in the light of the people’s constitutional right to have any legal dispute settled in a court of law or other independent tribunal).
Khosi
I said this to Maggs earlier: – “JZ is saying what he said because he knows that the NPA under whoever is appointed by him will not make the decision to recharge him. Remember that, even if Mpshe is found to have erred in dropping the charges, the decision to re-charge would still lie in the hands of the NPA and not the courts. The courts can only please Mpshe detractor. Thats it.”
You forgetting Pikoli, the high court ruled in Pikolis favor to block the president from appointing a new head for the NPA it also found that Pikoli has a prima facie case that he was illegaly fired. So whether or not Mpshe will recharge Zuma is of little concern right now until Pikoli wins his job back
Zuma will be charged when and if the powers at Luthuli house decide it is politically expedient.
Not a moment before.
For the next few days, weeks, months or even years I am going to be following the legal arguments of this case.
Mind you, I said legal arguments, not the usual resultant political and emotional outbursts which are generally hot air by the way …
Of course we know that this ‘transformed’ judiciary is going to kill this attempt by the DA. No plausible legal argument is necessary, just loyalty to ensure continued employment, a bunch of words and legal jargon that are neither here nor there to convince an unsuspecting, usually gullible and uninformed majority will suffice.
I’m glad I’m just a spectator. I’m not emotionally involved.
@Mouse,
In a discussion about TM, I think the name ‘Rat’ may suffice. Until then enjoy being called ‘Mouse’.
On more salient matters. My understanding was that at one stage, the DA was going the private prosecution route. But later changed to challenge the decision(to drop charges) itself. If they are successful, I really do not see the NPA re-charging JZ. If the ultimately go the pvt prosecution route, do they have enough evidence? or would they still need to compel the NPA to provide such?
You see, it is a long short and JZ knows it. That is why he can make populist statements such as the one quoted by Maggs.
… incorporating Maggs
The only hope in hell that they(DA and the likes of Pierre) have is IF Pikoli gets his job back. By that time he may have changed his mind or grown weary, as well.
Chris McDaniel says:
September 18, 2009 at 11:29 am
“still there is no international law that government officals have immunity against prosectution.
Otherwise we would not see the trend in:
Indictment of then-President Charles Taylor of Liberia
Indictment of Sudanese president Omar al-Bashir”
I agree with your view as to what international law should be, but one must remember that international court decisions is also a source of international law – thus the ICJ ruling provides law on this point. As far as your examples are concerned, one must however remember that Charles Taylor’s regime has been toppled, and that he is being prosecuted in a special (national) court (sitting elsewhere), not an international tribunal. (Here one should remember that the so-called immunity of sitting heads of state lapse as soon as they are no longer ’sitting’ – same with the post WW II trials at Nuremberg and elsewhere.) The matter of the warrant against Al Bashir is of course res nova and, although I agree that the ICC was correct in issuing it and ignoring the so-called ‘rule’ of immunity in his case, the AU (and, at first, also the RSA government) have indicated that it would not assist the court in executing the warrant. The same problem has faced the UN SC in the Mugabe case.
Thing is, this matter has not yet been properly settled in international law.
@Dumisani Mkhize,
But legal arguments serve at the behest of political mastery. Politician do not make laws that disfavors them. Take floor-crossing as an example.
Khosi – “If the ultimately go the pvt prosecution route, do they have enough evidence? or would they still need to compel the NPA to provide such?”
Of course, when the NPA issues a certificate nolle prosequi and someone wants to institute private prosecution, the whole docket and available evidence will have to be surrendered to the private prosecutor since the NPA would then no longe be interested in prosecuting the case in terms of its constitutional mandate.
However, if Mpshe’s decision is overturned, he (or his successor – I think Pikoli will be reinstated) would be dumb and stupid not to let the law take its course and to re-charge Zuma, present all the available evidence and then let the court(s) decide. However, this whole Hlophe and JSC thing, and the morale of judges being at the low as it is now, makes one think whether there would be a court with enough spunk to convict Zuma even where the evidence says he should be so convicted.
So, “The King can do no wrong” argument might well stick in the end, but as I have pointed out, that is a very dangerous way of living, for a Kking, … or a President. Some day, sooner or later, one might just lose the support base that you have and then, …
People talk about the need to move on. I ask, where to?
How far are we going to move when we violate the supreme law of the country just to (apparently) save face?
khosi says:
September 18, 2009 at 11:48 am
“The only hope in hell that they(DA and the likes of Pierre) have is IF Pikoli gets his job back. By that time he may have changed his mind or grown weary, as well.”
By the time all this is resolved, Zuma would probably have completed his second term.
Nobody knows how the next President may approach this.
Maggs Naidu says:
September 18, 2009 at 10:44 am
Should the NPA’s decision be found to be incorrect and are somehow compelled to recharge Jacob Zuma, they will without a doubt run straight into the Sanderson case scenario (which will have much more weight now than when the Professor himself discussed here …
http://constitutionallyspeaking.co.za/has-ngcuka-blown-the-zuma-case/
And we know how brilliantly Jacob Zuma has handled everything that has been thrown at him, he still has an ace in the whole – and that is probably the plea bargaining option with compelling evidence of the entire sordid Arms Deal … which due to its sensitivity, will not become public knowledge or jeopardize the security of the State it will – YODASPEAK
Khosi, you make out that if Zuma is tried in court for the world to see, the spectacle would be harmful to South Africa.
Let me, if I may, begin unpacking your position that setting aside the possibly unlawful decision to drop the charges against Zuma and seeing him tried would be the graver of two evils. To do so, I will pose two questions. One, how might it hurt South Africa if the decision is set aside and Zuma tried? Two, how might it help?
One: how might it hurt?
A) Well, I suppose that South Africans could end up looking like complete mugs for electing so dubious a bloke.
B) There could also be protests which may even result in violence. This of course is a very serious possible consequence and as much as it pains me to say it, it may militate heavily against placing Zuma in a criminal court to answer a case.
Two: how might it help?
A) The rest of the world is not stupid. Many of the more informed people will already have their doubts about Zuma. Actually, the judge who penned the decision from Hong Kong (which Mpshe abusively misused) had quite a bit to say about the dubious basis upon which the decision was taken to drop the case against Zuma. In short: many in the international community could well think ill of Zuma already. So in this narrow sense, it might not cost South Africa very much at all as regards our international image to see Zuma answer the State’s case. And as Sarah pointed out a little earlier, it may even make us look good.
B) Our democracy is already taking a heavy pounding. Do you really want to see the ANC and its affiliates become more brazen? And it certainly appears that they are. Zuma and Hlophe both benefitting from contrived decisions in the same calender year. One almost has to wonder whether the ANC already regards itself as untouchable. My basic point: noble South Africans should be applauded for speaking out against this sort of thing.
C) In the absence of decidedly compelling reasons, asserting the rule of law in a constitutional democracy is essential. If we allow our selves to fail to even try to do so when the rule of law is brazenly imperilled, we relegate ourselves to a constitutional democracy in name only.
D) If we let the possibility of violent protests to convince us to allow the rule of law to be undermined, we basically concede that the ANC is free to do as it wishes. Such a state of affairs can only pan out badly.
With respect Khosi, I do not think that your heart is in the wrong place. I will commend for that. And I will not say that your position makes no sense. I think it is arguable.
But given the circumstances and some factors which I regard as relevant, I must respectfully associate myself with Mrs Palin’s analysis.
@Anonymouse,
You have hit it on the nail. You see, we all knew JZ’s legal issues before the elections. The South African electorate had an opportunity to voice its views on JZ. And that view was clear, the electorate wanted him as president. Now, some who thought otherwise are trying all tricks in the book to reverse the will of the electorate and I am saying that such actions, would damage the institution of the presidency, and the country, more than it would delivery ‘justice’ to JZ.
To avoid this would mean that WE, as the electorate, need to elect ‘better’.
Just let JZ go. And lets move on.
On a side note: maybe TM saw this coming and tried to spare us by exposing himself to a possibility of a humiliating defeat! (suddenly I smell a rat).
Harold Ferwood says:
September 18, 2009 at 12:04 pm
“And we know how brilliantly Jacob Zuma has handled everything that has been thrown at him”
I once heard him comment along the following lines.
“Don’t fight unless you absolutely have to. If you have to never fight on the terrain set by the enemy in which case you will probably lose. Set your own terrain and bring your enemy to you.”
He does that darn well!
@Leigh,
Please refer to : -
khosi says:
September 18, 2009 at 12:10 pm
It is not like South African did not have a chance to decide on this matter. We made a decision at the ballot and some would even say, at Polokwane. As Sarah put it, we as the South African electorate seem to like being in what she termed an ‘abusive relationship’. Well, we get the leaders we deserve and want. And right now, its JZ with all his flaws. Period.
I just do not get why a few people think they should take it to themselves to change the will of the people. However incorrect the will of the people is.
@ Khosi …
You are raising unnecessary alarm that any case against JZ will be embarrassing or damaging to our country. The purpose of these legal wrangles were to prevent him from having any presidential ambitions and have failed dismally. In fact he persevered so triumphantly, he will definitely be serving a second term by the look of things.
To pursue the matter further would raise the risk of deep exposure of the ARMS DEAL and which those who conspired against JZ knew he wouldn’t rely on but would be wholly destroyed if he did.
The “comrade” bond between JZ and Shaik is a just the tip of the iceberg.
In my personal opinion, I would rather nail those senior naval officers whose resignation farewell functions I had to arrange before they left for very lucrative jobs at the very German Arms manufacturers who built our corvettes!!! Rear Admiral Johnny Kamerman – I wonder where he is????
Maggs Naidu says:
September 18, 2009 at 12:11 pm
classic Sun Tzu!
khosi says:
September 18, 2009 at 12:18 pm
“I just do not get why a few people think they should take it to themselves to change the will of the people”.
And why not?
Harold Ferwood says:
September 18, 2009 at 12:24 pm
It would be wonderful for our country if the arms deal were blown wide open.
@Harold Ferwood,
Why would it not be embarrassing for a sitting head of state to face corruption charges in his own country? Whether he/she is guilty or not.
Again, I am not going to entertain conspiracy theories.
What is really scary and dangerous, is that Hulley and so many others in powerful positions actually believe themselves. It appears to me that they are forever on the defensive, and as such have developed a mind net which prevents them from seeing truth, and almost certainly they are unable to examine their thoughts, words and actions in comprehensive clarity. Consequently they are dishonest without recognizing it.
They have put themselves in positions whereby, since they are not practising truth, they have no way of recognizing it.
Khosi,in a constitutional democracy such as our’s, the will of the people/majority is constrained by constitutional dictates and the rule of law. Thus, if a decision is unlawful, the fact that people are prepared to tolearte it does not make it tolerable.
Anonymouse says:
September 18, 2009 at 11:51 am
Mouse, I submit that your submissions on the application of International Law to our country are quite over-zealous. When dealing with International Law one ought to be careful. South Africa is a sovereign country. As a source of law, the decisions of the International Court of Justice (ICJ) are not binding on states which are not party to the dispute in question. This gives merely persuasive value to the decisions of ICJ as far as our country is concerned. Moreover, the implication in s233, read with the expressly stated supremacy of the Constitution in s2, cleaves to the fact that international law, regardless of how attractive it is to those who would relish seeing the sitting President in court, must give way to the Constitution.
The binding sources of International Law are basically two; (1) custom (s232 of the Constitution) and (2) signed and/or acceded to and ratified international treaties, conventions, etc (international instruments), (s231 of the Constitution), both read with s233 of the Constitution.
We all know the problems associated with proving international customary law; its has to have been generally accepted and practised for a long time for it to be considered binding on the civilised nations the member of which our country is. I refer you to the numerous cases brought against South Africa during the Apartheid era on the basis that South Africa was in breach of international customary law by practising Apartheid.
In respect of international treaties as a source of binding law on South Africa, well, I have never heard of any international instrument which made it possible for member states to charge a sitting President to which our country is signatory and which has been ratified as required by s231 of the Constitution.
Therefore, international law cannot serve as a basis for the proposition that President Zuma can and must be charged.
All the above does not of course include an argument based on the prejudice which the court may say the accused will suffer based on the developments of the case. I hope that Mr. Hulley has argued this point in his affidavit which affidavit I am yet to read.
khosi says:
September 18, 2009 at 12:32 pm
JEEZ, The same man faced rape charges and was considered the deputy president at the time!! He uttered some unflattering things in his defence but what? Are you embarrassed? Well 65,9% of those who voted during the last elections would definitely disagree with you. And please tell me who would feel so high and mighty as to point to our head of State as an embarassment?
He is the President now and we moving forward, brilliantly – except of course for a few sinister factions trying to hinder our evolution…
Sne says:
September 18, 2009 at 12:46 pm
Sne, my references to international law were not intended to create the imporession that international law might authorise other states to charge Zuma (or to exert pressure on RSA to cahrge Zuma). I engaged with Chris McDaniel in this respect merely because he said that there is no rule of international law providing a sitting head of state woith imunity against prosecution. I know all to well that international law is weak in character, and, in fact, even customary international law and conventional law may sometimes be ignored by states with impunity. (The Al Bbashir debacle, for example.) However, what I did say to Chris is that, although the ICJ decision is there, providing for international law (not necessarily binding on other states) on the point of immunity, a good case is to be made out that international law is moving away from providing imunity to sitting heads of state. That is however really besides the JZ debacle as he is wanted on a national crime, not an international crime.
@Mouse Got it bro…
Harold Ferwood says:
September 18, 2009 at 12:47 pm
“And please tell me who would feel so high and mighty as to point to our head of State as an embarassment?”
Hmmmm. Hard one.
I wonder where I heard this before “In the year of [US President Barack] Obama, can you imagine what it is like when you are walking in New York and they ask you who will be the next president…?”
Harold Ferwood says:
September 18, 2009 at 12:47 pm
“I wonder where I heard this before “In the year of [US President Barack] Obama, can you imagine what it is like when you are walking in New York and they ask you who will be the next president…?”
Your meaning kinda slips me here …
But nevertheless, the few states who would actually give a rat’s ass about our country’s politics are doing far better in the “most embarrassing awards” stakes .
Anonymouse says:
September 18, 2009 at 11:51 am
Thing is, this matter has not yet been properly settled in international law.
I think the problem lies in the execution of the charges esp to african states.
With regards to congo v Belgium
the majority took pains to point out that its holding was not meant to shield all high officials indefinitely.23 Such persons, it noted, enjoy no criminal immunity under international law under four specific circumstances: (i) if charged within their own countries; (ii) if their own state has explicitly waived immunity; (iii) “in respect of acts committed prior or subsequent to his or her period of office, for] in respect of acts committed during that period of office in a private capacity”; or (iv) if a properly constituted international tribunal, such as the International Criminal Tribunal for the former Yugoslavia or the International Criminal Court, established pursuant to a UN resolution or IMAGE FORMULA 17
Harold Ferwood says:
September 18, 2009 at 13:20 pm
That was Arch Tutu before our last elections.
@Harold Ferwood,
Can I point out to you that YOU, not me, are the one who introduced the word ‘embarrassing’ to the debate. Stop being hysterical.
Anonymouse says:
September 18, 2009 at 12:56 pm
“That is however really besides the JZ debacle as he is wanted on a national crime, not an international crime.”
Thats also debatable Zuma was dealing in international arms trade.
But irrespective, there is no law that states zuma can not be charged as a sitting president.
What i find even more shocking is Hulley is saying the president must be impeached first, that is laughable. If we take the Motata case, Motata as a sitting judge was prosecuted first before a hearing is even taking place for his impeachment
khosi says:
September 18, 2009 at 13:31 pm
“It would be an extremely harmful spectacle.”
“JZ is the president of the republic and the presidency is an institution that must and cannot be dragged through the mud.”
Please do explain what you were implying here??? In one word that is …
Leigh says:
September 18, 2009 at 12:08 pm
“The rest of the world is not stupid. Many of the more informed people will already have their doubts about Zuma.”
Who might some of those be?
Anonymouse says:
September 18, 2009 at 12:56 pm
“That is however really besides the JZ debacle as he is wanted on a national crime, not an international crime.”
???
[...] Legal expert Pierre de Vos has rubbished Hulley’s argument in the strongest terms while legal layman Grubstreet is of the opinion that the 1993 Ciskei ruling does indeed have a bearing on this case. [...]
Maggs Naidu says:
September 18, 2009 at 13:45 pm
We all sometimes make a booboo!
Maggs, I am not so sure about how serious your question is. But I will give you the benefit of the doubt and answer in a straightforward fashion.
You will of course know that in some respects, our world is quite small. If one has the means, it is not terribly difficult to absorb information about foreign countries. Many people do so without much in the way of conscious effort. You tell me how hard is it to retain something of the following: ANC president faces over 700 hundred charges. His advisor and benefactor (Shaik) was convicted and Zuma implicated in illicit dealings judicial rulings.
NPA takes a controversial (and dubious) decision which sees the case against Zuma dropped despite the NPA maintaining that it had a winnable case.
In short, we already look bad.
Harold Ferwood says:
September 18, 2009 at 13:42 pm
This is taking us nowhere. Thanks for you time.
Zuma’s affidavit: the king can do wrong | Grubstreet says
Very fascinating, south africa had 3 countries with initself?
was reading a little on Ciskei
Your article would appear to be Oupa Gqozo revenge, how ironic
Maggs, in one of the earliest posts in this discussion, you make out that you would be surprised to hear that even a single South African believed that Zuma is above the law.
Maggs, let me respectfully point out the basic oversight of your view here: people (especially ANC supporters) may say that the President is not above the law. But the sad reality is that many of their arguments and lamentations implicitly indicate that that misguided position is precisely what they think: Zuma is not subject to the same laws as everyone else. In other words: he is above the law.
One of our fellow bloggers just communicated to me today that because the majority of people voted for the ANC, we must respect their will and leave Zuma be.
Now the crucial question is: does this position imply that even if the decision to drop the charges against Zuma was unlawful, that we must simply overlook that? If so, it embraces the view that the unlawful decision that benefitted Zuma is invulnerable to review.
Would ANC supporters accept it had it been Zille who benefitted from an unlawful decision? Never. I expect that theirs would be the loudest and most abusive calls for a judicial review.
Now by avoiding that position as regards Zuma, they implicitly advance that he is above the law. And that of course is constitutionally impermissible.
By the by: Hulley’s allegations on the papers defy belief.
Certainly Khosi, as you have conceded, it is not an embarrassment.
Chris McDaniel says:
September 18, 2009 at 14:04 pm
Yes, One of the “countries”, Bophuthatswana, had ambitions to purchase a submarine! Talk about Arms Deal scandals ….
Maggs Naidu says:
September 18, 2009 at 13:45 pm
Why all the question marks??? The charges that Zuma is ‘wanted’ on (that is if the NPA or a private prosecutor re-instates prosecution), relate to corruption, fraud and tax evasion – all national crimes. The difference of opinion between myself and Chris (which is not really a difference of opinion at all, taking into account that I think Congo v Belgium was wrongly decided from an international law point of view) revolves around whether there is a rule of international law preventing the prosecution of a sitting head of state – now the only ‘international law’ on that subject relates to when a sitting head of state is wanted for trial on an international crime (e.g., genocide, war crimes, crime against humanity, etc.); or for trial by a foreign state for national crimes committed by a sitting head of state while abroad (in which case the rules of diplomatic immunity would apply). None of these principles of international law (forget for a moment how weak those principles are and whether they in fact constitute sound ‘principles’) apply to the Zuma matter.
If Zuma is re-charged, which I think should happen, because, regardless of the conspiracy theories and political influences pro-et-anti his prosecution, he has a clear prima facie case to answer to; and, because he is not elevated above the law (at least as far as South Aftrican law is concerned). I do not agree with the likes of Khosi that it would be so embarrassing for the RS of A that we should rather forget about prosecuting Zuma. In fact, I find it very embarrassing that the head of state is suspected, on good grounds, to have committed crimes like corruption and fraud. If we are serious about the Rule of law and Constitutionalism, he should face the day in court (even if it requires him to resign for the duration of the court case to save face). If he is acquitted, then good luck to him and may he rule for two terms. If, however, he is convicted, he should never have been elected President at all.
However, on Hulley’s papers, Jacob Zuma is not just a ’sitting head of state’ – he is a ’sitting duck’ for the law.
Chris McDaniel – “Very fascinating, south africa had 3 countries with initself?
was reading a little on Ciskei”
Actually, South Africa comprised of 5 states, the Republic of South Africa; Transkei; Bophutatswana; Venda; and Ciskei (the TBVC states). Well, that was a matter for debate really, because, while the RSA and a few others, like the US and Israel recognized the independent status of the TBVC states and would therefore enter into diplomatic relations with them, the rest of the world didn’t.
Nevertheless, I have also earlier above, like Grubstreet, referred to the decision in Oupa Gqozo’s case, where it was decided that, in South African law (which was also in most – if not all – respects the same as Ciskeian law) the King can actually do wrong and be tried for it. Thus, at the level of national law, Hulley’s arguments fail dismally.
Pierre, your vindictiveness and myopia nausiates and leaves much to be desired for a self stlyed Prof of constitutional law, why after a good argument admittedly would you refer to your President as ” self styled President”, you annoy!
Harold Ferwood says:
September 18, 2009 at 14:22 pm
How many of these countries were there?
Anonymouse says:
September 18, 2009 at 14:31 pm
“If we are serious about the Rule of law and Constitutionalism …”
Then how can the State possibly continue pursuing the matter when various subsections of S35 has been violated and thus prejudiced JZ to such an extent as to make it impossible for him to have a fair trial? The Courts will no doubt come to this conclusion and put a end to the hypothetical scenarios slash pipe dreams.
I think this is more of a case of our law doing exactly what it is meant to do, and safeguard the interests of the individual, irrespective of who she/he is.
Anonymouse says:
September 18, 2009 at 14:41 pm
Thanks 5 of these countries, this defies my logic on apartheid
Harold Ferwood – “Then how can the State possibly continue pursuing the matter when various subsections of S35 has been violated and thus prejudiced JZ to such an extent as to make it impossible for him to have a fair trial? The Courts will no doubt come to this conclusion and put a end to the hypothetical scenarios slash pipe dreams.”
That is of course only if you accept Hulley’s arguments on whether any of JZ’s so-called ‘fair-trial-rights’ have been infringed. This, we have debated ad nauseam at the time. None of his rights have ever been infringed by the state. In fact, the real reason for his not having received a speedy trial can be attributed to his own countless (frivolous and vexatious) applications to have evidence surpressed, to have the matters struck off the roll and to get a permanent stay of prosecution. One day he would say: “I want my day in court.”; but the next: “They don’t have anything against me. I don’t want to be in court. I wanna be the President.”
Chris McDaniel says:
September 18, 2009 at 14:48 pm
How so?
If it wasn’t so twisted, it could be hailed for its sheer brilliance! Not just politically but economically as well, with these “countries having no gambling restrictions allowing Sol Kerzner to become wealthy beyond comprehension – no to mention a couple of cabinet ministers to boot.
Harold Ferwood says:
September 18, 2009 at 15:00 pm
well im guessing these countries had there own sovergnty? then why be absorbed then into south africa?
@ Chris …
try finding one of the harrowing pictures taken ever, of 3 AWB members who were killed by the Bophuthatswana Defence Force (BDF) after a coup attempt or something … my memory fades me.
I think its up there with that National Geographic Afghan Girl pic … haunts you forever.
Leigh says:
September 18, 2009 at 13:57 pm
Hey Leigh – your straight forward answer is not so straight forward. “Many of the more informed people will already have their doubts about Zuma” – just some names will do.
Leigh says:
September 18, 2009 at 14:18 pm
Just in case it’s not that clear, I am an ANC supporter. In the previous two general elections, I neither campaigned nor voted, not even maintained my ANC membership since 2000 – I did not think that administration was good for us.
I actively campaigned in the last elections for the ANC (and voted). I think fondly of Zuma. But more than that, even the dear Madam now concedes that we’re a far cry from what we had over the previous ten years.
I get different views among people I engage with (some Zuma supporters, some not) split fairly evenly for different reasons. Some extremely astute legal minds whom I engage with seem to think that this matter is best laid to rest. Others think it should not. Some Zuma supporters think it wrong to bring this up again, some think it’s best to have it all cleared by Zuma going before a court of law.
The point I make is that your assertion that there is a single, overarching mindset that says Zuma is above the law is improperly informed. Some may say that, so what? People say all kinds of things – the “King of Bling” had his supporters bussed to court to make some song and dance, it does not mean much.
Re Zille – I am not sure how the ANC supporters would react, but recall that re the Basson matter, ANC supporters made a bit of noise then forgot all about it. The Erasmus Commission was shut down – hardly a grunt.
Anonymouse says:
September 18, 2009 at 14:56 pm
I don’t have to rely on Hulley’s arguments whats so ever … he unfortunately failed to establish proper reasoning for it, but the fact remains (and will surface should the matter proceed forward) that various members of the State unlawfully conspire against JZ to such an extent that in no way can he ever receive a fair trial – only one judge would overlook this, and thankfully he’s retired.
Chris McDaniel says:
September 18, 2009 at 15:03 pm
It is debatable whether they had their own ’sovereignty’. One of the requirements of statehood is that the relevant state must have the capacity to enter into relations with other states. (This was decided at Montevideo, remember?) These ’states’ did not have that capacity (theyt did not even attain membership of the UN) – and the majority view in South Africa (the view of those who did not have a vote pre-1994) was that their so-called ‘independence’ was granted illegally by the apartheid regime. That is why they have been re-absorbed into South Africa. This reasong however does not apply to two other truly independent states enclosed within the external borders of South Africa, Lesotho and Swaziland (the latter does however have its own border with Mocambique and is not entirely enclosed) since they have been recognized as independent by the entire international community of states.
Harold Ferwood says:
September 18, 2009 at 15:11 pm
“State unlawfully conspire against JZ to such an extent that in no way can he ever receive a fair trial”
State unlawfully conspired, how? (thats a bold statement)
How can JZ not get a fair trail? he has displayed a endless amount of cash supply to buy the best defence lawers that OJ Simpson would be envy of
Harold Ferwood – “try finding one of the harrowing pictures taken ever, of 3 AWB members who were killed by the Bophuthatswana Defence Force (BDF) after a coup attempt or something … my memory fades me.”
You are of course referring to the “Battle of Klipdrift (met eish ja)”, where Eugene Terreblanche and his laughing stock of boer soldiers tried to support the forces backed by Constand Viljoen to restore “peace and security” in Bop.
Mouse
“was that their so-called ‘independence’ was granted illegally by the apartheid regime.”
Im still lost then, how truly bad was this apartheid regime them? it appears to me it gave ethnic groups a chance to be masters of there own destiny?
Chris – Masters of their own destiny yes, but in a “homeland” called a “bantustan”. More or less like the US of A’s “reservations for education” that were created for the red skin Indians, which were, thank God, never granted so-called “independence”.
Anonymouse says:
September 18, 2009 at 15:20 pm
ahh ok so these little countries where more like reservation camps? Ok I understand now
Chris McDaniel says:
September 18, 2009 at 15:15 pm
State unlawfully conspired, how? (thats a bold statement)
Not bold in the least. Subject to Judge Nicols’ judgment, which was ridiculed, directly lead to the resignation of the last President …
The tapes which JZ’s counsel presented and lead to the NPA being forced to drop all charges against him …
are all in support of this statement of mine.
Anonymouse says:
September 18, 2009 at 15:16 pm
Yes, it is … you have quite a memory! One of the injured AWB men are alleged to have wailed for medical attention and was answered with 6 bullets from a pump-action shotgun into the back! Hectic stuff!
Seems to me as if two issues are being conflated. First question is, should our President (or any sitting president) face criminal charges. I am (softly) leaning towards answering no. Easy solution for that: President who is charged with a serious crime resigns. Second issue, should charges be dropped unlawfully. Obviously not as this would erode the Rule of Law and send a signal that some are above the law.
On related matter. If the decision to drop charges is set aside, sure the original decision to charge Zuma would stand. There would be no need to recharge as the decision to drop the charges would have been declared unlawful. Or am I missing something?
Harold Ferwood says:
September 18, 2009 at 15:25 pm
Judge Nicols’ judgment was overturned by Harms and blasted for comming up to some prefabricated illusions of a poltical conspiracy without evidence
as for the tapes? the NPA recieved transcripts of the tapes did they recieve the full transcripts? did they evn hear the actual audio?, the tapes were illegaly obtained, audio can and is easly manipulated either in analog or digital form.
Like I said its a bold statement to say they state conspired without evidence
Pierre
Lol absolutly, why recharge when the charges are already standing
Chris McDaniel says:
September 18, 2009 at 15:18 pm
Thats why I say it was almost praiseworthy for its sheer brilliance if not for its pure evil intent.
Those who wielded power in those “countries” had only standard 5( grade 7) education levels (and that is bantu education standards) with subordinates with far less … and we complain about our leaders lol!
You should try and get a book called “the lighter side of Apartheid” by Ben McLennan for the more hilarious (obviously) parts of that era … should look out for what they found in the President’s Office safe of the Old Bop. more Hectic Stuff!
Pierre De Vos says:
September 18, 2009 at 15:29 pm
“President who is charged with a serious crime resigns”.
Guilty until proven innocent?
Chris McDaniel says:
September 18, 2009 at 15:18 pm
“Im still lost then, how truly bad was this apartheid regime them?”
Is that a question that even needs to contemplated?
Some of the answers may be found in the Second Carnegie Commission of Enquiry into Poverty and Development in South and Southern Africa as well as the TRC reports at the very least.
@Anonymouse says:
September 18, 2009 at 14:31 pm
Just like Harold, you are putting words in my mouth. When did I affirm that it would be embarrassing to have the president prosecuted? I merely said it would be a ’spectacle’, and I believe that to be a statement of fact.
Harold Ferwood says:
September 18, 2009 at 15:35 pm
“should look out for what they found in the President’s Office safe of the Old Bop. more Hectic Stuff”
Gilrs gone wild video?
I wonder if Zuma has the snoop dog version
Maggs Naidu says:
September 18, 2009 at 15:41 pm
Thats why I was lost, cos it appeared to me (forgive me as am not south african) that land was given back to natives from were they orginated from to have there own independent country. That blow my mind, however Mouse educated me that was not the case in a sense as they were reservation land very similar to what we did in the US.
Chris McDaniel says:
September 18, 2009 at 15:32 pm
It was enough to get rid of TM and he till today cannot be found.
And for a NPA who for 8 straight years worked on this case and then decide to drop the charges says a little more than what you concluded could be possibly “fabricated evidence”.
Professor, Is there a law (besides S89) that states that a sitting president MUST resign when charges of a serious crime?
and section 89 – Removal of President
(1) The National Assembly, by a resolution adopted with a supporting vote of at
least two thirds of its members, may remove the President from office only on the
grounds of-
(a) a serious violation of the Constitution or the law;
(b) serious misconduct; or
(c) inability to perform the functions of office.
which of these would facing charges of serious crime fall under?
Chris McDaniel says:
September 18, 2009 at 15:43 pm
Nope. … just a couple of files …….. and A HUMAN SKELETON WITH TATTERED CLOTHES ON!!!!???!!!
khosi says:
September 18, 2009 at 15:41 pm
Jeez, Khosi two different individuals clearly understood what you’ve implied without even having to say the word “EMBARRASSMENT’.
I don’t not think our president need the sort of “protection” you offering which amounts to … WHAT ARE THE NEIGHBOURS GONNA SAY???
Harold Ferwood says:
September 18, 2009 at 15:49 pm
It was enough to get rid of TM and he till today cannot be found
That I suppose is what is comical about the situation. A conspiracy about a conspiracy without evidence? but didnt the ANC say thats not the reason why they got rid of TM?
“And for a NPA who for 8 straight years worked on this case and then decide to drop the charges says a little more than what you concluded could be possibly “fabricated evidence”.”
Charges which Pikoli publicly stated he would of charged Zuma, if well…if he wasnt illegaly fired
How do you know the tapes werent fabricated evidence?
Harold Ferwood says:
September 18, 2009 at 15:49 pm
LOL … because they came straight from the NIA! Our own little big brother …
Trust me, those tapes are the real mccoy!
Chris McDaniel says:
September 18, 2009 at 15:57 pm
Just think about it … here you had a guy (TM) who wouldn’t budge for anyone (except old bob), going into the sunset without even a raised fist – when he ruled with an iron one???
Chris McDaniel says:
September 18, 2009 at 15:57 pm
How do you know the tapes werent fabricated evidence?
———————————————————————————————-
Ngcuka, McCarthy at least would have said so.
Maggs is right.
Pierre, why on earth should a President charged with a serious crime resign?
You and Maggs are probably too young to remember Watergate.
But I do. I will never forget my anger when I heard D,C. Democrats howling for Nixon’s resignation, following the indictments. Had these Congressman never heard of the presumption of innocence, I asked myself.
Anyway, when Nixon caved, I lost all respek for him.
Damnit Harold
U got me there with the NIA. But thats not important anymore, I think whats is of national concern does Zuma have a copy of Snoop dogs Girls gone wild?
Maggs Naidu says:
September 18, 2009 at 16:05 pm
How do you know the tapes werent fabricated evidence?
———————————————————————————————-
Ngcuka, McCarthy at least would have said so.
but they did
@Harold Ferwood says:
September 18, 2009 at 15:57 pm
You have been blogging the whole day and you have not had much time to think. So you will be forgiven for not realizing that Mouse may have thought that I used the word ‘embarrassment’ because he read what you ill wrote about my alleged use of that word.
That said, please read what Cosatu is now saying about that other ‘guy’:-
http://www.iol.co.za/index.php?set_id=1&click_id=6&art_id=vn20090918123645154C861700
Chris McDaniel says:
September 18, 2009 at 16:12 pm
He did … but Ray Mcauley wanted to borrow it.
Mikhail Dworkin Fassbinder says:
September 18, 2009 at 16:08 pm
Hey Dwork, welcome back and great to see ya to.
Watergate, nah not familiar.
But I know that apartheid was declared a crime against humanity and nobody resigned.
de Klerk is still regarded as a hero in many quarters (including the Noble Institute).
I heard that Silvio Berlusconi is romping about with some 18 years olds. Less important is that he is presumed innocent on allegations of some really serious corruption, but as Asterix would say “those Romans are crazy”.
Chris McDaniel says:
September 18, 2009 at 16:12 pm
but they did
——————————————————–
Not believably so.
khosi says:
September 18, 2009 at 16:15 pm
Khosi … ever heard the expression …
“The lady protests too much”.
Harold Ferwood says:
September 18, 2009 at 16:17 pm
aahhh yes makes sense now, how to produce the next generation of believers?
Maggs Naidu says:
September 18, 2009 at 16:20 pm
Not believably so.
Believably so X 10 nikkie buds
Chris McDaniel says:
September 18, 2009 at 16:24 pm
Yes. It is going to be an important instrument in the newly established NICL?’s ’social regeneration program’.
Hey Mikhail, you’ve seen Kriegler? I’ve had better lucky finding old Wally than that bugger. How’s the Motata campaign going?
Chris McDaniel says:
September 18, 2009 at 16:30 pm
I recall that they wanted an opportunity to listen to the tapes themselves and verifying it is them. Hopefully they won’t be like Joost and say something like ..
“no the guy speaking on the tape has a BIGGER voice”.
But jokes aside … Those two are so busted its unbelievable! For two guys who had top secret clearance, they mouthed off with wild abandonment at every opportunity.
Maggs, I always find the following line of reasoning a little difficult to swallow:
(a) Arguably bad thing X was done under apartheid.
(b) Ergo, it is fine for arguably bad thing X to be done by an ANC govt.
This just seems to be setting a rather poor standard by which to be judged.
I would think also that anything that the Italian PM does is better avoided than emulated.
Mdu, I am unaware of having used the phrase “self styled President”. Please advise.
Mags, no. Innocent until proven guilty. No one is saying President Zuma or any other President must be convicted or sent to prison without having been convicted at a fair trial (if we follow the law, the best bet for Zuma might well be to argue that a fair trial would be impossible and to ask for a permanent stay of prosecution). But if it is undesirable to act as President while on trial and if everyone is equal before the law, the solution – for practical reasons – is for the President to resign where a prima facie case leads to a trial. This has nothing to do with guilt or innocence of the President but with what is best for the country. Example: say somewhere in another country – the USA, say – a President is found by his body guards with a gun in his hand, his minister of intelligence dead on the floor with a bullet wound in the head and the President shouting: “You bastard, I told you I will get you.” Imagine further after investigation the President is charged with murdering his minister of intelligence. Now I might be old fashioned but it is my view that the best option for the President and the country would be to resign. He is not legally obliged to resign (just as Zuma would not be if he is charged), but as a matter of practicality, to save the country embarrassment and, yes! – public morality, the best option for the President would be to resign. Would you disagree on the basis of “innocent until proven guilty”? I know in the US you would be laughed at or maybe someone will call the insane assylum to come and take you away if you argued that in my example the President should stay on because he is “innocent until proven guilty”. I guess those crazy Americans know nothing about criminal procedure rights.
Michael Osborne says:
September 18, 2009 at 16:49 pm
I agree that we did not work towards democracy to be better than the iniquitous regime.
The point I was making is that selectively quoting international experience to “Stop Zuma” is not sensible.
If we have a case to make, let’s make it on its own merits – whether others have done better or worse is irrelevant.
If there is no legal obligation to resign, then it is understood that there is merely a “moral or “ethical” duty to then remove himself from office when facing serious criminal charges …
Should he take this avenue, what would it take to convince him otherwise and remain in office and face them as the State President?
a. strong public opinion
b. a weak state case against him
c. >>>
It seems that certain persons in our society are judged by different standards of morality/ethics than others and that principles such as “innocent till proven guilty” does not transcend all social sphere …
Therefore whether Kriegler is supposedly justified in his taking up on appeal the JSC’s decision, being a treasonous racist and blatant supporter of the Apartheid regime eradicates all “moral” authority.
Pierre De Vos,
There’s a huge difference between the example that you use and that which faces us. In any event in the example that you use, it may well as transpired that the dead guy was the one who brandished the gun and the President merely wrestled it, in the scuffle a shot went of.
I must admit that I find it difficult to draw the line between the perception of impropriety and innocent until proven guilty.
Should a MEC who authorised the procurement of equipment worth R300 000 for R1.5 million be allowed to stay in high office because criminal charges are withdrawn?
Should the King of Bling be allowed to run for political office whether while facing charges or even if those charges are dropped?
Should we force people from office where they have been setup?
These and more are challenging questions to which I hope some framework for resolving will emerge.
p.s. The US is not necessarily an example we should follow – there’s all kind of allegations on for example the abuse in Guantanamo, the Iraq war and tender irregularities and a lot more.
Pierre De Vos says:
September 18, 2009 at 16:55 pm
Mdu, I am unaware of having used the phrase “self styled President”. Please advise.
————————————————————————————————————-
“As part of the doctrine of separation of powers, courts have the power to enforce the Constitution and the law which binds everyone – even a self-styled State President.”
Maggs Naidu says:
September 18, 2009 at 17:28 pm
Not to mention an election which has been called ‘the biggest scam in history” – Bush v Gore …
But they remain the bastions of standards the world must follow!
Maggs Naidu says:
September 18, 2009 at 17:32 pm
You’re one sharp dude! Impressive!
Harold, aaaah. The “self-styled” was meant to refer to the “State”, not the “President”. I was commenting on Hulley’s ignorance of the fact that unlike in apartheid SA we do not have a State President but just a President. I humbly apologise for any confusion caused….
My point exactly. If even those evil bastards in the US would not put up with a sitting President charged with a serious crime, why would we sink even lower than them? Surely we have more back bone and a better sense of what is proper and right than the Americans? Or not?
i am worried that all these court challanges against “zuma” happens when he is about to replace 4 constitusional court judges, and it more likely than ever that he will appoint people closer to him and very likely jp hlophe as well, i think the whole saga will just worsen the state of affairs in judiciary than what it is intended to.
Et Al,
Almost exactly a year ago this was said:-
<>
No one soul, living or dead, has stood up in reproach. Today the judiciary is ‘not God’!
Et Al,
Let try again
Almost exactly a year ago this was said:-
“Fellow South Africans,Since the attainment of our freedom in 1994, we have acted consistently to respect and defend the independence of the judiciary. For this reason our successive governments have honoured all judicial decisions, including those that went against the Executive. This did not mean that the Executive did not at times have strong views which we would have publicly pronounced upon. The central approach we adopted has always been to defend the judiciary rather than act in a manner that would have had a negative impact on its work.”
No one soul, living or dead, has stood up in reproach. Today the judiciary is ‘not God’!
@ Pierre
Not to worry, I have then been referring to him incorrectly as the State President. …
Gonna just stick to my old name … Commander-in-Chief.
Pierre De Vos says:
September 18, 2009 at 17:44 pm
My difficulty with this is that a whole host of people, according to Patricia de Lille, had their fingers in the cookie jar.
The state institutions were used to get rid of political opponents, the others sit comfortably watching the circus go by (some now watching the heavenly circus).
As you are aware it’s so messy that several countries, including Britain and Germany, have stopped their investigations.
If this is to go anywhere, then as Harold suggested earlier, the entire matter needs to be opened wide.
Either that or shut it all down – I am all for the former.
Pierre De Vos says:
September 18, 2009 at 17:44 pm
The US simply does not charge their real criminal political leaders.
The entire Iraq war was based on lies and more lies – no one was charged although fingers clearly point to the culprits.
I would say there’s merit in your comment “I guess those crazy Americans know nothing about criminal procedure rights.”
Maggs, I find it hard to understand why you now say one should not cherry-pick from international experience.
Was it not you who raised the Berlusconi counter-example in this first place?
As for your suggesting that we should not “follow” the U.S,, example (of pressuring Nixon into resigning) — because, after all, Guatanamo Bay happened — all I can say is that you are ruining your chances of ever being nominated for the Nobel prize for logic.
Michael Osborne says:
September 18, 2009 at 17:58 pm
Was it not you who raised the Berlusconi counter-example in this first place?
As for your suggesting that we should not “follow” the U.S,, example (of pressuring Nixon into resigning) — because, after all, Guatanamo Bay happened — all I can say is that you are ruining your chances of ever being nominated for the Nobel prize for logic
——————————————————————————————————–
Eish Michael – you’re ruining thing between Dwork and me.
I concede that my logic is below par as as been consistently pointed out – that’s why I exchange my views with the smarter people in our society, hopefully in time my IQ will edge up a bit.
Humour me please, if it’s not too much to ask.
Maggs Naidu says:
September 18, 2009 at 17:50 pm
Maintaining the trend of using movie quotes for emphasis …
Jack Nicolson in “A Few Good Men” … “THE TRUTH!!! YOU CAN’T HANDLE THE TRUTH!”
Yes Maggs, many here cannot fathom how massive this thing is. We prance around debating bit and piece of legal questions, thinking it makes a differences, when in fact the ENTIRE system (and don’t mean the legal system) could come down!
Say I allege that Madiba got a kickback involving the Arms Deal which though he didn’t personally spend but one of his charities received … would that amount to a charge of corruption?
I’m all for TRUTH … may the chips fall where they may!
Maggs Naidu says:
September 18, 2009 at 18:02 pm
Don’t worry Maggs, your logic makes perfect sense to me … and besides logic is as varied as morality and it surely does not involve being smart.
Harold Ferwood says:
September 18, 2009 at 18:02 pm
Yes Maggs, many here cannot fathom how massive this thing is.
– “there are none so blind as those who will not see”.
—————————————————————————————————
R70 or R80 billion big.
“Stop Zuma” is easier.
JZ is alleged to have received R500 000 + R10 for a car wash.
Twenty people received massive discounts for their Mercs, only Yengeni got charged.
Eish!
p.s. If Zuma has to face the full might of the law and has to end up in prison, then so be it – I have no issue with that. I have a serious issue with state institutions being used to target political opponents.
In pretty much the same way, I have reservations over Judge Hlophe suitability as a judge, I am opposed to the way the institutions have been used to “get him”.
Harold, ’sinister’ is generally thought of as an intent to do evil, to harm, hurt, even destroy for one’s own personal advancement. Please, give me a break, all those who support the rule of law under the Constitution are justifiably concerned with the state of affairs today. Are you not aware that basic tenets of law, and of the Constitution, are being abused by self serving individuals, concerned only with power and wealth. Are you one of those who doesn’t practice truth in their daily lives, and thus is unable to see it?
Anonymouse: good to have you back on line. I trust all your exams went well.
cheers and lekker dag.
Anonymouse: International law will eventually be solidly established. Its just a matter of time, and I think, in our life time.
Why is it impossible for JZ to have a fair trial? I don’t get that.
There are several worrying issues raised in this post, re Mr Hulley and Zuma. It appears we’re going back to the time tested method Mr Zuma and his supporters used last time – while JZ charms away, and reassures us that he will most definitely run into any courtroom which asks him to answer some questions, we have his minions bleating fire and brimstone about political conspiracies, and making nonsensical statements which have no factual basis in law.
The job of the opposition is to do just that – oppose where it does not agree with the route the State takes in any particular circumstance. Given the dubious circumstances of the dropping of JZ’s charges, as well as the fact that just about all and sundry agree there is a prima facie case, it seems perfectly logical that the Opposition would bring something like this motion.
As for a sitting president not being charged, there are pros and cons of this argument. NORMALLY I would be in favour of not charging a sitting president – as Pierre says, he should resign and face charges, or Parliment should act to remove him as president first. This would allow smooth continuity with running the country, and help ensure investors and foreign capital (which SA sorely needs, like it or not) remain confident in the economic infrastructure. It would also “save face” on the international front, and show that we are not a bunch of brainless clowns running a typical African political show.
However, this is not a normal situation. Zuma had charges dropped on a technicality which had nothing to do with whether or not he was guilty of corruption. Therefore, although he has admitted that he took money from Shaik, who was convicted of fraud, we will never know in a legal sense whether JZ is guilty or innocent. With this large cloud hanging over his head, the man promptly jumped into his president clothes and sauntered out for all to see.
This, and the fact that the ANC majority would never impeach Zuma (they haven’t done it yet, no reason to suspect they might grow a moral backbone anytime soon), leads me to state that in this instance, where a sitting president takes office with uncleared suspicion hanging over him, there should be no exemption from recharging him, provided it is allowed by law (which it is). JZ had years of chances to go to court and actually prove he is innocent like he keeps claiming, it is purely his fault that he never took that opportunity up – although, as I say, innocent men don’t run away from the chance for vindication.
In the coming days and months you can rest assured Malema will start up with the rhetoric again, Hellen Zille will be character assassinated along with the DA, and mobs will chant in the street and burn tyres and destroy property. It’s the same pattern we saw before – and if I were JZ and the ANC, I wouldn’t change a winning formula. The rest of us will just sit back and be ashamed that we have to call some of these people fellow South Africans, as we’re told we’re racist etc etc. But I do hope that once and for all, JZ gets to prove his innocence. I think he’s actually doing a good job.
Don’t worry Harold, your logic makes perfect sense to me too …
The Big Slipper says:
September 18, 2009 at 18:40 pm
If Zille and the DA are so concerned about truth and justice, why was the the Erasmus Commission stopped?
Anonymouse: the red Indians in the US who I worked with for years may not have been granted full independence, but they were granted tribal law policing and courts and some independence, as in Canada (where most red Indians reside by the way). The system has worked, apart from earlier FBI blunders and atrocities, just fine in these latter years.
@Maggs, I believe because it was illegally constituted, if memory serves me correctly, and was basically deemed an ANC witch hunt.
Although, lets presume that your premise (which I infer is that the Erasmus Commission was discovering truth, and the DA stopped it because it didn’t want it’s dirt exposed) is correct, and the DA erred in covering up something it shouldn’t have been doing, or whatever. One swallow a summer does not make – shall we compare DA coverups to ANC coverups?
Khosi: don’t be rediculous, the judiciary is not God. The Judiciary is what we as thinking mature adults choose to arbitrate the facts in conflicts. We devised law, fair and free from intimidation, individuals schooled in precedent under the Constitution, and we trust our judiciary to make the decisions. If that trust is lost, we lose. So does the Judiciary.
The Big Slipper says:
September 18, 2009 at 18:53 pm
@Maggs, I believe because it was illegally constituted, if memory serves me correctly, and was basically deemed an ANC witch hunt.
Although, lets presume that your premise (which I infer is that the Erasmus Commission was discovering truth, and the DA stopped it because it didn’t want it’s dirt exposed) is correct, and the DA erred in covering up something it shouldn’t have been doing, or whatever. One swallow a summer does not make – shall we compare DA coverups to ANC coverups?
——————————————————————————————————
We can do that i.e. compare cover ups, if it will add value.
I was merely pointing out the I don’t believe politicians when we are told that their intentions are purely in search for the truth. But also the reasons that you advance applies equally to this entire saga.
If this is as simple as many would like us to believe, why then did Britain and Germany at least stop investigating this arms deal in their countries?
Prof: I want to believe this is irony: If even those evil bastards in the US…”
Please!
sirjay jonson says:
September 18, 2009 at 19:22 pm
Prof: I want to believe this is irony: If even those evil bastards in the US…”
——————————————————————————————————
I have no doubt that he was rubbing salt in my wounds.
Lucky for me, I am thick skinned!
The Big Slipper says:
September 18, 2009 at 18:53 pm
Oops – I thought I responded. Here goes again.
The reasons that you submit are much that same as this matter.
That does not exonerate Zuma if indeed he had his fingers in the till, but it does make a mockery of the “search for truth and justice”.
We can compare cover ups if it will add value – there’s all kinds of things going on everywhere, albeit on different scales.
If this matter was that simple then Britain and Germany would not have stopped their investigations.
Two things that needs to reiterate – firstly this is bigger than just Zuma, secondly it’s more complex than we are led to believe.
A judicial commission of enquiry may be the only way to go.
I don’t think it would add value to this present debate to be honest, and you and I both seem to have a bit of a cynical mind when it comes to politicians on any side of the fence when they claim to be interested in truth and honesty and so forth.
However, just because I find politicians to be generally self-serving and I feel they are generally one of the lower life-forms earth has spawned doesn’t mean that there are not times when I can’t support them in what they do.
Therefore, I support the ANC’s excellent macro-economic policy, which has up until now encouraged foreign investment into SA, as well as increased the tax base of the country (and compliance by taxpayers). I also support the current purge of corrupt public officials being undertaken by the ANC.
I think the ANC politicians are in general a bunch of self-serving fat cats who are only interested in their own comfy lifestyles, but that is irrelevant, as long as they are achieving results which benefit the country as a whole.
Similarly, I support the DA in their latest application re the JZ matter – not because I believe they are perfect, or shining examples of the moral, upright and honest politician, but purely because they are doing something which is right – giving our president another chance to clear his name in a court of law (something which he said he would welcome).
And yes, it is bigger than Zuma, which is why I think he is so desperate not to go to court – it would, I believe, end up implicating a whole bunch of people who have hitherto slipped under the radar, including Mr Trevor Manuel – whom, I may add, I admire greatly.
I wish to state again (in light of Maggs’ post, but also in general) – I am loyal only to South Africa. Political parties come and go and they’re all dirty as far as I’m concerned, but if any party is benefitting the country I love then I will support them in that endeavour – even if I’m denouncing them for another endeavour. SA has my loyalty, not the ANC, DA or anybody else.
@ Maggs
Maggs is right
A judicial commission is the only way to get the bottom of this.
That is why I am demanding that Motata J be appointed to chair such a commission.
Thank you, and good night.
Pierre, I knew you were going to say that, the point being you DA undermine our STATE PRESIDENT!
Not sure whether to believe it or not; but my friends with ears to the ANC ground tell me that some ANC big wigs aren’t exactly pleased with the DA’s move – not this time any way.
You see, recharging Zuma (it seems) is an ace up their sleeve, but only to be played at the most opportune moment; when they must absolutely have to get rid of Zuma.
As long as Zuma behaves, and as long as he knows the fate that might befall him should he become too big headed to tow the line; that card will not be played. The DA’s move at this time will destroy this blackmail ability.
Nice little story to tell friends at a shebeen while sponging off them; but like all conspiracy theories it’s all poppycock to me.
Mikhail Dworkin Fassbinder says:
September 18, 2009 at 22:41 pm
Did you get your change yet, from the R100 that is?
How’s the one member F-O-M association going?
The Big Slipper says:
September 18, 2009 at 20:52 pm
SA has my loyalty, not the ANC, DA or anybody else.
—————————————————————————-
I am a loyal ANC supporter.
Maybe not that loyal, given that I did not campaign in the previous two elections, much to the dismay of many in my circles – the upside is that I take great delight in saying to them “I told you so”, as the worms are now coming out of the woodwork, and rubbing their noses in it.
@ Maggs
Please do not mock FOM.
Admittedly, we are off to a slow start. But momentum is on our side.
BTW, what do you say about all these lies (predictably in the M&G), about it actually having been SA Athletics, rather than racist IAFA, that conspired to embarrass our golden girl?
Mikhail Dworkin Fassbinder says:
September 19, 2009 at 9:48 am
Eish!
ASA.
Damn disgrace.
These guys don’t even have an ounce of decency between all of them.
The 3rd Degree next week should be entertaining.
Gonna stock up on popcorn and Coke – I can wait to hear the lies and more lies.
Big Slipper: I know this is late, saturday afternoon for me, also for you perhaps, howver, my gardens are now wartered on a hot sunny day in the Koo, glass of Bon Courage in my hand, Nettie is pleased…. about the garden that is.
What we need in glorious South Africa are those individuals who enter political life not for self advancement, but because they wish and are determined to ‘fight the good fight’, the fight for equal rights under athe law, all equal, the rule of compassionate law, (fair) for the disadvantaged, the dispossed, the minorities, and the weak and the poor,!…. effectively, for all the South African people equal under the law.
Corruption and bullsh**t is not acceptable.
We must get there! Without this, we fai not just SA, but the World.
Hulley is right.
The DA’s sole policy is indeed to “carpingly criticise government.”
Zille constantly “carps” like an officious Madam. And, she uses Botox. (Ha ha!)
Instead of carping, “Godzille” should recognise that the people spoke clearly in April.
Thanks to all.
Hulley has done us all a huge favour. He has exposed to public scrutiny the manner in which all the players in ruling structures see themselves. This is not just about the President it is about the entire ANC and all its wide assortment of appendages ( and I use the word deliberately). The ASA debacle is a perfect example of this mindset which is so profoundly dangerous.
Let us all hope that this is being carefully noted in diplomatic circles
@ Maggs Naidu…that question about the DA and The Erasmus Commission was NOT a trenchant observation it was a display of ignorance. Ask Pierre if you do not believe me.
It is the job of the official opposition party to point out the errors and omission of the ruling party- this is a democracy, after all- last time I looked, not a one-party state, – yet!
Also, your hero, African leader Robert Mugabe, regularly goes for Botox treatment as well, so kindly be consistent in your ridicule.
anton kleinschmidt says:
September 20, 2009 at 7:46 am
@ Maggs Naidu…that question about the DA and The Erasmus Commission was NOT a trenchant observation it was a display of ignorance. Ask Pierre if you do not believe me.
——————————————————————————————————–
Oh enlightened one, thank you, thank you for your wise words.
Let’s leave Pierre out, I prefer you to deignorate me. (Hey that’s a cool word that I just coined – deingorate. Hmm I like the sound of that).
Anyway, let’s leave Pierre to contemplate less significant matters while you unpack the question so that I understand why you think lowly of this retarded one.
@ Enlightened Anton
Yes, the Erasmus Commission was declared unlawful. But who did the declaring? White judges, that’s who.
As Cd Malema has taught us, minorities cannot be trusted.
@ Justice, it does not concern that Cd Mugabe uses Botox. Having to fend off British imperialism has caused Cd Mugabe real stress over the years.
Godzille, by contrast, uses Botox as part of her professional presentation — as admonitory Madam.
Zille should adopt a less critical tone. I am convinced that would make the ANC more likely to listen to her,
Mikhail Dworkin Fassbinder says:
September 20, 2009 at 9:39 am
Well done Mikhail.
You’ve succeeded in turning this into a a race based debate – good on you.
You’re probably supported in the contention that Black people have little capacity to think and reason, by lots of experts, commentators and politicians.
I plead no contest – after all I am just one lowly Black person and as you know when God handed out intellect, we were placed last in the queue.
Maybe I should go back to being the hewer of wood and drawer of water rather and share silliness with like pigmented people, than trying to engage with the profoundly wise.
There you have it Maggs, Mikhail has answered your question but he has done so in a manner which speaks volumes about the growing intolerance of minorities.
Mikhail, would you agree that that the question of trustworthiness could also apply to majorities using this weekends ASA related debacle as an example. Malema took them at their word and…….ooops!
anton kleinschmidt says:
September 20, 2009 at 11:57 am
Big baas Mikhail is in a league all of his own.
My discussion with Big Slipper was around his comment on Zuma and Zille.
The essence of what I said is that both Zuma and Zille used constitutionally enshrined rights to have matters against them brought to an end.
It’s not correct to suggest that one has more rights than the other in our law.
I have made my comment that I think Hulley is talking nonsense when he suggests that our President is above the law – even our President has said otherwise.
Sure – many, including me, took Cheune at his word thinking that he would have no reason to do waht he did.
Cheune is a disgrace.
He’s an international disgrace.
He has humiliated Caster Semenya, ASA and our country – now that the matter has ended up in the UN we will not only have a lot of explaining to do.
One and a half decades of building credibility and respect at the UN is on the brink – all because of this horrible, horrible character.
@mikhail
Your reply is somewhat lacking in logic. One may argue that likewise Ms Zille has equally become stressed in fending off the assault on democracy and global credibility by the antics of government officials, the tripartite alliance and the institutions governing the country.
@Maggs Naidu
I suspect “Big Baas Mikhail” is a troll.
I’m Back!!!
Had to get myself formatted and re-installed …. Arigato Mr Roboto
AliBama says:
September 18, 2009 at 22:37 pm
“Are Dworkin, Naidu & Ferwood a spamming-robot, … ”
anton kleinschmidt says:
September 20, 2009 at 11:57 am
“There you have it Maggs, Mikhail has answered your question but he has done so in a manner which speaks volumes about the growing intolerance of minorities.”
I think you are mistaking “intolerance” for frustrations. This half-ass efforts to narrow the inequalities in our society by minority groups is seriously condescending, as we are expected to be grateful and sympathetic that “they are trying”.
Maggs Naidu says:
September 20, 2009 at 11:40 am
“I plead no contest – after all I am just one lowly Black person and as you know when God handed out intellect, we were placed last in the queue.”
But he gave us rhythm … that’s why the Toyi-Toyi is so effect!!!!
Question: Is there a hierarchy when comparing issues or causes?
For Example … If you had to rank say, Fight Global Warming vs Save the Cape Baboon … which should get priority, or any attention for that matter?
or Save the Con Court vs Rid the Judiciary of Racism?
Harold Ferwood says:
September 20, 2009 at 12:51 pm
Hey HF – happy Sunday.
What do you think of the cool word I made up.
De-ignorate.
It means removing ignorance from people. Now that I think about it – that’s a weird word. If I remove a tooth, I am left with a cavity. How do I remove the cavity *scratches head*.
Maybe I should have made up “norate” *pats self on the back*.
@ Justice
I take offence at the quasi-racist term “troll.” In any event, I am not one.
@ Maggs
I admit that I have turned our discussion in a racial direction. For that, I make no apologies. Are you, perchance, a liberal who prefers to deny that race continues to pervade every aspect of our society? The fact that government changed hands in 1994 did not suddenly erase the effects of colonialism and apartheid. That year was the beginning, not the end of our liberation.
Remember “De Nile” ain’t just a river in Egypt!
@ Mikhail…..what do you think would happen to these debates if all of us agreed not to use the words black, white and racism / racist (or any cute derivatives) and then tried to argue merely in terms of the issues. Race “pervades every aspect of our society” because most of our politicians use it as a shield against incompetence. Again…… the Semenya / ASA debacle had absolutely nothing to do with race until Melema and co decided otherwise.
@ anton
Re your quesation to Mikhail, if I may make a comment-there would be far fewer comments.
@mikhail
“quasi-racist”
Dictionary.com gives synonyms for quasi as:
“apparent, apparently, fake, mock, near, nominal,partly.”
which one do you mean? Because I did not mean anyof them.
Wiki defines troll as: “Someone who posts messages on the Internet to get a reaction from other online users, or to cause problems.”
and defines racist as: “Racism is the belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race.”
Given these definitions, I see absolutely nothing racist or even quasi-racist in jokingly referring to you as a troll, given that I have no idea what race you belong to.
Mikhail Dworkin Fassbinder says:
September 20, 2009 at 13:24 pm
“The fact that government changed hands in 1994 did not suddenly erase the effects of colonialism and apartheid. That year was the beginning, not the end of our liberation.”
Ditto that.
It’s affirmed by your stance that Black views are trivial, irrelevant and should be subdued.
Mikhail Dworkin Fassbinder says: September 20, 2009 at 13:24 pm
“@ Justice
I take offence at the quasi-racist term “troll.” In any event, I am not one.
@ Maggs
Remember “De Nile” ain’t just a river in Egypt!”
1) I propose Mikhail get species-tested.
2) Yes the Nile is not only a river in Egypt; it is also in Ethiopia and the Sudan.
@ Justice
OK, I withdraw my complaint that the term “troll” as used by you was quasi-racist.
I had thought the word “troll” might refer to a drawfish aboriginal European, perhaps a gnome, etc. But I appreciate now that you were using it is a quite different blogging context.
Still, I hope you can agree that we must all remain hyper-vigilant about any potential racism in our discourse, especially give the charged environment of contemporary South Africa,
@Justice
Thank you for your retraction, and I agree with you wholeheartedly that we must all be hyper-vigilant about any potential racism. Those of us who are sincerely interested in working towards a viable and sustainable future for our country, cannot resort to racialising issues that have no racist basis.
Mikhail: I agree, you’re a troll, no offence, surprised you not aware of it. Keep up the good work. cheers.
“One and a half decades of building credibility and respect at the UN is on the brink – all because of this horrible, horrible character.”
I don’t think you can blame only Mr. Chune for that, for example -
“South Africa refused to support a declaration by the United Nations General Assembly on Human Rights Day, December 18, calling for the decriminalisation of homosexuality.
This is despite the fact that freedom of sexual orientation is enshrined in the South African Constitution and the fact that the country has enacted progressive legislation on gay marriages.
In a bizarre twist, the South African judge recently appointed as the UN high commissioner for human rights, Navi Pillay, supported the declaration in a video-taped message broadcast during the general assembly debate.
Pillay said the “task and challenge [is] to move beyond a debate on whether all human beings have rights”, to “secure the climate for implementation”.
The declaration did not go to a vote, but drew support from 66 countries.”
http://www.mg.co.za/article/2009-01-13-sa-ducks-un-gay-rights-call
I must say I was gratified to hear that our country did not support the homosexual UN declaration.
This is not a matter of homophobia. Far from it. But we must recognise that one of the central tenets of our foreign policy has been to steadfastly oppose anything and everything the U.S. supports. It would simply have been inconsistent to join Washington and the 65 other states that supported the gay-loving declaration.
Also, as Pastor Ray has taught, although the Lord Jesus will surely pour out his loving grace upon all who open their hearts to him, Sodomy is verily an abomination in His sight.
Pierre
A technical point and a comment about the nature of this blog:
1. Since you’ve changed the design of your blog, both my wife and I have had problems accessing it at times. On Friday, for instance I could see only your blog entry while at her work she could see everything, comments included, but the blog! As we are not Mr and Mrs Jack Sprat, this situation is not ideal. Are others having problems too?
2. Although it must be gratifying to see ‘250 comments’ or ‘185′ comments where before you’d usually have between 30 and 100, I think you’ll agree that many of the recent contributions and exchanges have veered right off the topic you present and detract from what is always a good debate. While it is amusing to read the occasional witticisms and barbed comments, I for one now find it exceedingly tedious to wade through endless such exchanges between a few readers, to follow the main debate. Since censorship is not an option perhaps you could appeal to your readers to be courteous, circumspect and respect other readers rather than indulging themselves in this way.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71627?oid=144200&sn=Detail
If I read Cachalia’s words correct it reveals that SENIOR judges are contemplating resigning over the JSC debacle and the way the judiciary is bullied by the ANC [through the JSC majority]. He discussed resigning with Kriegler – who apparently convinced him to stay. And he is a post ‘94 appointment.
Kameraad Mhambi says:
September 20, 2009 at 18:22 pm
“South Africa refused to support a declaration by the United Nations General Assembly on Human Rights Day, December 18, calling for the decriminalisation of homosexuality”.
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Our stance is pathetic. At least we did not oppose it, not that it helps much.
“Everyone wants us to be at the forefront of everything and we can’t do that” – Whatever does this mean?
Eish!
@Mikhail – surely human rights has to do with more than sexual style?
Isn’t it wrong to reduce homosexuality to sodomy?
Henri says:
September 21, 2009 at 8:52 am
He discussed resigning with Kriegler – who apparently convinced him to stay. And he is a post ‘94 appointment.
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“Earlier, he denied that he had considered withdrawing from the application saying he had just asked former Constitutional Court judge Johan Kriegler if he should stay at the SCA longer.”
It seems to me the options Cachalia contemplated were to stay on the SCA or move to the CC, as opposed to resigning.
Hey Mikhail,
I’ve decided to support the F-O-M association. I would, however, liked to make a request that a primary objective of the organization would be to prevent the re-occurrence of anymore martyrdom of our black brothers for the purposes of exposing rife racism that still persists. We cannot afford to allow them to take it upon themselves to sacrifice their all for this worthy cause and must attempt to find alternative ways to draw attention to this plight.
How are we to overcome when our best and brightest become mere cannon fodder for these racist hordes?
Was Cachalia one of the privileged to receive tuition and guidance from Kriegler during the 80’s?
I would venture that Cachalia JA has talked himself out of Braamfontein.
Cachalia’s reported statement that, if he or his family appeared as a litigant court, he would not want a judge who looks like him, but only one who is fair, cuts quite against the racial numbers game that I am sure many of the JSC would prefer.
Harold, thank you for your support of FOM.
If we receive your cheque by 30 Sept 2009, we will allow you and two members of your family to join for R400, flat fee. You also get vouchers for purchases at select stores.
See FOM bank details on our website, http://www.fom.co.za.
I do not think it is fully understood how colonialism (and in the South African context, Apartheid) stunted natural cultural/social evolution. The sheer contradiction of the refusal to support the declaration and yet having a “world-class” constitution is indicative of the conflict that exists between being forced to project a eagerness to have human rights values, yet incapable of reconciling certain moral issues with it – due to being kept in an “immature” social construct.
I foresee that mere lip-service will be given to the acceptance of homosexuality and other taboo issues, whilst strong objections will continue and even reinforcement of traditionally-held perceptions taking place on the ground. How many thought “ja, moer hulle” when our president said he use to slap around the less heterosexual in our society when he was young?
Harold Ferwood says:
September 21, 2009 at 9:19 am
We cannot afford to allow them to take it upon themselves to sacrifice their all for this worthy cause and must attempt to find alternative ways to draw attention to this plight.
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We can all drive drunk.
Forget Arrive Alive.
FOM can get SAB as it’s main patron.
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20090921071308321C228745
John Hlophe
He was asked a wide range of questions, including about his dispute with the Concourt, and about his attitude to other races. All through the interview he remained unfazed by the barrage of questions. He told the panel he was adamant that he was not a racist. “White children come to my house… I’m in a lift club, white children drive in my car. I go to white people’s houses.” Judge Hlophe also denied any suggestion that his ugly battle with the Concourt should prevent him from getting a job on the country’s highest court.
Passed with flying colours!!!!! He forgot to say he is probably one of the only blacks in South Africa who would give a white beggar at an intersection, a donation … THAT KFC advert with the guy giving his sandwiches to the down-on-his-luck fellow everyday was actually based on him!!
Michael says:
September 21, 2009 at 9:27 am
“I would venture that Cachalia JA has talked himself out of Braamfontein.”
Yea, we do not want honest judges!
How do the JSC justify not allowing questions to Hlope on the Oasis matter? This may have been dealt with (or not) previously by the JSC, but public airing of all relevant issues is the whole point of these hearings…..
Harold Ferwood says:
September 21, 2009 at 9:46 am
“I do not think it is fully understood how colonialism (and in the South African context, Apartheid) stunted natural cultural/social evolution.”
You cannot stunt evolution you can only change its direction.
@ Maggs
Some sad news for those of us who firmly grasp the need for racially-based transformation of the bench.
Judge Cachalia — a man from struggle nobility — tells the JSC on Sunday he does not care what the colour of a Judge’s skin is, so long as he is fair.
Now it is reported that Judge Mapati, the black (!) judge who heads the Supreme Court of Appeals, resisted the demands of racial nationalists on the JSC that a white judge, Franz Malan, not be appointed.
According to the M&G, Mapati told the Black Lawyers Association that he needed a judge who was an experienced specialist in banking law, and Malan J was the best.
What a slap in the face for those of us who know very well that “experience” is just an excuse to exclude black judges!
Have you seen what Zachie Achmat has said?
http://mhambi.com/2009/09/jsc-and-achmat-judgement-on-judge-hlophe/
Mikhail Dworkin Fassbinder says:
September 21, 2009 at 11:05 am
Good for Judge Malan if he gets appointed.
That aside, I would be much happier if Judge Theron gets appointed – we need desperately to have judges who are victim centered.
I initially thought your analogy with the pilots was silly, it now takes a different slant. Practice over and over and over through the many years makes pilots act instinctively – that makes a difference between people becoming daisy pushers or living to fly another day.
Lawyers with the vast experience that you are looking for in judges, day in and day out are defending mainly criminals and or the rich and/or powerful. It’s unsurprising then that our justice system leans in that direction.
@ Kameraad Mhambi – thanks for the Achmat update.
@ Maggs
Maggs, the tens of thousands of indigent defendants who are convicted every year in Magistrates Courts, very often without the benefit of proper counsel, would be surprised to learn from you that the justice system “leans in [their] direction.”
Michael Osborne says:
September 21, 2009 at 13:09 pm
Hmm – I must have said that in a way which possibly gave the opposite meaning.
Let’s substitute criminals for “adequately resourced criminals”, arrrgghh – let’s just say rotters with money.
Maggs, what many considered (rightly or wrongly) to be the most prominent “well resourced” criminal who recently got off the hook by using very good lawyers and great lobbying is none other than the leader of the governing party.
If that be so, I suppose your logic would dictate that Kemp J. Kemp never be appointed as a CC judge — and not solely for the reason that he is a white male …
Michael says:
September 21, 2009 at 15:12 pm
Indeed – the Zuma matter establishes my point. What chance lesser mortals.
Here’s more interesting reading http://www.thoughtleader.co.za/paulngobeni/2009/09/18/will-the-jsc-debunk-the-myth-of-white-judicial-competence/
@ Maggs
Good of you to post the Ngobeni link
The problem is that poor Ngobeni has so discredited hiimself at this point that I would assume him to be wrong if he said the sky was blue.
(One of the smallest of his deceptions — allowing himself to be billed as “Dr” on SABC, when it is public record that he has no such degree. What is galling is that he really does not care about being caught out. There is not even redeeming shame.)
Michael says:
September 21, 2009 at 19:29 pm