When Justice Minister Jeff Radebe (that guy who masterminded the scandalous decision of the JSC not to investigate the complaints of gross misconduct against John Hlophe because it feared that a real investigation would have to lead to the impeachment of Hlophe) gave a speech yesterday at the farewell for five justices of the Constitutional Court, he sounded rather defensive.
Instead of mouthing warmhearted platitudes about our highest court – as one would have expected of a good politician – he spoke for fifteen minutes in defense of the JSC. He said the true test of the JSC’s character was that it was “fair, honest, and focused on providing the president with a cadre of justices from which he will make his decision”. The test was “not the accolades that arise as a consequence of whom they did not short-list as much as who they did”.
Of course the JSC did not embarrass itself with the compilation of the Constitutional Court short-list, but rather when it made an inexplicable decision to let John Hlophe off the hook and condoned lying by a judge.
No matter what the Minister says now, nothing can erase the fact that the JSC decided that it had nothing to do with it that a judge of one of our highest courts had lied under oath (and maybe that same judge had lied several other times to the media or under oath – that judge being John Hlophe, seemingly a pathological liar.
The fact that the Minister is now so defensive about the JSC suggests that he does have some shame and that he feels a bit embarrassed about the indefensible decision of the JSC. Maybe this is a good thing as it suggests the Minister of Justice understands what is right and wrong, what is legally and constitutionally required and what cannot be justified – he just chose for expedient reasons not to do what is right and not to obey the Constitution.
That is marginally better than having a Minister of Justice who acts unlawfully and does not even recognise that his actions are scandalous. Maybe there is something to work with there. Maybe he can still be convinced that following the Constitution and the law is not optional and that condoning the lying ways of a judge in the long term will hurt us all.
If he does not and if he thinks it is perfectly fine that a leader of our judiciary continues on the bench despite the fact that he is a pathological liar and a skel, well, then god help us all.
Pierre, I like the new look and feel of the blog. Well done!
I wonder about all this. Is it possible that the good minister was instructed to engineer a dismissal of the charges by the JSC. If so, what was the motivation? Is it possible that somewhere someone requested the JP to approach the judges of the CC and ask them to ensure that the right decision was made? Is it possible that there is a fear that this may become apparent in cross-examination of the JP? I really don’t know. But I do wonder.
Let us make two assumptions. Let us suppose, in the first place, that Jeff knew the difference between constitutionally tenable on the one hand, and constitutionally shameful on the other. And we can assume also that he knew for some while that Hlophe would not make the short list.
Now however bold these assumptions may be, they do bring up a question: how many of us are in rather two minds about Minister Radebe?
If one goal was to keep Hlophe off the Constitutional Court bench, then simply keeping him off the short list would have done well enough for the task. This accounts for the first mind.
But to turn to the second: regardless of how neatly the expedient course can accomplish one goal, the rule of law should not be undermined for expediency’s sake.
So on considered reflection I say stuff the first mind. If the above assumptions are actually true, then the Minister’s intentions may well not have been wholly misplaced. But very importantly, constitutional dictates, as the Professor rightly makes out, are not optional but obligatory. Thus expediency, as a consideration, must bow to the discharge of constitutional duties.
“Thus expediency, as a consideration, must bow to the discharge of constitutional duties.”
Could not agree with you more there Leigh. However, I thought that history taught us better as South Africans pertaining to following of one man with a view of “upholding the Constitution and the rule of law” (remember the fascination with Zuma?).
In safeguarding the values of upholding our Constitution, the rule of law and equality before the law, we need to be careful of not actually ending up doing more damage than these isolated individuals would. A recent example is the “tough measures against criminals”that our Executive seems to want procure. As a point of departure, what or who is a criminal? In safeguarding our safety as the citizens of this country and the effectiveness of the justice system, we need to also guard against giving the police too much power as that can be susceptible to abuse. We merely need to look back into our history to know about police brutality. These values are important but in seeking to achieve them we must not be prepared to risk too much of what we have already. Let us rather focus on a more systematic improvement of our current systems and be not unmindful of the fact that there will be others who will “get away” in the process.
CD, I am actually of the opinion that someone was indeed afraid that had Hlophe JP been put under cross-examination, it was somehow going to come out that an invisible jz hand requested the JP to approach the judges of the CC with the sole purpose of influencing them to take the right decision. The possibility for this come out was even higher had the case proceeded before the replacement of Bizos et al with the indoctrinated and patronized Ntsebenza et al. However, even with the later now doing injustice at the JSC, Radebe et al did not want to take risk by exposing Hlophe JP to cross-examination.
CD: its all possible, even likely. Prof’s comment that perhaps ‘Jeff’ knows right from wrong is pertinent. I think the majority of our official offenders know what is right and wrong and they simply choose ‘me first’, regardless of wrong and right’s polarity.
Really though, its all a painful joke. That so many can abuse the system, that JZ can speak the spin, that it just continues endlessly and we can do nothing. A destructive joke on South Africa. We will all pay.
Prof’s seminar post: Transcript: CCN’s Christiane Amanpour interviews President Jacob Zuma on 25/09/09, says it all.
The times they are a changin… Bob
See herewith: http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=145081&sn=Detail
hopeful… well, we can only hope at this point, what else do we have?
I think the point made by Michael (elsewhere) that things will change when there is a real possibility of the ANC losing an election is probably apt.
One other possibility is that some in the ANC will realize that the looting is no longer the looting of someone else’s country, but the looting of their own country–and that the looters are indeed stealing from the party. But until there is a broader willingness to challenge the leadership, this will not happen.
I beg you all to trust each other and love the president and love the ruling party the ANC. Justice minister delivered a good speech. King Zwakala
Interesting discussion. I think I have for once to agree with Michael and the Western Cape is a prime example. Two days ago the ANC apologised to the people of the Western Cape for its nepotism, greed and corruption. I was very happy by this apology as it demonstrated democracy in action. Why? because the ANC lost the election to Zille here, it now is trying to win back those voters it has alienated. I think this is brilliant as it will keep the DA on its toes and it will make the ANC a better party (at least in the Western Cape) and we – the voters – will be the winners.
Zwakala, I am not really one to trust politicians -no matter what party they are from or what race or gender. Politicians only remain on the straight and narrow when the voters force them to. Even then they sometimes cannot help themselves. Think Richard Nixon, George Bush, Mitterand, Chirac etc etc.
I think the larger issue around Hlophe is that the government and the ANC leadership could not let go down a black high profile judge. They probably felt that this was not acceptable for their interests and to have all of this happening in the eyes of the South African and world public. As on many other issues and in other areas, racial solidarity won over good governance. Non-racialism is still far off, and the question really is if this decision advances or retards its realisation?
Professor
Let us put ‘reason’ behind and give ‘intuition’ more weight. Just trust and love Jacob Zuma and his ANC. How is that?
Professor
Let us put ‘reason’ behind and give ‘intuition’ more weight. Just trust and love Jacob Zuma and his ANC. How is that?
King Zwakala
Thomas Blaser says:
October 2, 2009 at 9:17 am
I think the larger issue around Hlophe is that the government and the ANC leadership could not let go down a black high profile judge.
——————————————————————————————————–
I fail to see how this was a race based fiasco.
Consider that the JSC decision was a backhander to, even ridicule of, all the high profile justices (including our CJ designate) many of whom, if not most, are Black.
Maggs, if this was no “race-based” fiasco, it seems odd that so many of the Hlophe supporters cast it precisely in terms of race; viz that “white” liberals were targeting him for heroically exposing white racism at the Bar, and that the CC judges who opposed him were “house negroes” etc.
Also, if the matter was not race based, it seemed odd that, so far as I know, not ONE white lawyer who spoke out supported Hlophe.
King Zwakala is right.
Reason is a colonialist imposition. Intuition rules. (Did you know you have more nerve endings in your gut than in your brain?)
Let us love and praise Mr Zuma, who brought peace to Rwanda.
And, for God’s sake, let us now forgive Mr Polanski.
Respek!
I failed to post this message to Ngobeni’s blog, and I want an an:-
Lewis’s reported decision in S v Thebus, of condemning the accused for his
legitimate pre-trial silence, is clearly seriously unjust.
While searching for the judgment I came across the related civil matter
SCA 177/2006, which I’d like to discuss and ask some questions about, please.
Or is this forum only for mud-slinging? Will someone indicate if/that I’ll
get answer/s to serious/deep question/s, like it’s possible on first world
legal newsgroups?
I am not prepared to forgive Mr POLANSKI as he did nothing wrong.
StudentAB, this is a fourth world blog, established mainly, but not exclusively, for mud-slinging.
I’ve analysed the SCA: Mogami case pointed to from this blog, and make the
when the
following observations – which are also related to the JSC debacle:–
—
The degeneration of the new-SA justice ‘industry’ which the world is
becoming aware of, eg. via the embarrassing transcript of Zuma’s CNN
interview, can’t be fixed only by cops-permission-to-shoot legislation.
—
The path to failed statehood is well documented, and some extracts of
an analysis of the Afghanistan situation are relevant:–
–
] REFORMING THE AFGHAN NATIONAL POLICE
]..A wealth of experience, gleaned
]from over thirty years of police reform and development, has
]not been sufficiently acknowledged in Afghanistan. Reform
]missions in El Salvador, Iraq, Timor-Leste, Sierra Leone and
]Kosovo provide important lessons which need to be digested
]for ANP transformation. …
—
]Effective policing requires an effective criminal justice sector.
—-
So how can SA ever fix the crime problem/(challenge
justice sector is getting more rotten, by the day ?!
—
]Noncriminal community disputes
]and minor crimes should be left to the traditional informal
]sector, with serious crimes assigned to the formal system.
—-
Perhaps the SA. traditional sector needs to be strengthened ?
But seperate [yes like APARTheid] to the formal/setlers/colonial
judicial system.
====================
Will some of you attorneys who read here comment on the press report
that: “Of the R11.1bn paid out in [road accident fund] claims, R7bn
was siphoned off by lawyers in the form of legal fees…R847 million
was spent on medical expenses, representing less than 8 percent of the
RAF’s total payout” ??
Because dumbed-down-blogs have displaced the well structured format of
and their
usenet/groups I’m posting this somewhat OT here. In the call for papers
for remembering-Sharpville, I’d ask “is it another holohoax ?”.
–
When I was a piekenienie I was made to believe that the greatest atrocity
committed by humanity was the nazi holocaust. Later, when I discovered
that Stalin & Mao’s scores were higher, I resented being deceived.
–
The 50’s cowboys & indians movies, showed us how we civilized people had
to lager/corral ourselves against the attacks of the natives/apaches.
Later I saw this movie where the arabs [perhaps the Algerian conflict]
arranged a ‘peacefull’ demonstration [like Sharpville
leaders/provokers shot at the european ‘controllers’, deliberately to
provoke the contollers to open fire, and create an ‘historic event
masacre’ – like Sharpville. Remember that the international leftist
have always shared solidarity, ideas and tactics.
–
At the time of Sharpville, as a student in London, learning to become a
fierce Marxist, I couldn’t know the details of Sharpville; but I’m asking
myself, why is it not disclosed/discussed that during the Sharpville
event, the ’surpressors called out their jet fighter plane/s”?
–
If it was a peacefull demonstsration, and not ‘the apaches massing to
massacre the cowboys’, why did they need to call out jet fighter/s ?
–
You can fool some of the people some of the time…
Which legal principle/s dominate ?
When, in a matter, different legal principles support opposite
conclusions, what is the accepted heirarchy of dominance ?
Some legal principle of interest to me, in this connection are:
A. estoppel by representation – written agreement to increase the
delivery price for the valid reason given.
B. no esoppel can over-rule a statutory obligation of a government
department.
C. no re-aplication for the same relief, between the same parties,
may be considered, based on a new cause of action. I.e. all possible
causes of action must be brought at the first and only application.
D. The public interest.
—–
In a specific case:
- a supplier to Tshane council had written confirmation of an increase
in the delivery price, due to uncontrollable circumstances [like war],
- later Tshane council notified the supplier that the confirming letter
was ‘wrong’ and that he’s been over paid for several months as a
result of the public body’s wrong letter.
The Court found for the supplier, on grounds of estoppel by
representation.
But the [SCA 177/2006] appeal over ruled that on grounds of “the
confirming letter was void, because the public body had not followed
the law in sending the confirming letter”.
The case report mentions that the supplier “could have had relief
if he had brought an unjust enrichment application”. Is he now
precluded from bringing such an application, by principle
‘C’ above?
== TIA.
I curently have a criminal record for a offence that i comitted 7 years ago. The offence was miner. prohibiting a police oficer from excecuting his duty. I pleaded guilty.
I want to aply for presedetial pardon to get this record of my name because I have difficuties procuring i job. I am also currently bussy to complete my LLB degree i would like to enter the legal field
CAN ANY ONE ADVICE ME HOW TO GO ABOUT IT TO GET THIS PARDON