Constitutional Hill

Maybe not suitable for appointment to the bench…..

  • Anonymouse

    Wow!!!

  • z

    Here’s a read for the legal eagles if they haven’t already. It’s sure to result in ruffled feathers and maybe even a post by our illustrious benign judge of commentators and creator of stir…

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=106544&sn=Detail

  • Sne

    z // Oct 16, 2008 at 3:12 pm
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    Thank you once again Z. Keep up the good work. I have not read the article though as it seems too laborious a task for my tired eyes for now but I sure will.

  • Anonymouse

    Z – Thanks. I have read the article (and I have heard reports on the speech from a colleague or two). Interesting stuff. The conclusion, however, might well lead to someone crying: “Off with her head!” And she replying “Stuff and nonsense …” (I couldn’t resist using that phrase from Alice in Wonderland, incidentally also written by a Carrol Lewis.) The coclusion reads thus:

    “First, appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC. Second, politicians should take lessons in constitutionalism and realize that they are not above the law. And third, the provisions in proposed legislation that in any way detract from judicial independence should be consigned to oblivion.”

    Jurists will agree with this view – politicians and transformationalists will not.

  • Sne

    Anonymouse // Oct 16, 2008 at 3:56 pm
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    Mouse!!!

    That is a kiddies book! Well, admittedly I read it too. In fact the person who was so fond of saying “off with her head” was the Queen and the King would normally pardon them and save them from execution… :)

  • Sne

    Anonymouse // Oct 16, 2008 at 3:56 pm
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    Reading her article got me scared as a young and inexperienced jurist. If the said Superior Courts Bill were to be an Act of Parliament then we must indeed kiss the independence of the judiciary goodbye.

    Come on Lekota et al, we need a shift from this Autocratic National Corruptors (ANC) party which is the ruling party in our beatiful country; you should announce the formation of this new party and see the vast number of academics and disgruntled ANC members who will vote for you…

  • z

    Sne, Mouse

    If ever you find yourselves in England and on a visit to Oxford, go to Christ Church (a college of Oxford University) where Lewis Carroll worked. We had a real classic English gentleman with a real classic hat show us the roots of Alice in Wonderland. The tree where he pictured the cheshire cat, the little door, the garden where the Dean’s kids used to play (and the tree that inspired the jabberwocky, a seriously old one, propped up by a pillar or two!). The buildings from the 1500′s are such that I understand the inspiration it was for the Harry Potter movie (some scenes being shot there).

    This link has a picture of the long dining tables that inspired that movie:
    en.wikipedia.org/wiki/Christ_Church,_Oxford

  • Anonymouse

    Sne – Langa CJ and other eminent judges (and even we lowly magistrates) are on record for seriously being opposed to the said legislation – but the likes of Johnny de Lange (and Bridgitte Mabandla – The one that, had she not been moved in Portfolio, would’ve been the one crying “off with her head!” – now it would probably be someone else) however remained unmoved. … Yes I know Alice is a kiddies book, but quite appropriate here, the criticising judge being Carol Lewis and her being opposed to the current way in which the judiciary functions and all, don’t you think?

  • Anonymouse

    Z – Yes, Lewis Carroll that wrote Alice was of course a man, and the name is the other way round than the judge’s. I however couldn’t resist using this picture in the light of Judge Carol Lewis being a woman (Alice), with names quite similar to that of the author of Alice, and her criticising the judicial system and the threat to the Bench’s independence and credibility (like Alice did) and, because what has been happening on the Bench lately, one can easily be led to make believe one is in “Wonderland’.

    I recently heard about an acting judge (no names mentioned, no pack-drill) hearing an application for an ‘Anton Piller order’, and after having heard all the arguments and having read the affidavits, the AJ remarked that it is strange that the guy ‘Anton Piller’ was not called as a witness!

  • Anonymouse

    Z – I’d however thoroughly enjoy if ever I chance to visist Oxford to go to Christ Church. Thanks.

  • MOHAMEDALY

    was he successfull!!!!!!!!!

  • z

    Mouse

    Like your “wonderland” idea and enjoyed the comparison (loving word play myself) with Lewis Carroll.

    I understood the just of your anton piller order argument, but being a layperson had to look it up. ): So I guess I wouldn’t fully comprehend the import of said judge’s comments.

  • z

    Mouse

    It reminds me of the old joke, of the person who was bitten by a snake, who upon reaching the doctor had to hear: “I did not spot snake bites, sorry!”

  • z

    Since this is a laid back post, I want to deviate back into politics:

    This weekend it seems is at last the Alliance Economic Summit. I hope this is going to provide more clarity on where the ANC’s economic policies will be heading, since NEC members have been making contradictory statements.

    One might say that Zuma did say that policies won’t change (or did he mean Polokwane policies, or authorship of policies) as Phosa keeps on telling all, but who did Zuma take along on his trip to Equatorial Guinea for their 40th celebrations this weekend? Blade and Vavi.

  • Samantha

    I find it a little odd that the NEC of one party includes members of another party. Surely there must be some conflict of interest to have Blade on the NEC? While the two parties are closely aligned, I would imagine that each must have their own visions, missions and values and that there must be some differences between them.

  • Samantha

    To the legal contributors on this site, I have a question of law. I am currently studying through Unisa, so sometimes it is a little difficult to find answers to small questions as access to lecturers is not always easy. So, if you wouldn’t mind answering the odd for me, I would be most grateful.

    This is really just a point of interest:

    There seem to be two phrases used interchangeably for the onus of proof required in civil disputes. On the one hand, they refer to a “balance of probabilities” and on the other, they refer to “a preponderance of probabilities”. My question is whether or not these two are identical and therefore interchangeable, or whether there is a slight difference in degree. Based on word usage, my feeling is that “a preponderance” requires a slightly higher degree of proof than a “balance”. Am I correct in this?

  • Tony in Virginia

    Samantha

    The NEC of the ANC has always included members of the SACP such Charles Nqakula and Gwede Mantashe. One wonders how committed these communists are to the ideals of communism given also the bourgeoisie status of some of them. Even if Lekota and others were to breakaway, this conflict will remain within the remaining ANC and may cause further divisions if not taken care of.

    Unfortunately this present state of affairs within the ruling party only confuses their leader, Jacob Zuma, who preaches socialism when he is with the labour movement and the SACP and capitalism when he is soliciting donations from the Black businessmen.

    Brace yourself for more splinter groups within the ANC; given also the distrust the followers of Zuma have for Motlanthe and Phosa (you only have to visit the friendsofjz.co.za site to appreciate this).

    Of course if you ask them, you will be told there is no crisis within the ANC. Help us Lord!

  • Samantha

    Tony,

    It appears that the two forms of government preached by the parties are really totally at odds with each other. The communists seek the collective mindset of a totalitarian state dominated by a single party (one of the definitions of communism), while the ANC purportedly support democracy. Aside from the proletarian vs bourgeoisie conflicts, the actual fundamental principles of the parties are directly in contrast. So, who is fooling who here? Are the SACP lying to their followers about their political aims while secretly (openly?) embracing the democratic values espoused by the ANC? Or, are the ANC lying to their followers by secretly embracing the communistic, totalitarian values espoused by the SACP?

    As you say, the conflict of interests will certainly create further divisions with the ANC. And, in keeping with your comments regarding Zuma, he consistently changes tack depending on the company he is in. Should he ever reach the Presidency, he is going to be called to account by every element of society for the “promises” he has made.

    To maintain the Alice in Wonderland theme of this post, all that remains to be said is: “Curiouser and curiouser…”

  • Anonymouse

    Samantha – Your question:
    ‘There seem to be two phrases used interchangeably for the onus of proof required in civil disputes. On the one hand, they refer to a “balance of probabilities” and on the other, they refer to “a preponderance of probabilities”. My question is whether or not these two are identical and therefore interchangeable, or whether there is a slight difference in degree. Based on word usage, my feeling is that “a preponderance” requires a slightly higher degree of proof than a “balance”. Am I correct in this?’

    Unfortunately, you are not correct. Proof on a ‘balance’ of probabilities, implies that the probabilities raised by the party bearing the onus, on a balance (‘scale’ – remember Justicia’s scale?) must weigh heavier (albeit only slightly heavier) than the probabilities raised b y the opposition on the other side of the balance (‘scale’). Proof on a ‘preponderance’ of probabilities means exactly the same. I don’t have access to the Oxford right now, but ‘preponderance’ in Afrikaans means ‘groter gewig’ or ‘oorwig’ (‘bigger weight’ or ‘heavier’), hence the Afrikaans equivalent (only one!) for the two English phrases you mention: “Bewys op ‘n oorwig van waarskynlikhede.” I gues it is a matter of semantical style rather than a difference in approach, and the two phrases can be used interchangeable – I would prefer ‘preponderance’ though, but, writing exams, ‘balance’ is a much shorter word to use and I’m sure, lecturers will forgive use of an abbreviation like ‘bal’ if one is really pressed for time to finish one’s paper.

  • Sne

    Mouse,

    Please say you are joking in respect of the Anton Piller Order! Secondly, is it not an application done ex parte due to its nature and purpose? The Financial Mail case is a classical example of this application in our law, if my memory serves me well.

    Samantha,

    I personally regard ‘balance’ and ‘preponderance’ as synonymous so I use them interchangeably. Moreover, in all the law books, especially criminal law and law of delict (torts in English Law), they are used interchangeably.

    Z, thank you very much for the idea of visiting Christ Church.

  • Anonymouse

    Samantha – Your question to Tony:
    “It appears that the two forms of government preached by the parties are really totally at odds with each other. The communists seek the collective mindset of a totalitarian state dominated by a single party (one of the definitions of communism), while the ANC purportedly support democracy. Aside from the proletarian vs bourgeoisie conflicts, the actual fundamental principles of the parties are directly in contrast. So, who is fooling who here?”

    You must remember that, during the early years of apartheid, and also during the Cold War, it was mainly the ‘Comunist’ coiuntries like the USSR and the People’s Republic of China (and, not forgetting Cuba) that showed a keen interest in ‘liberating’ African states, so as to get a foothold on the resources etc of Africa. They provided ANC cadres with military training and hardware, and with the economic resources to fight the liberation struggle. Hence the use of the title ‘comrade’ when addressing each other (remember Mangosotho’s objection ‘on a ‘point of order’ when the ANC kept on referring to the newly elected President as ‘comrade Kgalema’?). From this all, a ‘communist mindset’ set in among many, and many (not all) ANC members are also ‘communists’ in their outlook. (Mind that I keep on using invereted commas when referring to ‘communism’ – some might say that is not the right definition as some animals are more equal than others.) In any event, the ANC has much support amongst the members of SACP, and COSATU, being a trade union, attract much support from tyhhe working class mambers of the ANC. On its own, SACP will not be able to make a dent in SA politics, but using the larger ANC vehicle, they keep their foothold and views alive and legitimate. COSATU would not like to be branded as a political party, because that would have a negative effect on their bargaining power in labour related matters, and it is easier to ride the tide with the ANC as vehicle (even though regularly criticising the ANC’s economic and labour policies), than to fight the battle on the political battlefield alone. It is really only a matter of not turning your back on the support that you had in the past that keeps this tenuous relationship together.

  • Anonymouse

    Sne – No I’m not joking, and it is exactly because the matter is one that is heard ex parte for its nature and purpose that the remark from an AJ was so shocking. I am not even going to name or classify the judge or the bench, because then I will be regarded as anti-transformation, which I am not. There are, however, at least a basic measure of experience, competence and skill that is required before anyone is appointed to the Bench (be it lower of High Court), because there one works with people’s lives and livelyhood – and it is appointments like these (acting or permanent), where people are appointed hot from the universities benches, that shockers like tis happen. This is, I think, what Judge Carrol Lewis had in mind during this speech. … The end of the matter? After discussing the matter in Chambers and with the relevant JP and, in order to save face, Counsel and the AJ agreed that the AJ would recuse and that a permanent Judge would hear the application on an urgent basis, which was then done.

  • Samantha

    Anonymouse // Oct 17, 2008 at 8:14 am
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    Thank you so much for taking the time to clarify the “probabilities” for me. Often I have questions while studying that are just for my own edification and when I have addressed them with lecturers I am informed that I am too focused on semantics. However, so much of law seems to be about semantics – a case in point would be the discussion of “dignity” in an earlier blog post. From my limited understanding, it appears that much of law is about interpretation (I haven’t done Interpretation of Statutes yet) and in that respect, semantics can be a crucial element of an argument.

    I have also noticed how sometimes word usage becomes the focal point of a discourse on this site, often to the detriment of a discussion on the issues. For this reason, I always attempt to ensure that I am careful in putting forward arguments that are carefully constructed with a strong focus on word usage. Good practise for the future, I think!!

    I don’t always get it right because sometimes my opinions are uninformed (or lacking in supporting “evidence”) and are merely my own thoughts about issues. Unfortunately, those appear to be the times when I get berated by other contributors.

    Sne // Oct 17, 2008 at 8:25 am

    Thanks so much. As I said, I have seen both used in the same textbooks, but it has never been clarified that the two are synonymous, hence my question. I appreciate the feedback.

  • Sne

    Anonymouse // Oct 17, 2008 at 8:42 am
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    I am ambivalent; sad that such an appointment, regardless of the permanentness or otherwise thereof, was made to a High Court: I am also happy that the grossly incompetent judge’s incompetence did not prejudice any of the parties.

    In appointing judges and even other judicial officers like magistrates, the first thing that should be looked at is competence and skill, then Affirmative Action can be applied. This would mean that affirmative action is not attained at the expense of competence. I am sick and tired of hearing about incompetent people enjoying huge salaries in higher posts because their failure to deliver or perform their duties affects the rest of us, especially in the public sector.

  • Anonymouse

    Sne – I agree, which is why I agree with Carrol Lewis – However, say that out loud in public, during a workshop on transformation, etcetera, and soon you will be branded a racist, or a sexist, or whatever, because the people that aspire for ‘affirmative action’ positions focus mainly on those classifications to argue their point. One social context lecturer (from UCT nogal – once again, no names, no pack-drill) holds the view that, in attaining transformation of the Bench, it is not ‘competence’ that should be taken into account, but ‘the ability to become competent’. … I disagree. If I fly, I would rather prefer my pilot being competent to being able to become competent. In law and legal disputes, especially criminal matters, it is the same. I would rather prefer the presiding officer to have at least a basic competence and extended experience, in addition to academic qualification, before I would trust him/her to hear my case.

  • Sne

    Samantha // Oct 17, 2008 at 8:53 am
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    To paraphrase Charles Dickens; It is a melancholy truth that not all lecturers are as enthusiastic as you may be about a certain aspect of the law. Sometimes you are reading a law textbook and you come across a proposition which you feel is not appropriate or could be ameliorated if proposed in a certain way. Of course you will need to discuss it with someone, preferably who has more knowledge than you on that particular subject. You may find that the lecturer who is lecturing the course in which that legal proposition falls was actually forced in a board meeting to lecture that course; he has no interest or deep knowledge about it or sometimes he hates it. Obviously the answer you will find from him will not further your objective and will do your interest in that particular aspect or course no favours so it helps to look for alternative sources of information.

    I agree with you that interpretation plays a crucial role in law. In fact this makes it so eminent that when drafting your Pleadings you should take extra care because sometimes a person may have a very good case but “lose it on the Pleadings” due to a badly drafted Plea which will allow the other party to engage upon technical arguments and avoid the main issue.

    Pertaining to your thoughts being uninformed; you need not worry about that. Prof Pierre made this avenue available so that thoughts like yours could be heard hear without the fear of public humiliation. We are all here to learn as each of us has sometimes got something wrong. If this were not the case then we would be perfect, well, nobody is. It is another sad truth that some of us will berate you if you get something wrong but that should not serve as discouragement because I for one have learnt so much just by reading here from many of you.

    Well, it is another truth that instead of dealing with the arguments forwarded by a certain party here on the blog we will just attack the personality or status of that person while pretending to be addressing his or her arguments; this is normally a technique employed by people who would rather “win” an argument by belittling the person arguing instead of providing a contrary concrete argument. Therefore, you cannot really be bothered by such persons as you will meet them more often than not in practice. Sometimes you meet a senior attorney who cannot substantiate his argument in a conversation and he would bring the indisputable fact that he is your senior and “that you must stop talking like you know everything”. Expect those people in practice so be warned.

    NB: I hope I have not written a novel here… :)

  • z

    Samantha and other interested in the tripartite alliance

    Apparently Mbeki predicted the current situation in 1994 in a document titled “From Resistance to Reconstruction: Tasks of the ANC in the New Epoch of the Democratic Transformation — Unmandated Reflections.”.

    It was supposedly an internal document distributed to a few, but referenced in other ANC literature on it’s site and it seems to be referenced by alliance partners against Mbeki. I still haven’t found the original document.

    Here are two articles that make mention of it:
    mg.co.za/article/2006-10-25-do-not-look-where-you-fell-but-slipped

    thoughtleader.co.za/sentletsediakanyo/2008/09/29/of-the-irrelevance-of-the-tripartite-alliance-in-the-current-political-landscape/

  • Sne

    Anonymouse // Oct 17, 2008 at 9:22 am
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    I entirely agree Mouse. The bad and the good thing about law is that you are dealing with people’s lives and livelihoods in both criminal and civil cases, as you have correctly pointed out. Sometimes clients suffer in the hands of “justice” merely because they do not have the necessary funds to “properly instruct” their legal representatives to appeal the matter.

    Sometimes, especially in criminal matters, accused persons suffer prejudice in the hands of Legal Aid lawyers who do not care about their clients’ case because they know they will get their salaries from the government whether or not they win their cases. This is resulting in a trend of accused persons refusing to be represented by these Legal Aid lawyers and the obvious consequences ensue.

    I have friends who are working in the Department of Correctional Services (DCS) and that is why I was able to give that detailed post the other day about DCS. Anyway, I discovered that some of the convicts there were convicted due to numerous illegal reasons. Some were told, in open court by the presiding officer that they will be convicted because they seem to going in and out of their courts and they are “tired of seeing their faces”. Others were convicted of rape when there was not even penetration proved and you would ask yourself how the state satisfied the burdensome onus of proof in those cases. This could be fuelled by these affirmitive action appointments of incompetent judicial officers. Needless to say, these convicts are advised to review or appeal their convictions if they happen to be open about their convictions to people who have knowledge of the law. It is saddening to discover that there are judicial officers who engage upon destruction of people’s lives in such manner… :(

  • Samantha

    Anonymouse // Oct 17, 2008 at 8:30 am

    I remember quite clearly the propaganda of the ’80s in respect of the “Rooi Gevaar” and the threat of imminent invasion by the Russians with which we all lived. Isn’t that what all our friends, sons, brothers and husbands were fighting on the border to protect us against? :-)

    I realise that it is very much a “I’ll scratch our back, you scratch mine” scenario, but I still feel, as Tony said, that the conflict in ideology must have some bearing on the policies of the ANC and with people like Blade having the amount of power within the ANC that he does, I do wonder if it doesn’t have a large impact on decision-making.

  • Anonymouse

    Samantha – Yes, I was unfortunately (not very proud of it) one of those who had to serve conscription on the Namibian/Angolan border or face imprisonment – but I made sure that I was never involved in any armed combat; that the position I held would involve my training as a lawyer; and, i was always first in prosecuting members of our own forces that transgressed the Geneva Conventions. I agree that the conflict of ideology is a problem – perhaps that is why I am not impressed by those who keep on referring tpo the ANC as a ‘movement’, simply because the ANC government has on many terrains remained stagnant, rather than moving forward 9or backward), in order to maintain that tenuous tripartite relationship.

    Sne – Not too long ago, I had to read an acting appointment’s judgment as a mentor in his probation period to the Regional Court Bench – from the District Court. The charge was rape. The guy who defended himself (because the presiding officer did not inform him of his rights to legal representation and the seriousness of the charge) offered an alibi in defence. The single witness (complainant victim) testified that it happened in the dark of the night and, even though she thinks that it might have been the accused who raped her, stated under oath that she was not too sure of his identity and that she could’ve made a mistake. Instead of discharging the accused at the closure of the case for the prosecution, the presiding officer decided to put the accused on his defence. He explained his rights only briefly, whereafter the accused said that he chose to remain silent, but that he wished to call a witness to substantiate his alibi. The reaction by the presiding officer was that the accused apparently did not understand his rights well, because he may only call witnesses if he testifies himself, but where he chooses to remain silent, he has no right to call witnesses. the accused then closed his case, he was convicted and sentenced to 15 years imprisonment. It took a few months before the record could be transcribed for mentoring purposes, and another few months before a review court could set the man free. … Shocking!! … But things like these are rife, and we do have big problems in this regard.

    As far as I am concerned, however, I believe in judicial activism and my role, not as a simple umpire there to merely see to it that the rules of trial are observed by the parties, but to see to it that jstice is done. If an accused person is represented by an incompetent (private or legal aid) practitioner, I do not hesitate to intervene and to see to it that the accused gets a fair trial. If an incompetent prosecutor presents the case for the prosecution, I do not hesitate (within the boundaries of fairness and justice) to intervene to see to it that justice is done, not only to the accused persons, but also to victims (in particular) and society (in general). I also always strive to give prosecutors and practitioners practical, on the job training, so that they do not make mistakes and gamble with people’s lives (a prison sentence can, with HIV / AIDS and gangsterism, practically amount to a death sentence) just to get paid for doing their job. In my court, more than 80% of accused persons accept legal aid representation.

  • z

    Mouse

    This is scary stuff, it gives credence to “ignorance is bliss”, since I was blissfully unaware.

  • Samantha

    Sne,

    Your comment was great. Thank you for that.

    Being someone who came to the conclusion that law was something I wanted to study, rather late in life (I’m almost 40), and having to do so while running a business from home and taking care of kids etc., it often is purely passion for the subject that keeps me pushing through on this degree. So, it is always a little disheartening to encounter lecturers who appear a little jaded and disinterested in actually “teaching” students. This semester I encountered one such lecturer. When I emailed the lecturer to say that it appeared that there was no correct answer for a multiple choice question in the assignment, I was told to consider the constitutional invalidity of the statements concerned. Bear in mind that these statements were all taken almost verbatim from the textbook (that she co-authored), and the constitution had absolutely no bearing on the statements. A little perplexed, I presented her with my analysis of the constitutional aspects relating to the statements, which further supported my assertions that there was no correct answer. The lecturer then sent me her arguments in support of her assertion that there was a correct answer, citing case law which were beyond the scope of the study material and would have required extraordinary research. When I raised this with her, I was informed that she was unprepared to discuss this matter further. Please understand that this was for 1 mark!!! When the assignment commentary was returned to us, she stated that this particular question was the only question of the 10 that had required additional research beyond the scope of the study material!! Personally, I think that ego became an issue and that this Professor was unwilling to concede that she had in fact made an error on the assignment questions. Just for the record, using her arguments, I made a correct selection on that question.

    My point, after this terribly long and (possibly) boring story, is that this Professor was prepared to compromise the marks of students in an effort to save face. This goes to exactly what you were saying in that some individuals believe that seniority means that they can never be wrong and that they will resort to extraordinary means to “win” rather than be wrong.

    This site has become an incredible source of information for me, but even more than that, it feeds my passion for the law – a job that my lecturers should be doing!!

    Thank you for always taking the time to address my questions.

  • Samantha

    Anonymouse,

    It is for the reasons you give in your comment that we hold judges to a higher standard than “ordinary” folk. Because, at the end of the day, in criminal cases, the decisions they make can be life or death decisions.

    While judicial officers are still human and mistakes can happen, their knowledge of the law should be of the highest standard.

    As a student, I am doing Criminal Procedure this semester and much of what you cited in your comment is covered by this subject. In other words, a third year LLB student is aware of “right to legal representation”, the “right to remain silent and not testify” etc. (S35 of the Constitution). How is it possible that an individual on the bench can be unaware of these rights? This goes to the crux of a fair trial and is possibly the most elementary element of criminal procedure.

    Extremely concerning. Thank goodness there are still enough judicial officers like you who actually do understand and apply the law!! And that is not mere flattery – :-)

  • Bongs

    Mouse, Sne & Samantha

    I have also heard about the Anton Piller ‘joke’. I regarded it as just that – just like many other internet/email ‘jokes’ about legal profession (where the race of a ‘culprit’ is not an issue) . However, I do note that Mouse is stating this as a fact – I have no reason to doubt him as he seems to have inside information about same. However, my slight problem lies here. As much as Mouse did not want to divulge the ‘culprit’, it is clear that it is a ‘black judge’ and this is used as an example of the evils of affirmative action.

    It may well be so, but we should not hasten to blame incompetence of a ‘black judge’ (or any professional for that matter) on affirmative action. I have come across incompetent white professionals, and, surely AA can not be blamed for that. It is such stereotypes which sometimes derail us from diagnosing the real problem and then find a correct solution. It is also incorrect to assume that every black professional is an AA appointment.

  • Sne

    Samantha, Mouse,

    Thank you very much for your responses.

    On a light note, I read a novel called Troubled Waters written by a Namibian called Joseph Diescho, in which he tells of a story of Andries Malan, an Afrikaner who was conscripted to Namibia during the Apartheid era. Specifically, and devoid of going into details of the novel, Andries Malan was asked to teach black Namibians in one of the provinces in Namibia. He was told that “the war does not end on the battlefield as it is fought on many fronts but it extends to the classroom.” He was alsked to teach because his marks at school were very high so they did not want him to be in the line of fire. According to the author, others who could not bear the intricacies and toughness in the army were sent to these schools to teach black kids. This brings me to my point at last; Mouse, either your marks were high or you were a coward in the battlefield so your superiors did not want to expose you to the brutality of the “war”… Which one is it? :)

    Samantha I am sorry you had to deal with such a lecturer but I am equally not surprised. In my mini-desertation I enquired about the areas of law the lecturer was interested in from other students and I decided to take a risk and wrote my mini-desertation on the law of delict. This was a risk because I could have been given low marks merely because the lecturer did not understand fully the concepts therein or I could be given high marks because my arguments sounded “erudite”. Luckily the latter happened and I got a distinction for that course, Legal Research Methodology and therefore I did not pay for that course because of that distinction… :)

    For interest’s sake my mini-desertation was on whether in South African law there was contributory intent. It should be recalled that formerly there was only a recognition of contributory negligence in our (common) law following English law (Davies v Mann (1842) 10 M & W 546) and also our statutory law (Apportionment of Damages Act 34 of 1956, as amended. I argued that yes there is. I based my argument on the case of Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank 1997 (2) SA 591 (W) and said that apportionment of damages could result in that way even if there was intent on the party claiming damages. Anyway, those were the days… I miss tertiary… :(

  • Sne

    Bongs // Oct 17, 2008 at 11:09 am

    “It is also incorrect to assume that every black professional is an AA appointment.”
    ……………………………………………………………………….

    Competence, I believe, comes with experience and that eagerness to learn and develop whilst associating yourself with people from whom you can learn and develop in your area/s of interest.

    I did not, and tenaciously also believe that Mouse did not, mean that AA appointees are incompetent; that blanket presumption would be an extremely ignorant one to make. I am merely saying that incompetence thrived after the appointments in terms of AA because instead of using AA credentials as a tertiary means to appoint, we use them as basic means for appointing. This means that, as I have argued above, competence and skill should be the primary means towards appointment and AA credentials should be the tertiary means. This would, this is merely re-iterating what I wrote above, mean that competent and skilled people are appointed while preferance, AMONG THOSE COMPETENT AND SKILLED PEOPLE, will be given to candidates with AA credentials! This could result in effeciency and effectiveness in many public areas where service delivery has been slowed down by appointment of people who have AA credentials but are incompetent and not skilled… I hope I make sense this time around…

  • Sne

    Anonymouse // Oct 17, 2008 at 10:15 am
    ……………………………………………………………….

    It is sad that there are people who do not have justice in mind when adjudicating disputes. There are judicial officers who are on the Bench because they are “working” as judicial officers. They are not there to give justice to litigants but are there because they are working in court on that particular day. These people are like worms who are eating at the core of our society (Constitutional Court words about corruption).

    I also believe judicial officers are too arrogant to be engaged in workshops to remind them of what actually their jobs entail as judicial officers and how they must tackle problems encountered in the performance of their duties. These people cannot also be able to know of any practical exigencies which may necessitate changing of or non-compliance with certain rules of the court for convenience. Sometimes courts have rules which are not contained in the court rules but are merely rules of convenience agreed upon, though not enforceable, in meetings with practising attorneys.

  • Anonymouse

    Bongs – I agree with you wholeheartedly – not every black (or female) appointment to the (lower cpourt or High Court) Bench is an AA appointment, since many (nay, alas, most) of them are perfectly competent and there on merit. They are therefore “appropriately qualified [women] or [men] who [are] fit and proper persons” that may (and indeed were) appointed as judicial officers.

    I also agree that one should not hasten to blame the incompetence on a judge simply because he/she is black and possibly (not probably) the product of AA. I’ll tell you another story (fact) that explains exactly that. A few years ago I convicted a guy of attempted murder and sentenced him to 6 years imprisonment on the following facts. He (a private person) came home at a report of his house having been burgled. he and a number of friends apprehended a suspect on, what he conceded, unreasonable suspician. Nevertheless, they panel-beated him until he said that he would go and point out the stolen goods. He walked in front and, knowing that he was innocent and that he would probably be beaten to death should he now fail to produce the stolen goods, decided to run. The accused (and others) gave chace. The accused drew his pistol and fired eight shots at the fugitive at a running range of approximately five metres, five hitting him in the back (chest area). Fiortunately, the victim did not die. Under cross-examination, the accused, although testifying that it was never his intention to kill the victim, admitted the following: (1) He was (and he knew he was) not entitled to arrest the victim in the first place and to torture him to go and point out the goods he was unreasonable suspect to have stolen; (2) He was (and he knew he was) not entitled to, when the victim broke aqnd ran, to use any violence to stop him; (3) he was, more specifically, not entitled to draw his fire arm and shoot at him; and (4) He foresaw the possibility that his actions might lead to the demise of the victim, and that he knew he had no right to attempt to do so (dolus eventualis).

    On appeal, two, white, male judges, who were only experienced in civil law before their permanent appointment upheld the appeal saying that it was perfectly clear from accused’s conduct and evidence during the trial that he did not “want” to kill the victim, and that he therefore did not have the required intent as charged. The conviction was set aside and substituted for a conviction of common assault, and the sentence altered to a fine (R1,500.00) with alternative imprisonment, suspended to the boot.

    In another matter, a guy was convicted by myself of raping a minor child. He was 19 years old, the victim 6. The uncontested evidence was that the child’s mother reacted to her terrified cries in pain and for help, and caught the accused red-handed. The accused admitted this, but said that the sexual intercourse took place with the consent of the victim, and that he did not know that girls under 12 cannot consent to such. The medical evidence further revealed that the girl child was terribly injured, and bleeding profusely from her private parts. I rejected his defence and convicted him before referring him to the Hiogh Court for sentence under s 51-53 of act 105/97. The judge, one of the same white, male judges in the previous example, however held that he was not satsified that the state proved that the girl did not consent, and that the accusued did not know she was unable to consent. the conviction was set aside.

    Shocking, eh? These cases could not be appealed by the State, because the findings were regarded as findings of fact, and not of law.

    It is this kind of sheer incompetence that Ii am against. But, unfortunately, examples such as these will, unless you know better, lead to a feeling that the people on the bench are all incompetetent AA appoinments, while there are judges and magistrates of all races and sexes on the bench that should not be there. I think that is why Carrol Lewis said what she said in that speech.

  • z

    Mouse

    Outrageous!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    I might just start swearing now…

  • Sne

    Anonymouse // Oct 17, 2008 at 12:25 pm

    “The judge, one of the same white, male judges in the previous example, however held that he was not satsified that the state proved that the girl did not consent, and that the accusued did not know she was unable to consent. the conviction was set aside.”
    …………………………………………………………………………………….

    Did the Supreme Court of Appeal not warn against setting aside on appeal the factual findings of the court a quo as the latter had the advantage of witnessing the demeanours of the witnesses, etc.?

    Did the court in R V Bloem not say that “Ignorantia juris non excusat” or “Ignorantia legis neminem excusat” which is Latin for “ignorance of the law does not excuse” or “ignorance of the law excuses no one”??? I am pertubed by this gross incompetence!!!

  • Anonymouse

    Sne – Yes, but you see, that is what these (incompetent) judges do if they actually want to find otherwise (or do not want to impose the minimum sentences called for by law), they hide behind the fact that factual findings cannot be appealed by te state (hopefully that will soon be something of the past) and alter the trial court’s findings just as they see fit.

    As far as the Blom decision is concerned, actually the AD did find there that ignorance of the law can be a valid excuse, but that, when a person enters into a certain situation, he/she must do everything reasonable to acquaint him/herself with the legal position in that field; and, there is the presumption that everyone is presumed to know the law, but still, ignorantia iuris can be a valid defence. However in the example above, the child crying out in terror and pain, so seriously injured, half the size and less than half the age than the accused – everyone would (or rather should) be able to see that she did not consent; that the accused was lying about the fact that she did in fact consent; and, that ignorantia iuris of the law that states that a girl under the age of 12 cannot legally consent to sexual intercourse was not supposed to have any role to play in the circumstances.

    Z – That is what I have been doing every time I came accross such examples of judicial incompetence. And there are many more, not always from my court, but you will be able to see our frustations from the above. Was it Hessiod that said: “It is hard for a man to be righteous, if the unrighteous appears to have the greater right.” ? But we do get frustated at being associated with such incompetence demonstrated by colleagues (juniors/equals/seniors). However, when white, male, judicial officers are being criticised in this way, many would agree that he/she is incompetent. But when the judicial officer concerned is black and/or female, others would be very quick to say that the critique is a racist or a sexist, and look past the sheer incompetence displayed. This thing lies very close to my heart, I’m sure you will understand. But, we have to go on, and whenever we are confronted with such situations, we should dop what we are allowed in terms of the law to do. I’m sure that in the not too distant future, we will see the State taking the non-appealability of wrong factual findings to the CC. And then, hopefully, the death knell would have tolled for such incompetence in the judiciary.

  • z

    Here is an uplifting article on AA from a member of the public (Keep it mind it was aimed at white readers):
    http://www.news24.com/News24/MyNews24/Your_story/0,,2-2127-2128_2411532,00.html

    I believe the last 3 sentences are something some white folk need to be educated on to combat ignorance, cos some just don’t “get it”.

  • Sne

    z // Oct 17, 2008 at 2:59 pm
    ………………………………………….

    For the umpteenth time in this blog Z, good work! :)

  • Anonymouse

    Z – I agree with Sne, and with the author of the article. Good work. … Please note, however, that my woes above was not aimed at AA appointments – that is how Bongs understood it in the light of the ‘Anton Piller’ thing – but I tried to point out that many people (of whatever race and sex) that are appointed to the Bench, are not competent enough to be there. And many of them do not even have the qualities to become competent with proper training. They are not necessarily black or female, or someone that qualifies for an AA appointment on some other grounds – there are also many white, male appointees (from the past and present) that are not competent enough to be on the Bench. There are also many (one can even say, the majority) black (male and female) and white female judges and magistrates that are extremely competent in their jobs. And, while my comments above were not aimed against AA, I however still agree with Carrol Lewis J, that merit should be the criterium for appointment to the Bench, and not race, sex and other criteria. In the past decade or so there must have been many black and female lawyers that have become appropriately qualified and fit and proper persons to be appointed as judicial officers – and I believe there are, I know quite a few of them myself – but the vast majority of them are so successful in private practice that they do not even aspire to be appointed to the Bench (of whatever court). Now, if some people aspiring to become AA appointees get a lower score on merit than others who do not qualify under the AA criterium, why should they be chosen above the others? AA has its limits and demerits, just as it has its goals and merits.

  • Sne

    Anonymouse // Oct 17, 2008 at 3:30 pm
    ……………………………………………………………..

    We need to be mindful of the fact that regardless of how we fashion our arguments, the English language, like any other language, is subject to interpretation, and of course, misinterpretation. Therefore, we may read the same sentence and understand totally different things depending on many external factors which may influence our interpretation of that sentence.

    In the premises, we must take into cognisance this inescapable truth when we couch an argument in this blog and expect views and interpretations as divergent as our backgrounds themselves…

  • Anonymouse

    Sne – I agree. That is why I am often so ‘langasem’ in my explanations where the same thing could have been said in one or two sentences. But, so we all learn through experience.

  • Retsrov

    Anonymouse // Oct 17, 2008 at 10:15 am – “Yes, I was unfortunately (not very proud of it) one of those who had to serve conscription on the Namibian/Angolan border or face imprisonment”

    Sne // Oct 17, 2008 at 11:40 am – “your superiors did not want to expose you to the brutality of the “war”… Which one is it?”

    Sadly I was also trained as a killer – unfortunately I was young and warrior like in those days, raging hormones, brainwashed etc. and gave it my all. Did everything to my best, became an officer, led my troops into war as I was trained to do. Prayed to hit “contact” (I’m sure youre familiar with the term). Saw death. First few years after this I was okay, but about 15 years later, after completion of my studies, working hard to make it in my career (when I eventually had time to breath calmly) things started coming back to me. I was looking for the enemy everywhere, if I didnt see one, I created one. Luckily I have a fantastic wife who started noticing this, and lovingly helped me through this. (Thats why I can share this now.)

    What I really want to say is : I am angry today at those whom where in power then, to whom I gave my all, believing I’m a patriot, at the time. They spent millions to militarize us, but NEVER de-militarized us. I feel for many men who don’t have wives who can support them regarding this. Scary thing is, we read so often these days, that many of these men take out their own families and then themselves. I think it is because many of them feel it was all for nothing.

    In another way I am saying young white men from that time can also say “we were previously disadvantaged”

    Ouch ! – but yet again, a little off my chest.

    Also – Thank you Prof for this site.

  • Anonymouse

    Retsrov – Thanks for sharing. I was also trained as a ‘killing machine’, but very fortunate that my prior studies led to my being made an officer in one of the auxiliary services. That did however not make me escape the horrors of war – and especially the atrocities committed by either side. As a non-combatant there were also times that I did experience contact. And I did see death, enemy and own forces. But, all’s not fair in love and war. I do however view that period in my life as two years wasted down the drain, while I could’ve become a more useful citizen and could’ve made a much better difference in the country. That lousy war was a waste of time, just like Vietnam, and Uganda, and Iraq for the US. One thing though, the fact that I was there, has always counted against me to go much further (higher) in my own calling, namely a judicial officer. That baggage that I carry, makes me quite bitter. I do not think that I have benefitted from apartheid, neither have I ever supported the policy, I have been born into circumstances that I could do nothing about. I can however seriously recollect how I’ve vehemently been opposed to the way in which POW’s and locals were treated by the SA Armed Forces, and I’ve always tried my utmost to prosecute those responsible, but, when a mouse pees into the ocean, it does not make a heluva difference. That is also off my chest now. Thanks for your share.

  • Samantha

    Wow!! I’m away from my computer for a few hours and the blog goes beserk!! Between this post and the next one, I missed some great action and exciting debate!!

    On the affirmative action discussion, the article to which z referred us was quite something. And I agree that the last 3 lines are extremely powerful. Like so much in this great country of ours, AA is just another of those aspects of our lives where emotion can completely outweigh logic and reason. So much of my response to AA comes from being a mother to a white son and a wife to a white husband. Through no fault of their own, both of them (much like Blacks in this country preceding 1994) are victims of their race. Recently I was explaining to my son why my husband is unable to find a job. In my explanation, I used the “pale, male and 45″ quote. My son asked me what that meant, so I said to him, “Well, Dad is white…” My son, in a shocked voice, said “Dad is white?!!!” “Yes” said I. “I hate to be the one to break it to you, but your father is a white man”. Needless to say, my attempt at humour was not favourably received and he countered, “No, Mom (in the tone that 13 year olds use when addressing their idiotic parents), I mean why should it matter that Dad is white?” Explaining the concept of AA to a white child who has been raised in the “new” South Africa and taught to believe that now all things are possible, is difficult. My children have friends of all races, as do we, and the idea that he will be overlooked or sidelined purely on the basis of his race was shocking to him.

    Now I realise that this idea is nothing new to the Black people of this country and that many would jump at the opportunity to point out that they, and the generations before them experienced this to a much greater extent than we ever will. I recognise this. However, that is where the logic vs emotion conflict arises. Because this is my child. And now it is personal.

    To Anonymouse and Restrov – thank you for sharing your “war stories”. That war had an unbelievable effect on the many young boys who went off to “protect” their country and came back deeply scarred. My husband was one of those who saw action on the border. He suffered greatly then and 25 years later he still carries around the scars and wounds inflicted during those two years. So much of what he witnessed has never been shared with another soul, other than those with whom he served, and Restov’s statement that they never “demilitarized” those soldiers is so true. Anonymouse, it was a pointless war, but what war isn’t?

    Thank you to you for sharing your stories. From my own experience, I know how difficult it must have been.

  • Samantha

    Sne,

    Well done on your distinction for your mini-dissertation. I did Delict last year and I actually remembered that case when I saw it referenced in your comment. (I did quickly go back to check that I had the correct one in mind, and was pleased to discover that the odd piece of information does remain in my brain after the exam is over!! :-) ).

    When hauling out my Law of Delict book, I found a section on voluntary assumption of risk and contributory intent, but funnily enough, none of the cited cases referred to was the Volkskas case.

    I can understand your missing the “tertiary”. As I have progressed through this degree (I’ll be just over halfway at the end of these exams), I have found more and more that it is the learning that appeals to me so much. I mentioned to my husband the other night that I might not decide to practise when this is all over and instead look at going into the academic side of law. He wasn’t impressed. As far as my family are concerned, the only reason they are giving me the support in this process is in the hope that at the end of it I will make disproportionately large sums of money and solve our ongoing financial crisis!! Nothing like a little pressure!! :-)

  • John Kruger

    How could Lewis, a white woman who is the picture perfect beneficiary of affirmative action and transformation in the judicial appointments has the gumption to launch “scathing attacks” against the very ANC-led government that has struggled under the most trying of circumstances to promote the spirit of national reconciliation, to promote and protect a constitutional democracy and rule of law. She is reported as asserting that “lack of skills and experience is taking its toll on the judiciary, leading not only to poor commercial judgments but “horrifying” convictions and acquittals in criminal cases.” She is further reported to have “launched a scathing attack on government policy …saying the preoccupation with black economic empowerment was keeping worthy white applicants from applying for judicial positions.” One report stated: “Lewis said she felt that the judiciary had ensured that all senior positions were held by black judges, and it was time for appointments to be based solely on skills and experience…White applicants were reluctant to apply for positions as they believed they would be rejected in favour of black applicants, she said.” As if to reveal the underlying political lobbying message in her speech she stated: “It was encouraging to see that for the first time in years senior white members of the bar are accepting nominations for positions, and are standing for positions in the Constitutional Court.” Further, she is reported to have said “And it’s not only the commercial judges that are a problem. We have seen horrifying convictions and acquittals, which do not follow the fundamental principles of law.”

  • John Kruger

    Lewis’ statement is based on feckless falsehood and misrepresentation totally unbecoming of not only a judge but any adult above the age of 18. As one may recall, a recent research by the University of Cape Town’s Gender, Health and Justice Research Unit, named judges who were responsible for the judgments you identify as “horrific” in that they failed fail to follow the law and to impose minimum mandatory sentences even on rapists. Amongst the culprit jurists named in this travesty of justice was none other than the infallible paragon of jurisprudence, the Honourable Judge Carole Lewis who sentenced a man who kidnapped, raped his victim five times and assaulted her to 16 years because he was employed and “relatively young”. The man was 29. In S v Nkomo 2007 (2) SACR 198 (SCA), a decision in which she was joined by Edwin Cameron. Lewis blatantly ignored aspects which emphasised the brutality of the rape and the indignity and humiliation to which the complainant was subjected. She made light of the fact that the rape victim jumped from the second floor, despite the possible threat of physical injury or worse to herself which was indicative of the desperation that she felt and the lengths to which she was prepared to go to escape from the clutches of the rapist. The victim was deprived of her liberty for the entire night, during which she was forced to remain naked, her clothes having been hidden by the perpetrator. During the course of the night she was subjected to a physical assault to overcome her resistance to performing oral sex on the perpetrator. She was raped a further four occasions. When she finally managed to escape she made her way to the police station in obvious pain and discomfort. Lewis ruled that factors that weigh in the perpetrator’s favour were that “he was relatively young at the time of the rapes, that he was employed, and that there may have been a chance of rehabilitation.” Since when has one’s employment status been a license or excuse to be a marauding rapist?

  • John Kruger

    Lest anyone thinks I am unfairly picking on an isolated case of a “skilled, experienced” white female jurist, consider that the UCT study also identified the following: Judge Jeremy Pickering who sentenced a man to 15 years last year for raping his six-year-old daughter. The judge said the man acted “on the spur of the moment” which means the culprit suddenly got horny and was overcome by his lascivious, bestial desire to brutalize his precious but defenceless six year old daughter. I am sure that this illustrious Judge Pickering was not one of these incompetent black affirmative action appointees Lewis lambasted so mercilessly. But in Lewis’ world which is increasingly being dominated by media sound-bites and spin-doctoring, Pickering is deftly substituted for an incompetent and unskilled black judge just to make your attack on affirmative action more plausible. Another judge identified in the study was Judge AJ Visser who sentenced Joseph Ntuli to eight years, with four years suspended, for raping a 14-year-old girl twice. In the 2003 sentencing, Judge Visser put the blame squarely on the shoulders (or loins perhaphs) of the victim – he said the victim, “being the pretty girl she is, might have brought out the animal in the accused”. That was a classic blame the victim judgment that will go down in the annals of history of South Africa’s jurisprudence. It was a stark warning to our nieces and sisters that they should assiduously avoid looking like the “pretty girl” who might just bring out the bestial attacks by rapists upon themselves. That sure is a classic for Judge Lewis and most assuredly proves her point that these fumbling black jurists who are affirmative action appointees are wreaking havoc on our democratic order. That too will soon be hijacked by those with a revisionist agenda and Visser, a white Afrikaner, will soon have his race reclassified as “African” and affirmative action appointee.
    In another case, Acting Justice Beverly Franks did not sentence two accused to life imprisonment for stabbing a woman in the face, robbing and raping her, because they “showed mercy by not killing her”. In other words, the cold-blooded and cowardly criminals did the victim a favour but not murdering her! This is yet another example of the incompetent black judges unleashed upon the unsuspecting public and that speaks volumes about the failure of affirmative action. To complete the picture, one needs to remind you that there was a public outcry in 1999 when Judge John Foxcroft sentenced a father to seven years for raping his 14-year-old daughter, saying: “The harm of the rape was limited to the victim and not society.” The State appealed and the sentenced was increased to 12 years. For the purpose of trashing the ANC-led government and for the purpose of besmirching the reputation of black judges, Foxcroft must be cited as another example of black incompetence. Of the seven judges identified in the study (including Lewis), only one, Judge Hendrick Musi was African. He sentenced a man to an effective 13 years for raping five girls under the age of 16. He said the rapist “intended no harm other than to satisfy his sexual lust”. It is downright despicable, intellectually dishonest and racist for Judge Lewis to adroitly shift the blame for the “horrific” judgments to Africans or to invent a causal connection between Affirmative action and the judgments rendered by our judges while ignoring the fact that the so-called “worthy”, experienced and skilled white judges make similar or even worse judicial rulings.

  • John Kruger

    The Foxcroft decision in particular is emblematic of the hypocricy of white liberals debate on the judiciary and appointments. In the course of his ruling, Foxcroft referred to a previous case involving a judgement by Judge Dennis van Reenen in 1996. In 1995 both van Reenen and Foxcroft heard, on appeal, a case of a man who raped his three daughters over many years. A magistrate had sentenced the man to 11 years imprisonment. Van Reenen and Foxcroft reduced the sentence to six years on the grounds that the culprit did not pose a serious threat to society since his crime was limited to his family thereby propagating the myth that rape or sexual assault within the family is harmless and involves no injury to society. Foxcroft’s ruling came after parliament passed the 1997 Criminal Law Amendment Act which changed drastically the discretion of judges in sentencing rapists who rape underage girls. The law required judges in such cases to impose a mandatory life sentence for rapes of girls under 16 except if “substantial and compelling circumstances exist.”
    It should also be remembered that after Foxcroft’s ruling, there were rumours that the Parliamentary Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women sought to hold a hearing with Judge Foxcroft. Predictably, the white liberal advocates and academics denounced the summoning of the judge to Parliament as unprecedented and as undermining the rule of law. They howled that the normal procedure, if anybody is dissatisfied with the judgment, is to use the mechanism of appeal. In other words, white judges are allowed to make errors which are susceptible of being corrected through the normal appellate review mechanisms. But black judges must be personally attacked and denounced as incompetent jurists who owe their undeserved judicial appointment to reverse racism and affirmative action.
    At that time, there were many examples cited of magistrates and judges blatantly ignoring the law. These included a 10-year sentence imposed on a 23-year-old man by Bloemfontein High Court Judge Dirk Kotze for repeatedly raping two 15-year-old girls. This, the judge argued, was because the girls were not virgins and one had been “naughty” in having had sex with someone else two days before. One could recount numerous examples of such warped views of white judges (including Lewis herself) who have issued bizarre and downright perverse rulings from the bench. And yet, Judge Lewis seems to have reserved her venomous rhetoric and contempt only for those judges who are perceived to be affirmative action appointees.

  • John Kruger

    The point is that when white judges see an opportunity to blame black judges and affirmative action for any thing that goes wrong in the judiciary, they grab the opportunity to lambast and trash their black colleagues. Needless to state that one needs only to read the completely unprofessional, intemperate language used by even the SCA judges in reviewing decisions of black High Court judges – the Judge President Hlophe’s decision in the New Clicks and totally unwarranted attack on Justice Kgomo. The message is very clear – blame black judges for everything and attribute all the horror stories to affirmative action when you need to promote the reactionary white DA agenda.

  • Bongs

    Mouse, you have explained your position very well on the AA issue and the competence of judges.

  • Anonymouse

    Bongs – Thanks. Sorry for first creating the impression that it was just AA I was opposed to. That is not the case. AA is necessary, but to be applied with circumspection where people work with other people’s lives and livelihood. I wish you were a participant on this blog a few months ago when Khosi and I had the “I am African” debate, then you would’ve known that I am not anti-black at all. Enough said on that topic though. On the issue of judges’ appointments, perhaps the JSC needs to be more focused on competence ad experience, without losing sight of the need (constitutional imperative) for the Bench having to reflect the racial and gender balance of South Africa as a whole, but the balance of specific areas also need to be taken into account. And then, more should be done along the lines that Langa CJ has been doing the past 2 years, internship training of, especially women (Langa CJ’s actions have regretably however only been focusing on women), to become judges. And I think the same can be done in respect of aspirant magistrates and regional magistrates. The current system where the Magistrates Commision holds a short interview with an applicant and then appoints same, subject to the attendance of a short course and serving a period on probation before becoming a fully fledged magistrate or regional magistrate, is seriously flawed. A suitably qualified person with appropriate experience should at least be subjected to a year’s internship before being interviewed for appointment.

  • z

    I once had a conversation with a white guy who was in the war, and the anger he felt at the previous government and the church for the “indoctrination”, was immense. Whatever problems we have in the country at this point (except maybe those who have threatened violence) pales in comparison to a situation of civil war. War is about death, there is nothing glorious about it.

    On the whole AA topic I would like to just make a few quick points.

    Many people might not have directly benefited from apartheid, but the indirect benefits of having been white are immense:
    - Majority of resources applied to benefit the few to a greater extent than the majority.

    - Infrastructure built on cheap labour.

    - Even a teacher could afford to pay a salary, as for a domestic worker. (benefits surely more appropriate for the rich)

    - Access to quality resources such as good schools in your home language, shopping complex close to your home, living close to work, sport and recreational facilities of good standard close by, lush green suburbs with lots of trees. This is mostly the suburbs, but the rural areas and farmers had lots of other benefits from lots of land and support from government and a cheap workforce.

    - There are even more indirect benefits in terms of mindset, you have the good fortune of not growing up with a “poverty mindset” which can be immensely disempowering, to an extent that a middle class person cannot understand how some poor people don’t “do more” about their situation (but have no idea how the lack of self-esteem and lack of examples impact on the way someone thinks). But this one is a long discussion point, hardly done justice with one sentence.

    - If you had to compete with more people for a job, you might have battled even in the old SA.

    Another significant concern is the “class issue”. Much of what is considered racism in SA can actually be attributed to class discrimination and cultural discrimination as people are unable to step out of their own “world view” (and world view is best understood with some sociological study). I am so surprised at how little it features in talks on racism. But maybe I’ll post more on this at another time.

    What I want to say about class is, that you come to think there are things beneath you to do. Example: how many white people have you seen who work in garbage collection? Some people would rather not work than do something beneath their social status. The mere fact that it would “feel” humiliating, shows the great influence of class based enculturation and the power of acceptance of peers of your class.

    While people might understand some of what happened in the past, it takes an immense emotional and educational effort to climb into someone else’s world view. And though it can be argued to be applicable to all races to understand one another, a bigger burden lies on whites to do this. It is not easy to do it yourself, if you’ve had little exposure or education in psychology, sociology and history.

    As an example, just understanding the breakdown of the family structure in migrant labour systems, which have been going on to some extent since somewhere in the 1800′s, is difficult without a significant investment in education.

    Oi. Let me stop before this becomes a mini-dissertation.

  • Stalin

    I recently started playing golf in a small town in kzn. I have made a few ‘friends’. One of them is a director of an agriculture firm that exports seeds and seed technology. He is not much of a golfer,spends most of his time downing pints and pints of windhoek lager. He is always excited to see me and shows it by refusing to let me pay 4 my own drinks. It’s still a conservative town so whites tend to sit together in their corner and a couple of us have found our corner. This new ‘friend’ goes to his corner first greets his mates,downs 3 quick pints of windhoek,orders the bar man to give me a double chivas everytime he buys his lager. When he gets tipsy he comes to our corner,buys booze for us until we are all singing shosholoza and then he starts: ‘Men we killed those kaffirs, angola namibia we would come to villages ask them where the anc kadres were, then we would line them up and execute them’. This kind of talk has made some of my mates very angry. I feel in a way sorry 4 him because i feel he wants to repent and find closure. I recommended professional help but everytime he is sober he looks at me puzzled at what i am talking about. He worked for hit squads that hunted down anc kadres in african countries and the order was to eliminate so he says.

  • Sne

    To all bloggers,

    I cannot mention all of you as I would leave out some so let me stick to generalisation.

    I am sure Prof would look at himself in the mirror and smile at the success this blog has had in ironing out some differences between us as South Africans and other nationalities and also between South Africans themselves, educating us on what is happening in our country and the world over, what challenges we face as people and as a country as a whole, what we can do to ameliorate ourselves and those around us, ideas as to how we can go about helping ourselves when faced with problems which may seem insurmountable without certain level of education, skill, etc. and other things in general.

    You have made this blog a success and an informative tool for those who need information on certain aspects.

    Thank you all for your contributions as I have learnt a lot just by reading comments here. Keep up the good work…

  • Sne

    Stalin // Oct 19, 2008 at 11:58 am
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    I have related above that the “war” was fought on many fronts, one of them being in the classroom. It is a well-known fact that Apartheid was not merely about the military muscle that was used against other races but it was also about indoctrinating white kids to believe that they are superior to other races and that by joining the army they are helping to “defend” their country from the “terorrists” and that they are patriots. This has left many white people who participated as victims alongsite blacks whom they were terrorising.

    This metal abuse (indoctrination) will not go away over night and therefore the way forward is to fight it. Of course, there are some whites who would rather choose to live in the past rather than embrace the future of inclusivity as they appear to be lost in the post-1994 South Africa or that they do not belong therein. This is regrettable indeed.