Someone at the Correctional Services Department must have been taking a course in creative fiction writing. How else to explain their most recent press statement which argues there is no basis to review the decision to free fraudster Schabir Shaik on medical parole?
Shaik – who was released because he was supposedly in the last stages of a terminal illness because he allegedly suffers from high blood pressure – was reportedly seen driving around Durban in his fancy BMW this weekend. His usually garrulous family declined to comment on his health, giving a little more credence to the report that a DA councilor spotted Shaik this weekend buying party balloons and looking in excellent health. The DA councilor claims he then followed Shaik to his house, but the security allowed Shaik to enter for a well deserved rest without the DA councilor getting the opportunity to inquire after Shaik’s health.
Perhaps this medical miracle was the result of Shaik taking part in a medical trial in Melbourne. The Science Daily reports that the clinical trial showed significant improvement in blood pressure of participants who were given a new catheter-based treatment where blood pressure lowering medication had failed. I can only hope that if Shaik is not on this treatment yet, he would immediately get access to this treatment to save his life. Driving when one is terminally ill must surely be very dangerous to one’s health!
In any case, the Department said despite the reports of Mr Shaik’s miraculous recovery, there was no basis for a review of the decision. According to a report in the Mail & Guardian the Department said:
“It must be remembered that Mr Shaik was examined by three medical doctors who concurred that he qualified for placement on parole in terms of Section 79 of Correctional Services Act,” the department said in a statement.
In terms of the Act, offenders who were in the final phases of a terminal illness could be placed on parole to die a consolatory death. The decision of the three medical doctors was also subjected to scrutiny by the Health Professions Council of South Africa, which actually cleared them of any wrong doing, the department said.
It was also crucial to note that the Act made no provision for re-incarceration of parolees who might have recovered or not died within a given period of time.
Now, this statement is, I am sad to say, untrue. First, three doctors did not – I repeat NOT – concur that Shaik qualified for placement on parole in terms of Section 79 of Correctional Services Act. It is worth recalling that section 79 states as follows:
Any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of a terminal disease or condition maybe considered for placement under correctional supervision or on parole… to die a consolatory and dignified death.
We know that the doctors did not diagnose Shaik as being in the final phase of a terminal illness or condition. Instead what the doctors did say was that:
We cannot keep him in hospital indefinitely and since the prison authorities are reluctant to manage him at the prison hospital, where conditions are suboptimal, we recommend that he be considered for medical parole.
Although the doctors recommended Shaik for medical parole, they did not do so in accordance with section 79 as they did not find that he was in the final stages of a terminal illness as required by section 79. Legally, the effect of the doctors reports and recommendation was therefore utterly irrelevant and cannot be used to justify Shaik’s release. It had the same legal effect as a recommendation from a doctor to release Shaik because Shaik was a swell fellow, had a mean taste in cigars and was a friend of the President.
The factual basis for the recommendation did not conform to the requirements of section 79 and the Board was legally required to ignore the recommendation as it did not provide the factual basis required by section 79 for release. The fact that it nevertheless released Shaik, means that the Board did not act in terms of section 79 when it ordered Shaik’s release and hence, the Board most probably acted unlawfully.
That decision can be reviewed by a Court and set aside as it was not a legally valid decision. The principle of legality requires a public body exercising power in terms of legislation to act in accordance with that legislation. Where a public body ignores the requirements of the law when exercising a discretion it acts unlawfully and as such the unlawful decision can be reviewed and set aside by a court, which would mean Shaik was unlawfully released and that he should immediately be returned to prison where he belongs with the other 100 000 criminals duly convicted of terrible crimes.
In any case, the Minister has decided not to refer the matter the Parole Review Board despite the overwhelming evidence that the decision to release Shaik was taken unlawfully. The decision by the Minister can therefore also be taken on review on the basis that it was irrational or taken in bad faith, given the fact that the Minister was appointed by Shaik’s old friend and a benefactor of Shaik’s considerable (corrupting) generosity, President Jacob Zuma.
To be fair, if I was the Minister I might not have referred the matter to the Parole Review Board either. Driving a R1 million car and enjoying the other perks of being a Minister must surely weigh more heavily than any duty to adhere to the law. Who cares about the law? After all, the law is for poor people; for strikers and teachers and other sods who have not managed to ingratiate themselves with the powers that be.
If the matter had been referred to the Parole Review Board – as it should have been – and the Board had overturned the unlawful decision by the Parole Board, Shaik would have had to go back to prison where he belongs. The Department of Correctional Services are therefore not sticking to the truth when it says there is nothing to be done now that we seem to have come close to confirming that Shaik is not terminally ill and that he was released from prison because he happens to be a friend of the First Dude.
From Shaik’s perspective this is not a bad thing. After all, he is finally getting a return on his considerable investment in President Zuma. All those “loans” to Zuma, the sucking up, the payment of school fees and the soliciting of a bribe on behalf of Zuma is finally paying off! Who says crime does not pay – eventually.
Shaik should be in prison, no other explanation………..but we all face a long wait before the truth is known.
Thanks for shining a light on this Prof.
Prof,
Quick question from a non-legal person.
If the Parole Board decision is challenged in court and the court sets it aside, does that in effect mean Shaik would be incarcerated immediately? Or is that a matter of the court to decide as well?
Further to that, why does President Zuma not just grant him a presidential pardon? Why waste everybody’s time with this? I am not mistaken, it is well within the President’s prerogative to grant pardons as he sees fit.
George, because it will be a tiny bit of a political embarrassment, thats why.
Kameraad Mhambi // Aug 11, 2009 at 9:11 pm
as apposed to this shenanigans??!
Pierre, in 2 places you state that the courts can look at the process and reverse the parole decision, to wit:
“That decision can be reviewed by a Court and set aside as it was not a legally valid decision. ”
“The decision by the Minister can therefore also be taken on review on the basis that it was irrational or taken in bad faith, ”
As a non legal person, my question is who instigates or initiates this and how? Does one just go to a police station and lay a charge against someone or does one initiate a private action?
I agree with you that there is a prima facia case that the parole process was incorrect. If it is so obvious, why hasn’t the DA or Hugh Glenister done something?
Wits Law School distances itself from comments by Malunga
Published in: Legalbrief Today
Date: Tue 11 August 2009
Category: Readers’ Forum
Issue No:
As Head of the Wits Law School, I wish to disassociate the School from the incorrect account of the law that has been given by Kevin Malunga, a Lecturer in the School, in the media recently.
On TV3 News on 30 July 2009 he said in an interview that the chances of Judge Hlophe being impeached were ‘zero’ because there is no corroborating evidence. He said ‘there (was) nothing to prove’ the case of either side. Further, ‘any self-respecting tribunal in the world wouldn’t give an adverse finding without, actually, any concrete evidence’.
In an article in the Business Day in 4 August 2009 he is alleged to have said that ‘a formal hearing, with cross-examination, would provide no solution’ in the absence of corroborating evidence. ‘It is ultimately a case either of hearsay or of one judge’s word against another,’ he said.
This is simply not the law. A tribunal is permitted to decide a case on the versions presented to it in the absence of corroborating evidence. The reference to hearsay is incomprehensible.
The law as stated above by Mr Malunga is not the law we teach at Wits Law School.
In the context of attacks on the independence and integrity of members of the judiciary, this incorrect statement of the law can have a particularly damaging effect. Wits Law School teaches its students the importance of an impartial and independent judiciary.
Professor Angelo Pantazis
Head: School of Law
University of the Witwatersrand
Blaine McCleland // Aug 12, 2009 at 6:16 am
The simple reason is Blaine,
The investigation into the doctors come out to support the case for shaiks parole. Even though the parole board were the dodgey ones and instead an investigation or probe should of been on the parole board itself as there seems to be issues with there policies…..im afriad there is no law thats states if a person has been cured from his “terminal illness” he must be sent back to jail.
Shaik is scot free and what i find funny about this is shaik is becoming an enigma just like trying to spot bigfoot. Im afraid he found a loop hole.
However an investigation or probe can be done on the parole board itself but they would be held liable. Shaik however will still be free.
Like I said shaik will become an enigma like OJ simpson and bigfoot.
ha ha u guys will love this
http://www.ecr.co.za/kagiso/content/en/east-coast-radio/east-coast-radio-blogs-breakfast?oid=283248&sn=Detail&pid=561
People should get it in to their heads that Shaik is never going to jail again and if the DA or Glenister approaches the Courts with this Zuma should simply pardon him and then let the whingers whine as usual.
Mdu – “People should get it in to their heads that Shaik is never going to jail again and if the DA or Glenister approaches the Courts with this Zuma should simply pardon him” – Why is that? Because they had a Shaiky deal?
Shaik calls the whole thing (that he was seen in town) “a total fabrication”. http://www.news24.com/Content/SouthAfrica/News/1059/2d206ea9224f464e897909435f7e461d/12-08-2009%2009-08/Shaik_denies_breaking_parole
What do we call his feigned ilness then?
Pierre, I see you have thrown the cats amongst the pigeons (good on you):
http://www.news24.com/Content/SouthAfrica/News/1059/4b16b6fef5a14197ad026b5fc8a824d6/12-08-2009%2008-08/JSC_probing_Hlophe_outburst
heres the video clip
http://www.youtube.com/watch?v=KXdk-vbu3fk
Hey Mouse,
Did you read the judgement handed down yesterday by judge Ben du Plessis on Pikoli?
The judge found the removal of pikoli was illegal….love it.
This only strengthens his case in November.
Zuma you may play chess very well with the JSC, but you seem to forget you dealing with someone who has Honour and is a pitbull, you cant beat that.
Chris, I tend to agree with your analysis.
It is encouraging to see that we still have some judges who will (a) earnestly and impartially engage with facts and (b) apply the law without fear, favour or prejudice.
Actually, I think the last few years have been particularly distressing for many South African lawyers – although I am of course merely stating the obvious by saying so.
Certain recent developments which have been considered in the present discussion seem to suggest the following: some public figures to whom we turn for accurately researched statements of law – much like many of our decision makers who are supposed to act in terms of law – continue to offer shamelessly inaccurate statements of rules or of the dictates thereof.
Cry the beloved country, that`s the least one can say about the stroke of fortune that visited the Shaikh family. What about some dubious appointments that Zuma has been making left, right and centre.
Leigh // Aug 12, 2009 at 10:56 am
whats going to be interesting to watch is 2 things
1st. Will zuma go to the SCA next? This I doubt
2ndly. If Pikoli wins his case in November, will Zuma go the SCA?
See I think the ANC has snooked it themself in this one, because if Zuma, challenges any of the judgements it will show that there is a political agenda to get rid of Pikoli and it will cause more doubt why the state is relentlesly trying to block Pikoli giving the facts of Zuma’s case being dropped and giving the fact as it stands now pikoli was dismissed illegaly anything else would prove to be a political agenda to hide something thats for sure.
Please indicate an instance where anyone in power has been found accountable for any alleged wrongdoing in recent times?
President Jacob Zuma will never answer in a court of law the the serious allegations made against him concerning the Arms Deal. The putting on of the sovereign crown has guaranteed that. The Travelgate Guys and gals have promptly been given other portfolios and are considered ethically sound to hold government positions. The fiasco with Shaik at the moment is strikingly similar to Tony Yengeni’s arrogant overtures made during his brief legal troubles.
The conclusion is very clear. We living in different South Africa at the moment (one for the rich and another for the poor, for those in power and those being so-called governed, those who try to be law-abiding and those who don’t give a rats’ sphincter … but then again, wasn’t it the same during Apartheid?
‘How else to explain their most recent press statement which argues there is no basis to review the decision to free fraudster Schabir Shaik on medical parole?’
Isn’t this the perfect example of the ’3b’s': Bullsh**t Baffles Brain, our government’s alternative to truth and transparency.
Its along the lines of a spouse falsely denying an affair with a ‘how could you believe such a thing?’ response.
I’m not sure why they bother really, isn’t South Africa now a monarchy?
Mzo and Pierre, I just want to say your debate about Hlophe not having dispute the M & G obviously controversial report is comimg to the fore.
Any yes Mzo Pierre in saying you should have qualified your posting and you should not give ridiculous timeframes as in 24 hours for Hlophe to dispute it. He has disputed it, and the silence about it here is defeaning!
My second para, I meant to say” And yes Mzo was right Pierre…
Pierre De Vos // Aug 12, 2009 at 8:17 am
I am staggered that Wits Law School would release such a statement and think it unconscionable that they do so.
Whatever the merits of Kevin’s statements, they were offered in the sphere of public opinion where there exists every opportunity for those who constitute ‘Wits Law School’ (apparently not Kevin!) to challenge and correct his understanding of the law. No one behind the law school statement has seemingly availed him/herself of that opportunity. Instead they take the unprecedented step of public censure and humiliation.
There’s a song that goes with Judge Hlophe’s recent ranting and now retraction ……… SHAGGY”S “It wasn’t me”!
sirjay jonson // Aug 12, 2009 at 2:32 pm
“I’m not sure why they bother really, isn’t South Africa now a monarchy?”
….. and Zulu by nature it seems.
On a different note, I am alarmed at how hypocritical politicians can be sometimes. If reports are to be believed, the ANC now is up in arms with the DA’s David Maynier because they reckon the information he has on the alleged selling of arms to some questionable contries “must be stolen”.
Now, is my memory failing me or is this not the same ANC that saw nothing with JZ or his legal team having access to intelligence tapes? Surely, if we were supposed to ignore how these tapes came to be in JZ / his legal team’s hands but only concern ourselves with the contents, then surely we should not be worried the source of Mr Maynier’s information, but the content!!
The converse of course is true, if the DA complained about the use of information that was illegally obtained, primafacie at least, one wonders why they think it’s now OK for them to rely on information that was illegally obtained, prima facie that is!!
Can you guys please deal with this whole nomination vs appointment, unpack to us lay ones exactly the interpretation of section 174 of the Constitution. We will deal with Shaik later, you guys are giving him free publicity unneccesarily.
Spuy, I can offer only my view and hopefully the Professor (or anyone else with specialised knowledge of constitutional law) will confirm or correct my understanding.
The opposition parties seem to have the following grievance: under section 174 (4), Zuma was supposed to make the apointment after consulting with, inter alia, the leaders of the opposition parties represented in the National Assembley. That he was supposed to consult with them first strongly denotes that he was supposed to take their views into account before making his decision.
That he apparently purported to appoint a Chief Justice before doing so could conceivably be interpreted as a failure to act in accordance with section 174 (4).
In the olden days the LRC and LHR were funded by Big Finance to do public interest litigation.
There’s obviously a dire need for something akin to do litigation to keep the ANC to the constitution and the rule of law.
Like a review application of this release by Correctional Services. It seems to me a rather straightforward application ito PAJA.
Henri, I tend to agree with you. I would love to see the ANC face public interest suits pursued with a view to holding it to the rule of law. It is incredibly sad that only fifteen tender years after our country’s shining moment, we have public officers disregarding the rule of law as a matter of course.
Leigh & Henri
Whilst I agree that there is a lot of decisions that definitely need to be reviewed or litigated on, I am rather concerned that your grief seems to be directed at the ANC and not the GOVERNMENT (which, for the moment, just happens to be led by the ANC).
Your submissions seem to overlook Prof’s “lessons” to the ANC that the ANC and governement is NOT the same thing. I know this may look petty but I think it’s these blurring of lines that we need to guard against, lest we condone the conduct of some of the ANC Cdes who would love to see Luthuli House being equated with Union Buildings!!
Mzo, I appreciate the distinction between the ANC (the party which leads the government) and the governemnt (which comprises also opposition parties).
I cannot speak for Henri. But with respect, my intention was to tarnish specifically the ANC and its figures with the brush which I used so to speak.
That is, I think that ANC members have shown themselves to be especially averse to both (a) the idea of accountability and (b) certain necessary implications of the rule of law.
Spuy, let you and I talk commerce for a while.
Earlier you asked for a bit of assistance. I tried to give it – and I certainly hope I did not lead you on.
Now I would like to take a bit of your time if you would be willing to recognise the rather rare and perculiar transaction to which I refer.
Judging by the tone of your writing today, you seem to be in a reasonable mood. I also remember you intimating that you back the ANC.
So if you would honour me, I would kindly like to ask you some questions.
I am sure we can agree that many people like Zuma. And my questions are premised on the assumption (reasonable I hope) that you are one of them.
My first question is: do you think it is possible that some people like Zuma for the wrong reasons?
And the second is: if someone that you trusted were to prove to you that Zuma must think that he is above the law, could that cause you to discontinue supporting him?
Spuy et Leigh – I copy/paste my post in the ‘nomination’ versus ‘appointment’ debate from the Blog “Too early to tell” below, since it appears clear to me that Ngcobo has not yet been ‘appointed’. (He can only be appointed after – or when – Langa steps down. The JSC is apparently going to interview Ngcobo before advising Zuma what they say of his ‘nomination’. Nevertheless, my post follows.)
“Anonymouse // Aug 8, 2009 at 10:41 am
Mike Atkins // Aug 7, 2009 at 5:56 pm
Ncgobo J has not yet been ‘appointed’ in the true sense of the word. He is just Jacob Zuma’s prime choice for the posistion, and that is what has been announced. The announcement of this choice does not mean that s 174(3) has now been overlooked as suggested by the DA et al. Nothing wrong for the President to ‘nominate’ or ‘publicise’ his choice for CJ before ‘consulting’ with the JSC and leaders of parties represented in the NA; and, if during the ‘consultation process’ he is not convinced that another person would be a better candidate, to then ‘appoint’ him in terms of s 174(3). This is how Ncgobo sees it according to an article in Beeld this morning. An interesting remark by him is that, if he is in fact ‘appointed’ when Langa CJ leaves office, he is not necessarily limited to a period of two years in that office. He points out that the President may request him to serve as CJ up to the age of 75 years, which is 19 years from now. This might mean, however, that he has not only been ‘approached’ to see whether he would be willing to serve as CJ, but that the discussions went deeper than that. Hopefully this shows that even Jacob Zuma has a distrust in Hlophe JP being up to the job of leading the Highest Court or even of serving on it. But, maybe I’m reading too much into what Ngcobo has been saying at his home in the South of KZN.”
Professor, Nicole Frits contends that Professor Pantazis’s publication was unconscionable.
I would like to ask you whether you think that (a) Professor Pantazis sort to take a dig at Mr Malunga or (b) whether he sort to prevent the possibility of any damage to Wits Law School’s image. I would tend toward the latter view. But I would be interested to read yours.
I would also respectfully add that it is in the nature of law that lawyers are going to be wrong sometimes. And the making of an error certainly does not mean that Mr Malunga is not a very good lawyer. He found a post at Wits Law School – a fine institution with a proud history.
Anonymouse, for a start, my referece to subsection (4) was wrong. It is subsection (3) as reflected in your post. Sorry, I did check that in a hurry.
Second, your construction seems preferable to mine if appointment is taken to mean Ngcobo J would in fact be the Chief Justice. But I would like to ask: what, if anything, makes you rule out the construction that a Zuma announcement could have been intended to amount to an appointment?
Leigh // Aug 12, 2009 at 6:26 pm
Leigh, not to pre-empt Prof on your question regarding the Wits Prof, but I was also troubled by the detail in which he chose to go into in his statement. Whilst I appreciate Wits’ right to protect the integrity of their institution, I think it would have been sufficient to state that Kevin was expressing his personal view and not that of the institution. To go on and on as he did was, in my respectful view, unnecessary.
Mzo, with respect, I think we have to be clear about the content of Professor Pantazis’s piece.
To me he seems to cover the following: (a) that the school wanted to disassociate itself from Mr Malunga’s views (b) the particular statements to which he was referring (c) why the school thought the statements were wrong (d) what the true positions are (e) why Wits made the statement and (f) an important message which Wits aims to impart to its students.
I think we ought to ask ourselves: is any of the content from (a) to (f) irrelevant? I do not think so. To me, and with great respect, Professor Pantazis’s writing reflects the habits of an excellent lawyer. It is clear, focused and urbane – a great example of English prose.
I for one do not think Mr Malunga is worried over much. You would surely have noted that he can stand up for himself. If there is any lingering ill-regard, I think Mr Malunga would probably have a straightforward conversion with Professor Pantazis.
Leigh
I think our differing views lie in the fact that you are looking at what is relevant (which I do not dispute) and I am looking at what was necessary, bearing in my what the Prof must have aimed to acieve – which I think must have been to protect his institution’s integrity.
I think the correction re: legal position could have been done behind closed doors – simply my view that has no bearing on Kevin’s ability to stand up for himself (which I’m sure he’ll have no difficulty doing at ol, if he felt it was necessary).
Heh Prof: lots of good stuff on this one, all us folks you got thinking and responding accordingly… Good on ya.
@Harold Ferwood: well I didn’t want say, politically incorrect et al, but Dingan is dancing in his grave. Surely its not so unexpected really, some accomplishment, whew.
Question is: Will He be a benevolent king who cares for his turf? Time will tell. Its the African way.
Pierre don’t get it twisted Angelo did not consult other Wits staff before issuing that statement.Here is my response that will be published.
Response to media statement
Having had time to reflect and after overwhelming support from academic and administrative staff at Wits and members of the public I will now respond to the press statement made in my name. With due deference to Professor Pantazis’ mandate to defend the integrity of Wits Law School it is my belief that the decision to issue the statement was unfortunate and ill-considered for a number of reasons .First, it is my belief that this is primarily not a dispute about my flawed perception of a legal principle but my ideological difference with the author(s) on how to solve the John Hlophe matter.Second,it is the hallmark of the University of the Witwatersrand and South Africa’s Constitution to defend academic freedom, diversity of opinion and freedom of expression regardless of how unpalatable such opinions are to any of us.Third,my statement on SABC3(the statement refers to TV3 which hails from the pre-democracy/apartheid era) and in Business Day asserts my firmly held interpretation that a self-respecting tribunal will not make an adverse finding without corroborating evidence because more often than not this will be a bad and unjust decision. Indeed it is possible but it will be a bad decision. Fourth, it is the essence of litigation for lawyers to constructively debate issues and legal principles.Fifth,I disagree that Wits Law School teaches students a singular perception of any field of law(If that were so we would be failing terribly in fulfilling our mandate).Sixth, the Constitution of South Africa protects all individuals including the Constititutional Court judges, John Hlophe and any shack dweller and I have laboured to emphasise this.Seventh,the office of the Wits Deputy-Vice-Chancellor has commended me for my work in raising the profile of Wits.Lastly,I have been on record suggesting that the John Hlophe matter should be solved amicably as the opposing parties versions will never be proved. It is only Justices Hlophe,Jafta and Nkabinde who know what they said to each other at the end of the day.
That having been said I view this as a teachable moment and not one of vindictiveness .I espouse the spirit of my hero Nelson Mandela and will embrace even those who do me wrong without bearing any grudge and look forward to a fruitful working relationship with Prof Pantazis and his co-author(s) (if any).I look forward to the decision of the Judicial Service Commission in a few days which will no doubt vindicate me.
Advocate Kevin Sifiso Malunga
Wits Law School
Johannesburg
I agree wholeheartedly with Pantaziz – what Malunga said was on a par with the mindless populist chest thumping that passes for political and legal discourse these days eg Hlope (allegedly – hat tip to Mzo) stating that Zuma is innocent, Mdu’s baseless cheerleading for Zuma, Hlope and Shaik, and Jacob “there is no cloud” Zuma himself.
The rule of law is fast taking on water and it is time that more leaders took a public stand.
Thanks to Nicole,Mzo and others for understanding the true essence of academic freedom.To the others I wish you would let go of emotions on this issue.It affects your ability to see reality staring at you.
The really funny thing about the Manieyer issue is that the information he revealed is exactly the information that the arms committee is required by law to disclose to the public annually, which they have not been doing (for obvious reasons).
The Department of Correctional Services will find that Shaik violated his parole conditions after viewing the video tape. They will send him back to prison, eh sorry, hospital.
President Zuma will pardon the ‘sick’ Shaik. And Shaik will be a free man with no parole conditions attached.
He will be free to drive his luxurious BMW anywhere anytime.
This maneuver by the President is known as “Stop All Nonsense.”
What an arrogant statement by the Head of Wits Law School – indefensible
I don’t buy Leigh’s argument that it was necessary to protect the reputation of the Law school (nor that it was “clear, focussed and urbane” – I thought the following paragraph was rather muddled showing signs of Hlophephobia rather than logic and clarity of thought
“In the context of attacks on the independence and integrity of members of the judiciary, this incorrect statement of the law can have a particularly damaging effect.”
I am utterly disgusted by the statements issued by Pantazis. He showed naked disrespect for a man of colour. I suspected his blurred thinking and inability to discern the difference between quality and quantity when the exodus of the Cassims was made known to me. It seems to me that he is in dire thirst to turn the School into a WHITE CLUB. Why does he want to appear clean at the expense of Malunga’s dignity and reputation?
the problem in south africa is lack of transformation, the judiciary must reflect the demographic of the country and since the president should exercise his constitutional duty without fear or favour we expect him to appoint black african judges in the constituional court bench this year without fear or favour and remember he got a final say as per constution
Kevin, Mzo, Leigh, Nicole et al. On reflection I am persuaded that on balance the decision by Prof Pantazis – for whom I have the greatest respect – to issue a statement was unwise. In the highly charged atmosphere it might well (rightly or wrongly) create the impression that the statement was more about ideology than about a problematic interpretation of the law. If I made a mistake in commenting on public events I would not want my Dean to publicly reprimand me as that might have a chilling effect on my ability to comment honestly and fairly on matters of public importance. Although I agree with the legal substance of the statement and although Prof Pantazis might well believe that he had a duty to protect the integrity of the Law School, in the cut and thrust of punditry one will inevitably from time to time say something that others will not agree with or might be just plain wrong. A private word with Mr Malunga, perhaps followed by a correction or clarification by Mr Malunga (if he felt so inclined) would have been a better course of action. Just my personal view.
Dumisani Mkhize – ‘This maneuver by the President is known as “Stop All Nonsense.” ‘
And I thought “Stop Nonsense” were pre-cast concrete walls that one builds around one’s property to hide one from one’s neighbours and the outside world – to “stop all nonsense” with the neighbours and outside world? … Is there a paralel to be drawn here?
Professor, thank you for your response. I think that the content, tone and timing thereof demonstrated an appropriate measure of sensitivity to circumstances.
I will respectfully concede that for an academic, suffering a public reprimand at the hands of one’s Dean could harmfully fetter one’s ability to comment on matters of public import.
I would also concede that for universities to truly accord academics academic freedom, the institutions must accept that they will have to countenance some views with which they do not agree.
But even though I appreciate the basis upon which you respectfully criticise Professor Pantazis – your reproach goes to objective construction rather than actual intention – I still think that Professor Pantazis sought to safeguard the school’s image.
His statement went directly to (a) determination and (b) construction of legal principle.
If Mr Malunga can show a basis for his views in case law, and that Professor Pantazis merely held to a competing construction also recognised in the decisions, then I too would, with great respect, say that Professor Pantazis was out of order.
But if Mr Malunga proffered his view without considering the position which is actually recognised by our authorities, then Professor Pantazis, as head of an institution that teaches law, quite possibly had a responsibility to his faculty to demonstrate that Wits absolutely teaches its pupils to consult the decisions.
Prof Pantazis’ reaction, whether the purpose was to protect the integrity of the institution or correct Adv Maluga’s possible misinterpretation of law might or might not be wrong; but the way in which he did it, as Prof De Vos and others already indicated above. As one of the senior members of the department Prof Pantazis could have had a word with Maluga behind the closed doors, debate the issue and find, if possible, a common ground with Maluga and then appear in public united in correcting the wrongs that might have been committed instead of castigating in a disrespective manner Adv Maluga in public the way he did. Given this behavior and conduct of Prof Pantazis and the racial group he represent as opposed to that of Adv Maluga, it is difficult for one not to conclude that Prof Pantazis is one of those people of colour who still sees a mistake made by a black man as a stupid and inhumane act which does not comply to the saying that says `to err is human’ while they view the mistake made by white people as a professional and human act that fits very well to the saying above and therefore must be accepted and forgiven by all. It is as a result of this racial view that he did not even think of applying this basic managerial principle to address this matter.
Charlotte, I am pleased to make your acquaintance.
I noticed that you have also taken to using the phrase ‘Hlophephobia’. With all respect, I think it amounts to regrettable phraseology because it looses sight of the view that many of the people who would vilify Hlophe have reasonable grounds for so doing.
So I would ask you this: if someone were to place materials before you which go to showing that Hlophe’s continuation in office poses a substantial threat to the judiciary’s integrity, would the honourable thing be for you to jettison the phrase?
I agree with Pierre that the Dean’s very public disassociation was unwise. It is now well understood that a law school professor does not purport to speak for his institution when he appears in the media — irrespective of whether the ordinary disclaimer is appended.
The much preferable alternative would be to challenge Professor Malunga in the merits, in the public media. (And some of what he says is, I think, wrong.)
Sadly, neither the appropriateness of the Dean’s conduct nor the merits of what Professor Malunga said will be properly debated. Such a conversation has already been drowned by the reflexive allegation that the Dean was motivated by racism. .
Leigh, I have no doubt that what Kevin said was wrong in law. I also have no doubt that it does not reflect well on an institution if one of its lecturers makes statements that misconstrues the law. But how does one deal with such a situation? I once made a statement about Ebrahim Rasool’s power to appoint a commission of Inquiry and this was broadcast on SABC TV news. I had forgotten to take into account the Western Cape Constitution so my statement was legally incorrect. I was mortified by my mistake and learnt a good lesson about double checking before making any comments. However, I would have been deeply upset if my Dean had reprimanded me publicly in the way Kevin was reprimanded. I would have had great respect for and would have accepted it with humility if my Dean had called me in and asked me to be more careful in future as I think that way one would have balanced the requirements for academic freedom on the one hand with the requirements of safeguarding the integrity of the Law School on the other. As mayimele’s post indicates, given the racial narrative in our society, I also think such a course of action would have been far more wise and sensitive to the (inevitable) perceptions – right or wrong – that race plays a role in such situations. It’s a question of style, not substance.
Pierre De Vos // Aug 13, 2009 at 8:17 am
My sentiments exactly!!
Spuy // Aug 12, 2009 at 4:41 pm
Leigh // Aug 12, 2009 at 5:00 pm
Anonymouse // Aug 12, 2009 at 6:19 pm
Spuy, I think this is an important matter that seems to have been overlooked by many commentators (incl. PdV, Kevin, et alle) both in the press and in the legal profession. In fact it seems the misdirection from the Presidency regarding “nomination” versus “appointment” seems to have been accepted by many hook line and sinker. Many people seem to be so relieved that Hlophe was not “nominated” or “appointed” that they have chosen not to analyze the matter in depth. I believe that ignoring this matter is probably one of the most unfortunate public responses regarding one of the most important indicators of our president’s and/or government’s views of the Constitution. Fact of the matter is that the law of the land requires the consultation of the JSC and the leaders of the parties in the national assembly. Fact of the matter is that at the least the leaders of these parties were not consulted in contravention of the law. Indeed, the presidency has affirmed that the appointment of Ngcobe is a fait accompli regardless of any constitutional requirement, as it were, yet commentators like Justice Malala believe this issue to be a storm in a teacup (i.e. breach of our highest law is a storm in a tea cup!).
Below, please find an interesting analysis from Gareth van Onselen, the contents of which I concur.
http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=139411&sn=Detail
Professor, I apologise for not making my more moderate position clearer.
Apart from my concessions, my post was predominantly geared towards setting out what I regarded as being Professor Pantazis’s motivation for drawing the statement.
But to turn to your question of how to deal with such a situation: I will gladly concede that the statement – while relevant and, as I believe, motivated by a decent enough motive – was, upon reflection, excessive. It was excessive in that it (a) could easily make a staff member uncomfortable (b) suffer the misfortune of being unsympathetically construed and (c) limit academic freedom. So on something of an untidy costs to benefits analysis, maybe Professor Pantazis should have gone for the private chat which you and some others advocate.
I will also echo Michael’s disappointment that some people have introduced a racial element to this discussion for which the facts seem to disclose precious little in the way of a foundation.
Leigh // Aug 13, 2009 at 10:46 am
“I will also echo Michael’s disappointment that some people have introduced a racial element to this discussion for which the facts seem to disclose precious little in the way of a foundation.”
Michael Osborne // Aug 13, 2009 at 10:14 am
“Sadly, neither the appropriateness of the Dean’s conduct nor the merits of what Professor Malunga said will be properly debated. Such a conversation has already been drowned by the reflexive allegation that the Dean was motivated by racism.”
Leigh and Michael, I agree with both of you. To me this re-inforces the point (repeatedly made by Prof de Vos – some would say maybe too often) that in the SA of today it is important that we should always be mindful of the perceptions that still exist out there about racism. It might be undesirable to always be “constrained” by these – often/sometimes irrelevant – considerations, but I think it is very necessary.
mayimele // Aug 13, 2009 at 9:14 am
please dont bring racial views into this, christ its like your standards that you guys live by now. arnt you sick of it?
No offence Kevin but you did come across as being a Hlophe supporter. and even myself I had to correct you that you dont need a 100% corroborating evidence. The mistake that you made is saying “hard evidence” eg: sms, email.
The standard is based on the preponderance of the evidence esp on ethic charges.
The fact is Kevin you gotta take this as a pinch of salt. The lady who interviewed you mentioned you are a lecture at wits university. When you decide to take a public plateform and acknowledge to being a lecturer of one of the best Universities in south africa, indirectly you speak on there behalf and indirectly you are promoting the University. Thats the price you pay for being a public person.
Where you also got it wrong is your ideology tho very gentlemenly not very noble nore offers a solution becuase it comes across as been swept under the rug and actually offers a lowering of standards
what you should of rather jumped into was this that there is a lower standard of preponderance of the evidence and thats something south africa should like into esp in Hlophe’s case as this could be a good example to examine a higher evidentiary standard as this appears to be “he said she said” and that they both have a property interest in there positions as well as due process to law, this would of added academic value to your debate giving the actualy fact Hlophe admitted to being unware that he is not allowed to approach an acting CC judge about a case and infringed on the property right of the acting judges and you could of easily have related this to what is happening in my beloved states in Texas.
You should of said the JSC standard is treated just like a civil case and not like a criminal case where the standard is evidence of proof is a preponderance of the evidence, this is where once again you could of added value where the JSC can up there game and have a higher standard when it comes to deciding the fate of a judge for empeachment, they should up the standard to a standard of proof as empeaching a judicial officer is actually extraordinary and they are actually “quasi-criminal” proceedings howver a removal of Judges is neither criminal nore civil it is sui generis and that a removal of a judge should be clear and convincing which makes it higher than civil law standard and lower than criminal standard.
Therefore convincing me and the public that a Higher standard of proof is needed to empeach a judge than what currently stands for a recalcitrant litigant in contempt.
Pantazis is actually correct in issueing the media statement, you did choose to take it to a public plateform under the guise of a Wits lecturer. It was only appropriate for Pantazis to correct you in public esp on your words and not offering an academic soltuion but more on a lowering of standards what currently the JSC offers.
Leigh, I fully agree with you, Michael Osborne and others that Prof Pantazis’ article shed very little or no racial elements in it. I am actually one of those people who hate playing a race card in every debate that involves black and white, particularly if the white view is against the black view. I would like to believe myself to be objective and colour-blind and am always striving to be as such. In this case I based my conclusion largely from my experience as a Wits student and staff member. I have witnessed similar behaviors and conduct from the white staff when they dealt with black academics irrespective of their qualifications and standing in the university. This type of constructive dismissal resulted in many black academics leaving the institution for other organizations where their qualifications, opinions and contribution is valued or devalued without looking at their racial background, but rather on objective and factual basis; and such agreements and disagreements are raised with them in a manner that shows respect. I do not know Prof Pantazis but I respect him, his opinion and achievements irrespective of his colour. I also agree that he might not have had racial motive in his response, but the glaring failure on his part to (a) show respect expected of a senior member of the department of his calibre by engaging Adv Maluga prior to making public statement (b) the dressing down manner in which he penned his response and (c) as Michael Osborne suggests as an alternative, challenge Adv Maluga on merits; as earlier indicated; all these coupled with my experience on how black academics were treated in the institution, made it difficult for me not to conclude that he is helplessly trapped in this racial mentality as a result of which the institution praised and preferred black academics from other African countries while demonizing and driving out our own local black academics – you will remember the recent case of Prof Sakhela Buhlungu who left the institution for UJ, just to mention one. Because of this subliminal deadly racist treatment many local black academics have suffered the effects raised above by Prof De Vos, Leigh and Osborne and eventually left the institutions. While others still went on to make it in their academic life elsewhere, for some of them this was a fatal career blow in the academic field.
@kevin
and my last thoughts on the issue, there is a huge difference in giving your own ideology and giving an academic ideology
However you are taking an academic ideology which to me your ideology is dangerous
“it is the essence of litigation for lawyers to constructively debate issues and legal principles.”
yes it is but to lower the standards to a kiss and make up approach is not constructive nore offers a solution, like I just explained to the post above which i hoped you read: the soltuion is to up the standards of the JSC on empeaching judges, to look at what the standards are now being applied and what can be down to upgrade the standards that should be applied
“Fifth,I disagree that Wits Law School teaches students a singular perception of any field of law”
Your perception is horribly scew, it is wrong to teach students a lowering of standards in law.
Chris and others.Thanks for your input.What you mostly fail to realise is that there is no denial that you can make an adverse finding without corroboration.What I am questioning is the wisdom of doing so.Its semantics at the end of the day.Besides I am an academic I should be able to throw in ideological views whether you like them or not(its in the Constitution).There is an open academic and political platform for us to express opinions and in this polarised racial environment it is most unwise to issue such a media statement over something that could be dealt with internally and maturely.
Mayimele, thank you for your thoughtful response.
You make out that the way in which you unpacked Professor Pantazis’s statement was influenced by your personal experience of Wits.
Now while I certainly do not claim to be able to read minds, I will say that given the way in which you have communicated your sentiments, I am very much inclined to credit your account – although as I am sure you will understand, it would be irresponsible of me to casually discount the possiblity of others.
But given that I am prepared to give you the benefit of the doubt, I would like to express my sincere sympathies to academics and students who suffer the sort of treatment to which you refer. It has no place in our society.
I would also say that given the broader context from which you drew your opinion, your determination is certainly not fanciful. Although I am sure you and I would agree that we should avoid jumping to any conclusions about Professor Pantazis.
Finally I would respectfully commend you for honouring our constitutional condemnation of unfair discrimination on the basis of race. It is not easy. But I would urge you to cleave to your worthy ideals.
I’m a 2009 Wits graduate and Pantazis is a sour punk.I could never get anything out of my consultations with him.For the record a whole family of academics the Cassim family resigned from Wits because of him.See the attachment below from the Wits students publication Vuvuzela.So this guy (Pantazis)behaves like this often.
Law school loses a family
Zaheer Cassim
The Oliver Schreiner School of Law is set to lose a family of three respected academics at the end of this term.
Professor Farouk Cassim and his two daughters, Rehana and Femida, who are both senior lecturers, will be leaving the law school.
Students and staff interviewed were dumbfounded when they were told of the exodus of the three Cassims.
Fourth-year law student Dalene Moodley expressed her concern: “The good ones [lecturers] are leaving. It’s upsetting. People were moving into our class just for Rehana and she went out of her way for tutorials.”
Another student, Bongi Nkosi, was taught by all three Cassims during her four years at Wits. She said: “It’s quite sad because the law school is losing brilliant lecturers.”
Advocate Kevin Malunga, a lecturer of Business Enterprise, spoke highly of the contributions Farouk Cassim had made at the university and to the country.
“He’s a delightful, principled man. He’s got strong opinions and believes what he stands for.”
Malunga was the only lecturer who would comment on the issue. Other lecturers refused to comment.
Femida Cassim, with the consent of her father and sister, issued a statement to Vuvuzela, saying why they had decided to leave. “We are leaving due to professional difficulties that all three of us experienced individually with Prof Angelo Pantazis (the Head of the Law School).”
Asked about the loss of the three academics, Professor Angelo Pantazis, Head of the School of Law, said he was “not aware of any problems”.
He went on to say that “Professor Farouk Cassim has taken early retirement. Dr Femida Cassim and Ms Rehana Cassim have resigned. Dr (Femida) Cassim and Ms (Rehana) Cassim were promoted to Senior Lecturer on 1 April 2009.”
Acting Dean of the Faculty of Commerce Law and Management, Professor Katherine Munro, was disappointed that Femida and Rehana had chosen to leave after being promoted to senior lecturer status, just under a month ago.
She explained that Farouk was scheduled to leave at the end of this year, but had chosen to leave earlier. Munro assured students that the Cassims’ posts would be filled by next term. She added that the Oliver Schreiner Law School still remains one of the best law schools in the country.
Human Resources Manager Bhavna Patel confirmed that the university had already begun the replacement process.
@Kevin
“What I am questioning is the wisdom of doing so”
thats exactly what im on about, The standard right now is a preponderance of the evidence. Is this good enough?
I agree that impeaching a judge is of an extraordinary event and rearly happens and by nature it is something that shouldnt be taken to likely
I also agree that the JSC needs to up its standard becuase it bases its standard on civil standards and needs to rather find a meduim between Civil and Criminal standards.
More to require a person wrong less to require a person criminal
Kevin do yourself a favor check out Presiding Judge Sharon Keller trust me you would want to follow this story very closely as this could give a good idea on what the JSC standard should be
Kevin no one is disputing the fact you cant say what you wont, but you must runderstand what you say has consequences
“polarised racial environment it is most unwise to issue such a media statement”
why? can a white person not allowed to correct a black person as you guys ( south africans) seem to see things. where as I see a person correcting another person. Kevin you hidding behind race now and trying to look like a victim on a mistake you actually made on TV. Your ideology is gentlemenly as it sounds lets “kiss and make up” and lets forget about it, is also foundamently legaly absurd in a situation like this. Because your asking the JSC to lower its standard.
You not making since by your statements:
“What you mostly fail to realise is that there is no denial that you can make an adverse finding without corroboration.What I am questioning is the wisdom of doing so”
This gives me the opinion that you are in favor to up the standards of the JSC, which im also in favor of.
Then you say a statement like “kiss and Make up”
but thats lowering the JSC standard thats called sweeping things under the rug or keeping things bottled up? How will this approach strengthen the Judiciary? your approach seems to run rather than fight?
the point is Kevin, you getting blasted because you dont give an academic solution to strengthen the JSC esp on empechment processess, but you getting blasted for a lowering of a standard that is already set. Com om kevin drop the ego and rather like you said question the wisdom of a preponderance of the evidence and offer a strengthening solitution. That is my challenge to you…
P.S please follow Sharon Keller
You see Chris this is how intellectuals interact and I like it.We should have a ‘beer summit’.
Kevin
Ill be glad to take you up on that
lol show you this yanky can drink you under the table. but apart from i have no doubt your an assest to the school of law, so dont stress about media statements after all we all want a judiciary that will be a model to the wolrd
@ChrisWell yanks are sissies in that department.I mean how could Obama order Bud Light for the beer summit?I mean really!Bud Light!!!!?
yeh i need to have a little word with our president. I mean come on we a superpower and we drinking Bud Light? something wrong with this picture
Im talking Rum, Vodka and Tiquilia thats my language
Well I’m a part-time yank Chris…haved lived in D.C,Chicago,Madison,WI,New York and Boston…so I’ll take the good with the bad
ha ha Kevin thought i liked u, Im from state of Michigan from a little hole in the world called Frankfort.
enjoy the evening we will chat again soon
Thats just a tease Chris.Enjoy your evening as well.
I’ve read a deal of the comments (above) and wonder, indeed worry, at the suggestions that disputes of this nature should be resolved behind closed doors. Much of what is wrong with SA is what happens behind closed doors.
Behind the smokescreen of Hlope et al and business as usual with little if anything overt coming from the ANC government – what is happening behind the closed doors and smokescreens? That’s what should concern us!
A good point of departure is to acknowledge that a Professor of Constituional Law and the Head of Wits Law School have both stated that Kevin has made a public statement which is incorrect in law. You cannot make incorrect statements in public and expect to be corrected in private because then the rest of us will remain inadequately informed.
This bunfight is predicated on the reality that Kevin enjoys public prominence largely because of his position at Wits. This position was empahsised during the TV interview and the question must be asked whether his views would have been sought if he was simply in private legal practice with a far lower public profile. Probably not.
Another important consideration is whether Kevin would have posited this type of public opinion if the judge concerned was white. Would he even have been asked by SABC 3. Again probably not to both questions.
This leads me to the observation that position and motive are matters of importance and that if this is so then Kevin used his position, possibly inadvertantly, to beat a pro Hlophe drum. He would have done far better to have kept silent and left it to the formal hearing to deliver their considered findings.
In these circumstances Pantazis was not only correct but would have been remiss not to comment equally publicly. In fact he was admirably restrained given all the circumstances.
A closing thought, there is no such thing as a self proclaimed intellectual. An in tellectual is somebody who is view by others to have this defining characteristic and there are precious view involved in this discourse.
George Gildenhuys
Please take a look at:
http://richmarksentinel.com/rs_forum.asp?recid=5&pcurr=1
Ooops, my final sentence needs some work…..
“A closing thought, there is no such thing as a self proclaimed intellectual. An intellectual is somebody who is viewed by others to have this defining characteristic and there are precious few involved in this discourse.”
@ Anton Kleinschmidt
Thanks heavens for a levelheaded contribution with which I can agree, on this subject.
Very much needed in this forum.
But kevin, yesterday, 13 july 2011, you did it again. On siki’s show on SAFM, you suggested that an affidavit may be “revoked” in much the same way as a will, by making a different affidavit. Really? You revoke an oath? Isn’t that what they call perjury? So was this just another exercise in academic freedom?? Seriously