When Prof Jonathan Jansen called Basic Education, Minister Angie Motshekga, a “lazy and incompetent minister”, that great charmer and former spin-doctor of the ANC, Jessie Duarte, was not amused. Duarte, who during her time as spin-doctor developed the brilliant media strategy of insulting and attacking any journalist who dared to ask her a question, at the time stated that this (admittedly grave) insult was “reminiscent of the utterances made by the Apartheid ideologues of the old order”.
I am therefore in a bit of a pickle.
Although Duarte has now been “redeployed”, I really don’t want her to rise from the ashes and call me a racist. Duarte, who some years ago was forced to quit as Gauteng’s minister for safety and security after a commission of inquiry found there was a “strong suspicion” she had covered up a car accident while driving without a license, would surely not like it if I expressed the opinion that the former Minister of Justice (who, like Judge Motata, really likes drinking tea), any of her officials or the members of Parliament were lazy and incompetent.
But how else does one explain the fact that the the Minister of Justice and Constitutional Development, the relevant officials, and Parliament had failed to comply with a previous order of the Constitutional Court handed down in June 2008 ordering it to pass legislation within 12 months that would allow for the effective enforcement of court orders for judgment debt against the state? In that case the majority of judges of the Constitutional Court declared invalid section 3 of the State Liability Act because it did not provide for the satisfaction of judgment debt against the state.
Now 14 months later, nothing has been done. No, that is a bit unfair to the Ministry and its officials. Some bright spark somewhere in the Ministry did get the idea a few weeks ago that this problem could be fixed by amending the Constitution to prevent the courts from testing an identical provision from that declared invalid by the Constitutional Court against the provisions of the Bill of Rights. That industrious official (note, please Jessie, I am not saying anyone is lazy or incompetent!) did not realize that such an amendment would undermine the supremacy of the Constitution and would amount to an amendment of section 1 of the Constitution for which a 75% majority was required. (See the seminar room elsewhere on this Blog for my submission to Parliament pointing this out.)
But no law has yet been passed as ordered by the Constitutional Court, so the Ministry had to approach the Constitutional Court again to request an extension and yesterday that court granted the extension, giving the Minister two more years to fix the mess it had failed to fix in the previous fourteen months. The case demonstrates the difficulties courts can find themselves in when their orders are ignored. Given the fact that I would not dream of calling anyone responsible for this mess lazy or incompetent, the case also casts doubt on the Ministry’s commitment to constitutional governance and respect for court orders. Maybe the officials and the Minister are just contemptuous of our Constitution and the highest court who has to apply it?
Because of the manner in which the original order was formulated, the Constitutional Court had little choice but to grant the extension. Unlike the Ministry and its officials, the Constitutional Court is a conscientious body who takes its duty to act responsibly and reasonably quite serious. If the Court had refused the extension, any state assets – including medical equipment and computers – could have been attached for outstanding judgment debts and this potentially would have caused chaos.
(Maybe Jessie is not reading this after all, so I will be so bold as to add that one could also have said the attachment of some state assets has the potential to cause more chaos than the chaos already well known to us long suffering South Africans who, say, make use of the services of the Department of Home Affairs.)
In order to prevent the recurrence of this deeply troubling disregard for an order of the Constitutional Court, the Court yesterday gave parties until 15 September to give reasons why an interim order should not be made. This order would allow for the attachment of state assets for the satisfaction of judgment debt if certain requirements are met.
The order would also allow the state to prove that the court order for the attachment of state assets would not be in the interests of justice and good governance and a court could then set such an order aside. This would prevent the attachment of state assets that might be essential for the smooth working of government. If this order is confirmed, it would put in place a system that would expose the state to a considerable degree of risk, which means the Ministry would have an incentive to fix the problem that it was too, well, not lazy, exactly, but perhaps too callous to fix over the past fourteen months.
Prof De Vos – Once again a very good post. I agree with your take on the whole debacle. Yesterday, under another post below, sne asked the question what the purpose of paragraphs (e) and (f) of the order could be, and whether that does not actually amount to the highest court having emasculated itself to stand against the Executive. However, those paragraphs merely create the posibility for the relevant State Department to show cause (bearing a true onus) as to why it would not be in the interests of justice and good governance if particular state assets (e.g., medical equipment as you rightly point out) were attached and auctioned just because the relevant officials representing that department have been lazy and incompetent or contemptuous to comply with court orders.
There is laziness and incompetence, and there is also indifference, simply not caring enough to complete something, and not caring about the impact created by not fulfilling one’s responsibility. If a black man criticizes a black man the retort is only occasionally racist, as with the insult of coconut or Uncle Tom, or “I won’t shake the hand of a white man”. Now if a white man criticizes a black man, am I now to understand that this ALWAYS constitutes racism? If a black criticises a white, as must surely happen in the military for example, is that racism? Surely the racism can be seen to be, or not to be, by the attitude of the parties, not by the facts of the dispute.
This impass is strangling South Africa. Its not helped that the competent are being ruled by the incompetent, whereby apparently, the competent have no avenue of redress now that corruption rules and Lady Justice has failed to rise from her knees.
How do we find harmony when so many are intent on destroying any chance for success. And how can truth be spoken to illusion, when the holder of illusion likes it just fine as it is and simply reverts to racist insults as a way to avoid the issue.
We’ve got to get over this, otherwise Canada will be swamped with refugees.
Sirjay jonson – Good response. Pity many will not really see the irony, because it is easy to hide behind race to cry “Racist!” However, per definition in the new RSA, Jonathan Jansen is ‘black’. Does his criticism of Angie now make him a ‘Coconut’ or an ‘Uncle Tom’. Nah, I don’t think so. If his remark is based on fact, then I would see it as academic freedom and freedom of expression. If it is not based on fact, well then, yes he is a racist, and perhaps an ‘Uncle Tom’ or ‘Coconut’. But, given his approach at the University of the Free State to integration and transformation, it would be very hard for anyone to get real evidence of his having intended to criticise Angie on basis of race. Perhaps she is just lazy and incompetent as alleged.
The Canada thing – Yes, I have heard that Government is utterly dismayed and shocked that Canada dared provide sanctuary to Brandon Huntley because he could provide clear and convincing evidence of the RSA being incompetent and/or unwilling to protect him. Well, having been attacked 7 times by black countrymen, each time calling him ‘white dog’, settler’, ‘boer’ and the likes i would say clearly, at least in his case, shows hatred based on racism; and government’s failure to protect him as required by law can clearly be inferred from the fact that this has been allowed to happen 7 times in his case. I know that forgiveness must stretch to 7×7, but, sheees, I don’t know why government is so shocked and dismayed at his having been granted political asylum status.
Now, however, the canada thing is going to become a major international incident.
http://www.news24.com/Content/SouthAfrica/Politics/1057/fc9a50ee924c456c96dde750eaa55392/01-09-2009-02-50/Canadian_refugee_decision_racist_-_ANC
Will South Africa close its Mission there?
Oh, this is just too much … I think I’m going to have to have some tea …
But, remember, the RS of A provided safe haven for suspected gross human rights transgressor Aristide from Haiti, where clear evidence existed that he has committed crimes against humanity. At first RSA sided with the AU not to arrest the Sudanese head of state on a warrant of arrest issued by the ICC in The Hague, and only much later did it recognize its international duty and obligation by retracting and qualifying that statement. So the Canada thing should not be blown out of proportion here.
Lee – “Oh, this is just too much … I think I’m going to have to have some tea …” … LOL … Me too, as soon as I knock off duty – My particular brand of tea would be Red Heart or Hundred Pipers, depending on the mood I’m in.
Today, I’ll take ANY tea
I must say I had a good laugh when I read about the Canadian decision – especially the bit about the guy growing up in Mowbray, Cape Town. To find that a white person will stick out like a sore thumb in Cape Town – especially in its middle class suburbs – is about as credible as the finding of the JSC on Hlophe.
Prof De Vos – Now that you put it that way, yes I must agree. A white sticking out like a sore finger in Mowbray? But, that is where he grew up. Is that also where he was attacked or lived before fleeing to Canada? Never mind, I’m just in a shit-causing/stirring mood today – after having sat through almost a complete trial, over lunch, I received an e-mail from my boss (directed not only to myself, but to all my colleagues in the Regional Division), emanating from the defence attorney’s erstwhile principal, that he has since 31 May 2009 not had the right to appear in the Regional Court for failing to pass the Law Society exams before then; and, that he has since fraudulently been appearing in courts in the name of his principal’s firm, pocketing the fees for himself. Now a whole trial has to start over. Sad thing, however, is that, while all roleplayers in the trial (prosecutor, attorney, accused, witnesses, stenographer, orderly, interpreter, spectators) besides myself are black; while the attorney’s erstwhile principal and my boss are black; and, while I am renowned in my area for being fair and definitely non-racist, the first thing that was regurgurated when I called the prosecutor and ‘defence attorney’ into chambers to state why I cannot allow the case to continue, was that I am a racist. So I became a little fed-up and carried away with this whole ‘false racism claims’ thing that I have said many things today that was not ‘totally’ intended. Nevertheless, now being at home, sitting back, calming down and having ‘iced tea’, I can see your point exactly. The Canadians should have asked for an explanation from the South African government before granting refugee status.
The dude might have created a grim picture of the kind of Mawbry that is dominated by poor hungry black criminals who target affluent white people like him for a living with a police station that is staffed with incompetent and corrupt black police officers who happen to be the associate and shareholders of the same criminals where a white person like him stands no chance for recourse other than migrating to a heaven-like country like Canada.
mayimele – Say what!? (And that all in one breath, no punctuation.)
Anonymouse, gaan skink vir jou gerus nog ‘n glasie tee. Jy het dit vandag verdien.
koos – dankie, het so pas. Lag nou lekker vir heelwat ander blogs wat ek na kyk.
On another note on this whole racism thing – would this be regarded as racist? http://www.news24.com/Content/World/News/1073/b5cd8c9f5aa4492d9a92fb6cb65f3b3c/01-09-2009-04-19/Commonwealth_suspends_Fiji
I know for Bob Mugabe it would just confirm his views on racism and colonialism.
Perhaps it would have been the polite, or rather diplomatic approach to consult with South Africa first, but guys do you have any idea at all about what educated and concerned folk in Canada think about South Africa, or how horiffic the press is there on this country, or how horrific the reality is here compared to Canada. How do you think all the intense nonsence, that we all know about daily, goes down in a Canadian’s view.
Please, we’re living in a dream if we’re unaware that South Africa is considered just a notch above Zimbabwe by western governments and western people, and it isn’t racist. They simply have difficulty grasping how we can live like this. We’re all caught up in it so much we can’t imagine, or possibly even accept what a balanced outside view would conceive our behavior.
The difference can be put this way, and its only one of many striking absurdities in South Africa I can use as an example. If a parole raped a baby, the Government would fall, get it?
@ mayimele – Just a thought … maybe the guy who applied for refugee status in Canada felt desperate and hopeless about living here … is that impossible to imagine?
As for me, ek gaan nou beslis ‘n GROOT glasie tee inskink!
Ek dink ek het tee nodig,maar hier in die wynlande, miskien ‘n bietjie merlot sal lekker wees.
It’s only 13:30 here – a long way to go before I get to have some tea
This is completely off topic (apologies, because the post was quite good), but on this asylum thing – which I’m sure the Prof will write something about and we can all share our pearls of wisdom on – I must admit I had a good laugh reading that, which I find somewhat sad at the same time.
Basically, a first world country has decided to recognise white Saffas as being a people who are discriminated against, and SA itself as having a government and civil service who cannot and will not protect them from discrimination and persecution.
This is almost laughably absurd…except clearly this chap who is now an official refugee didn’t just spin a tall tale and win his case – he would’ve had to show evidence. Worrisome.
@The Big Slipper – My thoughts exactly. I have family in Canada, and I know the Canadian government is almost fanatical about investigating applications for permanent residence, immigration and refugee status, so I don’t think this is something we can just brush aside.
Also, why is it laughable to think that there could be discrimination against minority groups in SA? Many liberation movements around the world have moved to the extreme right after coming into power. Why is that so implausible here?
Also, why shouldn’t one have tea at 13:30?? I think it’s as good a time as any …
Gee, I forgot one important thing. When I met, and had jovial tea with the present Minister of Labour nearly 10 years ago, he told me that the ANC had sent him to Canada during Apartheid, that Canada welcomed him and made it possible for him to study labour law and and labour precedent in preparation for the incoming Mandela Government. So go easy on them lads. They mean well, and although they’ve hit a nerve here, likely its all for the best.
Lee Cahill says:
September 1, 2009 at 18:41 pm
Just made this next post over the weekend before this refugee saga made headlines ….
Harold Ferwood says:
August 30, 2009 at 22:07 pm
and lo and behold what is our government shouting???? Racism!!!
yeah, Canada does not take these things lightly. There were plenty of South African’s there in the 80′s and 90′s who had to go thru a rigorous examination to get refugee status, and the examination will be no less rigorous now.
Hell, yes it is embarrassing–and it should be!
But we all know that the crime thing in SA will not be solved easily–the SAP were crap under apartheid, and they aren’t any better now. They have never been a real police force, focusing on either preventing or solving crime. They have just been there to control the movement of the population, and for riot control. It is very hard to change an institutional culture, and shifting people around at the top won’t cut it.
Lee Cahill, that is also possible given the unthinkable reason the dude has given to justify his application for an asylum. It stinks of desperation.
Guyz, I see nothing wrong with Canada giving the dude refugee status, but just want to remind the whiners and doomsdaysayers to take a cue out of this lads action and really follw suit, that way we rid ourselves of negative people, remain with positive ones and build RSA.
Most are tired of Australia, Canada here we come!
Anonymouse, yes that is too long a sentence without punctuation. Thanks for pointing it out. I was just eager to make a point and forgot to toe the grammatical line. I will observe this line next time I make an input. But I hope it does make sense too in which case it will also be a sign of a writing skill.
@maymele & @Mdu – Hmmnnn … a bit of a simplistic view, wouldn’t you say?
And does that mean “my country, right or wrong”? Surely there must be a place for dissenting voices in a democracy …
The refugee decision does not surprise me at all. Canadians have a tradition of racism. Just look at the way they treat Inuits, and their barely disguised contempt for Americans.
LEE Cahill, We have been saying this white south africans are bad mouthing the country an d what is wrong if I agree with their wish to seek refigee status from an equally recist country Canada, let them emigrate there in droves!
I must say I agree with Mdu. Let the white whingers leave, and labour in the icy wastes of the Arctic circle, treating drunken Inuits for alcohol poisioning, and tagging the ears of ungrateful polar bears to allow satellite monitoring of their slow wanderings across the tundra.
The so-called skills shortage here is a racist myth. (I read that it the FM.) Anyway, if the flight of the whites does create a temporary shortage, that will readily be fixed with Doctors from Cuba, Dentists from Vietnam, engineers and policemen from China, and bankers from Nigeria and Benin.
@Mdu – Nothing wrong with you expressing your view. Isn’t it racist too, though? You assume that all dissenting voices are white, which they’re not. And even if they were, does that mean some voices count more than others?
Lee Cahill, less the words white and racists, I think Mdu is correct in this one. This guy, for right or wrong reasons, developed a huge dislike of his own country of birth. This means he was then becoming useless in the country and its economy. He then did the honest thing of leaving the country and choosing Canada as his country of asylum. He studied their immigration laws, found loopholes and exploited them well. They too, the Canadians, received his application for asylum; with nothing in their laws that stop them from entertaining his application, they processed it and found it satisfying and they grants him asylum. The guy used his international human right of choice.
All these are in line with the laws of both countries. The Aliens Control Act and its Amendments and the new Immigration law allows SA to do the same, granting asylum to foreign nationals that are going to further its domestic and international interests and commitment (brain drain). S3 (3) (a) of the Canadian Immigration and Refugee Protection Act of 2001 also allows that country to do as it did.
So whether or not this guy’s move was racially motivated does not count much; the same applies to both countries’ history of racism does not count. Their laws provides allows them to pick and choose whoever they want to grant asylum too irrespective of what looses their country of birth would suffer as a result.
Sirjay Jonson, there is nothing in the legislation of both countries that compels them to consult with the country of origin of the applicant. However, through their investigations of the circumstances that push the applicant away from his or her country of birth or first asylum, they may, inter alia, consult with the officials of the other government, over and above officials of their own embassies who normally provide them with this information. So being diplomatic in this regards is limited to the choice of the country concerned and it relationship with the country of birth of the applicant.
It is against this background that SA granted asylum to former Haitian President something that Haiti, had it been consulted on, could not have approved.
So it will indeed be folly, as Mdu says in his earlier post, to cry for someone who was a burden anyway to the country and its economy when he decides to leave the country. Our concern may be on the implication of the reasons he advanced to gain asylum as well as the precedent it sets for us going forward; but otherwise we must say good riddance to the dude.
Mayimele, thank you for your useful legal analysis.
I am curious, though, why you believe he was a burden on the local economy.
I do not know what his particular skills were, but surely the fact that a person is discontented does not in principle rule him out from making a significant economic contribution?
Take Jews in Spain, Indians in Uganda, or whites in Zimbabwe. In all three cases, I doubt these minorities were terribly happy. (In fact, some may have been terrible whingers.) Yet, so far as I know, their departure was devastating to the respective economies.
“It is against this background that SA granted asylum to former Haitian President something that Haiti, had it been consulted on, could not have approved.”
This situation was created when we sent a military presence for their Bi-centennial Independence celebrations and inadvertently accelerated his ousting. How can we not give a man a place to sleep when we were the cause of him being kicked out of his house??
Hmmnnn … and let me get this straight … so the Canadian government actually WASN’T being racist when it made the decision to grant refugee status in this case? It was just operating within the discretionary framework afforded by its own laws as a sovereign democracy?
And it was silly/wrong/stupid to do this why? Because a guy who had been physically attacked several times, had been on the receiving end of what can only be termed hate speech, had been told by a Minister in the previous government that if he didn’t like the crime situation here he should leave the country, was living in an environment in which “cultural leaders” were telling black people that stealing from white people was “the right thing to do”, and who feared for his safety qualified for asylum in terms of those laws?
After all, surely there were no grounds for his application, given what nice people are saying in forums like this all over SA (see e.g. http://www.thetimes.co.za/News/Article.aspx?id=1058993; http://www.thetimes.co.za/News/Article.aspx?id=1058737 and http://www.thetimes.co.za/News/Article.aspx?id=1058503 for instance).
I need tea …
You are quite correct Michael. I am not suggesting or insinuating that the guy was unskilled and useless. Relying on the press for information, the man based his application on sections 2 (a), (b), (c) and (d) of the Act among others on the basis of which a well founded fear of persecution was established – a finding that if he were to be denied asylum and then returned to SA against his will, he was indeed going to be persecuted by black criminals.
Many people would correctly argue that this is not the case. But nevertheless, whether for selfish reasons or not, this is the reason given and on the basis of which an asylum was granted. Therefore, based on the same reason, whether you agree or not, his state of mind which is very important here was in fear of (manufactured or self-created) persecution. And if this is correct, whether one is skilled or not, when you are in this state of mind, you cannot do your job properly. You can be in the office but cannot perform either else you can perform but not to your potential and the net for this, for me, is zero or less performance which makes him a burden.
Mayimele, I still do not get your point.
I am sure many Indians in Kampala believed they were being “persecuted,” and wished they could find some way of getting out of the country.
Granted, their productivity may have been reduced by stress. Nonetheless, I cannot see how that would necessarily reduce their economic contribution to “zero.”
A more extreme example; Nazi Germany and the Soviet Union employed vast armies of slave labour, some of it highly skilled. I am sure the morale of Jews forced to work for Hitler was not always very good. (They may even have felt a little stressed.) But to say that their contribution was therefore “zero”? Does not sound right to me.
bit of good news here,
http://www.news24.com/Content/SouthAfrica/News/1059/de75fa1e3a0d43e8a8714ab489845316/02-09-2009-12-52/Judge_Motata_guilty_of_drunken_driving
I’m an alien, I’m a legal alien, I’m an alien in New RSA… I think the Canadian ruling is emblematic of many white folks’ feelings in the land their great-great-great-grandfathers and -mothers came to develop. Being excluded fosters a feeling of exclusion. Simple logic, isn’t it?
Lindelani will not be impressed.
What does this mean for Motata’s career as a judge?
If he drags out the appeals process for long enough he may well be able to launch a final appeal against his racist persecution to a CC with Hlope at the helm…..
Yes, Peter, I am of the opinion that another court might rule in his favour, if you were following the case, that is. Personally though, and as a matter of gut-feeling, I think he was drunk, but the way the state led contradictory evidence, I think Motata should have been acquitted of all charges, Nair erred.
Chris McDaniel says:
September 2, 2009 at 13:04 pm
Thanks Chris – So that tea was a little intoxicating so as to cause a wee bit of inebrity before Motata J took the wheel of his vehicle and ran down a garden wall.
Mdu – I also followed the matter closely – I do not think Nair erred at all. However, Desmond Nair was very brave to convict a judge. This does show that the magistracy embraces independence of the lower court judiciary dearly, no?
Tea can do that …
Anonymouse:
Motata’s tea
Ingredients:
Water
1 Teaspoonful of Butter
Marijuana
Procedure:
Boil the water first and pour it over the marijuana.
Let it steep longer than you would do with common black tea, approximately an hour and a half (90 minutes).
Add 1 teaspoonful of butter.
Cannabis Tea perhaps
would explain his goofed look sitting in his car looking half dazed smiling, I dont think he was drunk I think he was stoned out his pip
Can I ask something…is this the first white refugee?
Yes Lee, tea can do that
Ony a fool would fail to see that this decision (issued a “minority” magistrate, by the way), is yet another step in the racist campaign to stifle transformation of the judiciary. Judge Motata is being persecuted because he is one of our foremost legal scholars. has exposed racism, and issued hundreds of progresive judgments.
A luta continua!
Mikhail, have some tea!
Point taken Michael.
Mikhail Dworkin Fassbinder
Amen, while we at it, the white wall that crashed into Motata was racist too. The white garden wall stifles transformation, transformation of all garden walls!!!!
Hakunamotata hey?
Mdu, I assume that you know a fair bit about the Motata case given your reproach of the way in which the State ran its case. So I feel somewhat justified in asking the following question of you given that you tacitly assert a fairly thorough grasp of the proceeding: do you think that the State’s closing argument disclosed a logical theory?
Leigh, I do not think of the closing argument at all, I talk of the contradfictory evidence with accusations by state witnesses of being told what to say occurred against their will and against what actually occurred at the scene of the accident.
By the by, Dr Death Basson was acquitted precisely for such incongruencies by more than 50 state winesses!
Mdu, I know you do not speak of the closing argument in your post. I merely asked you for your opinion thereon – which I felt fairly justified in requesting given that you know the case well enough to comment on the State’s conduct of the trail. You are of course aware that you do not have to answer (but I would be interested to read any answer which you might present).
Leigh, to be honest, I do not know what the closing argument was, but all the same what counts to me is the evidence presented before court than a prosecutor or defence attorney trying to explain contradictions away.
Anonymouse, it is comforting that the magistrate in question, Nair, had the courage to rule against a judge.
I did not follow the case very closely so I would greatly appreciate your input here. Mdu, maintains that the State’s conduct of the trial was lacking in some respects – apparently some of the evidence which it sought to adduce was contradictory. I do not know whether that is true.
Mdu maintains also that Motata J should have been acquitted – presumably because of the way in which the State’s evidentiary foundation was flawed.
I would like to ask some questions of you in the hope that your answers would benefit both Mdu and me.
1. Was the theory for which the State argued in its closing statement supported by the facts which it was able to establish?
2.If so, do you think that its theory makes logical?
3.Do you think the State was able to establish its case beyond a reasonable doubt?
Sorry if this takes up a bit too much of your time. My purpose for asking for your input here is that you have, as far as I am aware, substantial trial experience and you could offer valuable insights.
Mikhail – and the (‘minority’ sic) magistrate was not white! The lawyers for the state and defence (at least for the defence when the case started – but Motata fired a few of his lawyers along the way) were white.
Chris – the Tea’s brand was Jack Daniels – ring a bell?
Out of court now – have to prepare to go home – check in later.
Back to Huntley and Canada …
Is anyone else doubting this guy’s integrity? Ok, Sirjay (I think it was) writes that the Canadian refugee tribunals investigate cases very carefully, but is it really plausible that Mr Huntley was attacked seven times? I live down the road from Mowbray and haven’t been attacked once. Once or twice, I could believe, but seven!
What I find really puzzling is that he claims that the SA government was unable to offer him any protection from such racial persecution and yet he failed to report one of the alleged incidents to the police. Do I smell a big fat hairy rat? No, I think this guy isn’t being entirely honest. The reason he was attacked so often (and failed to report it to the police) is that he was trying to sell drugs to Pagad members.
Mdu, thank you for being honest. What I aimed at establishing by addressing my question to you is that the incidence of some contradictions does not necessarily fatally undermine an evidentiary basis.
But it did with Dr Death’s case,why not in other instances?
Mr Mousie: When I described the Magistrate as “minority,” I meant “minority.” In the sense that Mr Malema did, viz, not “African.”
None of us need be surprised that minorities of this ilk are likewise devoted to discrediting African judges who are superb scholars, have spent their lives fighting racism, assisted mightily in the struggle, and may enjoy a nice cuppa now and then.
Mdu, as you will know, courts concern themselves with whether requisites are established – this is true of criminal charges, civil suits and defences in either criminal or civil matters. Thus, whereas a court will be interested in whether testimony divulges contradictions, its consideration of those contradictions does not end there. One further inquiry is: how does the revelation of the contradiction bear upon the establishment of the element of the case or defence which is at issue?
So in one case, a contradiction may completely undermine a witness’s testimony. And if that testimony was crucial to the demonstration of one or more of the necessary allegations, well then that side would be in rather a grave spot of bother. But in another case, the contradiction may do little violence to (a) the witness’s credibility and (b) the probative value of the testimony.
In a nutshell, much turns on the nature of the contradiction and on the particular circumstances which obtain.