Comments on: Oh dear, Hlophe might win this round http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/ This blog deals with political and social issues in South Africa, mostly from the perspective of Constitutional Law. Written by Pierre de Vos Wed, 08 Sep 2010 13:00:11 +0200 http://wordpress.org/?v=2.8.4 hourly 1 By: Anonymouse http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14508 Anonymouse Fri, 22 May 2009 07:25:52 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14508 Zola Majavu - The term "strict liability" is usually employed to indicate (civil) liability without fault (intent or negligence) - in other words - liability without 'blame' in the usual sense of the word - therefore 'strict liability'. For example - in a claim based on the actio de pastu, the claimant does not have to prove intent or negligence on the side of the defendant, because the defendant is liable if his animals caused the damage in the circumstances described under that action, regardless of whether the defendant could have avoided same or not. This is the position with civil claims, but in criminal law, one does not really get incidence of 'strict liability', except perhaps criminal defamation/libel by the media (which legal position is almost sure to to be changed if challenged in the CC). For all other offences, fault in the form of either intent (dolus) or negligence (culpa) has to be proven. Corruption, being a statutory (criminal) offence, requires mens rea in the form of intent (because negligence is clearly excluded from the definition of the crime) before it can be said to have been committed. However, intent can easily be proven through inference on the facts where an important office bearer receives large amounts of money and does favours for the person who gave him/her the money (or someone else at the behest of that person), unless he/she can show that there is absolutely no causal connection between receiving the benefit and the doing of favours, which any court will find very hard to believe (regardless of the presumption of innocence and the fact that te accused does not bear an onus to establish his/her innocence). Zwakala - It seems that you are too busy to even engage anybody with meaningful arguments - wat are you so busy with? Eeating shit? Zola Majavu – The term “strict liability” is usually employed to indicate (civil) liability without fault (intent or negligence) – in other words – liability without ‘blame’ in the usual sense of the word – therefore ’strict liability’. For example – in a claim based on the actio de pastu, the claimant does not have to prove intent or negligence on the side of the defendant, because the defendant is liable if his animals caused the damage in the circumstances described under that action, regardless of whether the defendant could have avoided same or not.

This is the position with civil claims, but in criminal law, one does not really get incidence of ’strict liability’, except perhaps criminal defamation/libel by the media (which legal position is almost sure to to be changed if challenged in the CC). For all other offences, fault in the form of either intent (dolus) or negligence (culpa) has to be proven.

Corruption, being a statutory (criminal) offence, requires mens rea in the form of intent (because negligence is clearly excluded from the definition of the crime) before it can be said to have been committed. However, intent can easily be proven through inference on the facts where an important office bearer receives large amounts of money and does favours for the person who gave him/her the money (or someone else at the behest of that person), unless he/she can show that there is absolutely no causal connection between receiving the benefit and the doing of favours, which any court will find very hard to believe (regardless of the presumption of innocence and the fact that te accused does not bear an onus to establish his/her innocence).

Zwakala – It seems that you are too busy to even engage anybody with meaningful arguments – wat are you so busy with? Eeating shit?

]]> By: Zwakala http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14505 Zwakala Fri, 22 May 2009 05:46:48 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14505 when i find time i will definitely angage you professor. what you should however know is that when you do not receive response to your articles from independent minds you should know that it is simply because of their time constraints. so never fall on the misconceptions that your arguments are impregnable. i just wonder what you do to those students that have political views different from yours - whether you pass or fail them; just a thought. perhaps i should invite to my place for a calabash of umqombothi. only had 60 seconds to type this. when i find time i will definitely angage you professor. what you should however know is that when you do not receive response to your articles from independent minds you should know that it is simply because of their time constraints. so never fall on the misconceptions that your arguments are impregnable. i just wonder what you do to those students that have political views different from yours – whether you pass or fail them; just a thought. perhaps i should invite to my place for a calabash of umqombothi. only had 60 seconds to type this.

]]> By: Zola Majavu http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14498 Zola Majavu Thu, 21 May 2009 17:22:23 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14498 dear Prof On a different note, have ever thought of a perfectly and unassailable defence to corruption in general terms? It seems to em that this statutory offence is one of "strict liability" from which one can really escape on technicalities or of hard cold facts. any thoughts in this regard? ZM dear Prof

On a different note, have ever thought of a perfectly and unassailable defence to corruption in general terms? It seems to em that this statutory offence is one of “strict liability” from which one can really escape on technicalities or of hard cold facts.

any thoughts in this regard?

ZM

]]> By: Pierre De Vos http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14445 Pierre De Vos Wed, 20 May 2009 09:20:14 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14445 Zwakala, on its good days the law brings us closer to the truth yes. My view is that Hlophe should have been impeached for the Oasis scandal already because: (i) he took money from a company whom he later gave permission to sue a fellow judge, just making a decision where there was a shocking conflict of interest; (ii) he first lied about this stating the money was for "out of pocket expenses"; (iii) and justified it by saying he got permission from Justice Minister Dullah Omar who had conveniently died and had stopped being Minister of Justice 18 months before Hlophe started receiving money from Oasis. Zwakala, on its good days the law brings us closer to the truth yes. My view is that Hlophe should have been impeached for the Oasis scandal already because: (i) he took money from a company whom he later gave permission to sue a fellow judge, just making a decision where there was a shocking conflict of interest; (ii) he first lied about this stating the money was for “out of pocket expenses”; (iii) and justified it by saying he got permission from Justice Minister Dullah Omar who had conveniently died and had stopped being Minister of Justice 18 months before Hlophe started receiving money from Oasis.

]]> By: Anonymouse http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14435 Anonymouse Wed, 20 May 2009 06:21:30 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14435 It is reported in Legalbrief Today that Judge Nigel Willis the day before yesterday lauded Counsel for the JSC for making an excellent point, namely that the JSC is not a decisionmaking body, and the JSC does not impeach (it may only recommend). In the end it would be Parliament that has to decide whether to impeach, and for that a two-third majority is required. Moreover, he also hinted that the parties should reach a settlement "because we do not want to get our hands dirty", and reminded the parties that courts are loath to interfere in proceedings that have not been concluded on "mere suggestions of bias". It is reported in Legalbrief Today that Judge Nigel Willis the day before yesterday lauded Counsel for the JSC for making an excellent point, namely that the JSC is not a decisionmaking body, and the JSC does not impeach (it may only recommend). In the end it would be Parliament that has to decide whether to impeach, and for that a two-third majority is required. Moreover, he also hinted that the parties should reach a settlement “because we do not want to get our hands dirty”, and reminded the parties that courts are loath to interfere in proceedings that have not been concluded on “mere suggestions of bias”.

]]> By: Zwakala http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14434 Zwakala Wed, 20 May 2009 05:59:43 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14434 Professor Before I embark on my argument of the Hlophe saga, I want you and I to depart from the same point and I therefore pose the following question. Do you agree that the ultimate purpose of the law is to bring us to the truth or what is right, as the case may be? Once you have answered this question, i will carry on with my argument. Hopefully i will manage to convince you that Judge Hlophe does not deserve impeachment. Professor

Before I embark on my argument of the Hlophe saga, I want you and I to depart from the same point and I therefore pose the following question. Do you agree that the ultimate purpose of the law is to bring us to the truth or what is right, as the case may be? Once you have answered this question, i will carry on with my argument. Hopefully i will manage to convince you that Judge Hlophe does not deserve impeachment.

]]> By: Chris Mcdaniel http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14314 Chris Mcdaniel Fri, 15 May 2009 07:57:44 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14314 and further more this is starting to back up my theory of Ngubane who initially started this mess of the JSC being "Biased" is in bed with Hlophe once again. As I pointed out in a previous post of the background of Ngubane who was opposed to impeaching Hlophe in the Oasis affair and was at the time the president of the BLA who were outspoken in the backing of Hlophe about the "racism" against hlophe JSC acting chairperson Lex Mpati and JSC commissioner George Bizos who sent affidavits to the High Court from the mintues recorded in the deliberations, 'no member of the JSC present made use of the word shenanigans or referred to the new administration'. Bizos also 'emphatically' denied using the words. Bizos said: 'No one made any reference to the 'administration' ... I did not use the word 'shenanigans', nor did anyone else.' and further more this is starting to back up my theory of Ngubane who initially started this mess of the JSC being “Biased” is in bed with Hlophe once again.

As I pointed out in a previous post of the background of Ngubane who was opposed to impeaching Hlophe in the Oasis affair and was at the time the president of the BLA who were outspoken in the backing of Hlophe about the “racism” against hlophe

JSC acting chairperson Lex Mpati and JSC commissioner George Bizos who sent affidavits to the High Court from the mintues recorded in the deliberations, ‘no member of the JSC present made use of the word shenanigans or referred to the new administration’. Bizos also ‘emphatically’ denied using the words. Bizos said: ‘No one made any reference to the ‘administration’ … I did not use the word ’shenanigans’, nor did anyone else.’

]]> By: Chris Mcdaniel http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14311 Chris Mcdaniel Fri, 15 May 2009 07:19:52 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14311 ENVER SURTY ANSWERING AFFIDAVIT to the High court www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=129090&sn=Detail ENVER SURTY

ANSWERING AFFIDAVIT to the High court

http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=129090&sn=Detail

]]> By: Chris Mcdaniel http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14310 Chris Mcdaniel Fri, 15 May 2009 07:11:03 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14310 here we go, Hlophes SUPPLEMENTARY FOUNDING AFFIDAVIT to the High court www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=129092&sn=Detail here we go, Hlophes SUPPLEMENTARY FOUNDING AFFIDAVIT to the High court

http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=129092&sn=Detail

]]> By: Peter http://constitutionallyspeaking.co.za/oh-dear-hlophe-might-win-this-round/#comment-14306 Peter Thu, 14 May 2009 16:28:17 +0000 http://constitutionallyspeaking.co.za/?p=1038#comment-14306 Khosi - Ha ha - I would think so. But surely you can admit to us in this little comments backroom that you know it is a big steaming load of bull? PS - what about the second leg - do you think Motlanthe confirmed his firing to protect oom Jacob? Khosi – Ha ha – I would think so. But surely you can admit to us in this little comments backroom that you know it is a big steaming load of bull?

PS – what about the second leg – do you think Motlanthe confirmed his firing to protect oom Jacob?

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