Why is it that South Africans so love conspiracies and are so quick to believe in them? Your paper not delivered this morning? Must be a conspiracy involving various journalists, the tooth fairy and maybe Father Christmas (or Santa Clause as they call the ugly fat guy with the cotton wool beard here in the USA). Arrested after robbing a bank and being caught on the security camera waving at your mother? Must be a conspiracy by Glen Agliotti, Jackie Selebi, your mother’s new lover and maybe also the Loch Ness Monster.
I am by nature a rather sceptical person (maybe it is the legal training or maybe it is because I do not believe in the tooth fairy anymore, who knows?), so pardon me for not jumping so easily on the conspiracy bandwagon. It might well be that there is a political conspiracy against Mr. Jacob Zuma. Maybe the National Prosecuting Authority has been infiltrated by colonialist, racist CIA agents in cahoots with Thabo Mbeki, Tony Leon, and all those leaders of Cope who had the bloody cheek to start their own party. And, who knows, maybe judge Chris Nicholson concocted his own conspiracy theories when he sat down to write his judgment in the Zuma case - as was rather unkindly suggested by the Acting Deputy President of the SCA.
But as the SCA judgment on Monday made clear, no conclusive evidence have been presented for any of these conspiracy theories. This does not mean that there might not be some questions worth asking, of course. Questions like why Jacob Zuma was investigated and prosecuted for rather minor issues of corruption (the poor guy only received R500 000 from the arms company!) while Chippie Shaik, the ANC and various other players reported to have benefited far more from the arms deal have so far not been charged.
It is worth asking such questions, but maybe we should be a little bit careful before making wild allegations of conspiracies because we might just come accross as mentally unstable and a bit coocoo. If we are not careful we might even be confused with Julius Malema or those wonderful people from the Young Communist League who entertain us with their almost daily badly written, and sometimes downright weird, press releases.
I therefore have some sympathy for Mr. Thabo Mbeki who was fired shortly after Nicholson in effect found that Mbeki and his Ministers had meddled in the prosecution of Zuma – thus seeming to confirm one of the most widely held conspiracy theories around. In the absence of hard evidence, it was rather surprising that a judge in motion proceedings would come to such a conclusion, despite the lingering questions about the whole Zuma affair.
Who knows what Mbeki had whispered into the ears of advisors about the Zuma prosecution and what they, in turn, might have whispered to the NPA? Who knows why Mbeki had not intervened to stop the prosecution of Zuma? Why he had fired Zuma as Deputy President – even before he was charged - but went into an apoplectic fit when Vusi Pikoli wanted to arrest the Police Commissioner for corruption and then got his advisors to help quash the warrants for Jackie Selebi’s arrest. (This latter fact was proven beyond doubt during the Ginwala Commission of Enquiry, so those Mbeki fans out there, calm down.)
But I was nevertheless, shall we say, suprised and amused by some aspects of Thabo Mbeki’s response to the SCA judgment. First, Mbeki gives his own interpretation of the judgment that might – at best – be described as a rather innovative interpretation of its outcome and - at worst – as a twisting of the facts. Said Mbeki:
We intervened in the NPA appeal to the SCA because we wanted to correct the unfair and unwarranted inferences made by Judge Nicholson against us, and as the SCA said, we “had ample reason to be upset by the reasons in the judgement which cast aspersions on (us) without regard to (our) basic rights to be treated fairly.” The SCA ruling has vindicated us.
Problem is, only in the most broadest sense of the word has the SCA “vindicated” Mbeki and his cabinet. The judgment decidedly did not find that there was no political meddling in the Zuma prosecution. It merely said that there was not sufficient evidence before the court to have made such a finding – especially given the rules of evidence that apply in motion proceedings. The jury is still out about whether Mbeki and his cabinet did interfere or not, so to talk of a vindication is perhaps a little bit premature.
But this is perhaps a small point. One must not be too churlish. Given the fact that Mbeki was fired in the wake of the Nicholson judgment – even though he was not given an opportunity to give his side of the story – one can be generous and allow the ex-President to stretch the truth a little to score a political point against those upstarts who think they can run the country into the ground as well as he did.
So, let’s grant Mbeki the satisfaction of the claim that he was vindicated and move on to the last paragraph of his statement, which brings us right back into – you guessed it! – conspiracy theory country. In vintage Mbeki style and with all the dry, bitter, certainty of a person who once questioned the link between HIV and AIDS because of what he read on the Internet – to the detriment of 300 000 people who then died – Mbeki continues:
It seems to me that the unacceptable practice of propagation of deliberate falsehoods to attain various objectives is becoming entrenched in our country. I am pleased that the SCA has provided firm leadership in this regard by insisting that nobody’s integrity should be impugned on the basis of untested allegations.
Mbeki loves that phrase – “deliberate falsehoods”. It suggests that Mbeki thinks that there is only one possible’s interpretation of any set of facts, that what he claims to be true must be accepted by the rest of us as absolute and final proof of that Truth, and that any questioning of his version of events or his interpretation of the facts constitutes a conspiracy to ”deliberately” spread false information.
He seems to think: “I told you what the Truth is – yet you do not believe me. How can that be? How dare you? The impertinence! Surely you know that I am so wise, so imbued with integirty, wisdom and an ability to interpret facts definitively (a bit like God, really) that what I say will ALWAYS be true, just because I said it. If you then question the Truth of what I said, it must be because you deliberately want to spread falsehoods about me, my government, black people in general, the arms deal, the existence of crime, the nobility of the masses of our people, the ANC and its traditions and, for that matter, HIV and AIDS.”
This seems to me like a very, very scary world view for a leader of a country to hold. It eschews doubt for a kind of messianic certainty. It fails to understand that in a democracy politicians must earn our trust through their words, yes, but also through their deeds, that we – “the masses of our people” - have a duty to be sceptical about the self-exculpating claims made by politicians and that we are not part of some conspiracy, deliberately spreading falsehoods about the politician or his government, just because we do not believe every word the politician – even our President – says.
Besides, sometimes the known facts are open to different interpretations and even reasonable people may differ about how the known facts can or should be viewed. We all interpret facts from the vantage point of our own world view. Mbeki has often made the excellent point that many sceptics of his government interpreted the facts about South Africa’s progress away from apartheid injustice towards a more egalitarian and sane country, based on their rather Afro-pessimistic, colonialist, world view.
But that does not mean Mbeki himself does not have a world view and that his interpretation of an event or of a set of facts will be devoid of self-interest, delusional paranoia or prejudice. Just think about his flirtation with AIDS denialism. Duhhh!
The fact that he never could apply his excellent insights about the inevitable situatedness of our version of events to himself says a lot about the tragedy of Mbeki’s reign as President of the ANC and the country. When one forgets that one’s world view might not be shared by others and that one’s interpretation of the facts might be clouded by the fact that one travels in a eleven car motorcade and are obsequisly bowed down to by others, one becomes arrogant and out of touch. And that is one of the real, very human, tragedies of Thabo Mbeki’s Presidency.
Indeed, indeed…the SCA made NO findings regarding the existence of political conspiracy…neither in favour of, or against the existence of such theory. It only said that Nicholson J went a bit too far in his judgement regarding the issue.
SA is the conspiracy centre of the world if you believe all the utterances of our various luminaries in the political sphere (Roswell is SO last decade!). Every single time somebody does something stupid, it’s a conspiracy. Remember when “right wing third force” was the flavour of the month? EVERYTHING that went against the ANC was as a result of right wing agents and/or a third force. I’m still mystified as to who this third force was/is, but it must have been moerse groot, because it was responsible for everything negative said about the ANC, from the Arms Deal to HIV/AIDS to Travelgate to pointing out service delivery failures to criticism of the current very skewed implementation of BEE. It was all the right wing third force.
It’s simply a case of denial, denial, denial, the one thing which the ANC has perfected since 1994. The media reports that I stole money? It’s the right wing counter-revolutionary neo-liberal colonialist western imperialist racist third force (those are all actual terms parroted by the ANC in various arrangements) who is spreading PROPAGANDA (sound like the USSR?). And therefore there will be no investigation, because obviously if these nameless faceless people are responsible, then I am obviously innocent. And the proof that they are responsible is…the ANC said so!
Time and time again…it’s always been the ANC’s get out of jail free card (sometimes literally), and I worry that it has inculcated a culture into our younger generation (especially those brought up in ANC homes) that will come back to bite us in the ass. Watch and see…20 years from now, if the ANC doesn’t start forcing it’s members to take responsibility for their actions, our president then (if the public is stupid enough to put up with the ANC for that long, God forbid) will be spewing the same drivel every time somebody in his party is accused of some impropriety. And the wheel goes round and round…
Lets take bets on when we’ll actually see some proof of a conspiracy theory…I’ll give you 100 to 1 odds in favour of it happening within the next 100 years.
Pierre de Vos ooh Pierre de Vos, are you trying to be comical or are you devoid of hope.
I am not sure if you are misunderstanding the meaning of the word ‘vindication’ or you are just failing to apply context to Mbeki’s use of the word. Let me help you:-
According to the Oxford dictionary, ‘vindicate’ is a verb that means to 1. clear of blame or suspicion. 2 show to be right or justified.
The SCA judgement was clear that the question of political meddling was an issue NOT before Nicholson J. Hence Nicholson J had no business blabbering about it. That said, the SCA could not correct Nicholsons error by making a determination countering something that should not have been pronounced in the first place. Otherwise they will be doing exactly what they had to correct with Nicholson judgement.
Now, Mbeki’s vindication, in that context, is that, Nicholson J used the weight of his position to paint unfairly Mbeki in a certain way, without any basis and the SCA has corrected this. And did so in the most conclusive of fashion.
The SCA judgement says:-
“20] I have already mentioned that the issues in this case are primarily legal and based on common cause facts but that is not how the court below approached the case. Instead it applied a novel approach to motion proceedings which, if left undisturbed, may serve as a dangerous precedent.”
So its not just Mbeki who has this ‘point of view’.
It continues:-
“[21] Benevolently interpreted it would appear that the court, in the context of a striking out application brought by the NDPP, sought to determine whether the NDPP was influenced by the executive in deciding to prosecute.”
These ‘deliberate falsehoods’ were, in fact, also decoded by the SCA
and so Mbeki is merely rehashing what the SCA has already said. Not just his point of view now, is it?
And here your are, Pierre de Vos, dishonestly or incompetently trying to tell us that these ‘deliberate falsehoods’ come from the machinations of Mbekis mind.
Your whole post is despicable.
‘Why is it that South Africans so love conspiracies and are so quick to believe in them?”
It must be because it is hard for some of us to understand how a mass killer like Wouter Basson can still work for the military (NPA are you listening ?) or how a good judge like judge Harms can now be deputy of the SCA. Something that baffles even reasonable conspiracy theorists who don’t necessarily believe in the tooth fairy like Max du Preez:
“When I was listening to Judge Louis Harms on Monday reading the Appeal Court judgment overturning Judge Chris Nicholson’s ruling in favour of Jacob Zuma, I could not get it out of my mind that it was the same Harms who led the Harms Commission of Inquiry into state-sponsored violence in the early 1990s.
I had a serious stake in that enquiry, because a lot of the allegations Harms had to investigate came from exposes on police and army death squads (Vlakplaas, the CCB, etc) published in the newspaper I then edited.
Harms decided that there were no death squads and that those men who were attached to Vlakplaas, like Dirk Coetzee, who confessed that they were torturing and killing anti-apartheid activists, were lying through their teeth.
Harm’s findings were a disgrace, as were the statements he made about some of the policemen who wanted to come clean. I did not believe Harms should remain a judge after that and I said so publicly.
But Harms not only remained on the bench, he was promoted to the Supreme Court of Appeal.
”
http://www.news24.com/News24/Columnists/Max_du_Preez/0,,2-1630-2148_2452880,00.html
No Khosi, you have it wrong unfortunately – Mbeki would only be vindicated in this context if there was positive proof shown that he did not politically interefere. There was no proof, either for or against this. The SCA simply ruled that the lower court should have left the issue alone, nothing further.
How is Mbeki vindicated? He wanted the SCA to rule that he did not interfere, but instead got a ruling that said the lower court shouldn’t have even gone there in the first place. Saying to Mr C, “You shouldn’t have spoken about Mr A doing Action B” is different to saying “Mr A did not do Action B”. The second would have vindicated TM, but the first serves no such purpose.
PdV’s point is that TM nonetheless used the judgement to claim that his good name (which actually left the building many moons ago) is restored, unimpugned, and he is shown to be correct in his actions throughout. Actually, the ruling never said any of this! TM claims that the SCA reversed the ‘deliberate falsehood’ put forth by the lower court. This would imply that Nicholson J had a vendetta against him, which does not bode well for our judiciary, and he used his court to propogate deliberate lies about TM.
This is breathtaking in the licence it takes with the facts in itself, and to me would also seem to be a bit of a falsehood, ironically. Nevertheless, TM was not vindicated – while the SCA did not rule that he was guilty of political intereference, it also did not rule that he was not guilty of intereference. Therefore, there is no vindication of anybody, and TM is not ‘rehashing’ what the SCA said. He is interpreting it to suit his version of events, as he did many times with other facts throughout his presidency.
The Big Slipper // Jan 14, 2009 at 9:16 pm
“Mbeki would only be vindicated in this context if there was positive proof shown that he did not politically interefere”
The SCA ruling is not an Mbeki interpretation. Its 5 judges who in the basis of facts before them, made a determination.
The question on whether he did or did not interfere, has never been contested in a court of law, and that is the basis of the SCA criticism of Nicholson.
Nicholson used his bench to give credibility to something he has no evidence of. In doing so, Nicholson used the privileges that the court give him to feed the conspiracy theorists. Now whether the question, or the conspiracy theory, still persist or not, Nicholson error has been corrected.
Then all things being equal, Mbeki has been vindicated.
@ Khosi: please re-read the definition for vindication that you posted. TM has not been cleared of suspicion, nor has he been shown to be right or justified. Only once the evidence has been evaluated can these results (possibly) be achieved.
Besides, true vindication would come from being reinstated and let’s face it: That ain’t never gonna happen.
Khosi, please provide a reference to the relevant paragraph in the SCA judgment where it is found that the findings of Nicholson J about a conspiracy were false. Then provide the paragraph where it says these false allegations are spread “deliberately” (in other words spread while knowing with certainty that they are false). No, thought you could not. You lose, I win!
ozoneblue, as much as it pains me to do (not being, to put it mildly, a fan of Wouter Basson, a.k.a. Doctor death), I have to point out that Wouter Basson was charged and acquitted (unlike JZ who has not been acquitted of the fraud and corruption charges). You are therefore defamating him by calling him a murderer. Innocent until proven guilty and all that stuff. But I must say I do have some emotional affinity for the Max du Preez piece. But my head (the LEGAL part of my brain) says we must be careful to impugn DECISIONS of judges based on their past behaviour or history. If John Hlophe (or Harms or Hartzenberg or Motata) gives a shocker of a judgment, say, I will be tempted to dredge up their past behaviour, but maybe it would be better for our judiciary if I kept that for brandy and coke stories around the braai, and rather focused on the CONTENT of the judgment and showed why the judgment did not make legal sense. Don’t you agree?
ozoneblue, the last point is something that the readers of this Blog have taught me….
Just because a whole lot of people don’t like a political figure does not mean that they are engaged in a political conspiracy ….
Pierre De Vos // Jan 15, 2009 at 12:35 am
1.) “Khosi, please provide a reference to the relevant paragraph in the SCA judgment where it is found that the findings of Nicholson J about a conspiracy were false.”
At no point did I say Nicholson made a false finding. I said, Nicholson J made an error in blabbering about a conspiracy that was not being contested and, in so doing, gave the theory credence, and injured ‘spectators’ who were not part of the case in the first place. Pierre this is common cause. So please do not read in words into my writings
2.) “Then provide the paragraph where it says these false allegations are spread “deliberately” (in other words spread while knowing with certainty that they are false)”
Again, the point of the SCA judgement was that the conspiracy theories were never contested, so Nicholson had no reason to pronounce on them in the first place. Now, just like Big Slipper (Jan 14, 2009 at 9:16 pm), you are saying true vindication for Mbeki would have been the SCA saying that the conspiracy theories are, in reality, false. I am saying to you that the SCA could not have found on the veracity of the conspiracy theories, simple because the veracity of such was never argued. This is exactly what the SCA was correcting with the Nicholson judgment.
The injury to Mbeki is not that Nicholson said that the conspiracy theories were true. Nicholson did not say this. The injury was that Nicholson, without applying jurisprudence, was willing to accept these theories, and made pronunciations that were not relevant to the matter that was before him, and that matter was whether Msholozi had the right to be invited to make representations before being charged. And in so doing ‘red carded even the spectators’.
Now, all things being equal, vindication for Mbeki is that the SCA judgment resets everything to where it was before the Nicholson judgement. Now, if Nicholson judgment, made irrelevant pronouncements on Mbeki that have now been disputed by the SCA, it follows like night follows day, that in so far as the Nicholson judgement is concerned, the NDPP, Mbeki and his cabinet have been cleared of blame or suspicion, hence vindication.
But do not take my word for it. In response to Zuma’s affidavit in response to Mbekis intervention affidavit, the SCA said:-
“I have already referred to the impugned allegations in the founding affidavit which were completely irrelevant. It is not necessary to analyse the allegations objected to by the NDPP because it makes no sense to strike them out at this late stage of the proceedings. The damage has been done. This does not mean that the order of the court below should stand. Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and noton fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them. The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces
of many. There may well be reason to hold that many of the allegations were vexatious and scandalous but, once again, it is not necessary to do so for present purposes.”
On a side note, I am now of the same opinion as Lindelani and others that the future of our legal brains trust cannot be left to the nurturings of the likes of you. If you fail to see that the SCA has remedied injury to Mbeki, you should not be a law professor in one of our institutions, maybe just a blogger and professor by name and qualification.
PdV
As far as I know wrt Basson the Constitutional court overturned the SCA in September 2005. Apparently the NPA is too busy prosecuting our struggle hero’s for getting discounts on cars and don’t have time for low priority stuff like prosecuting mass murderers for alleged crimes against humanity.
But that is justice for you, or am I missing something ?
news.bbc.co.uk/2/hi/africa/4230148.stm
OzoneBlue yip u are missing actually alot.
1stly Dirk Coetzee of the Hit squad has been given amnesty by the TRC and the same for Tshikalange and Nofomela and many others
2ndly there is no proof of any cover up by Judge Harms, you do not have any proof nore will you find any evidence in the public domain or in the archieves.
This is just more conspiracy theories.
http://www.doj.gov.za/trc/media/1996/9605/s960504a.htm
3rdly Later, in its final report, the TRC called the Harms Commission “worthless”, and it is just that worthless this story of the hit squad has been put to rest and amnesty given.
1998 parliament passed the National Prosecuting Authority Act to give effect to the constitutional provision dealing with the prosecuting authority and to spell out the details of a new prosecutorial system for the country. effective transforming the NPA as we now it today all of this happend before 1998.
With regards to the quality of the judgement just passed by the SCA
SCA Acting Deputy President Louis Harms lead the bench at the states appeal against judge Chris Nicholson’s ruling.
Also, were judges Azar Cachalia, Nathan Ponnan, and judge Ian Farlam- who was one the two judges in a minority judgment, to rule in Zuma’s favour during a bid to stop the state from using evidence against Msholozi during the scorpions controversial raid 3 years ago.
The only woman on the so called “Zuma bench” is judge Mandisa Maya, who is one of three woman judges currently appointed to the SCA.
Max du Preez is a columnist who is giving his own views and I wouldnt take his views as fact or evidence. He is just that a columnist.
To be honest OzoneBlue your doing exactly what you have accused people of who think Zuma is guilty. Yes you may read columns and other forms of media to be informed but you do not have actual evidence in your hands to show that Harms was part of a cover up. Innocent until proven guilty?
You leaving out other facts like
chemical warfare expert Dr Wouter Basson during his Pretoria High
Court trial on that he had been offered amnesty without a
public hearing, as required by law.
Remember the was a big TRC commission in the early 1990′s also infact i think read this http://www.doj.gov.za/trc/media/1999/9912/p991202c.htm
Alot of ANC members were given amnesty. Whites and blacks this was part of the healing process.
Now your website Im going to give you a clue please look up SCA judgment that clearly states a corrupt relationship between JZ and Shabir Sheik which both mutualy benefited. There are alot of errors on your website but i thought i would start with that one.
Like most of the time, ozoneblue you are spot on.Prof., I cannot help but notice the humour in your good post but again ozoneblue provides a good irrefutable answer to it!
I agree fully with Prof on this one, infact, I did make mention of these issues on you tuesday article. Good one!
ozoneblue et Mdu – Re Basson: The CC only overturned Harzenberg J’s decision to quash the five conspiracy charges (and the concomitant SCA refusal to uphold the NPA’s appeal in that regard). The CC did however not brand Basson as a murderer (or a war criminal), it merely held that the courts a quibus were wrong in law to hold tha SA courts did not have jurisdiction to adjudicate such crimes. The CC did, however, also say that, because the NPA (wrongly) produced evidence regarding those charges (even though Basson had not pleaded to them) MIGHT (not will) infringe the accused’s right not to be subjected to ‘double jeopardy’. It is in the light thereof (and possibly in the light of non-availability of evidence or the knowledge that some of its witnesses had not been credible at the trial on the rest of the counts) that the NPA at long last decided not to continue with the prosecution in respect thereof.
ozoneblue – I do agree with you however that the NPA should have made more earnest with their prosecution of Basson at fist instance, and he should’ve been charged with war crimes or crimes against humanity from the outset, not for the milder conspiracy to commit murder abroad. There, I think, it is Ackermann SC that is to blame for not preferring the correct charges at the outset.
ozoneblue // yes you are missing something. Wouter Basson is not being tried again for the charges that he has been acquitted of, but the charge that Judge Hertzenberg said is not in the jurisdiction of the court as they occurred outside the borders of the Republic…
Thank you Anon for that clarification, but what’s your take on ozoneblue’s and Max’s point on Harms being promoted to the SCA despite his quetionable past membership broederbond and Harms Commission’s findings,leaving the Prof unconvincing explanations aside?
We should distinguish between 2 issues here. Harms’s promotion to the SCA one issue and the recent SCA judgment is a seperate issue.
About the first issue his promotion to the SCA, I think most will agree that in the light of his past behaviour (his findings in the Harms Commission and his Broederbond connections) he might not have been the ideal candidate for such a position.
You can concede that but that does not mean that the SCA judgement can be faulted.
Mdu – “what’s your take on ozoneblue’s and Max’s point on Harms being promoted to the SCA despite his quetionable past membership broederbond and Harms Commission’s findings,leaving the Prof unconvincing explanations aside?”
You know, Max’s and ozoneblue’s point is politically loaded, since it implies that, because of Harms’ earlier alliance to the Broederbond, he should never have been promoted to the SCA. If one takes affiliation to rival political associations from the pre-1994 era as ground on which to refuse appointment to higher court benches, then Moseneke DCJ (member of the PAC military wing? not sure which) should never have been appointed to the CC. But here again, ANCYL et al would agree because of what he said about the Polokwane circus at a private function. As far as I know, Harms J resigned the Broederbond before being appointed as High Court Judge. The Harms Commission’s findings have been criticized, but its findings on the non-existence of a ‘third force’ has never been discredited in a court of law. Moreover, isn’t Harms J the one who convicted Barend (Wit Wolf) Strydom and sentenced him to death? Or was it Derby-Lewis and Wallus that he tried, convicted and sentenced to death? I cannot really remember, but he did one or both those cases. “Counter-revolutionary”? No, I don’t think so.
The judgment of the SCA suggests that the court below looked at and analysed the merits of the allegations of political meddling and determined most plausible inference and got unconvinced that Zuma was incorrect.
The analysis of the merits and judicial exposition on possible inferences of political meddling arguably precipitated the political demise of Mbeki.
The SCA has demolished this pillar and erased the suggestions of the lower court. This has somewhat helped the Mbeki cause fo defend himself from such unjustified possible inferences by a court of law.
I do agree with Prof that this may not be vindication of Mbeki. Both courts have not directly traversed the allegations and made any findings. The SCA simply suggested that dealing with the allegations of political meddling was extraneous for purposes of the application in casu.
Prof,,, making sense as usual,,, Judgements should be made based on facts.
I totally agree with anonymouse. Yet his ideological make up shapes his thinking. I hope judicial training and practice dilutes that to insignificance .
Anonymouse // Jan 15, 2009 at 11:40 am
It was Barend Strydom who Judge Harms convicted and sentenced to death after just 1.5 days of testimony, saying that the case was clear cut and that the accused was guilty of all charges.
Derby-Lewis and Waluz were convicted and sentenced by Judge JC Eloff.
Whoops, That should have been Judge CF Eloff.
Back to Conspiracy theories, Billy Masethla and Muziwendoda Kunene on hoax email saga have been acquitted on Section 174 application, now what were you saying about conspiracy theories Prof? Weren’t the acquitted charged because they vowed for the authenthicity of emails conspiring to ensure that Zuma doesn’t become SA Prez? Well these two have now been vindicated,where does that leave the credibility of those who still insist that there is no plot to keep Zuma away from SA highest office,especially when Andrew Feinstein mentions this in his book which the former Prez did not dispute?
“You cannot change your past, but you can face it and learn from it.”
Despite it being politically incorrect to have Judge Harms on the bench, especially the highest court in the land for non-constitutional matters, and worst, to have him as the Deputy of that court, we cannot rule out that there is nothing that has been put on the table thus far proving or even indicating that Harms J is not a fit and proper person to be where he is today, in that his undesirable past does, or has the propensity to, affect his rulings currently or in the future.
Personally I do not believe that he should be presiding over cases at all but I cannot probagate this any further because I cannot show that his past is affecting his rulings. On this point I associate myself with Prof. that we need to merely focus on the CONTENT of his judgments and not on the past of the judge. This, I believe, will make us critically analyse his judgments devoid of the burden of his past (mis)deeds and to formulate sound opinions thereon.
I was disgusted by the vitriol directed at Nicholson by Harms and friends and direct mention of his name, digressing from contemporary judicial etiquette. It was a vitriolic attack on one of its own.
The greater essence of the judgment seems impeachable. I believe the interpretation of 179 requires the apex court to enter the fray and resolve the fierce interpretational discourse among bloggers, the judiciary and society in general.
On Masetlha and Kunene, Mdu you are spot on. Perhaps the guys will suggest that you want to take a detour from the actual subject matter.
On a balance of probabilities, political meddling is palpable, a reason enough for political activists to defend Zuma.
It is an irrevant angle for the purposes of the SCA judgment and the mattter Nicholson was faced with.
The road is still too long with many perils and possibilities for both sides. We must not even suggest that there is evidence beyond reasonable doubt that Zuma is corrupt and a frauster.
The evidence adduced so far, in my view, does not withstand scrutiny on a higher scale beyond reasonable doubt.
A lot of the noise on Zuma is based on political inclinations from political adversaries. They seek to extaminate him through any possible legalistic endeavours!
Ishmael Malale – Jan 15, 2009 at 12:00 pm
Thanks for the agreement – However, do you suggest that it is my “ideological make up” that “shapes [my] thinking”, or Harms DJP’s. If the latter, I will not disagree, if the former, I would vehemently disagree. I am actually a much more ‘leftist’ and ‘enlightened’ than you might think. What I was trying to point out, however, is that one should not simply go out from the premiss that, since Harms DJP is white, a former member of the Broederbond, and he gave a judgment (on behalf of a court consisting of five judges)damaging to the Zuma camp, he should now be regarded as a ‘counter-revolutionary’. Judge his judgment in terms of the law, just as we have judged Nicholson J’s judgment without getting overly emotional about it.
Libdem – Jan 15, 2009 at 12:14 pm
(and again 12:15 pm)
Thanks for making me remember.
Sne – Jan 15, 2009 at 1:54 pm
I also agree with you here
Anonymouse: 2:56 PM
Harms my brother ! I regret the ambivalence of the sentence. Apologies! I agree with you. Perusal of the judgments points out a very strong perpective on the issues.
I need the CC to put an end to the disgreement on interpretation of s179. It will certainly happen.
We will not forget the historical links but they play little role in this regard. We will always be vigilant
Ishmael – Thanks, for once we agree.
My apologies to prof and all, for being out of topic, but I just want to ask about the strange procedure that is happening in this Zuma matter.
I thought a trial have to be conducted first and therefore if it happens that the parties do not agree on certain issue(s), then there would be a trial within a trial to determine whatever that would be at issue.
I raise this because it seems the whole trial of Zuma matter is likely to be conducted in all the courts of the land,
there is no trial yet but the law reprts are almost full of the name: Zuma as if he is the only important individual.
Is this not an irregularity?, irrespective of whether the courts have accepted to entertain the applications.
Anonymouse // Jan 15, 2009 at 2:56 pm
I agree. But my response was to Pierre’s question as to why South African’s believe in conspiracy theories. You should rather ask why we do not.
I’m not convinced at all by any explanations on this thread as to why Basson has not been prosecuted. I have seen no argument from the NPA after September 2005 to substantiate any of the dubious explaining-away-of-facts made here. We simply never hard of the Basson trial again because our freedom loving media are obsessed with Jacob Zuma and apparently simply don’t care. Then you okes want to know why the everyday man in the street believe in “conspiracy theories” and simply put doesn’t trust our judicial system?
ozoneblue – google it, I’m sure you’ll find the explanation of ‘double jeopardy’ by the NPA – I read it in the papers at the time – I’ll check and give yo a date if you wish. Having said that, however, like you and others I am still not convinced the NPA’s decision not to re-charge in te light of the CC decision was the correct one. … Signing off until a little later
ozoneblue, you are being unfair to NPA. After losing the Basson case they went ALL THE WAY TO THE CC, arguing that the judge was biased in the case and should have recused himself (which would have resulted in mistrial and an opportunity to retry Basson). They lost because CC set a very high standard for recusal. Because of the rule that no person can be recharged for the same crime, it is impossible for them to recharge Basson now.
ozoneblue – In a footnote in a thesis I’m currently writing, I’m saying the following regarding the Basson issue:
“The CC however reserved for future judgment whether a fresh prosecution on these charges will offend the double jeopardy protection afforded by s 35(3)(m) of the Constitution because, even though the charges were quashed before plea and, even though Basson was therefore never in jeopardy of a conviction on those counts, evidence was led on those counts as well, enabling the court to make a finding on the body of evidence. See paras [248]-[259], [264] of the judgment. Two weeks later, according to media reports in Beeld, Sunday Times and SABC News, the NPA abandoned its right to prosecute Basson on those charges because it felt (unjustified, so it is submitted) that the double jeopardy principle would work in Basson’s favour and no reasonable prospect of a conviction existed. Thus, even though the CC practically ‘challenged’ the NPA to charge Basson again on those counts that were quashed and, if the question of double jeopardy became relevant, to present argument that Basson’s rights in s 35(3)(m) of the Constitution were not infringed or, if infringed, that the infringement amounted to a legitimate limitation of rights in terms of s 36 of the Constitution, the NPA decided not to pursue the matter further.”
Hope this helps.
Prof – the standard for recusal set by the CC is just as it exiisted at common law, taking into account the R v Silber judgment, not higher. I do however agree that Harzenberg J’s remarks “Rerig meneer Ackerman, ek is verveeld [met jou saak]” should’ve indicated that his recusal was mandated – the CC however felt differently because in Silber it has been said that outward manifestation of judicial impatience with the case of one of the parties, although deprecable, ordinarily would not found a reason for recusal. That part of the CC’s judgment is however water under the bridge. I think what ozoneblue is talking about is the part of the a quo judgment that has been overturned by the CC – where the CC upheld the NPA’s appeal against Harzenberg J’s order to quash the charges of conspiracy to commit crimes abroad.
Anonymouse // Jan 15, 2009 at 4:59 pm
Thanks for the info.
Julius Malema – Dark (Third) FORCES? This happened in broad daylight! http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2457311,00.html