As I was driving home yesterday, a guy in a big 4×4 – talking on his cellphone – rushed up behind me, flashed his lights, then gesticulated wildly. He nipped past me, narrowly missing the oncoming traffic, and agitatedly made a hand signal to express his profound displeasure at the fact that I was sticking to the speed limit. A few hundred meters further along the road, he suddenly slammed on his brakes and proceeded to park his expensive car (illegally) on the pavement, blocking the way of potential pedestrians.
Just another day in suburban South Africa.
Then, this morning I read that drug stock-outs are continuing in the Free State with many HIV patients continuing to die while waiting to access anti-retrovirals while scores of patients who are already on treatment are defaulting as health facilities run out of drugs. Free State health department officials told a provincial health summit last month that patients should expect another moratorium on initiating new patients on ARVs from next month.
The provincial health summit heard that the Free State health department is R252-million short for its HIV/AIDS programme. The province has budgeted far too little for ARVs, as it has already spent R50-million – almost all this financial year’s budget for ARVs. As Health-e reports:
A state doctor in Bloemfontein who asked to remain anonymous confirmed that there were constant stock-outs and that some drug companies had suspended trading with the province over unpaid bills.
“I am extremely frustrated with the government people who seem to not grasp the importance of what they are doing, who cannot see that their lack of commitment to our people is leading to human rights abuses. There is simply no urgency and in the meantime patients are dying. It seems as if they have decided there are too many people who need help, that it is impossible for them to help everybody and they have made peace with it,” said the doctor….
The Free State provincial cabinet recently spent R11-million on new vehicles including a R1,3-million Mercedes Benz S600 for Premier Ace Magashule. Over R7-million was spent at the opening of the provincial legislature.
This all made me think again about the lack of respect for the law and the concomitant lack of respect for people’s dignity and right to life in South Africa. Why did that guy in his 4×4 act like such a jerk, endangering his own life and the lives of others? Why do some (but luckily not all) Free State politicians and health administrators seem so callously unconcerned about the plight of people living with HIV in that province?
Maybe the problem is not only related to a lack of respect for the law. After all, it was probably not illegal for the Free State government to waste all that money on flashy cars and parties. Maybe these events point to a larger problem in our society relating to a general lack of respect for and a concern about others. (I know I am now sounding like a preacher, but, hey, if I was more religious and if I was not brought up in that dreadful Dutch Reformed Church, I might well have become one.)
What is needed, perhaps, is a broader discussion on public morality. By public morality I am not referring to the kind of narrow, conservative, and ultimately hypocritical and discredited understanding of morality, which relates to sexual mores. One cannot really take seriously people who complain about youngsters having access to condoms, and being exposed to pornography, but would chase away homeless children begging on street corners.
No, I am talking about the shared values of our society which guide our attitudes and behaviour – regardless of what the law might say. This relates to questions about what we believe is unacceptable behaviour and what we feel societal sanction should be for such unacceptable behaviour. It also relates to the way we think about our responsibilities to those around us and to our society and country.
When our friends act like that jerk in his 4×4, do we reprimand them or cheer them on? When officials, politicians and friends are corrupt or callous, do we scorn them or reward them with jobs and contracts and invitations to parties? When others make racist statements or act contemptuously towards our fellow citizens or foreigners, do we remain quiet or speak up and challenge them? Do we see ourselves as inextricably part of a larger South African society with a responsibility towards others and the well-being of the country or do we believe that self-promotion and self-advancement should trump all else – regardless of the consequences for our country and its governance?
It is of course very difficult to establish the kind of public morality which will take our society forward – especially in a divided and traumatised society where race-, party-, ethnic- or family loyalties make it difficult for us to embrace a wider public morality in which respect for others and concern for the greater good trump narrow self-interest. And when we look around us and see how others who spurn the kind of public morality I speak of get ahead and prosper, the incentive to adopt a selfish everyone-for-himself-attitude becomes very strong.
Why would we work hard, embrace an ethic of care and of service to others, when that might well leave us scorned by the movers and shakers, overlooked for promotion, or even poor and destitute? It is thus a miracle that many people – although not a critical mass – of all races in both the public and private sector do embrace the kind of public morality I speak of.
Maybe we can start by talking about what we have in common and what we believe such a shared public morality should look like. Then we can proceed to become a little bit more brave and to speak up when others – even others who belong to the same race, party, ethnic group or family as ourselves – act in ways that do not conform to what we believe is right.
Just a thought.
Prof,
Good topic. A good source of morality is the rather humorous books The No. 1 Ladies’ Detective Agency series of novels by Scottish author Alexander McCall.
It is very informative, maybe a bit clichéd and sentimental, but quite funny…
Talks a lot of morality towards our fellow human beings…
Prof, you’d have to work hard at getting a broad shared public morality. Our society seems to thrive on dividing itself such that there is little common ground. I’d like to think that we, as South Africans, can agree on more moral elements in law and life and that disagreement would be a minor player.
I may just be a youthful dreamer…
Good posting Prof and those Free State politicians went and bought themselves 11 Mercedes S-CLASSES before they could deliver to the people.
Professor, thank you for this topic. Given the tail end of the last discussion, I would respectfully say that it seems very appropriate and current.
You suggest that we consider what public morality ought to look like. I think that one useful place to start is to begin with the determination of some sort of core content for public morality. That is, we may wish to try to agree on certain core notions that would inform the development of values and standards to which we could turn in order to determine whether attitudes or examples of behaviour fall foul of our shared notions of what is acceptable.
I am aware that my views here are fairly standard. But that being said, I think that the development of a publiv morality should start with (a) the view that people are deserving of respect (b) that they are equally deserving thereof (c) that such desert is inalienbale and (d) that reasonable tolerance of one another and the willingness to earnestly consider other perspectives is an excellent way to recognise points (a), (b) and (c).
But I thought we had ABUNTU? or is it just the Con court who thinks so.
Public morality or social conscience are impossible in a liberal and constitutionally governed society. This dictates that as long as you do not violate the “law” you in the clear and do even less when you own morality standards are “discredited – why assist a world that is in your opinion morally corrupt!
This public morality you speak about – where does its authority arise from?
To Pierre De Vos:
You say “What is needed, perhaps, is a boarder discussion on public morality”. I think this is a highly problematic proposition simply because a discussion on morality goes to the root of how one personally defines what is “good and bad”, “our personal sense of what is right and wrong”, “a subjective sense of what is good and evil” (these days, also largely dominated and motivated by religion in SA!). Discussing these issues under the cloak of “morality” would therefore (and without over-reacting here) give rise to an unnecessary clash in socio-cultural values and value systems of different groups of people in South Africa (bearing in mind that SA is a highly differentiated cultural melting pot). Accordingly, I do not agree that a discussion on public morality is needed at all. On the contrary, the discussion ought to be on ethics. Your examples on “shared values” do not refer to a discussion on morality – instead they all refer to socio-ethics. Thus, with all due respect, I think you are comparing apples with oranges and you may have confused morality with ethics.
Allow me to substantiate my point of view from another angle. In Germany (and in many Scandinavian countries), it is compulsory in many federal states that children are already taught ethics at high school level (!), with religion being a 2nd subject of choice. The rationale is that teaching ethics imparts a far greater objective sense one’s societal ability (note, not moral ability) to distinguish between what is socially right and wrong, what society accepts are being correct, a general respect for life, limb and property, a general and mutual respect for the rights of others (accordingly, also the life of others), a sense for what is fair in respect of me vis-à-vis others, societal rights and obligations and universal virtues such as the obligation to refrain from raping, stealing, murdering, assaulting, slandering, and defrauding whilst enjoining universal virtues of honesty, compassion and loyalty (as espoused by major world religions anyway!). So, there is therefore no need to moralise any of the “shared values” mentioned by you for the simple reason that moralising these values (something which are universal anyway) would simply open up a moral pandora’s box. So, why moralise something which is universally accepted as fixed and objective rules of human behaviour? Besides, how do you propose to teach “morality”? What would the nature and content of your “morally shared values” be? So to my mind, teaching ethics at school for example (and at progressive levels too), in order to lay a societal foundation of common respect, is clearly far more objective. Furthermore, it appeals to one’s sense of reasonability and a sense of human respect for others, the law and other universal virtues. This would certainly contribute more effectively to a greater sense of mutual respect. I’d like to connect this contribution to my previous contribution to your article “Do we need a jury system” wherein I stated that South Africa lacked a deeper “sense of appreciation and respect for law, justice and equality” – a sense which can more effectively be restored through ethics than morality, the latter of which we have, historically, had far too much of in South Africa.
Good post Prof
I’ve been trying to really understand these politicians that go and dish all the crap about how pro-poor they are; how they understand the poor better because of where they also come from; how the previous administration was distant from the poor; how the new administration is more closer to the poor; blah blah blah but when you see the things they do, you get to see how meaningless those statements really are.
How can you possibly come to my shack in convoy of cars with a combined value closing on R3m (or more)and tell me you are about my needs when I have had nothing to eat the whole day. After that visit you then go to a function where millions are basically wasted in some over-elaborative and totally unnecessary items. All of this whilst I’m supposed to believe that you really care about my plight!!
I was humbled about 2 weeks ago when I saw that the person sitting next to me on an flight from Amsterdam (economy class) was none other than the Western Cape Premier. When she landed she got picked up in her modest vehicle. I am not a fan od the DA, nor will I ever be, but believe that we could go very far if all our politicians could understand that what they do will always send a message to the ordinary wo/man in the street.
@ Andy …
On point as always.
I would just add that many of those who hold power did “ethically” wrong things for the “morally” correct reasons and which has contributed to the warped values we South Africans hold today.
I can see the theories of legal philosophers flooding this post by the professor – and of course a bit of the old favourite ;-D
Anyone know what the Con Court judges are driving?
Andy, I use morality and ethics interchangeably.
“Ethics is is the philosophical study of morality. The word is also commonly used interchangeably with ‘morality’ to mean the subject matter of this study; and sometimes it is used more narrowly to mean the moral principles of a particular tradition, group, or individual. Christian ethics and Albert Schweitzer’s ethics are examples.” — John Deigh in Robert Audi (ed), The Cambridge Dictionary of Philosophy, 1995
I do not believe one can say there is one objective set of rules we can call ethical or moral. But perhaps “morality” are sometimes viewed as something influenced by religion, so using ethics instead of morality might not be such a bad idea.
I would like to address this post to the Professor, Michael, or anyone else who might have read fairly widely.
My question is: can someone offer a view as to the distinction between morality on the one hand, and ethics on the other?
I would respectfully add that while people do hold to different notions of what is right and wrong, it is entirely possible that some views are more tenable than others. I would say also that the Professor’s invitation to consider what public morality should look like is perhaps properly construed as an invitation to offer views which the offeror is prepared to defend. And that strikes me as fair enough given that moral views – much like any other views – must be substantiated if they are to be taken seriously. In this sense, all cultures are equal insofar as all are fresh out of luck.
Thank you Professor. I remember the distinction between morality and ethics presenting as the former going to right and wrong and the latter going to the study of the former (which is of course the distinction to which you refer).
Mzo, I would like to pickup on a point which you made a bit earlier. You basically made out that many of our politicians have a special sort of nerve for daring to say that they empathise with the people when clearly their position is very different. I agree.
Earlier I spoke of trying to determine some sort of core content for our public morality/ethics. I put forward that the notions of respect ought to be part of that core content. This I think can comfortably embrace the view that the politicians ought to respect the people – and not just the people that voted for them but the people who live in this country period. And one way in which they could do so would be to hold to the following apreciation of leadership and governance: leaders should care more about their duties than their rights and privileges.
In my 10 years in South Africa I have only on a few occasions seen the issue of ethics raised, or the word utilized in print or discussion, or any real sense that many around me considered ethics of any importance. Obviously, here in SA its the law of the jungle. When we look at our governments, the departments and bureaucracy, when we interact with them, when we read of, or experience their abysmal incompetence and criminality, what these people are obviously lacking, and with dire ramifications, is an ethical approach to their lives and duties. And its certainly not just government people, I see it everywhere. Can we blame it on the soap operas where ethics is routinely overcome by emotion and greed? Perhaps we should each look to ourselves which unfortunatley only a minority of folk are willing to do.
Many months ago I referred in a post to this blog how a renowned Cdn Rhodes Scholar told me in reference to Bill Clinton, that it was only those Rhodes Scholars who did not complete their final year of the scholarship (which is not mandatory) who got into trouble. The final year puts its emphasis on ethics, he said.
I agree with Andy, its not about the bastardized word ‘morality’, its about ethics. In my view even absconding with a pen from the office is unethical.
And most certainly the Free State’s behaviour is so unethical as to be evil.
When unethical, to become ethical requires almost a miracle. So where does one start?
Sometimes it is suggested that ethics is a (positive) professional code, while morality is a broader human standard.
But Pierre, as Nietzsche teaches, all our rules of conduct arise from the disgusting source: Judeo-Christian morality. Conservatives, liberals, Marxists, all are contaminated.
There is nothing to be done.
Morality is subjective, but at the same time there are certain standards and norms that are equivalent in most societies the world over.
We did an interesting exercise at my previous employer dealing with ethics, where we contrasted stereotypical western views of ethics with the concept of Ubuntu. It actually wasn’t all that different, bar the cosmetics, when it came down to it.
The problem is when morality is defined as something which is not “technically” wrong. It was not technically wrong to purchase vehicles amounting to over 20% of the Free State’s budget for ARVs. It is not technically wrong for JZ to have had sex with a woman who regarded him as a father figure. it is not technically wrong to purchase arms that are unneccessary. But I would argue that it is morally and ethically wrong, for various reasons in each case.
The great escape clause is that ethics and morals are relative, which is why we have the law. I disagree – I think the law should reflect moral and ethical standards, and should be interpreted in the spirit and letter in which it is written. Unfortunately, a large number of South Africans, including most of our leadership, believe that it is the letter that applies, and not the spirit. And if this is the message communicated from the top – that morally dubious actions can be excused as long as there is some techincal argument as to why they don’t violate some law – then this is the nation that SA will become, where each is out to skate as close to the line as possible in furthering his or her own ambitions.
It’s sad, but I don’t see any change in SA’s moral fibre…and to be honest, I don’t know what the solution is.
Mzo, you are spot on bro. Unfortunately only less than 10% of the entire population of SA will agree with you in this view, including myself of course. But the rest will stone you to death for dissent.
The Big Slipper
September 10, 2009 at 17:37 pm
Ou Groot Pantoffel, wel gedaan. Jy slaan ‘n belangrike spyker op sy kop.
Prof, apologies for talking about something off topic a bit:
Can we please have a ban on the use of any other language other than English. It will be a sad day if we all started using your blog in our different languages (even those you also don’t understand). If people want to use their own languages, they should try alternative blogs.
One or two words in a different language is OK – like lekker, gatvol (like I am with Koos), ubuntu, etc…but a whole damn post is just way too much
“Sesithembele kuwena Prof”
:)
Mzo: that’s the spirit. Great post.
There need only be one pillar on which morality and ethics is constructed –
“Do unto others as you would have them do unto you.”
Feel free to test it. To date it has never failed me.
Dave A:
I do not think it is that simple.
I often do not know what I would have “done unto me.” In principle, I would like others to shower me with gifts, money acclamation, etc. But then again, I am not so sure that would be good for me or produce happiness in the long run.
At the end of the day, the debate about what I would have others do unto me simply reproduces the debate about what kind of conduct conduces to human flourishing.
So the golden rule is just a re-statement of the irresoluble questions of all moral theory. No real help.
Pierre, were you able to determine whether this 4×4 driver was the senior judge of one of the divisions of the High Court of South Africa?
Was he, for example driving a Black Porsche Cayenne?
Just asking.
Michael, I think Nietzsch was short sighted. Ethics has been around since the beginning of man around the campfire, and since then a conflict in all men and women.
I say that high standards of ethics should also govern global athletics administration.
Anyone who sees our Golden Girl on the cover of You/Huisgenoot would see that only an unethical (racist) CASTERPHOBE would question her femininity!
Mikhail: shouldn’t ethics underpin all that is good and vulnerable?
Considering the discussion between the meaning of ethics and morality, could one say ’shouldn’t morality underpin all that is good and vulnerable’? I think not, certainly not as we know morality, prejudiced, cultural, sexual, religious…
Great discussion! Ethics is keeping your mother proud of you!
Michael Osborne in your resonse to Dave.
Well, I don’t see Kant as some kind of Simplex Simplissimus. The categoric imperative is a ‘law’ that is general, has no limitations or restrictions and can always be applied – qualifies as a moral law that guides our action. The content differs from place to place and time to time – but the maxime or motive of any individual moral act is that it can be reconciled with the free will and be applied generally to everyone. The details cannot be fillled in as they are contingent.
And whether something is good for you or produces happiness are questions of a different nature altogether, besides happiness, like utilitarianism, is overrated. For Kant – it was acting out of a sense of duty that was ethical. Of course, Schiller made fun of Kant’s emphasis on duty.
Has this any relevance for the issue raised by Pierre de Vos? I think so – responsibilities and duties are a good starting point. So is reflecting on one’s own conduct and frame of reference – for example: not everyone would agree that all our conduct derives from Judeo-Christian morality. What about Confucius, the ancestors, ubuntu, Buddha and so on.
Charlotte A, you say happiness is overrated. What makes you say that?
Leigh, the title of a book my (of course) an American philosopher. I say of course, because most Europeans philosophers (of the European continent – excluding the English) wouldn’t be interested in happiness as a philosophical topic. I too find it not as interesting as the big philosophical questions
Equally, African philosophers don’t seem to be much concerned with `happiness’ either.
PS I bought the book in the USA because of its title – but haven’t opened the book really – I expected it to be boring.
Charlotte, sorry to press you for discussion. But you seem interesting – and I can’t sleep
And perhaps you will tell me what these ‘big philosophical questions’ are on some other day.
But while we’re here as it were, perhaps you would consider a question which I hope goes to the current topic. The question is: what might it take for South African people, given their fairly vast differences, to loosely agree to a general set of standards against which they could judge the behaviour of their countrymen and women?
Charlotte, judging books by their covers are we? I suppose we all do that sometimes
Charlotte:
1. I did not say that Nietzsche claimed all moral codes everywhere always drew from the Judeo-Christian tradition. Just that “Western” morality was based on that foundation. Also, I think anthropologists have argued that concepts like Ubuntu, which are thought to have indigenous origins, in fact bear a heavy stamp of Christian proselytising in the 18th and 19th C.
2. I agree with you on the meaning of the categorical imperative, and that the rule “do unto others” is a fine candidates for a maxim consistent with that imperative, The trouble is that some moral intuitions may sit uneasy with possible candidates for rules that one could in principle universalise. Take for a maxim that commands “kill every prawn you encounter.” Why not universalise that maxim? It does not feel right, but it is surely universalisable.
3. I accept that whether something is “good” for you is not a question Kant is especially interested in – that would beg the question of what is the “good,” But Dave was relying on the golden rule in its distinctly practical sense – a guide to day-to-day action. And insofar as I am genuinely unsure what I would like others to do to me, I for the same reason am at sea as to what I should do to them.
4. Of course there are some practical cases where the answers seems obvious – like when one encounters a drowning person (at sea), you know you should rescue the victim, because, if the position were reversed, you would him to rescue you. But there are still difficult questions – what if the drowning person wants to commit suicide? Well, would I want to be rescued if I wanted to commit suicide? As to that I am ambiguous, So the golden rule in itself yields no single clear answer,
5. Finally most of our action in modern society is collective rather than individual, We actor as large groups of people as against other large groups. All kind of game theory problems arise here, that are not easily addressed by the golden rule.
Pierre, I thought the bill of rights in the Constitution (achieved after discussion, negotiation and compromise) represented “what we have in common and what we believe such a shared public morality should look like?” Our public morality is sorted, what we’re short of is private morality!
Dear Pierre,
On your earlier response to mine: We can certainly disagree and go on to some discourse as to whether or not ethics and morality are the same (you will quote your references and I mine). However, I’ve learned that they are completely different and therefore find your interchangeable use and definition problematic. To this end, just a question aside: in terms of your definition, would you then rather speak of professional morals instead of professional ethics or would you still use these two terms interchangeably, bearing in mind that professional ethics are widely accepted as being completely different to morals of course (one generally also does not speak of professional morals, unless of course you’d like to create “pop philosophy” by creating a new term of use)? My point is: I disagree and don’t believe one can use these two rather different concepts interchangeably. These two concepts may certainly inter-relate to respectively interact with each other in a close manner, but using them interchangeably as you do, is, by definition, fallacious.
Morality is important, as would be ethics (although teaching ethics at institutions usually undermines the ethics, as any sane scholar or student automatically questions the swill provided by teachers or lecturers).
However, the litmus-test seems to me to be responsibility. The core problem with South Africa at the moment seems to be irresponsibility. One makes undertakings, and then one does not fulfil them. There is then no demand that those undertakings be fulfilled. It is understood that you can promise people with AIDS drugs but you don’t have to deliver them — and if anyone criticises you, you can simply blame someone else, preferably a recognised social demon who can’t talk back. Ditto for everything else.
Under these conditions, morality and ethics and so on is smoke, mirrors, piss and wind.
I was just thinking … did the Professor get this epiphany about morality and ethics only when he was cut off by this driver but not once before leaving UWC for UCT? It would certainly be rich (no pun intended) of him to start questioning public morality of politicians and some drivers when he himself has been shown not to be ethically sound at all. I suppose thats my perspective, but doesn’t it boil to that, really?
Michael:
I suggest your complexity arises because you misapply the maxim. This is not about receiving your desires. This is about a permission contract between people.
Essentially, you cannot expect from others what you are not yourself prepared to give. For example:
You may not expect respect from strangers unless you respect strangers.
You are not entitled to self-enrichment at the expense of others unless you are happy to have them enrich themselves at your expense.
You may not expect charity unless you are prepared to be charitable.
You may not expect mercy unless your are merciful.
You may not expect another to risk their life for you unless you would be prepared to risk your life for them.
Moving to some closer to topics that come up here:
You may not expect another driver to move out of your way unless you are prepared to move out of their way.
You may not be critical of another’s sexual preference unless you will accept their criticism of your sexual preference.
You may not judge others unless you yourself are prepared to accept judgement.
You may not exploit your position against others unless you accept that others may exploit their position against you.
In any given situation all you need do is reverse the roles and then be honest with yourself! Would you accept this reversal of roles as reasonable? By test you find the centre point.
It’s a pity that this is branded as a “Christian” maxim in the minds of many, particularly as this is connected to the Christian cult as we know it today. Many people who have developed a reputation for integrity without the benefit of religious “guidance” have relied on this golden rule as their moral anchor with great success.
To some extent I blame the rights culture for the lack of ethics today. And it’s coming so very publicly from the top. People are demanding rights that they wouldn’t (and don’t) grant to all others.
Rights should be seen as privileges earned by our willingness to grant them to all others. When we don’t grant them to others, we lose the “right” to claim such privilege for ourself too.
The societal problems highlighted by Pierre stem from people completely ignoring the Golden Rule, not from people struggling to apply it in difficult situations. There is a serious problem in this country with people acting completely selfishly, without any regard to anyone else.
In this context, debating the blurry edges of the Golden Rule seems to me to be a “how many angels can dance on a pinhead”-type debate.
Dave A, I had always thought that, in philosophical terms, the “golden rule” was derived from and subsidiary to Kant’s categorical imperative.
Are you treating it rather as a self-standing code of interpersonal conduct? Certainly, there is a pleasing symmetry in the way you put it,
In any event, I still think the rule is too abstract to be of much use in many practical situations. Consider my suicide example. Say I rescue someone who is attempting to take her own life. am I thus showing her the “respect” I would expect if the roles were reversed? Everything will then turn on the meaning, scope and implications of the word “respect”. It is this question of interpretion that will do the work, not the symmetrical formula with which one begins the analysis.
To Michael Osborne:
A striking example of the pragmatic difference between morality and ethics: assume I was a doctor; it would primarily be my ethical duty (more than a moral duty) to save this girl’s life simply because of the ethical code of the Oath of Hypocrates compelling me to save the life of this girl. If, as doctor, I refused to save this girl’s life, and if I were subsequently tried before a court of law, I would probably be found guilty of unethical conduct primarily because, ethically and legally, I would have violated the code of the oath I had taken (moral considerations may play a rather minor role, depending on the level of subjectivity of the judge in arriving at decisions!). This is the ethics of this situation and not the morality of thereof.
But let’s assume I was an ordinary person, and depending on the extent of my personal, moral and social conviction, I’d probably feel the need to save this girl – I deliberately use the term “need” as opposed to “compelled” because these days it seems that no-one feels socially compelled to help another; the social mores in this regard it seem, have changed. I’d probably have saved this girl’s life simply because it would have been the societal norm/virtue of (human) compassion and a respect for life itself which would have motivated me to save this girl’s life – this norm having absolutely nothing to do with ethics in this context. So, even in this example there is no real connection or interaction between ethics and morality simply because the two issues are different and separate. There certainly are other examples which may not be so clear cut and where there is a closer interplay between them. But the point is: they are in principle different concepts which dare not be used interchangeably. And so to this end, this comment is also directed at Pierre de Vos in my attempt at showing that the two concepts are, in principle, not the same, that they dare be used interchangeably and that they have rather different outcomes in everyday life situations.
From the context of the last sentence in my previous contributoin, the typo-error should ovbiously read “… dare NOT be used interchangeably…”
Andy, yes, you need not persuade me that there is a useful distinction between ethics and morality. I think Pierre is wrong in denying that.
mmm
Skhokho, I do not care whether you look at it ethically, morally or legally, it was just wrong of the JSC majority to let the CC off the hook for its alleged gross political manipulation designed to sabotage Judge Hlophe.
Obviously, the CC judges should have been subject to rigorous cross-examination by the JP’s lawyers.
Now we will never know the truth!
@Fassbinder, i was just checking if my access is working, because i could not access it for the past two days. I even thought Prof had censored my access, but that was not the case, just some IT problem on my side.
I still maintain that if the Hlope JP is subject to a full hearing with cross-examination and everything, the same should apply with regards to the complaint he laid against the concourt Judges. This would be the fair thing to do. People who have been calling for a full-blown hearing forget to mention that this, but i’m not suprised taking into account the people involved. So i agree with you.
Mdu asked a very relevant question which accords with the defination of relevance as we know it. He asked: Who are black Lawyers that Kriegler J claims to have trained? i see @Leigh and company decided to ignore this question. Please answer.
Skhokho, you will of course know that this particular discussion is hardly the appropriate place for the discourse which you seek to introduce.
But I shall give you my answer here and I will apologise to our fellow bloggers for the regrettably substantial extent to which our chat will depart from the topic at hand.
I did not answer Mdu’d question. And I will not. The reason for that is I think that Kreigler J should not have to proffer his credentials in order to convince people that (a) his public communications are meaningful or (b) that the suit which FUL means to pursue is well conceived in law and also necessary to boot. Given the grave content of his commincations, and what FUL claims is at stake, we should, as responsible citizens, investigate his reasons and aims earnestly. And that of course means that we should not jump to conclusions which are really just manifestations of our personal prejudices. At the core of it, I see less and less sense in trying to persuade people to take Kriegler J seriously on the basis of what he has done in the past.
But in the perhaps unrealistically optimistic hope that you will actually take this in, one very basic point is this: it seems that a public body has taken an unlawful decision. Laws and provisions mean very little indeed if those who are supposed to be abide by them brazenly see fit to ignore them. This disgraceful state of affairs is what FUL seeks to challenge.
Now for some inexplicable reason I actually like Mdu. But with respect, Mdu, much like you, just will not suspend his obsession with race for long enough to consider that which could well ensue if decisions such as the one taken by the JSC majority go unchallenged. And no I will not spell it out for you. You have shown repeatedly that you are blindly loyal to certain positions.
@ Leigh …
You are incorrect in stating that the “self proclaimed fore-runner of transformation” judge does not need to proffer his credentials. First of all, he, without any reason, except to compare himself in that department with Judge Hlpohe submitted how he as early as the 80’s was already tutoring and guiding black lawyers. It did come across as a bit of self-glorification.
Thus I would think the challenge of whether his ground-breaking charity has been beneficial to the those he generally mentioned as black lawyers …
Are these persons still in the system and successful due to his guidance?
Would Judge Hlophe have benefited as they did if he was taken under the “brave defender of righteousness’ wing before embarking on a career in the judiciary?
Thus Mdu is merely wanting to establish the integrity of those wishing to point out the perceived absence of the same in the JSC.
Pierre an interesting topic as always.
I agree with Nkululeko when he says, in one of the first comments on this post, that we are a society that is good at finding divisions rather than common ground. However it is my firm belief that there exists far more commonality between the moral beliefs of South Africans than many, if not most, would give credit for (what Pierre refers to as a “shared public morality”).
In this regard I think that is is important to draw a distinction between traditions and customs on the one hand, and the underlying values of which these traditions are but an expression on the other. No one would deny that different sectors of South African society articulate their moral beliefs differently, however I would argue that the difference is precisely that – one of expression, not content.
To give an example – all South Africans agree that killing another (in the absence of a compelling ground of justification such as private defence) is immoral. I think we can safely extend this set of shared beliefs to other values such as respect, honesty, integrity etc… This is not to say that there are those who do not accept, or follow, such principles (the murder rate in South Africa is a testament to this), but the majority of our society, I believe, share these values.
In response to your article Pierre, I think the question that needs answering is not so much “what values have we in common?” but rather “how can we give greater effect to the values that we already share?”. Your conluding point regarding people having the courage to live their beliefs I see as the key to this. If we can all have that courage then the space for those who do wrong will begin to diminish.
RE Dave A’s statement that morality and ethics can be summed up as “Do unto others…”, etc., what we sometimes experience is that others donelt always operate on the principle. WH Auden summed it up very well in his quote:
“We are here on Earth to do good to others. What the others are here for, I don’t know.”
RE Dave A’s statement that morality and ethics can be summed up as “Do unto others…”, etc., what we sometimes experience is that others don’t always operate on the principle. WH Auden summed it up very well in his quote:
“We are here on Earth to do good to others. What the others are here for, I don’t know.”
Skhokho – “I still maintain that if the Hlope JP is subject to a full hearing with cross-examination and everything, the same should apply with regards to the complaint he laid against the concourt Judges. This would be the fair thing to do. People who have been calling for a full-blown hearing forget to mention that this, but i’m not suprised taking into account the people involved. So i agree with you.”
I find this statement mind-boggling. In the very nature of things, when both the complaint and counter complaint (which will probably be heard together like a claim in convention and a counter claim in reconvention in a civil matter), all witnesses (not only the ones ‘accused’ of having acted untoward will) will not only testify in chief, but will also be fully cross-examined by the opposing parties (and, not only by a few members of the JSC). Where did you get the idea that those who want a full hearing in the Hlophe matter would not have the CC judges involved subjected to cross-examination. Your lack of insight into the rules of natural justice is possibly why you need lessons in ethics/morality what this post is all about.
I used the turn of phrase “public morality” in an effort to signal that what I am talking about is not the personal morality each individual might profess to adhere to. The emphasis is on PUBLIC morality – as in a normative value system (as the CC calls it) – which we agree to as a society (regardless our personal moral views), and mostly contained in a founding document like the Constitution, and as a society try and act according to and hold others to. Such a public morality (or ethics if you will) must be shared by the overwhelming majority of citizens (who must also be prepared to stand up and defend it) for it to have an effect. As I see it, the big problem in South Africa is that people profess a belief in many of the same values but do not wish to adhere to these or defend them if it is not in their immediate self-interest.
An additional issue which Skhokho didn’t elaborate on was the fact that the two parties concerned were satisfied with the JSC’s decision by the clear lack of initiative in taking it up for appeal. I too find it strange that a outsider (Kriegler) and his disjointed backers feels compelled to take steps further when the involved parties (with the necessary locus standi) are clearly happy and going on their merry way ….
“Public morality or social conscience are impossible in a liberal and constitutionally governed society. This dictates that as long as you do not violate the “law” you in the clear and can do even less when you own morality standards are “discredited” – why assist a world/society that is in your opinion morally corrupt!”
I answered your question earlier Prof …
Will add that the majority pay lip service in that they fully support the constitution when it goes against everything they hold moral …
DEATH PENALTY FOR MURDER FOR GAIN CRIMES
ABORTION
GAY MARRIAGES
ETC.
Harold, the attitude you speak about (as long as it does not violate the law – or more correctly, as long as you have not been convicted of a crime – stuff everyone) is exactly the attitude that I bemoan.
Harold, with respect, could it be that you find it strange the FUL would want to challenge the JSC majority decision because in much the same way as Mdu and Skhokho, you have not thought about the implications of meekly letting this go?
If we could reasonably understand public morality, given the Professor’s most recent exposition, to mean a value system by which we as a society believe our fellows ought to abide, then I would suggest we should expect public bodies to act in ways contemplated by the laws, rules and provisions that govern them.
Harold, if you are willing to accept that public bodies cannot simply do as they please, then it seems quite clear that you appreciate one core reason as to why Kriegler J is kicking up such a noble stink. Although whether you would be willing to acknowledge that appreciation is rather a different issue.
But if you do think that there are no limits on the ways in which some public officials can conduct themselves, then I would suggest that you have to defend that fairly contentious position.
Of course Public Bodies cannot do as they please …
I clearly remember the Judge pleading that the JSC do their duty in quite a few interviews and when they perform that job, HE are outraged that the decision was incorrect! hmmm
Incorrect judgment or just not the decision I was hoping for!?!
But if the accusation on whether the JSC’s didn’t decide a legally sound judgment is so strong … then why is he not fully backed by the organization he represents, with some key members actually resigning!!!
But nevertheless should he be successful with his less than honourable application, the outcome will show a twisted Con Court, which though I predict, I do not wish to inflict on many here that hold them in such high esteem – Its always a sad day when a kid stops believing in Christmas ..
@Harold Ferwood, i concur, thanks for elaborating, but you are just wasting your time, according to Prof and others Hlope JP must be found guilty of misconduct then they will be happy with the credibility of the JSC and the so-called judicial independence. You see concepts such as the rule of law, judicial independence etc are used and prostituted as a smokescreen all the time, just as FUL and its supporters are doing here. One guy said to me the reason why they would not let go is because they feel that everything that is black must be investigated.
I wait to see how they are going to establish locus standi, and get over the flood of points in limine. Some people have money to burn, who are we to warn them of their flawed case.
Harold, should it emerge on a strong basis that the JSC majority took a decision that amounts to unjust administrative action, will you concede that FUL was correct to hold the JSC majority to its duty to take a just decision?
And it seems clear that the JSC owes this duty given that speaking correlatively, the JSC was duty bound to respect the statutorily and constitutionally contemplated right to administrative justice of those with standing.
Pierre, you should understand by now that Skhokho and Harold are right.
I beg you: Do not attack the JSC decision until you have carefully read it!
For God’s sake, follow the good example set by both Skhokho and Harold. It is clear from their postings on this forum that they have both read the majority decision very closely. Have you noticed how they have meticulously analysed the text of the decision, and defended the reasoning therein against uncritical racists who have nothing better to do than try to drag down everything that is black?
Legal discourse is all about properly informed analysis – not the irresponsible pseudo-hemeneutic rantings of an illiberal reactionary anti-transformationists like yourself!
yes Leigh and just like the Nichols Judgment ( Pres. Zuma’s past legal woes era) was ripped apart, time showed he was absolutely spot on but condemned for giving a judgment riddled with errors of not apply law and legal principles …
Sometimes, and to just appease the naive – NOT OFTEN, law has to fore go its supremacy over simple thinking and allow the telling that a spade is spade!
Not a digging device, or a metal scooper …. JUST A SPADE!!
Skhokho, please explain how you see the locus standi problem of FUL, in light of s. 38 of the Constitution.
Thank you in advance.
Michael … which Right/s in the BOR has been infringed or threatened which would give the necessary locus standi to FUL? My constitutional law knowledge is fairly limited …
Leigh, you should know that this so-called “training” is little more than a strategem by racists to keep Africans away from real power and responsibility within organisations! What is more, “training” is premised upon the demeaning assumption that Africans NEED to be taught something by superior whites!
Mikhail Dworkin Fassbinder says:
September 11, 2009 at 15:43 pm
It took me a while to snap out of the state of bewilderment at your venomous attack at the Professor …
I was even further shocked that you would have the audacity to use me and make me partner to your obviously deep-seated and irrational resentment towards the Professor. I must concede that I have at times questioned the Professor’s naivety when coupling himself with causes he has been duped into joining and his less than ethical moving to the more lucrative and certainly undeserving bourgeois UCT, but I never made unwarranted and personal written assaults.
I think you owe me a sincere apology (the Professor and Skhokho are capable of requesting their own. You have put me in the exact position of the dwindling membership of FUL, in becoming party to a ugly agenda, masquerading as a simple legal application .
@Koos…thanks mate, I think I’ll change my name to Die Groot Pantoffel, I quite like the Afrikaans version!
Harold, yes, I concur. Mikhail may owe all concerned an apology.
But even as I write these words I think: Perhaps some contributors to this blog are so exasperated by the Professor’s critics — the drooling idiots who accuse him of racism every time he mentions the JP — that they have resorted to a discourse of crude, heavily sarcastic parody.
Harold, I would imagine that FUL might assert s. 38(d) with respect to the constitutional right to administrative justice. Of course, not every administrative decision could generate a right to “public interest” standing. But if any administrative decision could, this one would.
Alternatively, common law standing could be relied upon, as liberalised under s. 39(2). See e.g. Wildlife Society 1996 (3) 1095 (Tk.)
Can an organisation like FUL assert standing to defend the integrity of the judicial system? Perhaps so, via the broad public interest in legality and the rule of law. I do not re call that anyone seriously contested Hugh Glenister’s standing to challenge the dissolution of the Scorpions, for example.
That makes sense, especially the reference of Mr Glenister’s challenge – I consider that gentleman a true patriot. He took it upon himself to try and prevent the loss of the remaining credibility that the Policing services had, without any ulterior motives other than this cause …
Judge Kriegler is not deserving of this praise unfortunately.
@Michael Osborne
I am positive that the foundation that the Professor wished for this blog when he started it was one where opinion and comment would be added with cool and calm reasoning. In recent months this has drastically deteriorated and replaced with angry and vindictive responses. You yourself have succumb to it with your “drooling idiots” comment. This will do nothing more but to cement the polarized position many have taken on certain issues.
An old idiom comes to mind when I think of some of the written exchanges –
The pot calling the kettle black …
and even a bible passage (which doesn’t get used here at all as a reference – for obvious reasons)
Luke 6:41
“Why do you look at the speck of sawdust in your brother’s eye and pay no attention to the plank in your own eye?
I do not understand why it pains some to just self reflect and see that maybe it is they who are “defending the indefensible”.
Harold, you are right that, sadly, we too often end up in a childish tit-for-tat about who flung the first personal insult. And I take your point about the need for self-reflection.
But are there not limits to our toleration and respect for all views? The people who yell “racist” at Pierre every time he talks about the JSC make reasoned debate very difficult. Trying to engage with them is no more useful than talking to a fascist, a UFO theorist or an AIDS-denialist. I suppose the best thing to do is simply to ignore them. But that takes more maturity than some of us can muster.
@Michael, section 38 of the Constitution states that “anyone listed in this section has the rightr to approach a competent court , alleging that a right in the Bill of Rights has been infringed, or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are…..
Now Kriegler J wants to rely on the rule of law, also on the allegation that the JSC was not properly constituted. I assume that he would also argue that this cases raises a Constitutional issue within the meaning of section 167(7) of the Constitution as expanded in S V Boesaek (CC) and other cases, because this case might end up in the Concourt, so if you did not raise a constitutional issue, the case can be dismissed on this ground alone. I must remind you that the cases mentioned are binding on any High Court, including the SCA.
Which rights in the Bill of Rights will Kriegler J allege were infriged or threatened? You must remember that the rule of law is found in section 1. To say that threat to the rule of law alone raises a Constitutional matter is not enought, see Carmichelle at para 4 and also see the case of Fredericks and Others at para 17. all these are concourt cases.
@Michael, even when you rely on section 39(2) of the Constituttion, you still need to comply with the cases i mentioned, and i think it would be difficult for Kriegler J and FUL to convince the court that their matter raises a Constitutional issue.
As to section 38(d), before you get there, you must prove that a Right in the Bill of Rights has been infringed or threatened, then, you must be one of the persons listed in section 38(a)-(e). The case you mentioned is not binding on the Concourt, nor is it binding on the High Court in Pretoria, its merely influencial on the High Court of Pretoria.
@Skhokho. Please take a look at my response to Harold above. Under s. 33 of the Const., everyone has a right to fair admin action. (You will know that many, many, courts have held that fair admin action is a constitutional right.)
You say that the Glenister case decided in October by Yeksio J is not binding in Pretoria etc. Of course you are right. But note that the Speaker and the Minister of Justice did not even pursue at argument that Glenister, a private citizen, did not have standing to challenge voting protocols in Parliament. How do you explain that?
Finally, you will note that I referred Harold to common law standing, which still applies quite independently on s. 38. See e.g. Wildlife Society 1996 (3) 1095 (Tk.)
There are many arguments that could be raised against FUL’s application. But lack of locus standi is not one of them.
@Michael, i did not talk about the Glenister case at all, read my post again. You are one who relied on section 38, and my submissions are meant to refute that reliance.
Even if you rely on section 33, it would be prudent to raise a Constitutional matter in the High Courts because the matter will in all probability end up in the Constitutional Court and FUL would not want to be met with a counter-argument based on the Satchwel case. ( ie raising a constitutional matter for the first time in the concourt is not allowed). see other cases in this regard where Yaccob J has warned of this.
Also, should this matter end up in the Constitutional court, the court will be faced with the same problem raised by the Hlope JP matter, ie only five Judges will remain available to adjudicate the matter, where would the short fall of three Judges come from? since the quarum is eight Judges for every matter.
Your proposition that section 39 applies independently of section 38 is misguided and a troubling proposition because rights in the Constitution are interdependent and the Constitution must be read as a whole, see a long list of cases in this regard.No where has the concurt held that rights in the Constituion are free standing. I understand that we might have different experiences with Constitutional litigation and the jurisprudence of the court, but i dont agree with your submissions and frankly they dont make sense at all. You let emotions punctuate your arguments.
What are the many arguments that can be raised against FUL application? i would like to know them for my information, please tell me?
Michael, you say that there are many arguments that could be raised against FUL’s application. Do you think that any of those arguments are convincing? If you do, and if you have the time and inclination, could you kindly say just a few words as to the central thrust of one of the stronger arguments that could conceivably undermine FUL’s application?
Skhokho Radebe says:
Now Kriegler J wants to rely on the rule of law, also on the allegation that the JSC was not properly constituted”
Since you have taken the time to do some research and applying a full on legal argument to state your case, allow me to respond.
An applicant’s challenge of the proceedings of the JSC is based on various grounds such as the procedure adopted in the hearing of oral evidence, the non-observance by the JSC of its own rules, bias on the part of the JSC and the improper composition of the JSC.
These are the very same grounds Hlophe took the JSC to court
1)Non-OBservance by the JSC of its own rules:
Ignored RULE 4 of the JSC properly to conduct a preliminary investigation
a) HLOPHE stated he was unawre of procedures to apporach another judge on a pending case he was not a panel to, then why did hlophe then go to another judge after being made aware?
(b) find that the complaint has been established and that the respondent
has behaved in a manner which is unbecoming of a judge.
C) That Hlophe flew to Johannesburg to meet the two judges and discuss the Zuma case with them is common cause. That is improper
To approach a judge unaware of his actions, then to be made aware of his actions then to approach another judge aware of his actions, the respondent has behaved in a manner which is unbecoming of a judge. to be unware twice?? come on who you fooling?
Invitation extended to the applicants to make representations was unhelpful and served no purpose as the judiciary as a whole is faced with alligations of fraud & lying
2)bias on the part of the JSC
Andiswa Ndoni – Publicly supported Hlophe, there for came with a predetermined view for the own political agenda
3) The JSC failed to follow procedures on a full investigation and failed to fullow up the full investigation on cross-examination
PAJA act
Kriegler has the right to to take the JSC to court on grounds that the JSC is incompetant by showing the JSC is polluted and broke its own rules and such a matter must now be settled by court as six members of the JSC majority concede that the two versions are irreconcilable. “Clearly, the version of one of them on those disputed issues is not correct,” stated in there findings. Which one is false?
Thus braking the rules of the JSC Act by stating that this doesn’t matter.
It futher cements the incompetance of the judiciary that the only 2 judges on the JSC were of the minority view.
further more “But in and of itself it is not gross misconduct within the meaning of the constitution.” how would they know when the constitution is not clear on the very meaning?