Prof, thanks also for the principled support. On the two points you raised, however, just the following:

(1) I agree the Steve Biko Inquest was a farce – and indicative of the fact that magistrates from those days were not regarded as independent. (In fact, as a magistrate from those days, I can vouch that the magistrate – not the same person, but each time the person holding office – stationed at the seat of one of the major ‘battle-field’ constituencies in the Far North during the apartheid years has been forcefully transferred to go and work under ‘supervision’ three times during the course of just over a year, just because of politics. You see, in those years, magistrates were not only judicial officers and a few other things, including ‘chief cook & bottle-washer’, but also the main electoral officers in constituencies, and if the reigning party did not like the way a particular magistrate dealt with a specific election, the magistrate was transferred to go and work under ‘supervision’ – all without proper disciplinary action’. In this particular constituency, there were three elections during the same year, first a challenge between a member of the CP and a member of the NP to resign their seats and call an interrim election to test each other’s strength; second, that notorious (or is it more positive?) Referendum; and, thereafter a general election.) That is exactly what we (the majority of magistrates that are currently serving – the ‘Young Turks’?) have been fighting against since approx 1990, when it became apparent that we will be having a constitutional state. However, even today, in the determination of pay-packages, the Minister, the Director-General, and many (the majority of parliamentarians) are still meddling with magistrates’ remunertion system, keeping a strong hand on the reign, so that ‘magistrates cannot start thinking for themselves’ (Remember Jimmy Kruger?) but remain subservient to government’s whims and fancies. That is a clear indication that government wants to keep control over a large part of the judiciary, the magistracy, where more than 90% of all legal disputes are being settled daily. And, many of them do not go on appeal. (On the appeal thing, even in the days of the notorious Steve Biko incident, magistrates’ decisions – also in inquests – were subject to appeal/review, and the Supreme Court didn’t make a good show of independence during those days as indicated by one of the bloggers above.) We have to start somewhere in ensuring the magistracy’s independence – and, with respect, I think the CC did not do too well in the Van Rooyen Decision. There is no need whatsoever to delay the issue any further.

(2) The second point – I think that is one of possible constitutional changes that will receive the whole-hearted support of the magistracy and the majority of the public. I do agree however that including the magistracy in a single judiciary should ot be done without a constitutioal change, exactly because, as the CC pointed out in the Van Rooyen decision, magistrates are not as ‘independent’ as are judges, and if they and judges are appointed by the same body, that might adversely affect the independance of the judiciary as a whole.

Maybe, I wouldn’t know. I missed them after all !

“I think maybe you are the one with the agenda of protecting your friends. It seems to be a culture that permeates the entire legal fraternity.”

No, not really. I hate corrupt lawyers. I just don’t see what you’re on about. But then again I will also have to admit that I haven’t dug as deep as you apparently have.

“PS. If you have a pair, prove me wrong!”

To be honest, I don’t care enough. Not that I don’t care about corruption. It’s that I haven’t seen anything which to me (as opposed to you) supports the corruption allegation. All I see is the possibility of some poor judgements. But if I think about it for a moment, possibly what you are trying to say is that the judgements are *so* bad that no one could possibly believe that the judge was truly acting in an impartial manner; that is no one has bribed him but he has been so influenced by the admitted atrocious behaviour of the accused that the true essence of the matter has been ignored; the judge may have been bona fide but he screwed it up so badly its obvious to an independant observer that its all wrong and that he is not acting objectively because he is blinded by the behaviour of the accused . Am I right? If so, I can’t see what remedy you have. The process has been exhausted. There is nothing the JSC can do about that I don’t believe – that is for dealing “skelm” judges not with judges who are merely “vrot” judges or mistaken judges or who get it all wrong or who are blinded by their emotions or prejudices. On the face of it I think you’re stuck where you are unless you can clearly show mala fides. But returning then to the question of proving you wrong (or right!) I can’t see what the point is. I really don’t intend to spend the next few weeks of my life trawling through transcripts and other information to figure out whether you are right or wrong and to win a debate here on this blog – and given my sense that you are stuck without further options unless you can show some sort of mala fides I can’t see what else would gained by my doing so. Sometimes the system just sucks but its the best we’ve got. I must tell you though that leaving aside the gladius christi issue of dealing with a corrupt judiciary, I don’t think much will be gained for the four in question. I think if I was on the bench (and admitting I don’t know a great deal about the matter at all) I would probably have given them 12 years anyway just on the basis of their own admitted facts.

Charles, no offence meant but I think unless you have a great deal of money, time and patience you’re not going to get anywhere fast on this one. But hey! I might be wrong!

Take care.

I would say further that the deliberations passsage is arguably the most important passage in the process. I hope I have this right, but it strikes me that the interviewing passage is the spell druing which the JSC members marshal facts upon which they will (we hope) premise their determinations. This is quite distinguishable from the deliberations passage. And it is during this latter passage that the public would be able to determine whether there are reasonable and logical connections between the material gleaned during the interviewing passage and the the material used as grounds during the deliberations passage.

The second point speaks to a point raised by Henri. He seems to draw an inference from Mpati JP’s communications. And to me that inference seems to be that a general tend amongst members of the judiciary is that they entertain reservations about the role which judges are to play in the appointment process given the meagre judicial representation on the JSC. And to echoe sentiments which Henri put forward, I think that they should. It seems to me that judges are rather a token faction on the JSC. One could argue that the principal purpose of their presence is to promote a fiction of propriety so that the JSC can enjoy a measure of legitimacy that is too generous by far.

What personal agenda might that be? The promotion of justice and accountability or maybe murder? I thought it was gross incompetence/negligence until I approached the JSC. Instead of skilfully dispelling my accusations, they shrugged it off. The ever so clever JP B M Ngoepe then stated (in writing I might add) that it is irrelevant when judges are wrong. Then they clamped down. It has now been more than six months and I am yet to receive any intelligent feedback from the “honourable” judges or JSC. Why do you think would they refuse to address accusations of this nature? Can it really be that four levels of court can miss the blatant mistakes made by the learned magistrate?

Every single application for appeal clearly highlighted a multitude of blatant mistakes and it went through all these very intelligent and highly experienced individuals. How do explain that. You are in the business. Have you ever been so dim-witted that you missed a list of 20 mistakes? Have you ever seen a situation where 14 judges missed that? How then can we explain that? If you ever crossed paths with that devilish subject statistics, you will realise that the amount of obvious mistakes made by Magistrate Kotze can not possibly be due to human error.

I think maybe you are the one with the agenda of protecting your friends. It seems to be a culture that permeates the entire legal fraternity.

“That would be because you believe that this is about four individuals and not about the rest of the ignorant and undeserving nation. If you start allowing corruption in the judiciary you are not only punishing a select few, you punish a nation – see Zimbabwe. Where do you draw the line in breaking the rules?”

Well, at this point I remain unconvinced that there was any corruption in the judiciary (strong words on your part by the way). Corruption requires mala fide intent. It may be that there was a bad judgement or that the judge got it badly wrong. But that doesn’t prove corruption. Nothing said on your website that I saw or have read here seems to clearly evidence any “corruption”. Corruption is a very different matter to saying that the court got it badly wrong and that they should not have been convicted.

“In my opinion, when a judge applies the law truthfully he is not doing it for the people before him, but for the rest of the idiots that could not care less.”

Yes and no. Justice correctly done benefits the whole of society. But the interests of the individual accused remain of critical importance and our legal system recognises this.

“They were convicted on accomplice-witness testimony in the face of contradicting physical evidence. Wake up man.”

And let’s see, your contention is that the Magistrate was corrupt, that the Pretoria High Court appeal bench was also corrupt and that finally the SCA when it dealt with the application for leave to appeal was also corrupt?

I’m afraid I don’t believe it. I think either you don’t understand criminal procedure and the rules of evidence or you have a personal agenda you are pushing.

They are only whores on the JSC. Their presence is used to mask the truth of the JSC being simply an ANC-dominated commission. But sitting outside of parliament (and created by the Constitution).

A simple evaluation of the prescribed representatives on the JSC shows that it is ANC dominated. And it is well known that there is an ANC “caucus” within the JSC. By their majority they actually decide what happens at the JSC and who becomes judges. That is how Luthuli House’s views hold sway at the JSC. That is how the ANC can ensure that only their candidates get recommended. That is how the JSC is becoming an extension of Luthuli House.

But by their presence the judges add some prestige to what is actually only this ANC commission – then called the JSC. And presented to the public as an oh so independent body that makes recommendations for judicial appointments. What crap.

The previous CJ apparently had no moral problem with the above situation! But Lex Mphati has a better conscience. Obviously he knows what is actually going on and he dislikes being used as an ANC prostitute on the JSC. His remarks were most probably made with the full knowledge of the CJ. It thus reveals a growing discomfort (and rightly so) amongst the judges about Luthuli House’s abuse of the JSC.

It concerns us all. It touches a nerve of the rule of law.

The open question is whether the judges add anything to the JSC process. Or whether their presence on (and chairmanship of) the JSC with its underhand shenanigans undermines judicial independence.

That would be because you believe that this is about four individuals and not about the rest of the ignorant and undeserving nation. If you start allowing corruption in the judiciary you are not only punishing a select few, you punish a nation – see Zimbabwe. Where do you draw the line in breaking the rules?

In my opinion, when a judge applies the law truthfully he is not doing it for the people before him, but for the rest of the idiots that could not care less. They were convicted on accomplice-witness testimony in the face of contradicting physical evidence. Wake up man.