Minister of Justice, Jeff Radebe, is a learned man. He obtained a B Iuris degree at the University of Zululand, and finished an LLM in International Law at the Karl Marx University in Leipzig in 1981. He also studied at the Lenin International School, Moscow in 1985, but it is unclear what qualification he obtained there.
It might be of no consequence that Radebe obtained most of his legal qualifications in a communist country. After all, the constitutions of most communist states described their political system as a form of democracy. On paper such states recognized the sovereignty of the people as embodied in a series of representative parliamentary institutions.
But here is the rub: Communist states such as that of East Germany and the USSR did not adhere to the principle of the separation of powers. Instead, they had one national legislative body (such as the Supreme Soviet in the Soviet Union or the Volkskammer in East Germany) which was considered the highest organ of state power and which was legally superior to the executive and judicial branches of government.
No wonder, then, that Radebe has some difficulty with concepts such as an independent and impartial judiciary and the separation of powers. They obviously did not teach that stuff in Leipzig or Moscow. Yesterday, Radebe got into a terrible muddle when he tried to defend the appointment of Adv. Mokotedi Mpshe as an acting judge. First he claimed that the appointment of a member of the NPA would not compromise the independence of the judiciary, amongst other reasons because:
Members of the NPA are paid by the government. The GCB makes a convenient omission which undoubtedly advances its course (sic) by not referring to instances where advocates and attorneys in private practice take positions as judges. These are legal practitioners who get briefed to appear on behalf of government and get paid by govt…who during their acting stints may have to adjudicate matters that involve govt.
Apart from the fact that Radebe confuses the government and the state (maybe because in Leipzig and Moscow in those days there was no distinction between the two?) his argument about payment of acting judges completely misses the point. Full time judges are also paid by the state, but no one has suggested that they are not independent because their institutional independence is safeguarded. The fact that members of the NPA are paid by the state is therefore not the reason why the appointment of Mpshe (or any other member of the NPA) as acting judge would infringe on the independence of the judiciary.
Rather the problem is that NPA members are state employees and are subject to the authority of the head of the NPA – unlike advocates who work for themselves (and are not answerable to the Minister or the head of the NPA) and university lecturers who are subject to the authority of their universities (not to the Minister or the head of the NPA). A member of the NPA appointed as acting judge will be required to serve two masters by being both subject to the authority of the head of the NPA and subject only to the Constitution and the law which he must apply without fear, favour or prejudice.
As the Lesotho court of appeals warned, where a member of the prosecuting authority is appointed as acting judge his or her “official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors”. Such a person will not be independent as required by the law because he or she will be accountable to someone with a direct stake in the outcome of criminal cases.
Which brings me to Radebe’s second brilliant argument. He says the Constitution guarantees the independence of the NPA, so an employee of the NPA could therefore not be said not to be independent when acting as a judge. Oh dear, they must have forgotten to teach either logic or reason in Leipzig and Moscow.
First, it’s great to hear the Minister has had a change of heart and now believes in the independence of the NPA. When he defended the appointment of Menzi Simelane a mere three months ago he made it clear that he did not believe in such independence. It is also great that he has now corrected his boss, President Jacob Zuma, who said two months ago that the government is the NPA’s boss. Now that he has changed his mind and believes the NPA is independent, he will obviously ask the President to fire Simelane, who has a different view.
Second, Radebe seems to have a bit of difficulty to understand the concept of independence. Even if the NPA is independent from the government, it prosecutes cases to court. An independent member of the NPA who acts as a judge may therefore be asked to hear a case prosecuted by one of his colleagues. Such an acting judge could therefore not possibly be independent AS A JUDGE because he will not be independent from the NPA who is prosecuting the case before him or her – if he is still employed by the NPA.
Radebe seems to be unaware that an independent member of the NPA cannot at the same time be independent FROM the NPA.
In any event, Radebe also announced that Mpshe had resigned from the NPA. If he had any sense he would have focused on that fact to answer his critics. But he could not do so, because that would have amounted to an admission that serving NPA staff should not be appointed as acting judges and that, in turn, might have required him to admit (gasp!) that he was wrong. And I am told people who studied in Leipzig in the eighties do not like doubt and very much hate being wrong.
“Radebe emphatically rejected suggestions that Mpshe was being rewarded for dropping the case against President Jacob Zuma, saying he was an honourable person who based his decisions on the law.”
Yeah right!
http://www.timeslive.co.za/local/article314509.ece
Well, they can do whatever they want, right? When last did we see one of these ministerial decisions overturned? Could they care less for the Constitution, equality under the law, ethical or democratically committed ideals? It’s all become a sad joke, the pretence of Democracy, whereas the proof lies in the pudding. Thank Gawd for karma, that great balancer over time of all actions and corruptions. Pity about the time required. It will change however, for better or worse, then worse for better. One day SA will actually be free, unless of course all whites are driven into the sea.
Have you seen by the way the pictures of Mad Bob’s palace in Zim doing the rounds via email? Actually, quite astonishing!!!
Radebe “does not know why Mpshe would be rewarded”. The minister surely has unbelievable loss of memory. Radebe is the same guy, together with Nyanda, that argued that Siyabonga Gama was being “persecuted” for political reasons. He’s the same guy that alleged Zuma was being “persecuted” for political reasons. It’s becoming clear why Mbeki “demoted” Radebe at the beginning of his second term as president.
@Sirjay
I am not sure which e-mailed photographs of “Mugabe’s mansion” you saw, but pse check http://www.hoax-slayer.com, which has debunked this myth.
I had hoped you would not descend on the intellectual intergrity of the person but interrogate the logic of his response.
http://www.gcis.gov.za/gcis/directory.jsp?dir=4&heading=Profiles
I’ve never heard of Deputy President E Thabethe. I wonder if this has anything to do with the quality of the people we have in our public service, “the I don’t care attitude”.
It is disappointing – although thoroughly predictable – that Radebe would muddle the distinction between prosecutorial independence on the one hand, and judicial independence on the other. I’m pretty sure I speak for at least a few South Africans when I say that it would be pleasant if the Minister could keep in mind something that the wise among us have advocated for years: for heaven’s sake, keep your teeth together until you’ve thought through what you want to say.
But it could be that in our understandable enthusiasm to say some scathing things about Radebe, we could end up doing ourselves a disservice. I hate to say it, but Radebe did say something that could amount to a valid concern. That concern does not advance his case that the appointment of an NPA employee as an acting judge does not compromise judicial independence. But is does, in something of an unrelated sense, amount to what could be a pretty valid point.
Jeff brings up the reality that advocates and attorneys do government work. I’m going to talk about advocates specifically and the possibility that an advocate’s practice can come to rely heavily on government briefs – so much so that in the absence of those briefs, the barrister’s practice could collapse. The question becomes: is it unreasonable to suppose that if such an advocate were appointed as an acting judge, and was called upon to decide a case that concerned government, that she could be unduly sympathetic towards government? I’m not entirely sure it would be unreasonable.
So my point is really just this: the Professor’s distinction between the position of a member of the NPA on the one hand, and a lawyer in private practice who gets government work on the other, is valid. But that is not to say that circumstances could not arise in which government could hold a species of sway over a private lawyer serving as an acting judge.
Justice: I’m not so sure this is a hoax re Evil Bob’s palace. It took years to build his home. Perhaps we should ask Eddie Cross, and he can enlighten us. If confirmed, I will post it on a site for all to see.
Regardless, is there a question in your mind that this man lives in luxury while his people suffer by his actions?… is that what you are suggesting… while a 3rd of his people have departed or been driven away. Do you recall how many have died of disease, murdered, tortured, raped.
65 million for JZ’s new abode, and I bet you it reaches 200.
Hoax or not, the only thing missing from the photos are the armed men with AK’s and rocket launches at the ready.
Leigh: Is that dancing with the devil?
Isn’t liberation just the most wonderful thing… for your bank balance.
Sirjay, if by ‘dancing with the devil’ you mean (a) litigants typically do not know the nature of the private practices of acting judges, (b) they do not know the financial circumstances of acting judges and (c) they do not not the characters of acting judges (and some private practitioners are hardly saintly), then that could be dancing with the devil.
Thanks Leigh for your response. I would, however, prefer to dance with angels.
In order for the North West High Court to avoid further controversy, the Head of the Court simply has to ensure that AJ Mpshe will not hear any case where the NPA is one of the parties, and avoid cases where govt, most notably national govt, is one of the parties. If it happens that AJ Mpshe is the judge in a case where the NPA or a national govt dept is involved, then surely the other party or parties simply has the ask the judge to recuse himself. If not, then surely this could be valid grounds for an appeal, right?
As Leigh points out, there is different degrees of independence. Even a private advocate appointed as acting judge could favour govt if his/her practice depend to a large extent on govt work. In the end, it boils down to the type of person. And certainly PdV and others is of the opinion that Mpshe is easily presurised to side with the current govt given his decisions on Zuma and Selebi.
But the unanswered question: who else was considered as acting judge for the vacant position???
Leigh: I have a brother who is a top litigator, a man sometimes referred to as a piranha. He told me in a moment of rare honesty: when a paraplegic walks in the door, he couldn’t stop him self from rubbing his hands together with glee.
That may be his scene, but certainly not mine.
Leigh: I should have said: ‘wheels’ in the door.
@sirjay
I do not doubt that Robert Mugabe lives in a most luxurious home, but the e-mailed photos I got, are reproduced on www hoax-slayer and also on http://www.snopes as NOT being his home.
I don’t think it is a valid point to compare an employee of the NPA with an advocate in private practice who receives briefs from the state attorney on a regular basis.
I understand the normal way of appointing an acting judge is for the judge president to make a request to the minister to appoint a specific person nominated by the JP to act on the bench. It seems from news reports that in this case Mshe asked the minister to appoint him, and the minister then looked for a vacancy so that he could do the favour Mpshe asked for. Or should it be, return the favour?
No worries Sirjay. Your post at 18:55 underscores one of the decidedly unattractive ways to look at litigation for damages: the bigger the plaintiff’s loss, the bigger the fees plaintiff’s attorney and counsel stand to earn. This is especially so in personal injury suits – damages litigation for counsel and instructing attorneys is about benefiting from human misery. There are healthier ways to look at these sorts of lawsuits. But in truth, I actually tend to the same cynicism that you do.
However, while your point certainly goes to the view that many lawyers will not score sensitivity points, when I spoke of less scrupulous lawyers, I meant more that in practice, the lawyer’s want for useful contacts, financial security and convenience can often outweigh the sort of commitment to ethics that law school students prattle on about.
C’Mon Pierre.
You are not naive. Please stop the pretense. You know as well as I do that a constitutional democracy such as our is one one the oldest political ploys. It is a ploy to seize power – by offering much to the masses – and having done so, to change the political regime.
Our ruling elite don’t really want this c*&p. What they really want is for us – not them – us to follow the dictates their once-upon-a-time communist masters.
Chris, while there are clear differences between appointing an NPA employee as an acting judge on the one hand, and appointing an advocate whose practice depends heavily on state briefs on the other, there is a bit of common ground between the two circumstances. That common ground is that under both circumstances, a state institution has some kind of influence over the lawyer in question. And thus under both circumstances, the lawyer, be she a prosecutor or a private litigator, would probably want to avoid disgruntling the state institution in question.
You are a bloody idiot.The University of Liepzig has a higher ranking internationally than all South African universities.
http://en.wikipedia.org/wiki/University_of_Leipzig
The Constitutional Court held in: President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (7) BCLR 725 (CC) held that the correct approach in deciding whether a judge can hear a matter is:
“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.”
Now, has Minister Radebe LLM considered this in determining whether Mpshe is the ‘right man’? Would a reasonable, objective and informed person appearing before Mpshe, reasonably conclude that same will be impartial in deciding the case when one considers his handling of the Zuma matter? Also, in deciding this appointment, can one reasonably conclude that the LLM in question here has applied his mind to the facts of the matter? I say no!
Well its obvious and for everybody to see and experience: Our minister of justice is a legal clot.He’s an embarassment to the legal profession.
But what of the roll of the North West JP in accepting this acting appointment? Does he/she condone it? And what does that imply of that JP? And of that Bench?
But watch how the minister and the ANC caucus in the JSC {previously under “chairmanship” of one Seth Nthai} would in the future steamroll Mpshe’s permanent appointment as judge through the JSC.
@Manyova
February 18, 2010 at 21:31 pm
Strange that. But it’s true. However, just like our hospitals, they used to be internationally acclaimed. Until the ANC did what they do best …. stuff everything up and keep the money for the cadres.
i can assure you that if it was pikoli who was appointed acting judge,that would have received applause from many sectors of political spectrum, i sincerely does not believe that independant mind/body exist,we always got a particular frame reference.
@Manyova
You have to be bloody stupid though to think that Wikipeadia is an accurate source of anything. Who do you think writes the stuff about Leipzig ?
Well … errr… uuuh … actually it’s the people at Leipzig University (not Liepzig as you put it).
Duh !
John Roberts says:
February 19, 2010 at 6:20 am
“However, just like our hospitals, they used to be internationally acclaimed.”
The good old days eh, how we long for it.
Give these people freedom and equality and just see how they mess it up.
kenneth says:
February 19, 2010 at 6:21 am
“i can assure you that if it was pikoli who was appointed acting judge,that would have received applause from many sectors of political spectrum, i sincerely does not believe that independant mind/body exist,we always got a particular frame reference.”
It was reported “Freedom Under Law (FUL) joined the General Council of the Bar in expressing concern on Wednesday over Mokotedi Mpshe’s appointment as an acting judge.”
Nice eh. These organisations that have South Africa’s interests driving them.
We can all take comfort because the GCB says :
“Advocates who are members of the General Council of the Bar of South Africa (the GCB) are competitive specialist advocates, who are experts in trial, motion court, appellate and opinion advocacy.
“For advocacy, advice or arbitration in matters involving Southern African Law, the South African Bar is a rich source of talent, expertise and specialisation.
“The Bar identifies itself fully with the ideals, aspirations and challenges presented by a new democratic South Africa. As a body of independent practitioners, the Bar is committed to providing specialised legal representation, at fair fees, to all persons who require such service.
“By providing this representation, as well as facilities for the protection of human rights, access to justice for indigent persons and alternative dispute resolution, the bar serves all the people of South Africa.”
Nice eh!
Manyova says:
February 18, 2010 at 21:31 pm
Did you know that wiki is an unreliable source of information? Nobody checks it or verifies it – and anybody with a little knowledge can change information on it. Did you perhaps miss the following right at the start of the article in the link you provided?
“This article needs additional citations for verification.
Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (October 2009)”
I am disappointed Prof. You reveal a prejudice that I would not have suspected. So what if Jeff Radebe studied in the old East Germany? If we use that logic, then it means all of those who studied under apartheid universities are tainted and therefore remain racists to the end of their days! You sprinkle legal argument sparingly based on playing the ‘man’ and not the issue. Clearly, you are being doubly influenced by the overwhelming negative comments in this blog.
Maggs is right.
Everything was worse pre-1994.
Everything is better post-1994.
To add to Donovan’s point:
Snuki Zikala holds a Phd from University of Sophia (Bulgaria.)
That hardly made him a bad broadcaster.
Manto had a medical degree from Moscow.
Would that stop you visiting her for your annual check up?
Interesting point made by one De Havilland that a declaratory order should be sought on the constitutionality of such an appointment. At:http://www.legalbrief.co.za/article.php?story=20100219092059340
What is sorely needed in this country is a properly funded body, like the LRC / LHR in the previous dispensation, to engage in civil rights / public interest litigation like this. That could masively enhance constitutionality in the country.
Mikhail Dworkin Fassbinder says:
February 19, 2010 at 7:53 am
Oops Dworky,
I forgot my p.s. in my post February 19, 2010 at 7:30 am.
It’s especially relevant since I am so very impressed with these guys.
p.s. “Thirteen advocates, including two senior counsel, have been charged by the Pretoria Bar Council for “double briefing” on Road Accident Fund (RAF) legal cases, allegedly involving millions of rands”
Further upping the toll on the RAF’s coffers, he said, has been the rate at which advocates charge their time. “It is accepted that advocates charge 10 times their hourly rate to appear in court … If they take five briefs for one day, they charge for five days in court, even if the matters settle [without a full hearing in court].”
http://www.mg.co.za/article/2010-02-19-road-fund-advocates-face-charges
Any bets that Mpshe will be reappointed by the NPA (or Dept Justice) after his stint as acting judge is over? If a permanent slot on the bench doesn’t come up for him before then, of course.
Michael Osborne says:
February 19, 2010 at 7:57 am
Michael – You’re joking about whether Manto’s reported Alma Mater would have prevented me from going to her for my annual checkup, right? I hear the Vodka there is so strong, when you go and urinate the following morning the drops can burn holes in your shoes. And Manto’s history pertaining to the HIV AIDS debacle creates a strong impression that her qualification (wherever obtained), was no good. … But then again, Radebe only studied at Moskow – it is unknown whether he ever completed any qualification there. Leipsig? Different question altogether.
Pierre, far from scorning Cmd Radebe’s training at Leipzig , we should harness the insights into Socialist Legality he would have obtained there.
You are correct that Socialist Legality does not place great weight on the separation of powers. But that is because the SOP is seen as a liberal/bourgeois indulgence intended to blunt the will of the masses as expressed through their popular representatives.
The masses demand Transformation. The so-called “independent” judiciary, nostalgic for the old order, must not stand their way!
So the ANC is further eroding the idea of an independent judiciary, constitutional supremacy and the rule of law…
And people are surprised to learn the ANC doesn’t understand independence or the difference between state, government and party (aka cadre deployment)?
Hmm, what else is new?
Mikhail Dworkin Fassbinder,
The masses demand transformation?
Really?
Oh no, I thought all those service delivery protests were about service delivery. Suppose we should now call it transformation protests then…
Tsk, the liberal media again, always spinning and things with their counter revolutionary, imperialist while middle class lies…
Firstly, Adv (Judge?) Mpshe is definitely NOT independent in any case relating to Minister radebe’s department. He asked the Minister for a favour, and this was granted. his could be got round by recusal, perhaps, though.
Second, what is the normal practice relating to acting judges? How long do they remain in position? If there is an acting judge, then that means that there is a vacancy (possibly temporary). Surely this means that the position must be filled by the JSC. Has the procedure for filling the vacancy on a permanent basis been commenced? What are the steps that should be taken by that J-P? What happens if that J-P does not commence those actions?
As I have slagged you off in the past for articles which appeared to be laden with dollops of political correctness – something to which I am seriously allergic – it is only right that I give you credit where it is due. A very good article Pierre and well done.
It would seem that Radebe is serious about acquiring the reputation of being Cabinet’s most cynical, sneering and odious minister, a mantle previously held by the “redoubtable” Alec Erwin.
Regarding the Prof’s reference to Minister Radebe’s Alma Mater for his LLM, are some of us on this blog not guilty of playing the man, not the ball / ad hominen attacks on Prof Pierre, a practice that is quite rightly frequently condemned on this blog?
Prof was not casting aspersions on the merits of Leizig Universtity, he was pointing out that at the time – 1981 – that Jeff studied there, he was unlikely to have been exposed to detailed discussion of the principle of separation of powers, as in 1981, Eastern germany was under communist rule and control.
It may well be that Leipzig in 2010 has a better accreditation that most or all SA universities, but the whole concept of a ranking or totem pole for Universities is frauight with pitfalls.
Anyone that has studied – successfully – at more than one university will have realised that within each universtiy, there are faculties that are “better” than others, with more resources, greater research done, more experienced and better qualified academics etc.
So University “A” may have a great Commerce faculty, but an ordinary Fine Arts faculty, and no medical faculty at all.
By all means compare faculties, but to compare whole institutions can be dangerous.
One last point – there is a world of difference in the knowlege level of an individual who graduates top of his or her class, and one that scrapes thorugh after an extra 2 years and lots of sups.
It seems that the Prof may have touched a raw nerve here?
On the other hand, I guess that all of the above is moot if you do not even have a high school education or you obtained a matric pass on standard grade by virtue of a “G” in woodwork?
Mikhail Dworkin Fassbinder says:
February 19, 2010 at 7:53 am
Hey Dworky,
You’re wrong about that.
Not everything was worse pre-1994.
Not everything is better post-1994.
Remember the toilets in the veld??
Those had walls, unlike the post apartheid ones somewhere!
Considering how apoplectic you were, some days ago Prof, calling all and sundry to rise against this appointment, your article today is a bit er…. what? Weak.
I guess with one deft move, Jeff has knocked the wind out of those arguments. The criscism you raise is just clutching at straws.
Reading Radebes full statement, I am sure you agree he was correct, even if you don’t reaally reaally agree. Ne.
Great post Pierre.
Dumisani says:
February 19, 2010 at 10:52 am
I read Rabebe’s statement, and he absolutely failed the impress. His statement can only be described as totally nonsensical.
Mike Atkins – “Second, what is the normal practice relating to acting judges? How long do they remain in position? If there is an acting judge, then that means that there is a vacancy (possibly temporary). Surely this means that the position must be filled by the JSC. Has the procedure for filling the vacancy on a permanent basis been commenced? What are the steps that should be taken by that J-P? What happens if that J-P does not commence those actions?”
I do not think it is as simple as all that – e.g., Chris Eksteen, retired Regional Court President Johannesburg, has been acting as judge in the Pretoria High Court for quite a few years now, I think almost non-stop since his retirement from the Regional Court Bench. In the light of his age, and in the light thereof that he is receiving a pension (something that judges don’t do when they retire – they receive a salary for life) in addition to his remuneration as an acting judge (which is the same as that of a permanent judge), I do not think that he’ll ever apply (ofr ne nominated) for a permanent appointment. Perhaps it is more a question where, even if there exists no vacancy – the incumbent judges cannot get through all their work, a JP will have an acting judge appointed to help.
Fair enough, Maggs. You caught me in a sweeping generalisation.
Obviously everything is better now than pre-1994 — except for those unfortunate enough to live under the thumb of the Botox-addled uber-hypocrite Madam of the south west.
Oh so many to your rescue, Prof, so many! And judging by their previous posts those who have jumped to your defence are those who consistently project rabid anti-ANC views. It is a shame the company you keep nowadays. Pretty soon you will be supporting homophobic legislation!
By the way, George W studied at Harvard, that does mean that we need to think that Harvard is an Islamophobe institution and has no respect for International law, multilateralism, etc.
The views express right now do not deal with the argument put forward by Jeff Radebe. Rather, it tries to paint a picture that since he studied in East Germany and Moscow therefore he has no respect for the separations of power doctrine, vis-a-vis rule of law, and that is why he cannot see or determine that he is undermining separations of power. This is a weak argument based on personality not on whether an appointment from the bureaucracy onto the bench in an acting position is actually a comprehensive undermining of the separations of power.
Indeed, it is arguments like these that give an impression that the law, and at various times the Constitution is used by individuals not for the goodness of either the law or the Constitution but to halt or slow down transformation. A stance like this is reactionary. A stance I did not associate with Prof. de Vos.
Finally, please note that the first liberal revolution in 1789, in France, and the ones following thereafter, like bloodless ones in Britain, stopped short of transferring all to the majority. The main compromise was the right to property which was secured in exchange for the right to vote. In feudal and monarchy dictatorships only nobles could own land, for the peasants and workers to also get the vote they had to agree that the right to property can exist and they won’t take the land from the nobles, which the nobles got through inheritance and gifts of the monarch (God’s representative on Earth). Even in that time a major principal of constitutionalism like the right to property can be regarded as anti-transformation.
No-one is arguing for the undermining of the Constitution. But the moment we raise the Constitution to an ideological stance, namely Constitutionalism, then we undermine the very Constitution we claim to be serving.
Prof. be principled enough and apologise for throwing aspersions on the intellectual capacity of the Minister to understand our Constitution based on where he studied, and also proffer an apology to the institutions themselves. Of course, that does not mean you do not need to dissent with his opinion and/or interpretation of the rules and what it allows.
I fully agree with Donovan above. Your spurious attacks on where he had obtained his qualifications are less intellectual than the fact that Radebe can proudly say that he studied in “former” East Germany (not East Germany, as purported). Incidentally, of the 100 best universities in the world, not one single South African university is listed whereas Germany occupies 6 of them (!). So I ask myself, what is the relevance of dragging the fact that he obtained his qualifications in former East Germany in the discussion?
http://en.wikipedia.org/wiki/Jesus
Found this on wikipedia
@ Donovan
“No-one is arguing for the undermining of the Constitution.”
No, Donovan, I am indeed demanding the undermining — or at least the amendation — of the Constitution, insofar as it entrenches the separation of powers as a bulwark against Transformation.
(We have all witnessed the stark racism of liberals of the Con. Court in their attacks on Hlophe JP.)
This is why I, for one, welcome Cmd Radebe’s determination to apply the Socialist Legalism of Leipzig to demolish the hegemony of liberal jurisprudence!
now if we can just clarify accurately how soon he is cumin back that should solve most world problems ?
It seems that the appointment as acting judge is for six months. It will be interesting to see what happens after this. It would normally be quite risky to quit one’s job with only a six-month appointment to follow.
Sorry I’m late, I just want to point out that there is evidence to confirm that Radebe and the ruling party is quite tired of every Tom, Dick and Harry teaching them lessons in their Constitution and here it is: Radebe says: “This is yet another politically motivated complaint disguised as pursuit of the principle of judicial independence, the rule of law, and related principles”.
I think this is also a good point to voice my concerns for judiciary independence, I’m afraid there will not be much faith in the last hope to restore order in this place we call home either. Maybe if the anti christ’s name is on the voting pamphlet I will consider voting for her/him if they could reduce my taxes and create more jobs, but now that I think of it, I’m only on the first stage of becomming desperate to lose faith in governance, there are millions who have been desperate for many, many years and maybe they felt this way too and voted for the antichrist, there you have it. Maybe JZ is the antichrist, prof you got into shit for calling him a gangster.
Mike Atkins says:
February 19, 2010 at 13:09 pm
“It would normally be quite risky to quit one’s job with only a six-month appointment to follow.”
It would be risky. But wise people would mitigate the risks.
On an entirely separate note, isn’t there a judicial training institute in the pipeline?
It is clear that Minister Radebe has unconventional views of the separation of powers. He wrote in the Sunday Times of 12 April 2009:
“The opposition should not be selective in discussing the role of the director [of public prosecutions] because, in terms of our law, he, in exercising his discretion as dictated by our laws, assumes a judiciary function. As I stated, this function cannot be usurped by another court or judge.”
@ Mike Atkins.
Methinks there is a vacancy for good prosecutorial skills :
“The Western Cape African National Congress (ANC) has brought new charges against its ‘recalled’ provincial chief whip, Max Ozinsky — days after a provincial disciplinary committee under advocate Andre Gaum threw out charges against him. ”
“The ANC was left red-faced on Tuesday when the disciplinary committee found that the charges against Ozinsky did not detail the alleged violation, as required by the party’s constitution.”
“Rasool’s disciplinary hearing, also due to begin this week, was postponed indefinitely.”
http://www.mg.co.za/article/2010-02-19-anc-brings-new-charges-against-ozinsky
“Bar Council attacks Radebe
“2010-02-19 20:39
“Johannesburg – The General Council of the Bar (GCB) on Friday attacked Justice Minister Jeff Radebe for defending appointing former NPA head Mokotedi Mpshe as acting judge.”
http://www.news24.com/Content/SouthAfrica/Politics/1057/5e20622bf82947c4936d79e9b03cd6c4/19-02-2010-08-39/Bar_Council_attacks_Radebe
It would be wonderful if the GCB first rids itself of the crooks and criminals within it’s own ranks.
http://www.mg.co.za/article/2010-02-19-road-fund-advocates-face-charges
Donovan, no, no,no. Radebe’s shocking and dangerous views came first. His LLm at Leipzig just explains the views he has expressed and assists in mocking him for making such blatantly self-serving and illogical statements in the revise of Msphe, whom he is rewarding for (i) unlawfully ctaking orders from the Mbeki government to cancel the arrest warrant for Selebi and (ii) unlawfully dropping the charges against Zuma.. I am not questioning Radebe’s intellect: merely his integrity and his commitment to the Constitution as interpreted by our courts
While I don’t like the lambasting of Leip’sh Universitaet, having studied there for a while, I will concede that it was post-GDR days. I have generally held our judiciary in high esteem, as I studied at Wits while Chaskalson J was still Chief Justice. The general slump in standards over the last few years, however, with the attempted appointment of the beloved and, of course, highly respected Judge President of the Cape. I find it very disturbing to see us on a course remarkably reminiscent of Russia, where I am currently based. Here, the accepted norm is that United Russia controls the judges, the judges do not question anything, and the party with the biggest bribe and the closest ties to United Russia wins. Replace United Russia with ANC NEC and you’ve got yourself a deal, as it were. We do still have a semi-independent judiciary, but the slippery slope is beckoning. It will be a test of the resolve of our democracy to see whether we end up with a similar situation to Russia, where Stalin ( a Georgian, for those readers with a sense of irony) was voted the Greatest Russian of All Time, or whether we realise that the current situation is untenable. To quote very many bad writers in this country (of which I count myself as one) – I don’t care who rules the country, just as long as they do it well.
At least the moronic attempt to bash Leipzig has been exposed.Not one South African university comes close and you don’t need Wikipedia to tell you that.
Manyova, you obviously have difficulty distinguishing between the University as it was in 1981 under the GDR and as it is today. Even on Wikipedia it states: “By the end of World War II, 60% of the university’s buildings and 70% of its books had been destroyed. The university reopened on 5 February 1946, but it was affected by the uniformity imposed on social institutions in the GDR. In 1948, the freely elected student council members were disbanded and replaced by FDJ members. The chairman of the Student Council, Wolfgang Natonek, and other members were arrested and imprisoned.” an article in Time Magazine described that institution under the GDR as follows: “last week Leipzig, which took six centuries to build, was a model of how to kill a great institution in six years….Today the ancient school, which the Nazis corrupted and the Allies bombed, is a moral as well as a physical ruin. Across the burned-out front of its baroque main building (on Karl Marx-Square) are red banners blazing dubious slogans. Sample: “Friendship with the Soviet Union insures peace, protects freedom and provides a better life for all.” For 185 teachers and 13,800 students, contrast with the vibrant past is painful. Leipzig is the largest East German University—and the saddest. It is an outright Communist trade school.
Except for physical sciences, headed by Nuclear Physicist Gustav Hertz, almost every Leipzig department has been destroyed academically.”
Read more: http://www.time.com/time/magazine/article/0,9171,864995,00.html#ixzz0g3DIYquo
Leigh raises an important point about the impartiality (not independence) of acting judges who happen to be private practitioners and get lots of work from the government of the day. This is a difficult one as the pressure for transformation will make it difficult to preclude advocates who get government work from acting as judges. I do not have a ready answer. The problem with Mpshe is BOTH that as NPA member he cannot be independent in the way required by the Constitution and that given his track record (following orders from politicians by canceling arrest warrant for Selebi and dropping charges against Zuma) a reasonable apprehension will arise that he will not be impartial. On both counts the appointment is therefore problematic. But to this must be added a third concern: the Minister shopped around for a job for him and went to the acting judge president (who will apply for the post of judge president and would therefore be stupid to cross the minister). She is in a vulnerable position and he exploited that to secure a post for Mpshe – the irresistible inference will be drawn by most reasonably well informed people with all the facts at hand that this was a reward for services rendered. This makes the appointment a disaster.
Pierre de Vos says:
February 20, 2010 at 5:24 am
“It is an outright Communist trade school”.
Malema is also complaining about the communists trying to take over the ANC.
Johnno says:
February 19, 2010 at 20:27 pm
(Manyova – also please note)
Johnno – Concerning your remarks on the Russian system. We recently had a visitor (female) from Kyrgistan for whom my daugther tutored English for six weeks. She is herself a lawyer in her country. Her husband works for the KGB (“Khe-Ghe-Bhe) – which, incidentally, shows that the state is not yet totally independent from Russia. Nevertheless, she, interviewing me on our judicial system, told me that judges in their country are some of the richest people, simply because ‘bribery’ (read in the RSA context, ‘corruption’) is big, very big. The guy with the biggest bribe wins.
I’m also scared of that happening in South Africa. Just the other day, we read in a local newspaper that a colleague of mine (regional magistrate) in the Limpopo Province (no names, no pack-drill) had been arrested together with the prosecutor from his court. What happened was, when the police became aware of the fact that certain ‘guilty-as-sin’ accused pesrons came of with a mere slap on the wrist, for no apparent reason, they (falsely) charged a police informant with a serious crime. They gave him ‘marked’ banknotes with which to try and bribe the prosecutor. Afterwards, and after a prolongued adjournment for lunch, when he received a wholly suspended ‘sentence’ of a fine, the police searched both the prosecutor and magistrate. Guess what? They found half the marked banknotes in the prosecutor’s possession, the other half, in the magistrate’s possession.
This is exactly the kind of thing (although, a little more covert) that one fears would be the position with Mpshe. A judge (and, therefore, acting judge), earns much, much more than a mere DPP (of course, for a while, Mpshe was acting as NDPP, who receives the same salary as that of a judge – and a drop in salary for someone who has done a favour for the government of the day will just not be right!). According to Radebe, he has already resigned his position as DPP – for him to BECOME independent! – and his appointment will therefore not be intruding on the separation of powers doctrine. However, as indicated by Mike Atkins above, an acting judge is normally appointed for a period of six months only (although the Minister can extend that appointment almost indefinitely by renewing it every six months), it would be quite risky if one would resing one’s job for such an appointment. This means that, Mpshe has already been ‘promised’ a permanent appointment (and, I’m sure, he wouldn’t find it too hard to get someone to nominate him for permanent appointment – and ther are many vacancies). To my mind, that amounts to a ‘bribe’, and I wouldn’t be surprized to hear if he is awarded some cases to try where members of the government (or ANC cadres) are party. … I suddenly wonder where Mpshe go his law degree. I digress. …
As Prof de Vos makes abundantly clear – Leip’sh Universitaet from the pre-GDR days – does not have a good name as academic institute . The same can be said about the old USSR universities. Ironically, a great many of our modern-day South African political leaders, have either studied at such universities for a brief spell, or have obtained their, highly questionable qualifications at such institutes (e.g., Mantho Tshabalalla Msimang, who obtained her medical degree at the Moskow university). And it is usually these guys (exceptions being, Jacob Zuma, who has had no such formal schooling, and guys like Karl Niehaus, who lied about their qualifications for a big posision in government) that find themselves with their feet in their mouths when making popular, but not necessarily legally sound, decisions.
In this regard, Prof De Vos is quite right to, as part of a sarcastic analyisis of Min Radebe’s, highly questionable decision to appoint Mpshe as acting judge, call into question the teachings from pre-GDR Leip’sh Universitaet that Min Radebe ‘reportedly’ obtained.
To drift from the point (@ large) of small penis syndrome &/or envy or simply ” my one is larger than yours or the fact that I have one like that of an ox?”
I would like to point out the following bit of interesting info I stumbled upon recently bearing in mind that reading being one of the individuality traits I fatally lack? = Nonetheless Universities world wide are rated yearly based on individually professed “quality,” on some combination of some observed statistics, or on surveys of lecturers professors , students, administrative staff, Management,& the continuous assessment of surveys iro the admissions processes ( which some really suck at)..
Surveys of specific academic programs & departments are also conducted by magazines and newspapers (mail & guardian one such paper) and in most circumstances by academic practitioners. some criteria focuses on international student reviews & academic reviews, >> to burst your bubble Manyova, the university of Leipzig is no where near the top 300, but UCT is placed somewhere around 240th place in global stats 2009 , the only African university in the top 300 ?
How accurate can this be ? Well I have to admit that Germany boasts somewhere between 10 universities in the top 300 world wide> but the question that solicits answering is just how accurate are these numbers taking into consideration that The USA boasts all its universities in the top 100? I would have to add that I find it extremely difficult to rate a University with English as its medium of instruction with lets say one in the Russian medium? I therefore believe that a university is only as good as its students & professors?
Contrary though any University that churned out the likes of Friedrich Nietzsche, has to be in a class of its own. In my opinion OF COURSE.
Advisedly what you read informs your opinions Manyova, what sometimes is written or read is largely the opinion of another Quite like constitutional law of which our esteemed professor is the expert?
ITS All interpretation (one man`s terrorist is another man`s freedon fighter)
Case in point the creator of Time magazine was incidentally a die hard Republican, Anti-Communist supporter of the Chinese nationalist Kai-shek who was responsible for the massacre of thousands of communists? He supported the Nationalist (dictator) primarily for his own economic designs?
Oh and we get it already communism is scary right prof?
Ehud, don’t forget research and development, this is the main criteria actually. What discoveries that institution made in the field of physics, legal science or any of the subjects it offers. Some universities have assisted NASA in getting us onto the moon to stand there and say stuff over a very poor reception, others some other stuff, but if a university doesn’t make any significant breaktroughs in a specified field then it wouldn’t get a very high rating.
In less than one year Jeff Radebe has shown the people of this country that he has achieved an embarrassingly poor grasp of constitutionalism. That is, we know from his obtuse defence of the Simelane appointment that he doesn’t get the idea of prosecutorial independence. We know from his freshest display of legal insight that he has a completely wrongheaded understanding of judicial independence. And in addition, his role in the JSC’s decision last year in the Hlophe matter suggests heavily that Jeff has a limited conception as to the JSC’s core function. (I do hope that enough time has passed since the preliminary inquiry and resultant decision so that we can talk about John Hlophe without have to deal with the knee-jerk cries of anti-transformation and conspiracy we had to suffer last year.) So it seems that the scope and regularity of Jeff’s cock-ups demand that we ask a pretty simple question: at what point do we start saying that the Minister of Justice and, more relevantly, Constitutional Democracy, should admit that he does not know what the constitution dictates and he really ought to find out what the hell it demands? I think that time has long since passed us by.
I am questioning Radebe’s intellect. He is not a bright man at all. He simply does whatever Zuma wants him to, so he is there. Do you remember how he proudly boasted that the Gauteng taxi drivers were a wholly black owned industry, two days after Zuma had spoken to the taxi drivers and promised to relook at the BRT system, and just a week after Radebe had treated those same black business leaders like dirt! Of course no apology for his prior attitude, like all stpid people he is too arrogant to appreciate that apologising for what came before is necessary to end credibility to your new position. He is matched only in lack of intelligence by the equally sychophantic Ramatlhodi. Justice and Constitutional Development are in scarey hands. We owe it to the nation to stress this as we work in the courts every day.
Mpho says:
February 21, 2010 at 13:42 pm
The issue of intellect is less relevant than the profound adverse systemic consequences of such decisions and processes which go to posterity.
It’s most unfortunate that this administration has caught up with others rather than ending bad practices and setting a sound basis for future leaders to reflect on when faced with complex choices.
Of more serious concern is the silence of the CJ and the JSC – this is their turf which is being desecrated without so much as a whimper from them.
It’s amazing how some of our countryman can cast aspersions on foreign academic institutions when many, if not most, of our experts, academicians, analysts, and the like were trained in South African universities that operated within the context of apartheid state and as instruments of this apartheid state. This applies particularly to those in the legal profession, who were fed a diet of apartheid judicial precedent and/or British colonial justice, yet who have the audacity to decry the qualifications of persons who studied in countries whose legal systems actively condemned discrimination, at a time when lawyers in the “enlightened west” (many from fancy institutions such as Oxford, Harvard, Yale, etc) were promoting engagement with the apartheid state. Personally, I would appreciate the wisdom of a jurist with a pre-1994 legal qualification from Karl Marx University rather than one with a pre-1994 legal qualification from a South African university.
Vuyo, thanks for that revelation, I never thought of questioning those factors that you mention as I, even with post ’94 qualification, am still being influenced by some apartheid thoughts. I wonder if my situation doesn’t clutter my mind, limit my thoughts, prevents me from thinking the black man wants to progress the nation, to build and not break? maybe if I look further into the past and do more introspection then maybe I’ll see how there is light at the end of the tunnel by correcting the way I think, because that’s how to progress right by means of putting in place those who critisize, those who doen’t want the world cup soccer to take place? Or maybe you could stop questioning the qualifications of only 1% that’s right! of the world’s population with a university degree and see how we could promote more South Africans to believe in education as a qualification.
Vuyo, I agree with you since you probably refer to an infamous ‘hanging’ and now thankfully retired Judge, educated in pre-1994, who just happens to be a part-owner of a wine farm with another Judge President, educated in Oxford.