Reading through the minutes of the public hearings in Parliament on the Protection of Information Bill (see here, here, here and here), is a bit like reading a novel that deals with the Holocaust in a humoristic manner. One is horrified and shocked by the utter lack of decency, logic, humility, intelligence and any sense of respect for ordinary human beings, while at the same time finding some of it darkly funny and ridiculous.
Much of the discussion and questions at the hearings were completely unrelated to the Bill, suggesting that many of the MP’s had no clue about what the Bill intended to do or would in fact achieve. Many other questions and comments displayed a rather Stalinist view of democracy (in other words, it was distinctly anti-democratic). Remember, the Bill would empower heads of government departments and parastatals to classify any document as secret if that document dealt with the “national interest” and would provide for 15 year jail terms for those who leaked or received such classified information.
Some random examples from the minutes would give a taste of the tenor of the “discussion” (I use that word very generously here):
Mr Motitso said that the community where LCDD worked had stated that they did not need the media to protect them, but only the State. Its citizens voted in the government, which had the duty to protect them.
Ms Sunduza asked Ms Moore if she did not think that the Bill would protect the citizens of South Africa.
Ms Mgabadeli noted that there was a need to protect information in order to address issues of poverty.
Ms Sunduza noted that in every democracy there was an obligation on the State to protect its people. She commented that there were many concerns that the South African media was transgressing personal and private rights in trying to secure interviews or comment. She asked that CCR comment on allegations that had been published about public figures.
The Chairperson noted his concerns, but also indicated that legal opinions were only opinions until the case was proven
Ms Sunduza noted that Government had a responsibility to ensure that human dignity was maintained, which was the principle underpinning confidentiality of medical records, banking records and the like. She also pointed out that certain cultural practices must be respected; for instance, it would be considered wrong to discuss information about an older member of a community.
Read these minutes and weep about the quality of representation in our beloved Parliament. A few random questions do come to mind though.
Why are we paying the huge salaries of 400 MP’s if so many of them are completely unprepared for an important meeting like this? Why did many MP’s, who posed questions at the hearings, seem not to have a clue what the Bill was actually about? Did they come to the meeting only for the free food (which, admittedly, is usually quite nice)?
Why did so many committee members not understand that the Bill does not deal with the classification of private medical records, the securing of interviews by journalists, the protection of “cultural practices” like “not discussing information about an older member of the community”, or the criticism of public figures?
Surely one does not need to be a rocket scientist (or even a lawyer) to understand that the classification of documents held by the state would not address the concerns raised by many members during the hearings. One only has to read the Bill – once – to understand that. Did the honourable members of Parliament actually READ the Bill before they asked such stupid and irrelevant questions? The minutes suggests that few of them did.
Second, some members of Parliament have a very scary, paternalistic and anti-democratic view of the world and of our constitutional democracy. The view that the government or the state was the only appropriate body to protect citizens (or that citizens were so frail that we had to be protected from hearing upsetting information – say – about a cabinet Minister awarding tenders to himself) is very reminiscent of a certain kind of oppressive regime where the protection of the elite is equated with the protection of the citizens.
According to this view, ordinary citizens need to be protected from information that could upset us because such information could persuade us to vote for another party. And if that was allowed, well, we would have to ban voting and then it would be a bit more difficult to pretend we live in a democracy.
In a constitutional democracy, a Constitution is put in place exactly to protect us FROM the state and FROM powerful private individuals and institutions who will abuse their power and will infringe on our rights if we give them half a chance. The media is left to do its work to expose the abuses of the politicians and powerful individuals and institutions. Thinking that the state is the only legitimate body that should be “allowed” to protect citizens, is like thinking only Catholic Priests should be allowed to protect young boys and girls from being sexually molested.
Third, the notion that state secrecy is necessary to address poverty and to help ordinary citizens, is paternalistic and arrogant. It is also utter nonsense. In a democracy, ordinary citizens are in charge while politicians have to serve us, the people. We can demand things from the state and if the state fails us we can vote for another party and put them in government in the hope they will do better. But we can only do that if we have as much information about what the government of the day is up to as we can process with the limited time and capacity to our disposal.
Where the government starts thinking that it has to keep secrets to alleviate poverty, it really is saying that it wants to keep secret the extent of the poverty and the extent to which the government has failed to address that poverty. In such a world we will never know whether or how the state is stealing our money, why it has negligently caused the deaths of many babies in hospitals and how it has exacerbated poverty by using the taxpayers money to enrich themselves and their friends. Secrecy would mean that we might never get to know about tender rigging, failures to supply essential medicines to hospitals, arms deal crooks and other cock-ups about service delivery. Secrecy would make us poorer, not better off.
Lastly, every single reputable legal scholar who has commented on this Bill has indicated that at least some of its clauses will be declared unconstitutional by the Constitutional Court. Yet, the chairperson blithely rejected these opinions because they are only opinions. What is the use of a Parliamentary hearing if the opinions of experts (who are unanimous about the unconstitutionality of several parts of the Bill) can be dismissed as mere opinion and hence can be ignored. It suggests the public hearings is no more than a charade – a bit like the show trials in Stalins Russia. (I guess it is also merely opinion that the earth is round, that the earth revolves around the sun and that Father Christmas does not exist.)
To address poverty, to empower citizens, to make our democracy work, we need MORE information and LESS secrecy. Not the other way around. The fact that many of the ANC members on this committee (were they carefully selected for their subservience and lack of insight?) think otherwise suggests that they themselves think that they are not really fit to rule the country and that they are incapable of addressing the many and serious challenges we face as a nation. (These challenges include addressing widespread poverty and unemployment, the vast discrepancies between rich and poor, a failing education system, a health system that only works for the upper middle classes, and racism and discrimination that remains rife.)
One get’s the impression that this Bill is really an admission by the government of the day that it needs to hide as much of the facts about governance as it can in order to retain support of the voters.
Surely there are still decent and level-headed members in the ANC who will put a stop to this anti-democratic and dangerous folly within their midst? Surely some ANC members will realise that the Bill will be bad for the ANC as it will diminish trust in the government it runs (and hence in the ANC), will enhance suspicion about its motives and its honesty amongst ordinary voters, will drive dissent further underground or into illegal activity and will sow the seeds of the complete deligitimisation of the ANC in the long run?
Don’t they see that support for this Bill would be as good as an admission of guilt and failure on the part of the ANC, an admission that the party is incapable of properly running the country and thus needs to hide this fact from the voters in order to remain in power (and to continue drawing the perks of government)? Surely some people have read this Bill and know just how weak and incompetent it makes the ANC look and how bad it will be for the ANC in the long run?
Following the discussion in the media and by the media, one thing becomes clear: Nobody trusts the Constitutional Court [on the matter].
Otherwise their would, or should, have been no real concern – for the Act would in any case be taken [at great costs, granted] to be tested at the CC. No big deal what the kleptomaniacs at parliament enact.
But the concern is their because the [ANC-packed, or so perceived] CC is just not trusted.
“Surely there are still decent and level-headed members in the ANC who will put a stop to this anti-democratic and dangerous folly within their midst?”
Prof, I maintain, there is no such thing.
Oh God this is so depressing. Or is it? Isn’t this the very very nature of the beast? The suppressed becomes the suppressor. Like clockwork, always. How clichéd, how predictable the human race is. Never anything new, just the same banal, insane repetition from one stumbling generation to the next to the next. And so we can talk, discuss, debate and go on and on about this, it won’t help. In the end the ANC will simply do what they want to do. Sela.
Here is the crux of the matter:
“When exercising its legislative authority; Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.”
When the Firearms Control Bill came before the Parliamentary Portfolio Committee for Safety & Security the same thing happened. Everyone knew that Act contained many provisions inconsistent with the Constitution: Go ask Louis Kok if you do not believe me.
[The same PPC that slurped up every bit of Jackie Selebi's excreta, let wel! Fine job of parliamentary oversight that was.]
In mere months the state is going to get a multi-Billion Rand fine for that kind of mulishness.
The problem – once again – is the Constitutional Court’s biased judgement in Swartbooi.
How is the idea of Parliamentary Privilege to be reconciled with S44(4)?
What was not in the minutes was this little tragic gem from a supposed democratic representative of the people:
Thandile Sunduza (ANC) had her copy of the Constitution in her hand when she told Mail&Guardian editor Nic Dawes: ‘There’s nothing South African about you.’ She also warned that she would shoot any investigative reporter that snoops around her house. ‘Headline: MP shoots journalist!’, she said.
See http://www.rapport.co.za/Suid-Afrika/Nuus/Wet-oor-inligting-beheer-hele-SA-20100724
Beauty of the law, once again sending us in a tailspin like a dog chasing its tail. We are at your mercy!!!!!!!!
@Brett
As a gun owner, would you shoot any reporter that snoops around your house?
A comprehensive and insightful analysis, Pierre. Your dismay and obvious disappointment at what is transpiring is entirely justified. Brett is correct, unfortunately, about the cc if some of its previous decisions are anything to go by. With some of the old pro ANC stalwarts like Albie having been replaced, it remains to be seen whether the new crowd will discharge their duties with more diligence and objectivity. One can only look at the quality of some earlier judgements and cringe. The Subramony case; the bar code ID case; the parliamentary floor crossing case; the T-shirt trade mark infringement case, and so on.
That is the essence of the problem: we are not sure whether the cc has the desire or ability to protect us from these fat, overpaid and incompetent parliamentary buffoons.
Sorry, Gwebecimele, while I do not like journalists much (necessary evil) I am against the abuse of firearms as a matter of principle.
Can I let my dogs bite said snooping journalists instead?
I always thought the CC was sacred and it had to be protected from being “contaminated” by the likes of Hlophe an others.
@ Graham
I don’t think the cases you mention (with the possible exception of NNP) are poor quality cases. You may disagree with the outcome, but i think they were all very difficult cases and are very well reasoned. That’s not to say there aren’t poor CC cases (Masiya, Chirwa and NM come to mind…) but i definitely wouldn’t put Soobramoney, UDM and Laugh it Off in that category.
It is easy to feel sorry for Mr Soobramoney, but finding in his favour would have destroyed the public healthcare system as limited resources would then have had to be spent on keeping people alive for a little longer rather than saving lives. That would not promote the right to health.
NNP was probably wrong. The rationality standard Yacoob J sets is too weak. What is interesting is that the Court has implicitly retreated from that approach and adopted O’Regan’s reasonableness standard. (See ACDP and Richter). But you can see the Court’s point that government needs to be able to determine the administrative details for running an election and it is fair to impose some minimal burdens on voters (registration etc).
UDM was a very tough case. The Constitution said nothing specifically prohibiting floor-crossing. Many democracies have floor crossing (although most of those are constituency-based systems). It is true that the floor-crossing legislation was a naked vote grab by the ANC, but that doesn’t mean it was constitutionally prohibited or necessarily antithetical to democracy. UDM could have gone the other way, but i don’t think you can say the judgment is poorly reasoned.
I find your reference to Laugh it Off most confusing in the context of this discussion. All Laugh it Off says is that if you want to make a case for dilution of a trademark you have to provide some actual evidence that the mark has been affected. What is so wrong with that? It is a decision that strongly upholds the right to freedom of expression. If this Bill ever makes it to the CC Laugh it Off will be one of a string of freedom of expression judgments that will support finding the Bill invalid.
I have to say that i am supremely confident that the CC will find most of the most odious provisions of the Bill unconstitutional. If you read what the CC has said about the media in Khumalo, SABC, Independent Newspapers and Islamic Unity and about freedom of expression generally in Laugh it Off, Case & Curtis and Pillay i find it difficult to believe that the Court will uphold these draconian provisions.
The CC certainly has not taken the uncompromising stance to freedom of expression adopted by the US Supreme Court, but they understand the central role that the press plays in a democracy and have shown that they are willing to strike down controversial pieces of legislation. They have also clearly endorsed the importance of a free flow of information.
Admittedly the change in membership has probably made the Court a bit more conservative (Langa, Mokgoro Sachs and O’Regan were the most liberal members) but i do not see any reason to believe the Court will suddenly become a rubber stamp for the ANC. Your suggestion that Sachs, or any other CC Judge ever acted that way is completely ludicrous if you actually look at their record over the last 15 years.
I tend to agree with Michael Bishop. Ironically the “pro ANC stalwart Albie Sachs” was probably the most consistent progressive voice on the Chaskalson and Langa courts and if one looks at cases where the majority found in favour of the government, Sachs would probably be the judge who most often sided with the minority and would have ruled against the government. One can never say that someone – once appointed as a judge – would necessarily find consistently for the government ruled by the party he or she is emotionally closest to.
All these worries about journalists getting shot (or bitten) is confusing. Surely we won’t need any journo’s anymore with this Act? And the ones left after the Act comes into force won’t be worthy of the label anymore. All we need is Jackson (ideally, on his sober days) and the truth will be told.
However, it does make the NPC kind-a superfluous, doesn’t it, with its mandate of arguing plans on behalf of us all. They either have to work in secret, or they can just go home, because they won’t be allowed to use any real data.
Imagine the Possibilities. Imagine what Manto would have done with this Act. We’d still be wondering why so many people are dying…..
This Act would be a god-send for the Water department (”water is clean”), the good General (”trust is broken down”), Eskom (”the power didn’t go off”), the urban paramilitary (”we didn’t shoot any innocent people”), drunken drivers with a title, the Reserve Bank (”our currency is fine since we have solved our unemployment problem”), in fact, anyone in the elite, or anyone who knows (something about) someone in the elite. We’ll be living in heaven? Who’s complaining – this has been the SABC approach for decades? Magic stuff.
Ahh, imagine the possibilities
@pekkil – “All we need is Jackson (ideally, on his sober days) and the truth will be told.”
Ever heard of “in vino veritas”?
I accept what you say, Michael and I would also say that my subjective opinion is that the quality of cc judgements did start improving with time. The examples I mention are not necessarily definitive examples of poor jurisprudence, but they can be criticized on a number of aspects. In the Soobramoney case for example, he looked to the court for relief on the basis of the right to life and the right to emergency medical treatment after he had run out of money to pay for dialysis. He was effectively told that this is not emergency medical treatment; emergency treatment is when you get hit by a truck. He died a few days after this somewhat callous judgement presumably happy that his constitutional rights had been upheld. One can’t help wondering if the court would have said the same thing to Manto had she turned to them after being refused a liver transplant. The reference to Laugh It Off was because the court should never have heard it in the first place. As far as I know, Sachs has never been an expert on trade mark and intellectual property law and issues such as freedom of speech was being incorrectly applied so as to encroach on a company’s trade marks. It was worsened by the fact that the company’s intellectual property was being exploited by someone else for commercial gain. Sachs tried to justify this by suggesting that “humour” somehow made this permissible. Just because SAB is big and powerful doesn’t mean that it doesn’t have rights as well. The cc was, frankly, delving into a highly specialized area of law from which it should have steered clear.
Anyway, I would like to get back to the issue and be optimistic like you that the courts would in fact tell parliament to take a hike if this law is enacted as proposed. My concern is, like Brett’s, that political interference and packing the judiciary with government appeasers poses a real threat to transparency, accountability and liberty. One just has to look at the JSC and the public protector under Lawrence Mushwana’s tenure to see precedents.
Given the parlous state of government at all levels I am not the least bit surprised by the poor “quality of representation in our beloved Parliament”. This is all simply par for the course and by all accounts the deterioration is gathering momentum.
The issue that should occupy the minds of all democratically inclined South Africans is,……… what do we do about it? The combined democratic brains-trust must surely be able to come up with a solution.
A good staring point would be for all democrats to find ways to strengthen the opposition.
Graham:
You are right that we should always be concerned about the Government/ANC trying to pack the Court. And i think you are right that there is some reason to be concerned about that – Mushwana is a good example, although Madonsela seems to be a massive improvement.
I just don’t think there is any evidence of that on the CC. If you look at the most recent set of appointments, Cameron and Froneman have been two of the judges most willing to take on government. They are clearly independent. Jaftha too has not given any sign that he is an ANC lackey. I don’t know enough about Mogoeng or Khampepe, and i suppose time will tell. But if you look at the Court as a whole, it is filled with independent, strong-minded people.
It is also important to repeat the point that Pierre made: it is very difficult to predict how judges will decide cases once they are appointed. Just look at Justice Souter in the US. And when the original 11 judges were appointed to the CC, many people (mainly on the right) called them ANC lackeys, not without some justification. Yet i think they demonstrated themselves to be fiercely independent.
Lastly, I don’t want to be too petty, but i do want to point out something about Laugh it Off. The majority judgment was given by Moseneke. Sachs wrote a separate concurring judgment. All the majority says is that a bald claim that a parody of a trademark reduced the value of the mark is not enough to prove dilution – you need some evidence. I think that is a reasonable position that adequately balances the freedom of expression rights of people like Justin Nurse with the important property rights of big corporations like SAB.
I agree that there is always a difficulty when the CC gets involved in specialised areas of law. But they are in a tough position. They cannot ignore the real constitutional implications in areas like IP merely because they are perhaps not best qualified to decide the technical issues. If they did, whole areas of the law would be immune from constitutional scrutiny.
@ Anton
I hope u are not suggesting that we should join/support DA?
It would be even more interesting to explore how S44(4) can be reconcileable with S2. Kriegler in Fose springs to mind.
Should MPs not be responsible retroactively on a finding of unconstitutionality for any costs or damages arising from acts or conduct ito constitutionally invalid legislation?
anton kleinschmidt says:
July 26, 2010 at 16:11 pm
“A good staring point would be for all democrats to find ways to strengthen the opposition.”
My invitation is still out there for someone to suggest who, other than the ANC, that I should consider supporting and voting for – with sensible justification of course.
So far no there are no takers.
On the question of opposition it is my view that although the DA are not perfect they are certainly far better than the ANC simply in terms of delivery, their stance against corruption and their high regard for the constitution. The DA has made mistakes in the past and will no doubt do so in the future, but I on balance they seem to be doing a good job in the Western Cape. This is my first departure point. The ANC are not doing a good job anywhere and this is my second departure point.
The DA also seem to recognise the value in consolidating the various opposition parties as evidenced by their approaches to the ID. Fragmented opposition plays directly into the hands of the increasingly incompetent ANC.
I simply cannot see any sense in continuing to vote for the ANC on the basis that that there is no viable alternative. Old white politics was BAD but Helen Zille (and many of her white supporters) were most emphatically not part of old white politics.
If the ANC starts to govern competently and with clear democratic intent in the best interests of all South Africans I would immedaitely reconsider my position. I would like to see the ANC succeed but this seems increasingly unlikely
Or you can read what Helen Zille said at their weekend congress:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=189269&sn=Marketingweb detail
I really think she means it
Anton: I agree entirely, and Zille walks her talk as the best of any politician I have witnessed.
Maggs, you must have such a wounded and biased attitude towards whites that you obviously don’t give equal listening or attention to DA policies and successes, as in calmly considering policy and actions. Fact, numerically, it is the most multi racial party in SA.
It’s actually mind boggling to clear thinking individuals free of racism and wounded bigotry (justifiably from past experiences, I do understand, but time to let it go), not to recognize the present, learning to be free of the past, to see the sincerity of the DA and many whites along with various races who join them. This is the true New Age for SA, (a stolen term I might add), not this new paper which will only continue for any period with massive ANC financing. Will they have a page 3 damsel for the masses wearing appropriate colors.
Should the CC drop their ethical pants and bend over for the ANC, there is still one alternative, a SAfrican WikiLeaks site, offering their reception and posting of SA leaks and whistle blowers, then being distributed safety by posting it from overseas. Reporting here on leaks and investigations issued from a site overseas will keep us all informed. What would be illegal, should this act be passed, for journalist reporting on overseas reports, without the burden of holding hard original evidence here. Is it not different, and less vulnerable for Journalist posts on overseas comments, referring it as their source. Its no longer a leak, is it, but reporting on facts posted internationally.
And was it not the international community which made freedom in SA possible.
There are so many SAfs oversees who care deeply for their home country and Democracy. I know, I married one.
The internet, first referred to as the information highway, has changed everything.
Question, would this also mean that any court decisions which the ANC disagreed with will also not be allowed to be reported on or published? What a mishmash. The ANC has no idea the damage they do, and all for greed.
@Maggs -
Can you name one good reason – especially after reading Prof’s latest post – why anyone in his/her right mind would want to still vote ANC?
Clara says:
July 26, 2010 at 20:05 pm
Hey Clara – that’s a darn good question.
Thankfully I am not of right mind so I can duck responding!
Of course the view of those who are anti-ANC is that the ANC supporters are stupid, ill-informed, idiots etc – since it will take many generations (if at all) to change that, expect the ANC to rule until He who is supposed to return does return. As a general rule, people don’t become un-stupid, un-ignorant, un-idiotic just because a not-so-nice bill gets tabled.
It sure sounds like it is being suggested that the bill will be passed into law and that rather surprises the not-so-smart me. I was of the view that there are several steps yet to be overcome before then.
What about the CC? Ok, I get it – the CC is an ANC structure. So even if an opposition party wins the CC will still be an ANC structure for a while, so we are pretty safe – the CC, as an arm of the ANC, can obstruct anything that a new administration tries to do.
But my questions (who should I vote for and why ++) though, to all the smarty pants, still remains unanswered for several months now.
sirjay jonson says:
July 26, 2010 at 19:38 pm
“Maggs, you must have such a wounded and biased attitude towards whites that you obviously don’t give equal listening or attention to DA policies and successes”
hahahaha – you’re funny.
Let me say this :
Sirjay, you must have such a wounded and biased attitude towards the majority that you obviously don’t give equal listening or attention to ANC policies and successes.
pierre,
just a look into the future;
which SC(s) are best equipped to argue the case for freedom of speech once this thing hits the CC ?
(who’s your dream-team for the battle ?)
We know the ANC in exile was heavily infiltrated by agents of the Apartheid regime, but these decisions to replicate Apartheid’s draconian laws border on insanity.
How dumb can they really be?
@ Maggs
“My invitation is still out there for someone to suggest who, other than the ANC, that I should consider supporting and voting for – with sensible justification of course.”
Maggs is right. Admittedly, the ANC is far from perfect. But the Dismal Alternative is even worse.
Let us face it: They are a collection of RACIST liberals.
If the DA came to power, they would restore a system of avaricious CAPITALISM.
And would allow black kids to go without a basic education!
Mikhail Dworkin Fassbinder says:
July 27, 2010 at 7:52 am
Hey Dwork,
It does not address my questions – “who should I vote for and why”.
But nice try.
Pierre, with respect, you appear to be utterly biased against the Protection of Information under our Constitution. This reflects your slavish adherence to a model of LIBERALISM that elevates individual autonomy over our core indigenous values of dignity and UBUNTU.
Case in point: Your savage ancestors in 17th Century Amsterdam may have enjoyed gruesome public dissections of their elders. Here is Africa, more deference is due to the bodies of our elders — especially if they are not yet dead.
Thanks a lot.
“The White House has condemned whistleblower WikiLeaks, accusing the website of putting the lives of United States, United Kingdom and coalition troops in danger and threatening America’s national security of the US after it posted more than 90 000 leaked US military documents about the war in Afghanistan. ”
http://www.mg.co.za/article/2010-07-27-wikileaks-condemned-by-white-house
Mikhail Dworkin Fassbinder says:
July 27, 2010 at 8:08 am
“Here is Africa, more deference is due to the bodies of our elders — especially if they are not yet dead.”
LOL!
What if they are dead or worse still, partially dead?
Pierre, what has a chilling effect on our MPs has to be the system of representation. They are accountable, not to a constituency, but to their party. Its well-known that if an ANC MP interrogates a Bill too rigorously, its good-bye job! Legislative oversight cant really take place in these circumstances. Many have become cynical and lazy, but anyway most ANC MPs are employed solely because of internal party allegiances rather than ability to understand the complexities of what they are supposed to do. Sitting in these hearings has to be the most disheartening activity for any voter especially when the only ones who are prepared for the topics seem to be the DA guys.
Ok – forget the Bill. There’s a more effective way to deal with the media.
“Noseweek editor Martin Welz was “blissfully unaware” his murder had been plotted by mining figure Brett Kebble. …
“Welz had to be taken care of because he had apparently been writing bad stories about the Kebble family,” Schultz said. Mildenhall had been blocking a R500 million loan from Allan Gray to Kebble.”
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100727045137683C470566
Thank goodness we’re back on topic!
The sad reality is many ANC MPs have neither the intellectual capacity nor the education to understand much of the legislation before them (even had they the inclination). That suited the Emperor just fine: He had a thing about being seen to be the smartest person in the room.
In an idiocracy it leaves the legislatures in the hands of the technocrats. The mandarins.
A perfect example was Leigh Bennie’s show on Cape Talk/702 last night. Leigh had guests from the City Councils of JHB and Cape Town on her show to discuss their animal bylaws. Sadly, her legal commentator seems to have passed Constitutional Law in the pre-1994 era. He seems not to have read this Constitution. (So much for much of ya’s propaganda about the DA!)
Leigh does not seem to be the sharpest tool in the shed. Nor is her producer.
Anyway, no-one asked the hard questions. Like, about animals being property. About the power and scope of the deprivation being narrowly circumscribed and severely limited under S25 of the Constitution with all kinds of internal qualifiers such as compensation having to be paid.
‘JP’ must have referred listeners to the animal bylaws being ‘constitutionally mandated in Schedule 4B of the Constitution’ 20 times. When I phoned in to mention that, hey, just btw, the words ‘pets’ or ‘animal’ are not to be found in Schedule4B the producer would not let me on air. She said she had to protect the guests she had invited. LOL!
JHB City is technically insolvent.
One has to wonder how many more Billion Rand hits this City can take.
Meanwhile, technocrats like ‘Nicky’ get to expose our municipalities, provincial administrations and the state nationality to billions in wasted taxes because of massive maladministration by people who have never bothered to do the homework, and politicians who have not insisted that they do, or, at least, start by reading the Constitution.
De Lille moved from “izwelethu” PAC slogan meaning (land first) to anti-land redistribution with no explanation, only a fool can understand that confusion.
This “society of equal opportunities” is an attempt to fool us PDI’s that now we are all equal.
Only lightweight opportunists will join the DA and hence they will never find a decent Black leader only a “puppet”/ceremonial llike Seremane.
ANC has its shortcomings and bad elements too but it still remains party of my choice for the majority of black people.
Having said that, I do want an effective opposition but that should not come like a wolf in a sheep’s skin.
Hey Gwebs,
It’s good to see the leader of the official opposition give some big kudus to the ANC led country (short of congratulating the ANC that is), contrary to the anti-ANC brigade.
“When The Economist labelled Africa “The Hopeless Continent” ten years ago, the magazine was suggesting that the downward spiral towards the failed state is inevitable in Africa. We know it is not, says Democratic Alliance leader, Helen Zille in her weekly newsletter. …
“Many of us don’t realise just how significant our progress has been. It sometimes takes an outsider to point this out.”
http://www.timeslive.co.za/local/article571469.ece/Zille–Break-the-race-barrier
Well listening to Kebble case details, it seems as if the media’s biggest worry should be the elite not Media Tribunal. Editors/journalists can be eliminated at a price.
Break race barrier= “Rent a Darkie” + (White & Coloured) consolidation van die kaap
Gwebe, I note your comments on De Lille’s apparent move to/alliance with the DA.
But to me, your complaints about the DA having no or very little African leadership ring hollow. I say that because, to the extent that African persons, even with impeccable struggle credentials, like De Lille and Seremane, support or are part of the DA, you effectively will argue they are not African. No truly black person would be foolish enough to support the DA.
Yes, I am aware that the DA has very, very few African voters — the press grossly overstated the recent by-election results. Yet, it seems to me that is ultimately not the point. Even if hypothetically the ANC did attract any significant African support, you would dismiss these voters as inauthentic, or sell outs, or deluded, or afflicted with, to use the Leninist term, “false conciousness.”
Is that not so?
Also, Michael, the ANC and DA are held to completely different standards with respect to ‘breaking through the race barrier’.
@ Maggs…..”But my questions (who should I vote for and why ++) though, to all the smarty pants, still remains unanswered for several months now.”
Just because you do not like my answer does not mean that I have ignored your question. See my posts at 18,21 and 18,45 0n 26 July above.
You are guilty of anconsistency (sc) because you duck Clara’s perfectly valid question but keep on insisting that you get answers to yours.
Michael Osborne says:
July 27, 2010 at 11:22 am
Hey Michael,
Efforts to demonise the ANC just makes it more attractive – and often considered no more than repackaging the similar apartheid era tactics or “swart gevaar” etc.
Opposition parties should rather focus on building on their own strengths.
Even Zille has acknowledged that we live in a phenomenal country, a country that is significantly governed by the ANC.
Many, if not most, South Africans are of the view that the gains we have made is because of the ANC, not despite it.
anton kleinschmidt says:
July 27, 2010 at 11:39 am
Hey Anton – I will respond to Clara’s question if and when it is asked in a way that does not undermine people’s capacity to think, especially when the question presupposes that that is endowed a carefully section of society.
This is unbelievably scary stuff. It merely confirms all we ever suspected about our elected reps. Poor work ethic (stupid?), unprincipled immoral and even criminal in their desire to protect their power base. This kind of response will only increase as the ANC feels the pressure and starts to lose support at teh polls. The more things change teh more tehy stay teh same.
Lets face it – the constitution is not the ANC’s document – it was a huge compormise for them and now they are doing their best to undermine it. Heaven help us….
Some ANC idiots – Human beings destitute of the ordinary intellectual powers, whether congenital, developmental, or accidental; commonly, a person without understanding from birth; a natural fool. In a former classification of mentally retarded people, idiot designated a person whose adult level of intelligence was equivalent to that of a three-year old or younger; this corresponded with an I.Q. level of approximately 25 or less. (1913 Webster)
Hell yes, this country is run by some idiots in the ANC.
@ Michael
After 10 yrs from today, I doubt if anyone will remember who Seremane was and what he stood for except that he was made a joke in parliament.
Only him and those close to him know that he is African but he is black.
De Lille seem to be a good leader but she has contradictions that she need to explain. I do not think she is corrupt but I cannot vouch for her leadership skills especially when her party’s support is not growing. Infact the DA is the winner in this merger.
The truth about the DA is that id does not represent the poor, it is anti-labour, do not care about Africa except Zim, aligned with big business, has secret funds and is a home for those who are anti-transformation(BEE, EE, AA, Land redistrubition) and lastly a home to most racists. Its HQ(Cape Town) have overtaken Ventersdorp, Verwoedberg as the most racist town in the country.
OK Maggs……let me rephrase Clara’s question.
Given that the ANC are not performing well in Government is it possible to explain why they still enjoy a majority in terms of votes cast ? When answering this question due consideration must be made for the state of education, healthcare, housing, race relations, power supply, municipal services, etc
I will assume that you do not agree with my suggestion that the DA is a good alternative to the ANC and I will not press you for your reasons.
Here is one of South Africa’s biggest problem.
I have no doubt that Seremane or De Lille have no clue on how to sort it out.
The DA could only shout “Stop Zuma”, ” Don’t change the constitution”, “Dont change economic policies”
http://www.businessday.co.za/articles/Content.aspx?id=116116
Based on the reports from the last cabinet meeting the Left/ Patel group is gaining ground in dealing with our unemployment(guided by the likes of Malikane, Stiglitz and others).
Maggs, you say the DA should play to its strong points.
Tell me what, what do you, personally, couns as the DA’s strong points?
Liberalism? Racism? Breaking-down-latrine-capacity?
Botox, perhaps?
Oh Gwebs – so many factually inaccurate sweeping statements. So CT is racist because it voted in the DA. Nonsense – it just shows that we are more intelligent than the rest of SA and vote for service delivery and clean government (both of which are pro-poor) – rather than corruption and maladministration which are decidely anti-poor, just like your parties latest legislative apartheid style gem.
@ Spoiler
Whalla!!!
http://www.iol.co.za/index.php?set_id=1&click_id=3102&art_id=vn20091022043211281C843507
Gwebe .. let me help you with your mythical ‘truths’ about the DA:
- if they are not pro-poor why are milllions of people from the poverty stricken eastern cape flooding into the western cape? In contrast explain how the ANC is pro-poor while spending billions on self-enrichment and luxury.
- if they are anti-labour explain why the western cape was the only province to grow jobs? And why Zuma has now picked up on their proposals to facilitate jobs for young people?
- explain how the ANC is pro-Africa when it abandons the desperate people of Zimbabwe, DRC, Darfur and promotes genocidal kleptocrats like Mugabe and Al Bashir?
- secret funds?? The joke here is two words: Chancellor + House.
- as for being anti-transformation, since administering the city of Cape Town their outsourced tenders to black-owned business have increased by 30%. And Land reform? You think the ANC is seriously tackling this issue?
Gwebe, your comments are mostly thought-provoking with meaty content. Why damage your reputation with such a crass post? Frankly one would be forgiven for thinking you must be one of those doff politicians Pierre quotes here.
@ Spolier
Denialists such as yourself are mentioned here.
http://news.bbc.co.uk/2/hi/africa/7361258.stm
@ Belle
“Gwebe, your comments are mostly thought-provoking with meaty content”
Thanks for the complement.
Finding equals/similarities in the ANC does not change the facts.
Rather argue that they are not what I am suggesting and then we can deal with ANC’s problems which are mostly different.
Gwebe, you cited those examples as reasons why you cannot support the DA. Those same criticisms hold true (to a greater extent) iro the ANC … yet this does not deter your ANC loyalty. Hypocrisy??
Besides, I DID argue your points, despite the fact that you made no effort to back your own allegations. Can you back them?
@ Gwebe
“The DA could only shout … “Don’t change economic policies.”
This is something I would be terribly embarrassed about, were I an ANC supporter.
You are right, Gwebe the DA is indeed a great defender of the ANC’s neo-liberal economic policies – these being policies that the ANC stole from the DA.
Yes, the DA is a friend of big business; but the ANC is now a very dependable friend of the evil capitalists that it used to pretend to hate.
At least with the DA the working class know where you stand. The ANC, by contrast, is very epitome of “talk left act right.”
Gwebe is right.
Yes, the ANC has its share careerists, who are in politics only to make money.
But they are slowly weeded out.
The ANC’s overall committment to SOCIALISM remains intact!
Thanks.
@ Belle
I support ANC for the following reasons:
1. It acknowledges the inequality, poverty and oppresion of the past. Hence it has policies on BBBEE, EE, AA, Land redistribution, NHI etc.
2. Is in alliance with labour/unions and SACP
3. It is a party for the poor , majority African people and has an African Identity.
the list is endless but I guess u can see that me and DA are miles apart.
DA has none of the above therefore I cannot support it.
I have criticised ANC several times on these blogs and you dont have to convince me on its weaknesses.
@ Belle
Your fundamental mistake is to suggest that DA weaknesses are the same as the ANC’s.
ANC has a brilliant overall policy framework but poor sectoral policies and weak execution. In my books that can be fixed.
DA has no fundamentals.
There is nothing special about their performance in WC.
If u take WC and give them EC they will perfom dismally.
Gwebe is right!
Unlike the ANC, the DA has no policy on affirmative action.
DA claims that it supports AA, and quarrels only with the manner it is being implemented.
But that is, of course, a liberal lie.
The DA has no policy on AA.
@ Osborne
ANC economic policies were crafted by the “class 96 Project” not DA and are under review by the ANC(including Cabinet).
As far as the ANC’s “talk left act right” watch the space.
Gwebe, was it purely coincidental that the ANC’s 1996 Project had more in common – in practical terms — with the DA’s neo-liberalism than with the Socialism of the Freedom Charter?
Why did Mandela speak of nationalisation on the night of release — and within months thereafter change his mind?
As for “watching this space,” how long do you think the working class should wait for the ANC to end its embrace of capitalism?
6 months? 6 years? A century?
anton kleinschmidt says:
July 27, 2010 at 12:48 pm
Perhaps our starting point is that we have different assumptions.
You assume that my view is that the ANC is not performing well- I think that it is doing well.
You assume that less than 20 years is sufficient to resolve the structural and systemic issues that our country faces as a direct consequence of the iniquity wreaked on us over decades if not centuries – I think that it will take a lot longer than 20 years.
You assume that we have a parlous state of education, healthcare, housing, race relations, power supply, municipal services, etc – I do not, even thought there are pockets within those areas that I consider to have been a disaster.
You assume that nothing is being done to remedy those areas of governance that need attention – I know that there is some serious progress going on.
I am aware of a new wave of activism emerging across the country where people are actively contributing to getting the country working the way it should be.
Re “the DA is a good alternative to the ANC” – I am not looking for an alternative to the ANC but an organisation that is best able to deliver on a range of issues which so far is convincingly the ANC.
Gwebs – I see you are a fan of western liberal media when it suits you.
The BBC article has nothing to do with the DA or Cape Town specifically, by the way and is a general report on how racism still flourishes in SA. Nowhere did I deny racism exists in SA, I simply object to your labelling CT as more racist than anywhere else. In fact the BBC article seems to expose that very myth.
Seems to me that you have bought your parties rhetoric – that a vote for the DA makes one a racist. As Belle has pointed out the Western Cape seems to be popular place for all south Africans to migrate to. Must be the climate I suppose…
What never ceases to amaze me is how loyal ANC supporters are – they’d sooner go down with a sinking ship, losing all credibility in the process, than actually acknowledge that maybe someone else could do a better job…
Michael Osborne says:
July 27, 2010 at 13:57 pm
“Tell me what, what do you, personally, couns as the DA’s strong points?”
hahahaha – I think that we have an official opposition (albeit a bit teeny) contributes to the perception of a multi-party democracy and we have someone to blame for the state of the rivers in the WC.
But seriously though – I have no idea what the DA’s strengths are. Nothing in particular stands out in any way that is inspiring.
@ Osborne
Well, what I know is that we will have a strong developmental state and we will do away with jobless growth. We will stop selling Parastatals(create more) and introduce regulation in all sectors. We will introduce NHI, Independent Power producers, kill OBE etc You can call that whaever you like but I am not fond of terms such as capaitalism, socialism, communism etc.
Those who misled us in the past are no longer in the driving sit.
Pierre, I hate to be the one to tell you that parliament is actually in Plein St.
@ Spoiler
Gauteng and specifically JHB is most beneficiary of migration and that has almost nothing to do with the ANC. Go read basics Migration. It has push and pull factors not so much about who is in govt. Eastern Cape is the biggest looser becasue it is the poorest but highly educated province. Migrant labour system which again has nothing to do with ANC pushed people out of EC. Cape Town has alaways been a favourite destination for Xhosa’s from EC. Earlier migrants have simply establish base for others to follow.
Try Australia or New Zealand to avoid this sinking ship or read Zille’ latest article.
spoiler says:
July 27, 2010 at 15:30 pm
“What never ceases to amaze me is how loyal ANC supporters are – they’d sooner go down with a sinking ship, losing all credibility in the process, than actually acknowledge that maybe someone else could do a better job…:”
Hey Spoiler – that’s the strength of the ANC – it was good of you to acknowledge that.
Too bad for other parties if their supporters ditch them easily.
Anyway the ANC is getting bigger, better and coming your way soon.
Re movement to WC – people from across South Africa and indeed Africa, even from around the world, have move to Gauteng which is an ANC led province – should the ANC get some kudus for that?
Rustenburg is supposedly the fastest growing local economy in Africa – more kudus for the ANC?
There’s more – but I am pretty sure you get the drift.
Hey, where did you DA supporters learn to debate?
Why do you not ask Maggs – for a start – how many of the Departments of State he mentions get a clean audit? Why there are service delivery riots in the streets?
(An explanation for the DA’s support of illiberal confiscatory pet control laws would be nice, while you’re at it….)
Well Maggs and Fass, and Gwede for that matter: you got me there with your recent and ongoing comments. I really never had any idea that the ANC was pursuing a socialist agenda, or for that matter an ethical, compassionate socialist agenda, allowing for capitalism (taxes) to support it. Gosh, I’ve been waiting all these years, a decade now, for the redistribution of wealth, such intention so consistently spun by the ANC. Guess they must have missed my rather large region.
My experience of such redistribution as referred to here, is support for Black Label, Castle and cheap sweet wine. Any questions? Or am I confused?
And then, there are the children! Such opportunities under the ANC, amazing in your eyes, right?
Gwebe, I note you have still not answered me re why the ANC did a u-turn on Socialism, the Freedom Charter etc. (Look at any issue of Sechaba in the 89’s, and you will observe the depth of stated commitment to nationalisation of the means of production, radical redistribution, etc.)
I note that you say you are not interested in terms like socialism, capitalism, etc. That may work for you. But what about those who actually believed in the socialist promises of the ANC? Where they all duped?
The working class has been let down so often before — why should it believe that the ANC’s commitment to its interests is different this time? (Especially since the ANC leadership is still so cosy with big business.)
Brett, thank you for your comment.
Please would you give these dullard DA supporters some basic tips on debating technique.
Obviously, attempting to learn from you by example is not working.
I agree with you that the DA’s position of pet confiscation is yet another manifestation of its racist liberalism. All licensed dogs should be allowed to carry a small calibre weapon!
Many thanks again.
Mikhail Dworkin Fassbinder says:
July 27, 2010 at 18:42 pm
“All licensed dogs should be allowed to carry a small calibre weapon!”
And what about the tiger on the loose???
Tiger’s have human rights too!
Michael Osborne says:
July 27, 2010 at 18:38 pm
Hey Michael,
Some answers to you questions are here :
http://www.anc.org.za/show.php?doc=ancdocs/pubs/umrabulo/umrabulo33/art8.html
1) You two are filibustering an important thread again.
2) Maggs simply needs to explain what decent person would continue supporting the ANC after it condemned 6-7 million people (including 300 000 babies already dead, according to Harvard) to a painful lingering death by denying them basic medical care including information about the pandemic threatening. What decent person would have anything to do with such an irresponsible government, or governing party? Which fails the most basic test?
3) Dworky, do you at leat own an air rifle? Do you know how much fun shooting can be? Or, are you like a virgin waxing lyrical about abstinence not knowing any different? Have you done the homework? Read the FCA yet? Or, is ignorance bliss?
Belle – I enjoyed the comments you directed at Bra G, but there’s just no convincing him; give it up.
Maggs – I keep on tripping over the abbreviation ‘WC’ you use to describe the Western Cape. For Germans, ‘WC’ means toilet (water closet). The irony is just too much to bear.
Clara says:
July 27, 2010 at 20:09 pm
“For Germans, ‘WC’ means toilet (water closet).”
Ditto for South Africans!
Michael, kindly forgive me for departing from the general subject matter of this discussion. And additionally, kindly extend to me that same courtesy if it happens that this post would be better-directed towards that rascal Mikael. But I’ve been meaning to ask the pair of you a question for some while now: leaving aside possible medical complications of which relevant experts are, as yet, uaware, what exactly is so wrong about women using botox? I don’t feel the need – yet – to embrace the needle. But, with all respect (and yes, I really, really mean respect), you have to be a pretty cold-hearted bastard to begrudge a woman trying hold onto her youth in such a superficial world. (Perhaps you and Mikael could venture answers.)
Thanks in anticipation.
In his post dated July 26 at 16:23pm, Michael Bishop makes out that while the Constitutional Court will find itself in tough positions when called on to consider highly specialized areas of law, it has to do so because to do otherwise would effectively result in certain areas of law being insulated from constitutional scrutiny. I think Michael has the right of this. The question becomes whether Michael’s point bolsters the case for doing away with the CC – which is essentially a specialised apex court – in favour of a top court with (a) general appellate jurisdiction which would (b) require judicial selections from lawyers with experience in the sorts of cases upon which the court could be called on to pronounce. Leaving aside the rather vexed issue of racial transformation, it seems eminently reasonable to conclude that a top court with general substantive jurisdiction (and thus, unless Jeff Radebe has his way, necessarily staffed by at least some lawyers with experience in the highly specialised areas of law that the court may have to consider) would help in the production of the best possible case law.
Maggs @ – 15,26 …..I now understand why people submit to despair
Leigh, I have no problem with Botox use, as such.
What I do find problematic is that Zille spend millions on Botox, and on mantaining a “harem.” while at the same time refusing to build latrine walls for blacks.
Maggs will supply particulars.
Thanks for the query.
@ anton
“I now understand why people submit to despair”.
So sorry to hear about their troubles but Prozac is still an option. Open mindedness may be a better alternative to despair though for those ready to confront their petty prejudices.
@ Dworky,
“Maggs will supply particulars”.
That is WC language – ask Clara!
Mikael, as difficult as much of this post will be for you to credit, I ask that that you bear with me. Let’s get hypothetical for a moment: suppose for a moment that the ANC is destined to run this country into the ground. Suppose also that the DA’s presence could end up preserving the Western Cape as one Bastion that the ANC has not the power to touch with its dirty paws and that it thereby sets an example that the rest of our country may follow one day. Let’s take this further and suppose that without Zille’s boldness of character, the DA could loose a little political ground in the Western Cape thereby leading to (a) the ANC’s rejuvenation in that province which would (b) give rise to that provinces decline – a decline which could run into even more billions than Zille spends on botox.
As I’m sure you will already have guessed, the question is: is Zille justified in spending billions on botox to (a) have the confidence to speak out against the ANC’s corruption and (b) excite the love-slaves in her harem so she can manage her stress levels well enough to effectively fight the ANC? Maybe so. Maybe it’s worthwhile to have her spend a few billions on botox so that she’d be in a better position to keep the ANC from stealing and wasting even more billions – maybe even gazillions.
And as for the latrines: what if that has nothing to do with the monies she spends on cosmetics? Have you considered the possibility that Helen’s ploy in this regard is to show black people in the Cape what life would be like if ever the ANC mafiosoes had the run of the place?
@ Maggs…..or one could say that open mindedness may be a better alternative to obduracy for those ready to confront their petty prejudices.
Post 1994 I was happy to give the ANC a chance. Can you say the same about the DA
anton kleinschmidt says:
July 28, 2010 at 7:26 am
If any of the opposition parties are able to convince sufficient voters that’s good for our democracy.
I don’t think that there is anything like the threat of losing a national election that will get the ANC running the way it should be running.
But constant moaning and bickering about the ANC by the opposition parties is not elevating their stature nor endearing them to the vast majority of voters, neither is that contributing to building our country.
Apart from that – do you really believe that any party, other than the ANC, is really ready to govern across all three spheres?
Reading your blog is at times very depressing. Some of your half-intelligent contributors find it easy to throw derogatory epithets and inconclusive generalisations. The ANC has given us the freedom to express our independent thoughts in the legislative enactment process. Our parliamentarians believe in the sanctity of thought. The ANC is very democratic political formation which permits rigorous polemics.
I would have been interested to hear as to how the overeach of the definitions of “national interest”, national security and the sychronisation of the bill with the PAIA and Protected Disclosures Act must be exacted. Very substantive solutions have not been forthcoming in this rather insultive discourse.
No matter how well-lettered the legal experts that made representations to the ad hoc committee are, they must be willing to field even the most docile of questions from the parliamantarians.
The aspect of expeditious review of decisions on classification of information and the element of independent and objective arbiter are persuasive. How ever I cannot see how one could entrust review of police dockets, intelligents reports to an external third party.
We should not fall in the trap of also overstretching the right to access to information and open accoutability to the level of totally overriding such rights as right to dignity, national security. The crimininalisation of access to information especially for investigative journalists may have to be looked at.
The court have inherent power to adjudicate over any legal dispute and it must not be such a worry if the legislation says nothing or little on that aspect.
You are accusing Sunduza as voracious food eater in parliamentary assignments as her primary convern of her presence. I find that very unfair. She is not a legal aspect but a lay person in for far as law is concerned, but willing to engage on those topics which you are inclined to regard as an exclusive terrain of legalistic opinion makers. There CC is there for cut the act to pieces if it does not pass the constitutional muster.
Can you Prof sent just a little contribution on the definition of national interest to achieve a narrow and precise meaning as not to pass the line of the right to acess to information. I think exposure of corruption or any criminality cannot be proscribed in this instance.
Can you reflect on the preferred review or appeal mechanism. Must it be the Minister, the SAHRC, PP or the courts? Must commercial secrets of bidders be accessible or only decisions including information relating to their suitability for the award of tenders?
PArliamentarians welcome unresolved plurality and dissent but it must draped in the flag of respect and collegiality. There must be the minimum of decorum in our engagement. kleptocracy, fat overpaid incompetent parliamentary buffons in not the path of robust constructive engagement. It is pathological regressive disengagement; ventilation of unprovoked anger and self-generated frustration.
The public hearings are meant for such novel and original ideas which will naturally invigorate our collective wisdom [if any in the discussants].
Oh, Lord!
@ Maggs…..”do you really believe that any party, other than the ANC, is really ready to govern across all three spheres?”
Yes ….I believe that the DA could do a better job than the ANC across all three spheres
@ Maggs…. please read Malale and reconsider my comment about despair.
“Sanctity of thought” / “rigorous polemics” / “PArliamentarians welcome unresolved plurality and dissent”
@ Brett…..he has definitely left the building
anton kleinschmidt says:
July 28, 2010 at 9:25 am
anton kleinschmidt says:
July 28, 2010 at 9:37 am
hahahaha – lawyers do that.
Whatever happened to “simplespeak”?
Mr Malale, were you a government spokesperson, NEC member and a executive committee member of the ANCYL’s Limpopo branch all at the same time?
Ok Anton – some lawyer speak for you :
* Lawyer: “This myasthenia gravis — does it affect your memory at all?”
* Witness: “Yes.”
* Lawyer: “And in what ways does it affect your memory?”
* Witness: “I forget.”
* Lawyer: “You forget. Can you give us an example of something that you’ve forgotten?”
————————————–
* Lawyer: “Doctor, before you performed the autopsy, did you check for a pulse?”
* Witness: “No.”
* Lawyer: “Did you check for blood pressure?”
* Witness: “No.”
* Lawyer: “Did you check for breathing?”
* Witness: “No.”
* Lawyer: “So, then it is possible that the patient was alive when you began the autopsy?”
* Witness: “No.”
* Lawyer: “How can you be so sure, Doctor?”
* Witness: “Because his brain was sitting on my desk in a jar.”
* Lawyer: “But could the patient have still been alive nevertheless?”
* Witness: “Yes, it is possible that he could have been alive and practicing law somewhere.”
————————————–
* Lawyer: “What happened then?”
* Witness: “He told me, he says, ‘I have to kill you because you can identify me.’”
* Lawyer: “Did he kill you?”
* Witness: “No.”
————————————–
* Lawyer: “Were you alone or by yourself?”
————————————–
* Lawyer: “Do you know how far pregnant you are now?”
* Witness: “I’ll be three months on November 8.”
* Lawyer: “Apparently, then, the date of conception was August 8?”
* Witness: “Yes.”
* Lawyer: “What were you doing at that time?”
————————————–
* Lawyer: “How many times have you committed suicide?”
* Witness: “Four times.”
————————————–
* Lawyer: “She had three children, right?”
* Witness: “Yes.”
* Lawyer: “How many were boys?”
* Witness: “None.”
* Lawyer: “Were there girls?”
————————————–
* Lawyer: “Do you recall approximately the time that you examined the body of Mr. Eddington at the Rose Chapel?”
* Witness: “It was in the evening. The autopsy started about 8:30pm.”
* Lawyer: “And Mr. Eddington was dead at the time, is that correct?”
————————————–
* Lawyer: “And lastly, Gary, all your responses must be oral. Ok? What school do you go to?”
* Witness: “Oral.”
* Lawyer: “How old are you?”
* Witness: “Oral.”
————————————–
* Lawyer: “Could you see him from where you were standing?”
* Witness: “I could see his head.”
* Lawyer: “And where was his head?”
* Witness: “Just above his shoulders.”
————————————–
* Lawyer: “Any suggestions as to what prevented this from being a murder trial instead of an attempted murder trial?”
* Witness: “The victim lived.”
Here is more, Maggs-the-change-agent: That is irrelevant. I question your motives in trying to deflect.
Brett Nortje says:
July 28, 2010 at 10:09 am
Hey – who died and made you class monitor?
(July 28, 2010 at 10:10 am)
@ maggs
I did. But just for the next hour.
@ Maggs…….made my day
LOL! Thank you, final arbiter! You’re in for it now, Maggs.
Funny how the Nats used “national security” to justify their resitrictions on the press.
National security can only be an external threat from an external source. Internal stuff is just life going on.
Folks like Mr Malale obviously love the “national security” cloak to deprive citizens of their right to know what the people they pay to run the State are doing.
As for dignity – please! Since when did South Aficans become such quivering wimps that they cannot stomach a bit of life’s slings and arrows. Or is it just ANC members who have “dignity” which is infringed when the press find out about tender-rigging and JZ fathering yet more children and expecting the taxpayer to fund yet another offspring?
This Bill is what it is – an attempt to muzzle the press and entench the ANC’s rule.
Just like the National Party!
To add to Michael Bishop and Graham’s debate:
I personally have mixed feelings about the CC’s abilities. Too many judges come from outside the judicial circuit with only 4 of the 11 having to be judges prior to appointment. The impact is palpable when complex cases arise.
I have been involved in winning a case in which we knew we should have taken a bath. The decision reached by the CC was flawed and needed such serious logic flick-flacks it was embarrassing. The eventual order was ridiculous.
I still cannot believe it, even though I was on the winning side.
@ Zoo Keeper
It is true that only 4 of the 11 have to have been judges. But in fact, 10 of the current 11 were judges. Only Yacoob was not a judge prior to appointment. None of the four judges who recently retired were judges previously. I think most court-watchers will agree that O’Regan, Langa, Mokgoro and Sachs did not detract from the quality of the court and probably added a new point of view. If anything, i think the current court has too many judges and could do with some more academics and practitioners. If you look at the debate in the US about Kagan’s appointment, a lot of people believe the court does not have enough diversity as all the current members followed a similar career path.
I would be interested to know what case you were involved in. The Court does sometimes stretch precedent and logic to reach a desired outcome. If you agree with the outcome then that seems like “innovative reasoning”. If you disagree with it then it is “poor judging”. I’m not sure its always possible to judge the quality of a judgment without viewing it through your subjective ideas about what the correct outcome would be.
Having said that, in my view, the CC has definitely had some poor judgments. I think the worst, in terms of the quality of the reasonaing, are Chirwa, Nyathi, Masiya and NM, but i’m sure other people will have different lists. I would note that i agree with the outcomes in NM and Nyathi, but i still think are poorly reasoned.
But all courts have some poor judgments. It is important to look at the work of the Court as a whole. I think, on the whole, the Court has been extremely good.
Michael
I actually cannot remember the citation off-hand but it was to do with the ability of a municpality to claim the tenant’s lights and water from a landlord. I was on the winning side and I know the CC got it wrong.
I would say the biggest problem from the CC is their indiscipline when writing judgments. Everyone wants to have their say. What you end up with is 11 reasons for the same thing. The reasons are more important than the result and this becomes panfully apparent when trying to argue in a lower court and the judge now has two conflicting but binding reasons!!!!!!!!
I would prefer if they were more like the SCA where minor differences are shelved and only strongly differing reasons are allowed to be published.
Try telling that to an academic!
Ja, i agree that sometimes the Court has too many judgments. New Clicks and Joe Slovo are probably the worst examples. If you have to write a separate judgment to explain what the other judgments said, you know you have a problem….
It is interesting though that overall, the Court has an exceptionally high percentage of unanimous judgments – over 95%. This has decreased in recent years, but is still far higher than other comparable courts (US, Canada, Germany, HoL). On the whole, the Court works very hard to develop a consensus and achieves it most of the time. But i still agree that there are cases where the CC could have been more disciplined.
Joseph (i’m guessing that was the case you were involved in) seems defensible to me. I haven’t looked at it too hard, but when i read it, it made sense. Perhaps this is one of those cases that, if you like the outcome, you don’t look too closely at the reasoning! I also don’t have your intimate knowledge of the case, so i’m probably missing something.
I see the State Law Advisor, Enver Daniels, was trotted out by the ANC to argue that the Bill was Constitutional. This confirms the view I expressed above that “every single reputable legal scholar” who had expressed an opinion of the Bil believe that parts of it is unconstitutional. If Mr Daniels was confident about his opinion he would accept my offer of a small bet: if the Bill as a whole survives Constitutional scrutiny by the CC, I will pay him the equivalent of one month of my salary. If the Constitutional Court declares invalid any sections of the Bill, he must pay me the equivalent of one month of his salary. Come on Enver, put your money where your mouth is!
Zoo Keeper says:
July 28, 2010 at 10:56 am
“This Bill is what it is – an attempt to muzzle the press”
Hey ZK,
If that’s an attempt to muzzle the press, it’s a rather weak, even silly, way of doing that.
As the US govt has learned, the Patriot Act and “embedded journalists” notwithstanding, Wikileaks lives.
It’s more likely that the lawyers who drafted it got a teeny bit carried away – not that lawyers ordinarily complicate matters, just in this case the enthusiasm got ever so slightly stretched.
Pierre De Vos says:
July 28, 2010 at 12:57 pm
“Come on Enver, put your money where your mouth is!”
Er, you sure that is what you want?
More shock and awe – in a letter in todays Cape times a member of a womans rights group reports how the “honourable member” L Landers ANC – rudely dismissed her contribution because it came from an organization focused on womans rights and ignored men – a cardinal sin in his esteemed eyes. where did the ANC find these mysogynistic biggots I wonder?
Michael
Essentially the decision allowed a State entity to hold a thrid party liable for the debts of the party with whom it had contracted. Note that the State entity had to enter into contracts of supply for these services and this effectively allows the State to act outside its contract.
Also, before being able to claim the State has to prove it used all reasonable steps to claim the money back from the tenant. Of course, all it does is refuse to issue clearance certificates in the event of a sale and holds the landlord to ransom.
The main thrust was an exceptionally weak argument that because the landlord’s property was where the services were consumed, the landlord must be liable eventually!
If someone uses another’s car in a cash-in-transit heist, how can the owner be liable if he nothing to do with it? Its a ridiculous argument but the court accepted it. I thought after that that none of the judges had the slightest clue about the law of contract or the ramifications of what their decision was.
It is just plain wrong to allow the State to hold a third party liable for its contracted debts.
Maggs
It is not a silly way of doing it. All sorts of things will be covered up.
Revealingly, Enver Daniels states that implementation by people of integrity is essential or otherwise it will fail!
You telling me there’s a politician with integrity out there?
To have a Bill like this before parliament is ridiculous and indefensible.
@ ZK,
I see what you mean.
“He also admitted that the legislation was vague in parts, notably in its failure to define what national interest means, and could have dire consequences if it were not applied by people of integrity.
“The implementation is going to be very important. We can get it horribly wrong if it is not implemented by people who are properly trained.”
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71627?oid=189561&sn=Detail
Eish!
I wonder if Pierre has considered where that mouth may be.
Its as ridiculous and indefensible as the behaviour of the ANC’s on the committee…
One notes that State Law Adviser Daniels said the bill made it illegal for state officials to classify information to hide illegal acts or omissions, incompetence and inefficiency, or to protect individuals or state entities from embarrassment; but he did not explain how anyone could determine such a crime had been committed if the information was classified, and the bill allowed for official denials that classified material never existed.
Huh? Is that reassuring or what?
The reason why Daniels is wrong is of course that the CC has often said that in deciding on whether a provision of an act was unconstitutional one must look beyond the formal provisions and ask what the effect of the provisions would be. If a law purports to treat men and women equally but the effect would be to marginalize woman it would be discriminatory. Where a law will have the effect of allowing the classification of documents on the basis of a very vague “national interest” provision, the effect would be to restrict access to information. The provision that criminalizes the wrongful classification would have little effect because an official would be able to argue (referring to the testimony of Daniels perhaps) that the national interest provision is vague and that he or she was merely interpreting that provision and thus never had the intention wrongfully to classify documents that should not have been classified. No official would therefore ever be prosecuted successfully (unless that official could be shown blatantly to have classified information that could not possibly have been thought to fall within the national interest definition). Vast amounts of documents could therefore be classified because it was thought to be in the national interest to keep it secret because the definition is so wide.
Zoo Keeper, you might have been involved in Joseph, but you seem to have misunderstood your own case. I suggest re-reading the judgment – it absolutely does NOT allow “the state to hold a third party liable for its contracted debts”.
All that Joseph says is that, when disconnecting an electricity supply that will affect residents of a building, the City is obliged to provide the residents with procedural fairness, including fair notice of the disconnection, even though the City’s contract is with the landlord rather than the residents.
This procedural protection arises from PAJA. Like the High Court and the respondents, you have misconceived the case as being about contractual privity – it is really about whether residents have the protection of PAJA despite the fact that they have no contractual rights in respect of the City.
The judgment is well-reasoned and sound.
Are you sure you’re referring to Joseph? Your most recent post refers to issues that have nothing at all to do with anything in that case.
Leigh, with the very greatest of respect, I decline to engage in fatuous utilitarian bean-counting fantasy. The fact is that Zille, a liberal with a well-known white tendency, has opted to engage in an intensity of cosmetic enhancement that threatens our way of life and the safety of our children. If you wish seriously to defend that, I can only say regret all that I have done.
Mikkie, when you say ‘our way of life’, who do you mean exactly? You are a South African who (a) ethnically owes his origin to some flyspeck village in Eastern Europe but who nonetheless (b) identifies closely with cultured black people such as the JP. I hate to break this to you my brother, but you refer to your way of life, you probably speak for a very, very small minority. As you may well be unaware, many of we South Africans have no problem with the monies Hellen spends on botox.
Blessings, and good night.
an interesting take on the bill:
http://www.beeld.com/Rubrieke/LoodsePraatjies/Lood-se-Praatjies-20100728
LOL! Well spotted, George! I’m sure the new ANC regional paper SewAge is going to be a classic.
Regrettably, Ishmael Malale is not responding to give us a time-line when he was a government spokesperson, ANCYL committee member and NEC member.
If these milestones coincided, most of us here would regard that as a dangerous conflation of party and state. Taxpayers might object to financing Malale’s time while engaged in party-political activities.
Perhaps Malale might care to counter with a list of noteworthy achievements while he was in the employ of SA’s taxpayers?
Hey Brett,
Happy Thursday.
Panjo has been found – thanks to the efforts of all the well intended people involved.
Now I hear that you lost something too – not to worry, the Panjo rescuers are on their way.
Here’s Brett’s plea for help, everyone.
http://www.youtube.com/watch?v=hr5Ia6_TW4Q
Section 32(1)(a) stipulates that everyone has the right of access to any information held by the state. PAIA which is a derivative of this section the states which records are protected from disclosure.
The protection of information bill cannot purport to expand the area of protection of information without upsetting the constitution read together with PAIA. The problem merely arises from the heading of the section which contemplates protection from disclosure.
My view is that section 11 of the bill under scrutiny merely seeks to outline the records susceptible for classification, non-destruction, concealment by organs of state.
Any misclassification of a document may be challenged in the internal review process and until the apex port of call in liligation. What the act does not clarify but flows from mere logic is that any such information which any person seeks to access must be sought by means of PAIA.
State information must be protected not from disclosure to requesters but disclosure by unauthorised or undesignated persons or destruction by officials and others persons. This act seeks to assert observance of protocol in the efforts to access information.
At the moment state records are lying around unsecured and access not asserted throught the channels outlined in PAIA. The media and ordinary citizens must be able to access any state information but for the proscribtion embedded in PAIA.
The drafters may just have to clarify the clumsiness of section 11 of the bill. The heading is irrelevant and misplaced. This act must not contradict section 32 of the Constitution and provisions of PAIA. Naturally PAIA supersedes or overrides the provisions of this new Protected Information [Act- now still bill].
The classification of information in the state serves to determine the categories of employees, officials and office bearers that may access, handle or disclose it in the internal processing and management of information. For instance unvetted persons cannot access cabinet confidential records.
It is only when disclassified that De Vos and I can acess it. A requester can pierce this veil of classification by requesting the record through PAIA in which event the designated information officer will avail the record upon being satisfied that it is not protected information in terms of PAIA itself.
This good debates will be resolved by the CC if in the end society and/or legislators, including the president are unsatisfied or have reservations about its constitutionality. The food issue does not arise here Prof ! I understand that nicer food is found in your Campus.
As for Sundusa she has no legal or illicit firearms and knows that she can only shoot in self or private defence. She was just in military concepts indicating that the media at times encroach upon personal private spacesof people, such as access to medical records of patients without following PAIA and or seeking the permission of the patients. She is a young lady [in formal decorum an Honourable Member of our Pariament] who has nothing to hide from the media personally.
Illegal access to records must be actionable. Why should the media be exonerated from simply requesting records through PAIA ? Should we have an open democracy that shuns the Rule of Law.
Even Protected Disclosure Act requires the wistle-blower to initially approach relevant investigatory agencies not simply trigger a media frenzy. The Public Service gossipers will still continue to give you scoops and you go and request for the records formally; send questions for answers from the culprits in the State. When a disclosure exposes corruption no one will fault the media. But when you disclose records of patients definitely you must go to jail. 15 years! Is it too much!
I await you contribution Prof. Insults aside! Help the process. Pardon any grammatical mistakes and typocrafical errors as was in hurry.
ISHMAEL MALALE says:
July 29, 2010 at 7:47 am
“As for Sundusa she has no legal or illicit firearms and knows that she can only shoot in self or private defence.”
hahahaha – maybe Sundusa needs to be told that to shoot in self or private defence, she must first get a legal or illicit firearm. Finger pointing is also deadly, but mainly on this blog.
She knows that. I will invite her to shoot from the hip in your direction this afternoon. I guess she will enjoy being part of your discussion about her remarks. Just to hint. SHe is a member of an Ad Hoc Commitee established to stoke the fires ro hear your views on the proposed legislation. Please enlighten her if you have some positive contributions to make. I have an aversion to unconstructive engagement.
Brett, you are silly. Can you give views and desist from your digressive fixation with my personal history. Tell my your history first. Help the debate.
Maggs help with your views on this vexed question of the act.
Actually, Mr Malale, that is the crux of this dispute.
Most detractors of this Bill are concerned that ANC functionaries cannot distinguish between personal discomfort at being held to account over their consumption of state resources, or their track record while enjoying the largesse of tax$$$$, and the public interest in the availability of information.
Duke
As I say, I can’t remember the citation, It doesn’t sound like mine was Joseph because what you’re talking about is a different case which was fine.
I’ll try and see what I can dig up.
Forcing the Media and any other citizen to go through PAIA just means that it gives those in the wrong the opportunity to remove evidence or stonewall until the requester runs out of funds in court.
Whatever internal processes there may be for the storage of information should not impinge on the citizen’s ability to access information quickly and cheaply.
Precisely the intentions of PAIA, Zoo Kweeper.
Talking of an admission of guilt, it still surprises me to see that no one seems to notice that the national health insurance scam is an admission of guilt too … a very obvious one if you ask me.
In short the government admitted that they took a health system that gave first class health care to millions of white people and average (much better than the mess we have now) basic health care to the rest and that was doing world leading research and development of treatments and medicines, and broke it with mismanagement, incompetency and corruption to the point where the death of 8 babies in one hospital in a bit more than a week (not an isolated case) is called normal. So they are saying “We broke the system so badly that everyone should rather use the private health system with extra tax money since we will keep the public health system going to save face and empower our friends, although we are not planning on fixing it.”
Zoo Keeper, I told you about my request to the SAHRC for a copy of my complaint if I remember correctly?
Most Departments of State laugh off PAIA until they go through the metal detectors at Court. When it is a Chapter 9 institution it tends to put those old illusions in perspective.
Mr Malale, is the ANC prepared to put its money (Chancellor House’s, not tax$$$$) where its mouth is? If this Bill does not pass the scrutiny of the Constitutional Court, will the ANC reimburse the fiscus for all the costs associated with its enactment?
More importantly though, is the President prepared to use his power under S84(2)(c) of the Constitution to submit the Bill to the scrutiny of the Constitutional Court?
You mean to stonewall and prevent access by driving the requester broke in the process?
I thought PAIA was intended to guarantee access when access was denied – ergo, access to information is automatic and a law is necessary to force the State to disclose when it refuses to give the citizen his/her information.
If this Bill is meant to strength PAIA in this respect then it is every bit as evil as the Apartheid legislation it seeks to emulate.
Brett
You won’t get nuffing from the SAHRC. You asked a question which didn’t fit into their pigeon holes which they have for you so they probably filed in the “Too hard cabinet”.
I think Zoo Keeper was involved in Mkontwana, not Joseph.
Mkontwana is a tough case, and possibly unfair. But i don’t think it is poorly reasoned. The constitutional question was whether it is arbitrary deprivation for the state to refuse to provide a certificate to permit transfer of the property if there were outstanding payments. That seems completely fair unless, as in Mkontwana, the occupiers were responsible for the fees, not the landowner. Is it arbitrary to hold the owner responsible for fees incurred by occupiers? The Court looks at all the different categories of occupiers and carefully explains why it is not arbitrary in each case. I perhaps disagree with regard to illegal occupiers, but as the court notes, it is not unreasonable to expect an owner to ensure that her property is not illegally occupied. I think this is one of those cases that (with regard to illegal occupiers) could have gone either way. I don’t think the Court’s decision is poorly reasoned.
I don’t think the case has implications for the law of contract. The reasoning is only applicable to claims of arbitrary deprivation of property under s 25(1) of the Constitution. Section 25(1) prohibits any deprivations that aren’t in terms of a law of general application. So if existing contract law does not permit the deprivation you don’t even get to the question of whether it is arbitrary. Only where there is a law that permits deprivation can we argue about arbitrariness. It is important to rememeber that “arbitrariness” is a very low standard, although the Court gave it a fairly robust interpretation in FNB. You may think the standard should be higher, but based on the constitutional text, it is difficult to argue that Mkontwana was poorly decided.
Michael
I think that could be it – shot!
I think it could possibly have implications for the law of contract because it invades the privity of contract rule. I didn’t think the judges gave the law of contract due regard, or displayed any nuanced understanding thereof.
The municipalities enter into contracts of service for the provision of lights and water. The landlord is not a party to that transaction. the landlord pays the municipality rates which are a tax but separate and distinct from water and light services.
To hold a party liable for another’s transaction is poor legal reasoning in my book and directly in conflict with the privity of contract rule. That the consumption of the goods took place in that person’s property should not attach liability to a person in terms of a contract to which he is not a party.
If you sell someone a bad car should the buyer be able to sue the owner of the plot of land on which the car lot stands?
I believe the CC took a distinctly pro-executive decision when it looked at the possible loss to municipalities when landlords claimed their money back. Once you look at it from that perspective the decision doesn’t look very good at all.
But then on another tack the CC says the owner should ensure that the property is not illegally occupied but then makes decisions which makes evictions of illegal occupiers more and more difficult, costly and time-consuming. Eventually, if you follow the principle of Modderklip to conclusion, the State is going to have to pay for all rates, rent and services of every illegally occupied piece of turf!
ISHMAEL MALALE says:
July 29, 2010 at 8:25 am
Hey Ishmael,
“Maggs help with your views on this vexed question of the act.”
If the State Law Advisor says the following then we, all of us including you and our President, should be worried, verry worried.
“He also admitted that the legislation was vague in parts, notably in its failure to define what national interest means, and could have dire consequences if it were not applied by people of integrity.
“The implementation is going to be very important. We can get it horribly wrong if it is not implemented by people who are properly trained.”
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71627?oid=189561&sn=Detail
Are you happy with :
- “dire consequences if it were not applied by people of integrity” and
- “(w)e can get it horribly wrong if it is not implemented by people who are properly trained”?
Recall the states of emergency and draconian laws in the 80s. Do we even need to go close to that?
I am concerned by just the thought of the application of this being at the whim of whoever is sitting in the chair at the time.
Zoo Keeper says:
July 29, 2010 at 11:03 am
Hey ZK,
Beyond the legalese, at which point does the consequences of owning property get passed from the owner to the municipality?
Maggs
It follows the principle of “Consitutional Damages” which was essentially invented in the Modderkilp case by the CC.
I might be taking it a bit far but where the State allows the breakdown in law and order, like it did in the Modderklip case and people lose the use of their land, the State must compensate the owner – rental plus purchase whilst leaving the occupiers in their stead.
Its a difficult principle and although I believe the CC got it right (because of the immovable object it was faced with), the extension of that principle might become a problem.
So where an individual landowner is stuck with illegal occupiers for reasons beyond his control, the State may have to foot the bill.
Zoo Keeper says:
July 29, 2010 at 16:02 pm
Are you suggesting that the responsibility for ensuring that the securing of privately owned property lies with the state and not the owner?
I thought that illegal occupiers could be evicted as soon as the land was invaded but if it is left for several months then there is a process to follow – is that not so?
… here’s hoping Enver Daniels takes note of the points Guy Berger makes …
http://www.mg.co.za/article/2010-07-29-four-lessons-on-the-media-tribunal
Its become very complex Maggs
If it becomes a “home” then the PIE Act is involved. There is precious little time for a landowner to legally evict without court procedures – he has to strike whilst the iron is hot. Once they’re in, they’re in.
The courts have also advanced the principle the “homelessness” shouldn’t be the result of an eviction(!). This means that a municipality’s housing system has to be interrogated to see if an eviction is “possible” and “just and equitable”. Eventually the landlord will win, but it takes time and money.
When the landlord cannot evict because of a failure by the municipality, the municipality could well end up carrying the can.
I should know. I have in the past done a lot of this type of work.
Zoo Keeper says:
July 29, 2010 at 17:11 pm
I suspect that the balance between unfairly evicting people and property ownership is a difficult one. Many landlords are not necessarily the most scrupulous of people so some protection of those living on property is appropriate. But the choice of owning property and of selecting property is well within the rights of the property owner – it should not be made to be the responsibility of government.
I reckon that once a property is occupied that it will be wrong of the municipality not to provide water, sanitation and electricity or to cut of those services with the ultimate responsibility of payment going to the property owner. I agree that where the faulty lies entirely with the municipality, the property owner should not be prejudiced.
It’s the same with the NCA – carefully choose who to make credit available to or else bear the consequences.
BTW there’s a place somewhere in Durban where the land was extremely difficult to develop (on a very steep slope below road disappearing into a deep valley). The owner at the time thought he found a novel solution – he allowed homeless people to erect shacks for a small monthly rental. After paying the first months rental the “tenants” told him to bugger off. Then he tried “evicting”. Three decades later no luck and deservedly so.
ISHMAEL MALALE says:
July 29, 2010 at 7:47 am
hey Ishmael,
“Illegal access to records must be actionable.”
Should something like this be allowed or would that be regarded as private?
“First Lady Nompumelelo Ntuli-Zuma stands accused of being a worker’s worst nightmare.
President Jacob Zuma’s second wife is alleged to have flouted labour laws and mistreated, abused and exploited at least three domestic workers, while living at her plush Morningside home in Durban, paid for by local businessman Erwin Ullbricht.”
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100730044320670C847547
Zookeeper … there is an enterprising group (somewhere in Tshwane) who offer an innovative service to landlords stuck with intractible tennants: for a small fee they will fill your rented premises with large numbers of people. Apparently its quite legal. The end result is that the existing tennants find the overpopulated situation untennable and voluntarily abandon ship. No doubt the landlord saves a fortune in legal costs by going this route.
Belle
I’ve heard of that – ghost-tenanting I think its called.
Maggs
I’m of the opinion that private property must be protected at all costs and with minimal interference. After all, the ability to privately own property is a corner-stone for freedom from dependency. Of course we have large numbers of people without land but that’s the case the world-over. We’re no different and we should stop thinking that some kind of special circumstance exists here. The courts want to protect the vulnerable but at the same time that comes with a cost. If it is at the cost of property owner who is going to pay the taxes to assist the vulnerable, its a bit like cutting your nose off to spite your face. I think the CC has gone a bit too far over and lost a bit of the balance.
The CC needs to re-discover and respect the rights of the property owner and consider the impact its feel-good orders have for economic activity and the prosperity the very people it seeks to help are dependent upon.
With regards your article on the “squatters” – well, they paid him rent at first and it is his property. Why cannot he get it back? He may an @@@hole but you can’t legislate against motives or stupidity.
In his case, the property is effectively lost and he must be recompensed. It is possible he could extend the principle of Modderklip to claim damages from the State for the effective expropriation of his property.
By the way, rent is very, very common in “squatter” camps and “bad” buildings. To the extent that it is the rule not the exception.
In my travels I have only come across literally a hand-full of cases where properties illegally occupied were occupied by genuinely indigent people who didn’t pay rent to someone – often a staggering amount (like R2500/month for one room, no water, no lights, no sanitation, no refuse removal, and obviously no limit to how many people you could stuff in there). A lot of assumptions in commentary on this area are based on this being the opposite!
Zoo Keeper says:
July 30, 2010 at 12:21 pm
I heard that property raiders also do that kind of thing where they bring in ‘awful’ tenants to drive down property values – that’s enterprising
Re property.
Property rates and service charges have to be paid for – ultimately it has to be the property owner who pays.
Like traffic fines – the owner of the car is ultimately liable as I understand it.
I can understand the CC suggesting that if by omission or commission, property is allowed to be occupied, then the people who are occupying cannot just be dumped because the property owner decides that should happen.
After property has been occupied, at which point does the burden then fall on the state to take responsibility for the occupiers?
Take into account the scams that would be unleashed if the state had to take immediate responsibility in such instances. Fill a property with people, evict. Next lot.
The brush does sweep wide though – I read an article a while back that reported that a family went on a long holiday, only to return to find “tenants” occupying the house and if I recall correctly it was a challenge to evict the occupiers.
Maggs
Rates are a tax on the landowner who is bound to pay (no qualms about that) but services (water and light) are a contracted supply – different ball game.
When the property owner finds it impossible to evict, then the burden is going to shift to the State. He has lost his property permanently – no different to deprivation, he needs to be paid the value plus the lost rent by the State and perhaps lost legal fees too.
The circumstances are going to be tough though make no mistake. The claimant is going to have to prove that every single avenue was pursued to obtain possession. It would a long hard slog and very unlikely any conman is going to want to go through all that financial strain for little reward at the end of the day. In fact, the conman would make a loss.
The circumstances in the article reveal what chaos the uncertainty of property rights has caused. Its my belief that the rights of the owner ought to come before any rights of the illegal occupier.
Zoo Keeper says:
July 30, 2010 at 13:26 pm
“services (water and light) are a contracted supply – different ball game”
I hold a somewhat different view.
To illustrate, I’ll exaggerate the figures and the scenario.
Let’s say in a small town of say 1000 houses, half are tenants, the other half are owners living on the property. Let’s make it more complex and say that the rental properties are all owned by the mayor of the town and the mayor owns the only factory in the town which employs all the breadwinners who are tenants and, as skelmy mayors do, underpays the workers. The workers contract with the local council for services, but who don’t pay. Assume that the 500 homeowners pay for their services.
Let’s say the services bill is equal among all the houses and the total is say R1 million per house, cost per house is thus R1000.
If the mayor’s tenants don’t pay, the cost will have to be recovered from those who do pay, effectively, in this example subsidising the nasty mayor. Let’s assume that suing them is a no go because these are migrant workers with no material assets.
The cost of services will then double to the 500 owners because costs effectively get distributed, no matter which way it is considered, among those who can and do pay. So the good guys pay R2000 rather than the R1000 that they incurred.
Why should the 500 good people (ok 499 if we exclude the mayor) be made to carry the burden of the rather wayward property owner?
I say the mayor should control half the seats on the council since he pays half the rates.
Maggs
You’re example got simpler but never mind!
You’re missing the crux – contract vs tax.
The town council enters into individual contracts of supply with each tenant, not with the landlord. Once a tenant defaults the services must be suspended and bad debt kept to a minimum.
What the CC effectively stated was that landlords are sureties for debts to which they have not agreed and over which they can exercise no control.
Bad legal reasoning by the CC. They should be ashamed of themselves.
Zoo Keeper, i think you misunderstand the CC’s reasoning. The CC didn’t say that the landlord SHOULD be liable. All it said is that it was not arbitrary for the government to pass a law that prevented them from transferring their property for two years unless the debt was paid. That is a very different holding.
Zoo Keeper says:
July 30, 2010 at 14:47 pm
hahahaha – oh well, we’ll live.
On the contract vs tax – I agree entirely with what you have said.
My contention is somewhat different – even if the contract is between the municipality and the tenant, ultimately the costs get distributed (albeit through a long winding road) over the remaining properties one way or the other, costs which would not have been incurred if the property owner was more careful in selecting tenants and/or securing the property.
The impact of the judgment as I understand is that if you own property make pretty sure that you have acted sufficiently carefully so as not to burden the state or anyone else with adverse consequences or costs.
On a slightly different subject, I have been debating the impact of taking very poor people out of informal settlements where the get water from the river and use the bush for, er, “thinking”. We then put them into proper homes with lights and services which up to a level is free. Costs above the free levels have to be paid for – but these are people who had zero in the first place, now we expect them to pay for consumption which is theirs for the taking. It’s been said that if people are disciplined then they will be able to manage within that which is free – yeah right, people who are that poor will be able to be disciplined when confronted by uncontrolled use of resources. The balance between the need to take people out of squalid conditions and effectively managing the consequential costs is a difficult one but more thought needs to be given to it.
Michael
That encapsulates the absolute poverty of the CC’s reasoning: a property transaction has to be placed on hold for TWO years – without losing the transaction, losing revenue as it has to stand empty otherwise another tenant’s going do to that same thing, facing the probablility of damage from vandalism etc. Its an utterly ridiculous scenario the CC placed before the landowners.
Courts are obliged to be aware of the practical effect of their judgments and the practical effect was to allow a State entity to hold a third party liable for its contracted debts.
The CC messed it up, simple.
Maggs
You are of course right: the costs will be distributed to the taxpayers eventually, but it is the fault of the municipality for not policing its customers properly, not the landlord for poor tenant selection (he’s going to lose in lost rental so should learn his lesson).
On your second point, I believe the solution is not taking them to the water but teaching them how to drink. Education, education, education and promotion of the “can-do” attitude and creation of the “South African Dream”.
The problem is the cycle of dependency, the more you give, the more dependent the recipient becomes. Its a tough one indeed.
ZooK,
“it is the fault of the municipality for not policing its customers properly”.
Suppose you live in a block of flats where half of the tenants default on services and the municipality shuts of lights, water and garbage disposal to those who default.
Now you have stinking toilets, overflowing garbage, paraffin stoves surrounding you and your family – what do you as a diligent resident do?
Supposing people die because of the health problems that flow from that – who becomes liable?
Suppose your driveway is blocked with garbage because of the defaulting tenants and you cannot get out of the complex to work so that you can earn money and pay your bills – who is liable?
The question that is behind that is: is it correct for the municipality to deny essential services for whatever reason considering especially the impact of what the denial may result in?
Hello hello?
Elvis has left the building!
All I asked is whether the President is prepared to use his power under S84(2)(c) of the Constitution to submit the Bill to the scrutiny of the Constitutional Court?
Did you guys watch Carte Blanche?
Why indeed should a journalist investigate crime and corruption? LOL!
ISHMAEL MALALE says:
July 29, 2010 at 8:25 am
Hey Ishmael,
The vexed question is getting more vexed with the chair of the ad hoc committee asking questions such as “are you with us or are you against us”? and “should the media be investigating crime and corruption”?
Eish!
Would the media, if the bill were to become an act, be able to report that the SAPS has committed to another R500 million in rental, seemingly duplicitous and without regard to the law?
Should ordinary citizens get to know that?
Should parliament get to know that?
Min Nzimande is right that “we want a media tribunal that will hold journalists accountable”, but being accountable cannot translate to http://www.sagoodnews.co.za.
Part of the frustration it seems is that the media does not report enough positive stories. Is there going to be some kind of barometer, measuring the relative amounts of good vs no so good news?
Should the media report that “President Jacob Zuma may be legally married to only one of his three wives – Sizakele ‘MaKhumalo’ Zuma.
” – http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100802044421408C225367, especially considering that the state incurs expenses in that regard?
Zwelinzima Vavi and Blade Nzimande are two of the very few gutsy activists left in progressive circles – will the media be allowed to report freely on what they say and be allowed to follow through on issues that they raise?
Should these two, possibly the most dedicated activists be allowed to make the kind of accusations against nameless and faceless people that broadly casts aspersions on the democratic movement in general?
Comments such as :
-”Cosatu general secretary Zwelinzima Vavi said at the SACP’s 89th anniversary celebration that corruption was rife in tripartite alliance structures and patronage was on the rise.”
- “Tenderpreneurs are the most dangerous people to the revolution because they will sell their souls for a tender in a municipality. If you let them run the country, they will sell the soul of the country for a tender to the biggest imperialist bidder,” Nzimande said.
There is without a doubt the need for reporting to be checked in some ways, but some of what is coming through from highly placed people seems to me to be contrary to what we should expect in our democracy.
Maggs
Sectional title is dealt with differently. Only recently was there a move to individually charge units.
In general the sectional title scheme is billed as a whole and the units pay levies as a contribution.
Its then up to them to police each other.
On cutting off essential services – dude, somebody has to pay for the services. If you say the municipality cannot cut off services then nobody is going pay. Ever.
What happens next is the financial collapse of the municipality and those essential services evaporate into thin air.
People have to pay for services, if they don’t pay they must live with the consequences.
Zoo Keeper says:
August 2, 2010 at 9:49 am
“On cutting off essential services – dude, somebody has to pay for the services. If you say the municipality cannot cut off services then nobody is going pay. Ever.”
Indeed.
It may well be why it was ruled that if services are provided to a property then the property has to stand against the expenses.
The bottom line should be that the property owner has to be responsible – protect property and choose tenants carefully, neither of which is very hard to do and neither should ultimately be the responsibility of the state.
It was reported over the weekend that as many as 450 000 homes (or some big number) are soon to be repossessed – so the defaulting owners have no money, the banks attach, who should pay for the services?
Protect property when it is so difficult to get an eviction?
‘Choose tenants carefully’ and be accused of discrimination?
“Blade did not use word ‘jail’
Aug 2, 2010 11:26 PM | By Staff reporter
In yesterday’s The Times, a story headlined “Jail journalists – Nzimande”, suggested that SACP leader Blade Nzimande had called for the imprisonment of journalists. …
The headline was, therefore, derived from this interpretation, and we accept that it is misleading. We apologise.”
http://www.timeslive.co.za/local/article582513.ece/Blade-did-not-use-word-jail
@ Maggs
If my memeory serves me well, we had a gentleman who was presented in this blog as Chief Justice of Swaziland during the Hlophe debate. Well here is a taste of the kind of Justice you find in Swaziland that should be embarassing in anyones cv.
http://www.iol.co.za/index.php?set_id=1&click_id=29&art_id=iol1280841092211S241
Zuma wants to talk to media
2010-08-05 11:42
Michael Hamlyn, I-Net Bridge
“We understand that a lot of things that have taken place currently, the Protection of Information Bill the proposal of a media tribunal, the arrest of the journalist recently, all of these things are contributing to a climate where a perception could emerge that there is a government plan to muzzle the media, but I want to make it very clear that there isn’t such a plan on the part of the government.”
Maseko insisted: “What needs to happen is an interaction, a dialogue that needs to take place between editors, media owners and government to understand the context, to understand where government is coming from with its proposals on the table, and for government to hear the views of media owners and the editors, to find some understanding that is acceptable.
“We all agree that it is unhealthy for a perception to exist that government is on a mission to actually muzzle the media in any form or shape, which is actually not true.”
http://www.news24.com/SouthAfrica/News/Zuma-wants-to-talk-to-media-20100805
“The Protection of Information Bill is “constitutionally suspect”, says the Law Society of SA.
“The bill suffers from several defects which render it constitutionally suspect and which need further consideration,” the LSSA said in a statement.
The society expressed concern over the bill and the ANC-proposed Media Appeals Tribunal, and their effects on media freedom.
“… Each has the potential seriously to erode transparency, accountability by public officials, the public’s right of access to information and media freedom.”
“Defects” in the bill include its “broad and vague” definition of “national interest”, the threshold for classification was “unacceptably low”, the bill allows for the classification of commercial information held by the state and the bill fails to provide for an “independent oversight mechanism” to review classification decisions.
“… [It] thus leaves the final decisions in this regard in the hands of state officials who may well have an interest in continuing to conceal certain information.”
http://www.timeslive.co.za/local/article590777.ece/Law-Society-concerned-about-media-freedom
[...] & Guardian editor Nic Dawes’ submission on the POI Bill at the Portfolio Committee hearing. Constitutional-law expert Pierre de Vos’ analysis on the hearings. “Secrecy law threatens SA’s democratic credentials” by Fiona Forde in Business [...]
How my Bill was betrayed
DEFEND DEMOCRACY, NOT GAG IT: Former Minister of Intelligence, Ronnie Kasrils.
…
Substantial revisions have been made to the Bill. Whereas my motivation was to reduce unnecessary classification and encourage declassification, the 2010 Bill does the opposite.
The 2008 Bill required original State classifiers to provide a written justification for each initial classification decision. This has been removed from the 2010 Bill. The purpose behind the requirement was to force classifiers to think twice before classifying information. In particular it was there to force them to apply their minds to make reasoned and rational classification decisions, which could be defended. By removing this requirement, classifiers are given an opportunity to make up reasons after the fact. …
http://www.dispatch.co.za/article.aspx?id=427543
Useful idiot!
[...] & Guardian editor Nic Dawes’ submission on the POI Bill at the Portfolio Committee hearing. Constitutional-law expert Pierre de Vos’ analysis on the hearings. “Secrecy law threatens SA’s democratic credentials” by Fiona Forde in Business Day. “POI [...]