Constitutional Hill

Shortlist of candidates for Con Court position

REPUBLIC OF SOUTH AFRICA

JUDICIAL SERVICE COMMISSION

MEDIA ANNOUNCEMENT

SHORTLISTED CANDIDATES FOR CONSTITUTIONAL COURT VACANCY

On 23 October 2012, the Judicial Service Commission (JSC) published an advertisement calling for nominations of interested persons to fill a vacancy in the Constitutional Court which will occur when Justice Zak Yacoob is discharged from active service at the end of January 2013.  The closing date for the nominations was set for 23 November 2012.

Following the closing date, the JSC has compiled a shortlist of candidates to be interviewed for the above-mentioned position as follows:

  1. Judge Selby Alan Masibonge Baqwa
  2. Judge Lebotsang Orphan Bosielo
  3. Adv Jeremy John Gauntlett SC
  4. Adv Mbuyiseli Madlanga SC; and
  5. Judge Brian Solomon Spilg

The organized legal profession and institutions with an interest in the work of the JSC are requested to submit comments on the abovementioned candidates to the Secretariat of the JSC by no later than 07 February 2013.

The shortlisted candidates will be interviewed on 22 February 2013.  Details of the time and venue for the interviews will be communicated to the shortlisted candidates in due course.

Issued by the Judicial Service Commission

Enq: Adv D Ntsebeza SC 0824672490 and Mr C P Fourie 0828811737

15 January 2013 

  • HP

    Objections regarding the consideration of Adv JJ Gauntlett SC to be appointed a judge of the Constitutional Court

    Cape Town, 7 February 2013
    Dear Members of the Judicial Service Commission,

    My name is Horst Peschkes, (70).
    I am an engineer, educated and trained in Munich, Germany and have been living in Cape Town since 1970.

    Since 1974 I have been operating my own engineering company, named Photocircuit, producing high tech printed circuit boards for the local electronics industry.
    I was able to sell the company and am now in retirement.

    The submissions below are the result of extensive research of many records in the Public domain, spanning the period since 1924 up to the present.
    .
    I shall try to keep this letter as short and as precise as possible, and advise that all reference documentation is at hand, in addition to several detailed explanations and proofs that have been compiled, all of which will be available to you upon request.

    Also please note that the language used in this letter is in part that of the previous Labour Relations Acts (LRA) and might come across somewhat tedious or repetitive.

    Introduction:

    This letter explains the correct functioning of the previous LRA as opposed to its incorrect application based on the use and interpretation of three unlawfully altered definitions in the LRA.

    It then shows a short list of some of the persons involved in such alterations of statutes and the occasion it was done and how, in chronological order since 1944.

    As may be seen from the short list below, Mr Gauntlett SC appears as a main actor in this legal drama and appears to be the one person, who was involved in or has made use of all three alterations, obviously to gain a winning argument for his clients.

    It is respectfully submitted that Mr Gauntlett has not shown the respect for the law and the statutes as is required from an officer of the court and is in my opinion not a fit person to be a judge.

    The issues:

    Our previous Industrial Conciliation and Labour Relations Acts of 1924, 1937 and 1956 regulated the jurisdictional limitations of industrial councils and their agreements via a particular principle expressed as a sui generis collocation of the words “undertaking, industry, trade or occupation”.

    The four nouns represent variables which together may be precisely identified when the collocation is referred to as a particular undertaking, industry, trade or occupation or when it is followed or accompanied by determining words.

    Who is or who is not affected by industrial council agreements depends on whether or not an employer and his employees are engaged or employed in such a particular undertaking, industry, trade or occupation to which an industrial council agreement relates.

    The answer to this question reveals itself in each and all those definitions in the Acts, which rely on or contain this collocation. They are mainly the definitions of “agreement”, ”employers’ organisation” and “undertaking, industry, trade or occupation”.

    Generally, an undertaking, industry, trade or occupation specifies an enterprise (undertaking) engaged in its industry with its employees who are employed on specific trades or occupations. The word “undertaking” is meant to mean an enterprise or company – an employer of employees and not an activity or industry.

    A particular undertaking, industry, trade or occupation specifies who the undertakings are, precisely what they do (their industry) and what trades or occupations their employees are employed for.

    A very specific undertaking, industry, trade or occupation for instance is created at the time of the formation of an industrial council. It is specific since it only contains some or all the members of the employers’ organisation (with registered interests which are the industries their members are engaged in) and some or all their employees who are members of the trade unions (with registered interests being the trades or occupations their members represent).

    Another simple example is the formation of an industrial council by one employer (if the Minister/Registrar approves) and any registered trade union. The resulting industrial council consists of the representatives, in equal numbers, of that employer and of that trade union, who are referred to in the Acts as the members of the council and who are the signatories of the original constitution of the council agreed to by them.

    The undertaking, industry, trade or occupation thus formed consists of that employer (undertaking), engaged in its industries (activities) and those of his employees employed on particular trades or occupations and who are some or all the members of that trade union.

    The undertaking, industry, trade or occupation in respect of which it is desired that that industrial council shall be registered may obviously comprise more employers and employees, of which the council has to be sufficiently representative.

    These extra employers are managers of branches or contractors etc, engaged in identical activities, who are part of or connected to the original employer (undertaking) but who themselves are not (paid up) members of the council or of a party to the council.

    The extra employees, on the other hand, are those who are not members of the trade union but are eligible to become such members (freedom of association).

    Note: The collocation has been used as such some 154 times, and appears in every significant section of the three Acts. I submit that it is impossible to understand the proper functioning of the provisions of the Acts without a correct understanding of the definition of that collocation, which by the way the Wiehahn Commission declared it was unable to do.

    Industrial council agreements:

    I submit that so-called non-parties are not engaged in the undertaking, industry, trade or occupation to which the industrial council agreement relates and that accordingly the agreement cannot be legally made binding on them and their employees by the Minister.

    The term “non-parties” relates to employers who are not members of an employers’ organisation which is a party to the council and who are not connected to an employer (undertaking) who is such a member.

    It is clear that the undertaking, industry, trade or occupation to which the agreement relates is identical to the one in respect of which the council has been registered: provided that all the parties to the council are also all the parties to the agreement.

    As may be gleaned from any published agreement, the wording of the Minster’s notice in the Government Gazette is not phrased in terms of the Act. In the notice an incorrect reference is made to “industry”, instead of the correct reference to the “undertaking, industry, trade or occupation to which the agreement relates”.

    This difference in meaning of the single word “industry” compared to the collocation constitutes itself in the involvement of a far larger numbers of employers and employees, including the so-called non-parties in the case of “industry”.

    It is also obvious that these many additional persons are forced to contribute into the numerous funds controlled by the councils – the very reason for the councils’ extortion tactics, in particular in regard to the non-party employers and their employees.

    Many attempts to challenge the legality of the Ministers’ agreement extension were made by non-parties in the law courts since 1924, most of which were dismissed in Magistrates courts based mainly on decisions made by judges in higher courts.

    This obviously brought us to scrutinise the relevant judgments plus records of the superior courts.

    Unlawful alterations of Statutes:

    We were shocked to discover a plethora of misquotations of the statutes, unlawful alterations of definitions, perjury and forgeries in affidavits, legal opinions and publications regarding the statutes, involving judges and other senior members of the legal fraternity together with representatives of big business (i.e.Seifsa), with the support of senior officials in the Department of Labour and even members of a publishing house.

    From judgments it would appear that the resulting interpretations of this manipulated law were sometimes not comprehensible to uninvolved judges who endeavoured to come to terms with the functioning of the Acts.

    Unfortunately, none of them investigated the elusive underlying principle of the Acts well enough to realise the discrepancy in the Minister’s notice.

    All unlawful alterations are connected to the three definitions referred to above, which otherwise, if applied unchanged, would determine precisely the correct meaning of our collocation “undertaking, industry, trade or occupation”.

    The names of some of the principal actors in this legal saga of failed jurisprudence are listed below, with a brief description of some of their wrong-doings attached.

    It should be mentioned once more that all information herewith supplied is in the public domain – although often well hidden or disguised and sometimes difficult to comprehend.
    Detailed documentary evidence and proof of argument for all is at hand.

    The short List: (in this document only relating back to 1944)

    The Minister of Labour, 1944, incorrectly approved the registration of the industrial council (NICISEMI) in respect of the interests (industries) of the employers’ organisations which were parties to the council, (as recorded in their individual registration certificates, issued by the Registrar), and not in respect of the undertaking, industry, trade or occupation in respect of which it was desired that the council should be registered.

    One should mention that the registration in respect of the industries (half the character – the other half being the trades or occupations) of the employer parties is only possible if the definition of employers’ organisation is altered by the exchange of one “their employees” to “the employees” in it and therefore leads to a situation ad absurdum, rendering the council nil and void.

    Schreiner J.A., 1952, author of the judgment in Transvaal Manufacturers v Bespoke Tailoring, in which he exchanged the word “includes” with the word “or” in the quoted definition of “undertaking, industry, trade or occupation”, thereby enabling him to separate the four nouns in our mutually inclusive, sui generis collocation and interpret each noun in terms of their normal grammatical meaning as activity or industry. Schreiner in this instance chose “industry” – in line with the Minister’s incorrect Notice in the Gazette and the identical incorrect contents of the registration certificate of NICISEMI.

    The meaning of the correct definition clearly is that a portion or a section of an undertaking, industry, trade or occupation is still an undertaking, industry, trade or occupation.

    Ehlers, DP, 1983, author of Matshoba v Fry’s Metals, in which he misquotes the provisions of section 19(3) of the 1937 Act in that he equates (and exchanges) our collocation with the word “interests”, in line with the false registration of NICISEMI in respect of the “interests” as contained in the registration certificates of the employer organisation which are parties to the council.

    Erasmus, AM, 1985, author of Manquasela v Rheem, in which he extensively quotes from Schreiner’s judgment, inclusive of the altered definition of our collocation, thereby justifying his own incorrect conclusion regarding the jurisdiction of an industrial council (NICISEMI) over non-parties.

    Eli van der Merwe Louw, Minister of Manpower, 1991, signatory and author of the revised Government Notice purported to be in terms of section 48(1) of the Act, in which he replaces the already incorrect reference to “industry” with a revised incorrect reference to “Undertaking, Industry, Trade or Occupation” (capital first letters), apparently trying to signify with this simple grammatical manipulation an imagined mutually exclusiveness of the four nouns in the collocation and enabling the interpretation of their individual simple meaning as being an industry or an activity or an endeavour or an occupational limitation.

    Faber Piet, Lawyer, Sonnenbergs, 1992, author of a written legal opinion on behalf of the Industrial Council for the Building Industry (WP), which resulted in the prosecution of a small builder (a member of the Small Builders’ Association (WP)).

    In his opinion Faber quotes the definition of “agreement” from the Act, but which he had altered by adding the article “the” before the word parties in that definition, thereby creating the impression as if an agreement has to be between all the parties to a council and requiring a two third majority to bind all.

    To reinforce his first alteration Faber goes so far as to insert in his opinion the said definition, which judge Kriek had correctly quoted twice in his 1987 judgment of Consolidated Woolwashing v President Industrial Court, after altering Kriek’s quote of that definition as well.

    Finally, to get the ultimate confirmation of his false opinion, he musters the opinion of JJ Gauntlet, SC who in writing confirms all of Faber’s deliberations which are based on the forged definition of “agreement” and two other unlawfully altered definitions.

    Gauntlett, SC, 1992, author of a written legal opinion, in support of Faber’s above opinion, which is based on Faber’s alteration of the definition of “agreement” in the Act and on the unlawful alterations of the two other definitions referred to above.

    Angus, CEO Seifsa, 1992, author and signatory of an affidavit in the matter of Seifsa v Numsa, which contains the forgery of the definition of “employers’ organisation” and other untruths concerning Seifsa’s incorrect legal standing by implying that the federation is an employers’ organisation (of a particular kind, “their” replaced by “the”) and a party to the industrial council (NICISEMI).

    Gauntlett, SC, 1992, senior counsel for Seifsa in the matter of Seifsa v Numsa (above), in that he allows several incorrect statements in Angus’ affidavit to be presented to the court as being the truth, in particular an unlawfully modified definition of “employers’ organisation”.

    The word “their” (a possessive determiner) appears twice before the two words “employees” in the definition and was exchanged once with the article “the”.

    This change of definition unlawfully increases the jurisdiction of an employers’ organisation to include all employees in an “industry” and consequently also the employers of those employees – the non-parties.

    I submit that Gauntlett did so knowingly, since he had also quoted on page 22, paragraph 34 in his heads of argument the correct definition, but conveniently ignored this fact in that he refers on page 24 of his heads that the allegations of Angus (changed definition and Seifsa a party to the council) are not materially disputed.

    The ridiculous results of such unlawful actions may be seen in the 1992 judgment of Myburgh, J in Seifsa v Numsa.

    Myburgh, J, 1992, author of the judgment in Seifsa v Numsa, referred above, in that he accepts Angus’ incorrect definition of “employers’ organisation” (as advanced by Gauntlett) and further modifies that definition by exchanging the second “their” with an additional “the”.

    Both references in that definition to “their” employees have now been replaced by a reference to “the” employees. This change of words in the definition unlawfully enlarges the jurisdictional limitation of an employers’ organisation to now include the so-called non-parties.

    Gauntlett, SC, senior counsel for NICISEMI, in that he advances (in the 1993 matter of NICISEMI v Photocircuit) to the court, in his heads of argument, the Bespoke Tailoring matter relevant the unlawful alteration of our collocation by judge Schreiner in order to convince the court of the alleged jurisdiction of the council over non-parties.

    I submit that Gauntlett’s actions of knowingly peddling a judgment containing an unlawfully altered definition in order to gain a winning legal argument for his client, is equivalent to knowingly dealing with forged money.

    Gauntlett, SC, acting on behalf of NICISEMI in the above matter presented to the court the judgement of Myburgh (above) containing the altered definition of “employers’ organisation” and was challenged with regard to this alteration.

    In reply Gauntlett made a mockery of the court and in total disrespect of the correct statute exclaimed that one should not view the matter through a jewellers glass which, as a magnifying instrument screwed into one’s eye, enables one to focus on words like “the” and “their”.

    Scott, J, author of the judgment of the 1993 matter of NICISEMI v Photocircuit in which he based his ruling of the jurisdiction of the industrial council and their agreements over non-parties on the Bespoke Tailoring case which we know by now is based on the altered definition of our collocation.

    Judge Scott also misquotes Tindall, J in Rex v Siderski, 1927, who quite clearly stated that “It is clear, I think, that in relation to the employer an “undertaking, industry, trade or occupation” means not a personal vocation but a collective enterprise in which employers and employees are associated”.

    Summary and conclusion:

    Referring to Tindall’s dictum quoted above, I should mention the words of judge Vivier, who in the dying moments of the 1956 Act felt compelled to state in a 1998 matter of Industrial Council Building Industry (WP) v Transnet Industrial Council, that:

    “… I am not unmindful of the decisions of our courts which have interpreted the words “undertaking, industry, trade or occupation” as referring to some form of activity or pursuit rather than to persons who engage in them”, referring to the NICISEMI v Photocircuit matter and the cases there referred to. (judge Schreiner in Bespoke Tailoring).

    How close to the correct meaning of our collocation some of the judges were may be seen from the dictum of Solomon, J in Rex v Siderski, 1927:

    “An Industrial Council is not a miniature parliament which passes laws binding on any class it may select in the industrial, trading or working world. It is a body which brings about agreements between employers and employees in some particular undertaking, industry, trade or occupation.”

    Had Solomon realised that it must be employers and their employees as defined in the definition of “employers’ organisation”, he would have come to the conclusion that these are the only persons in the particular undertaking, industry, trade or occupation and that the employers mentioned are members of the employers’ organisation which is a party to the council.

    I respectfully submit that it would appear that judge Solomon was distracted by the Minister’s incorrect notice attached to the agreement and published in the Gazette which refers to the building industry instead of to the undertaking, industry, trade or occupation to which the agreement relates. The building industry, namely the “industry” in our collocation, is constituted by the combined registered interests (industries) of the members of the employer’ organisation – it is a function of the individual interests represented by the members and therefore a dynamic term.

    It is not a pre-conceived idea of the Building Industry which would include all and every activity connectable to that (static) industry – a notion which, it would appear, the judge had considered when assessing the Minister’s notice.

    In conclusion I submit that the jurisdiction regarding collective agreements reached by parties to industrial councils do not concern non-parties but only those employers and some or all their employees who are engaged or employed in the undertaking, industry, trade or occupation to which the agreements relate.

    Non-parties have been unlawfully dragged into the ambit of the agreements via unlawful alterations of three definitions contained in the previous LRA’s.

    The 1995 LRA:

    In terms of schedule 7, part C, section 7, read together with the definition of “this Act” in section 213 of the 1995 LRA “an industrial council registered or deemed to be registered in terms of the LRA immediately before the commencement of this Act will be deemed to be a bargaining council under this Act and continues to be a body corporate.”

    Since it has been established that the industrial councils were previously incorrectly registered in respect of the activities of its employer parties, it is clear that registration as bargaining councils under a new Act does not cure the incorrect registration of these councils under the previous Acts, even if the unlawfully altered definitions of the previous Acts are now introduced as valid definitions in the new Act.

    In particular, the re-naming of the dynamic “industry” (the word in our collocation) to a static “Industry” now referred to as a “sector” in the new Act simply does not work, since the sector (Industry) is still a function of the industries (activities) of the registered parties to the council and obviously depends on which employers’ organisations take part as parties to the council.

    Additions or resignations of employers’ organisations as parties to the council will vary the sector.
    The question then arises who will be representing the resigned party ?
    I submit there cannot be a satisfactory answer and it is only turmoil that will ensue.

    I respectfully submit that the above exercise of changing a dynamic industry into a static one is a further attempt to accommodate and cover-up the irregularities committed under the previous Acts.

    This additional discrepancy triggered an investigation of Government Notice 97 of 1995 which reveals the members of Ministerial Task Team appointed by the SA Cabinet to overhaul the laws regulating labour relations.

    The notice further states that the task team was assisted by, amongst others, advocates MJD Wallis, SC, J Gauntlett SC and MSM Brassey.

    In these papers nothing has been said about Wallis and Brassey but they are in the longer list (still to be published) of wrong-doers:

    – Brassey for exchanging our collocation with the “interests” of the employer parties in his 1987 New Labour Law publication and

    – Wallis SC for allowing the false claims in his client Angus’ affidavit to be presented to the SCA in the 2005/6 matter of Registrar of Pension Funds v Seifsa, namely that Seifsa is a registered employers’ organisation and a party to the various pension fund agreements reached by NICISEMI (National Industrial Council for the Iron, Steel, Engineering and Metallurgical Industries) when in fact Seifsa is not such registered employers’ organisation and not a party to the agreements.

    Just consider for one moment that wrong-doers helped re-write the statutes !

    The result of such legal, I may say, hocus-pocus is that we now must refer, with regard to bargaining councils and their agreements, to provisions of an Act which are based on illegalities, perjury, and unlawful alterations of statutes.

    This sad state of affairs could be corrected easily in that the registration of any bargaining council is changed to a scope which does not just refer solely to activities or industries but rather to the employers and their employees who are engaged or employed in them and, most important, does include a reference to any so-called non-parties.

    Maybe it is opportune to mention what our first post-apartheid Minister of Labour Mr Tito Mboweni had to say in Business Day of 21.10.2005 about the new 1995 LRA:

    “From his vantage point as Reserve Bank governor, Tito Mboweni looked back in apparent despair yesterday at what has become of labour law reforms he steered through as SA’s first post-apartheid labour minister. Strongly suggesting his reforms had unintentionally become a barrier to growth, he lashed out at those responsible for implementing them.

    “The basic philosophy and intention of the labour market reforms we put in place since 1994 have to a large extent been undermined by lawyers, by the behaviour of the CCMA commissioners, by the behaviour of business and labour at the bargaining councils, and to some extent by the bureaucrats at the department of labour”, Mboweni said.”

    Finally, I should mention that as director of a company (Photocircuit) I have been intrigued and puzzled by the inconsistencies of many aspects regarding the LRA, and feel it my duty as a concerned citizen to inform the authorities and the public about the irregularities mentioned herein and thereby hopefully help to stimulate a lively debate about these issues which might lead again to the correct application of the provisions of our original Industrial Conciliation Acts dealing with industrial councils and conciliation boards.

    After all, in my opinion, these provisions of our previous Acts, correctly applied, would have constituted the most advanced and dynamic labour legislation introduced not anywhere else in the world.

    Any back-up documentation or references are available at a moment’s notice at your request.

    Kind Regards

    Horst Peschkes
    Concerned Citizen

    Tel/Fax 0217943918, Cel 0827716208, horstpeschkes@hotmail.com, Box 723, Plumstead 7801

  • HP

    To the Members of the Judicial Service Commission:

    This is a more detailed description of judge Schreiner’s unlawful alteration (forgery) of a definition in the LRA.

    Another recipient of my document dated 7.2.2013, a copy of which I sent to you today, indicated that the paragraph on page 4 dealing with judge Schreiner’s 1952 alteration of the definition of “undertaking, industry, trade or occupation” should be more clearly stated since not many persons have at hand a copy of the definitions of Act 36 of 1937.

    I hereby expand on that paragraph and attach for your convenience copies of the definitions in section 1 of the 1937 Act (2 pages) and also pages 47 and 56 of the 1952 matter of Transvaal Manufacturers v Bespoke Tailoring.

    For completeness sake I further attach the relevant (incorrect) notices (two pages each) of the Minister, purported to be in terms of section 48(1) and (2) of the Act, relating to the industrial agreements of the parties in the above 1952 matter and the respective provisions of sections 19 and 48 (1) and (2) of the Act (2 pages). (Total attachments 10 pages).

    Now, the correct definition in section 1 of the Act is: “undertaking, industry, trade or occupation” includes a section or a portion of an undertaking, industry, trade or occupation.

    Judge Schreiner’s quote at 56 A-B of that definition is: “…of the industry (i.e. the undertaking, industry, trade or occupation or a section or portion thereof – sec. 1)”

    Comparing the definition of “undertaking, industry, trade or occupation” in the Act with the definition as quoted by judge Schreiner on page 56 at A-B of our matter referred to above, we can identify the following differences:

    1) The word “includes” has been exchanged with the word “or”.

    2) The indefinite article “a” before the word portion has been deleted.

    3) The collocation undertaking, industry, trade or occupation has been replaced by the word “thereof” the second time it appears in the definition and the words “of an” before that second collocation have been deleted.

    4) The article “the” has been added at the beginning of his altered definition.

    I submit that judge Schreiner thereby (incorrectly) determined beforehand that the Minister would satisfy himself “that the council would be sufficiently representative of the industry… ” – instead of the undertaking, industry, trade or occupation in respect of which it is desired that the council shall be registered. (section 19(1)and (2)).

    He then, in the same sentence, alters the definition in such a way as to enable him to interpret the collocation as single nouns having their normal grammatical meaning
    of an undertaking or an industry or a trade or an occupation – all activities or some kind of endeavor. (see 1) above). Judge Schreiner in this instance chose “industry”.

    The deletion of the indefinite article “a” has a very particular effect in that the words “section” and “portion” are now only separated by the word “or”, indicating that they have essentially the same meaning, when in fact “a section” is very different from “a portion” of an undertaking, industry, trade or occupation.

    The correct meaning of the definition clearly is that a section or a portion of an undertaking, industry, trade or occupation is still an undertaking, industry, trade or occupation.

    A section, as opposed to a portion, of an undertaking, industry, trade or occupation consists of some or all the members of one employers’ organisation and their or some of their employees who are members of one trade union party – whereas a portion consists of some or all the members of that employers’ organisation and some or all their employees part of whom are members of one particular trade union and the other part are members of another particular trade union.

    Hence, a section may be completely separated or sectioned from the original undertaking, industry, trade or occupation, whereas if a portion is separated from it another portion is left behind and is still part of it.

    I submit that with this (unlawful) alteration of the definition of our sui generis collocation the judge changed the entire tenet of the Act, relating to industrial councils or conciliation boards, to make it fall in line with the incorrect registration of the industrial council in respect of an industry and the incorrect notice of the Minister to bind employers and employees in an industry.

    I respectfully submit that the changing of statutes is the prerogative of the legislature and not the judiciary.

    Do not hesitate to request more information or documentation if required – and please ask any related questions by email.

    Kind Regards
    Horst Peschkes