Newly elected chair of Parliament’s Justice Committee, Ngoako Ramatlhodi, is new in the job, so maybe he will still learn to think before he speaks. The honorable member of Parliament, who faced charges of corruption before they were mysteriously dropped by the NPA, is not off to a good start and has made some statements that, at best, can be described as uninformed and, at worst, as dangerous.
Yesterday Ramatlhodi said that Chief Justice Pius Langa is a “source of irritation”. He said the ANC’s “irritation” with the Bench is caused by comments made by lawyers that Zuma “abused” the legal process in defending himself on corruption charges. Beeld reports as follows on these comments:
“Certain presiding officers are responsible for this irritation because they make comments about Zuma executing his constitutional rights. It cannot be that way.” After the meeting, Ramatlhodi said he was referring to Langa when he talked about “certain presiding officers”. “If we respect the Constitution, judges must do so as well; the Constitution must be respected in its entirety, not selectively.”
What utter rubbish. Pity my taxes will help to pay this guys salary because he clearly has no clue what he is talking about.
Where to begin?
Well, one assumes Ramatlhodi was referring to the judgment, written by Langa and signed on to by nine of the other ten Constitutional Court judges, in the case that Thint and Zuma brought to challenge the validity of the search warrants of their respective premises. Langa was therefore speaking for the majority of judges of the Constitutional Court and not in his personal capacity. There are therefore no comments made by the Chief Justice on this issue – only a judgment of the Constitutional Court.
Be that as it may, Ramatlhodi seems to be unfamiliar with the finer points of our Constitution. Section 2 states that the Constitution is the supreme law of the Republic while section 167(3)(a) states that the Constitutional Court is the highest court in constitutional matters. This court therefore has the final say on what the various provisions of the Constitution means. Section 165(4) states that an order or decision issued by a court binds all persons – even a fool like Ramatlhodi – while the preceding section requires all organs of state to assist and protect the courts to ensure the independence, impartiality and dignity of the courts.
This means that it is for the Constitutional Court – and not for Ramatlhodi – to decide what the Constitution means and its interpretation of the Constitution is final. One is of course free to criticise decisions of the court by analysing its reasoning and pointing out the problems with that reasoning. But it is just plain daft to say the judges of the Constitutional Court only respect some part of the Constitution when they are the one’s to say what that Constitution means. Unless, of course, one believes politicians and not judges should have the final say on what the Constitution means.
In any case, Ramatlhodi is also wrong about what the Constitutional Court actually said. I suspect he never read the relevant judgment (hey, he is a politician so is probably far too lazy to actually read mere judgments of our highest court) because his statement is really not – well, how shall I put it – true.
Let us look at what Chief Justice Langa wrote in his judgment to see how delusion (and irritatingly stupid) Ramatlhodi’s statement is:
This Court should discourage preliminary litigation that appears to have no purpose other than to circumvent the application of section 35(5). Allowing such litigation will often place prosecutors between a rock and a hard place. They must, on the one hand, resist preliminary challenges to their investigations and to the institution of proceedings against accused persons; on the other hand, they are simultaneously obliged to ensure the prompt commencement of trials. Generally disallowing such litigation would ensure that the trial court decides the pertinent issues, which it is best placed to do, and would ensure that trials start sooner rather than later. There can be no absolute rule in this regard, however. The courts’ doors should never be completely closed to litigants.
There were no comments here that Zuma abused the legal process. The Constitutional Court set out a general principle that trial courts should be left to make decisions about the fairness of a trial as they are best placed to do so. Any accused has all the rights safeguarded in section 35, but it is generally a good idea that these rights are exercised during the actual trial – not long before the trial starts.
If Ramatlhodi disagrees with this general statement and believes that accused persons (“criminals”, President Zuma usually calls them, when the accused is not himself) should generally be allowed to stall their criminal trials with endless preliminary appeals even before the trial starts, he is welcome to say so and to give reasons for his view. This he did not do. I suspect he never will, because he cannot but agree with this sensible principle ennunciated by the Constitutional Court – he just did not want the principle to have been applied to Zuma (who, after all, is mos above the law).
In any event, the Constitutional Court applied this general principle and decided that it was in the interest of justice to consider Zuma’s case. Never did it say that Zuma had abused the process. Never did it refuse to hear the appeal. Never was Zuma denied his right to go to the highest court and claim that his right to a fair trial was infringed. Every single bit of the statement by Ramatlhodi is therefore spectacularly wrong.
But maybe I should not be so harsh on our new hero. After all, if this is the kind of rubbish, masquerading as intelligent criticism, that Ramatlhodi plans to embarrass himself with in the next five years, I will always have something to write about on this Blog. Maybe I should thank my lucky stars that Ramatlhodi is now a big wig in Parliament because it might just mean that I will be able to keep this Blog going merely by cutting and pasting the delightful pieces of wisdom that seems to pour out of the mouth of the honorable Ramatlhodi.
Just a pity this is not a fiction Blog because then I could have used more of Ramatlhodi’s statements.
I was invited to our community’s largest primary school today, having been asked by them to establish a significant program there. There was garbage and neglect everywhere, paint peeling off the walls, rubble. I came away depressed knowing that for the program they want, the Dept of Education would have to be involved and would have to further funds, not for me, I’m a volunteer, but for the program. I came away fairly depressed and despondent knowing in my heart that such help simply won’t happen. Zuma’s regime will fail the people, the lunatics (as you have previously stated) are still running the asylum.
This country’s only hope has been the Constitution and the rule of law, that politicians would obey, behave and implement legislation accordingly, but in my view the law is collapsing like the sand banks of a river in flood. Not to see this unfolding, I believe is denial. Running a country successfully to the benefit of all its people requires considerable intelligence and sophistication. Its not just Ramatlhodi who lack this, its by and large the lot of them.
We are looking towards five more dreadful years and most likely a lost generation.
Good post Prof de Vos. It is statements like these that engender fears among us ordinary folk that we might get to a situation as in Zimbabwe (at least until fairly recently) where judges that do not toe the line of the government (or ‘governing party’ – since the distinction is not well drawn in Southern African politics) might in fact be charged with treason (or some other mischief).
sirjay, it is not helpful to use phrases like “the lot of them”. Who are you referring to? Generalisations – especially sweeping one’s like the one made by you – get my back up because it suggests that you are judging people not for what they said or did, but for who they are in terms of race or party affiliation. Surely better to judge individual actions and words and not talk about “them” (and “us”)?
This from Chief Justice Brennan of Australia on 12 April, 1996
When ephemeral and unjustified criticism is made of a judge personally or of the judicial institutions to which he or she belongs, it is right to recall what Lord Denning MR said 23 when the then Mr Quintin Hogg QC MP launched a broadside in the press against a judgment of the Court of Appeal:
“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right”.
“fuck the people I am the people” – Robert Mugabe
Prof, interesting article but I must point out that you must be able to keep to your own principles. You advised Sirjay not to generalise but you are also generalising about politicians being lazy. Looking back to the Shabir Shaik case, how many people commented on the case without reading the judgement?
Again, I reiterate – the Constitution must be applied in it’s entirety, not selectively. However, the entirety of the Constitution is dependant on who is up against it – this is what various bigshots in the ANC keep on reminding us, in various ways. Such is life in SA.
Good post. Ramatlhodi inspires no confidence whatsoever as regards the protection of the rule of law. There is also the cloud (or is that a fine mist) of the investigation into his alleged kickback corruption. Surely the NPA should explain to the public why investigations, that they made publicly known, are dropped!
And what was wrong with Surty?
Prof, I may not remember the judgement where Langa J pointed out that Zuma was somewhat to blame for the delays, but it is NOT on the one you pasted above – I remember Blade Nzimande complaining on the TV interview that it was not neccesary for him (Langa J) to say that – anybody remembers? As for “Zuma mos being above the law” I am not sure what are you getting at Professor! For someone who once insinuated that the courts are “bold enough” for not finding as you d ve hoped, I believe Ramatlhodi should have added the likes of you on the list of “irritating” people who are selective respecters of the Constitution.
…courts are NOT “bold enough”… Prof remember SAFM?, Tim Modise?, DA Lawyer? on air discussing the DA application against the NPA decision? Hhhhmmmmh?
by da way, if anybody wants to see how young and cute I am, google “Spuy Sebotsa” and open the 1st link of Hospersa. I told you mos Spuy is my real name!
Spuy – why are you not affiliated with Cosatu? Where do Fedusa and Cosatu differ?
Spuy, Blade Nzimande, like Ramatlhodi, was talking through his nose and read things into the judgment that was not there. I find it is always better to read the actual judgment and not to rely on the uninformed opinions of politicians regarding a judgment. Nzimande wanted to discredit the CC so he invented this line of attack. At the heart of the comments by these two gentlemen is an assumption that general (and sound) legal principles should not apply to Zuma.
I do not follow your “logic” on the other “point”.
Spuy // Jun 3, 2009 at 11:03 pm
by da way, if anybody wants to see how young and cute I am, google “Spuy Sebotsa” and open the 1st link of Hospersa. I told you mos Spuy is my real name!
Jou pragtige seun!!!
Prof, I think your myopic views on Zuma and Ramathlodi are irritating and I think it’s time somebody in the ANC or Youth League lambasts your idiocy in public as well as the fact that you are a biased so-called constitutional law expert, I wonder how youe stundents are with your bigotry!
Mdu
If you are convinced that PdV is a “so-called” constitutional law expert, perhaps you ought to inform the UWC law department immediately. I’m sure they’d be grateful to know they might be employing a charlatan. No doubt they’d get straight to work instituting an investigation into his credentials, cv, publications etc. His students deserve no less.
And of course if he is a bigot too then he definitely deserves to be lambasted by a bigot: perhaps someone from the ANCYL who believes that Helen Zille “sleeps around” (definition pending) and was “dropped on a head as child” (sic).
Mdu // Jun 4, 2009 at 11:54 am
Mdu, play the ball, not the man. This kind of comment is just plain pathetic, I’m sure you can do better that that?
Spuy // Jun 3, 2009 at 11:03 pm
Nou ja toe! Is dit wragtag jy?!
PdV,
I’m struggling to figure out who is the moron between you and Ramatlhodi. Those of us who comprehend your diatribe, understand that the purpose of this blog is to discredit Ramatlhodi, in anticipation of the NDPP vacancy issue.
Well, Pierre, Langa did make a comment about litigants delaying trial, which in his words, must be discouraged. Langa was then invited at guest speaker (can’t remember for what) and spectacularly coincidental, this was the same week before Nicholson deliver his groundbreaking judgment. Some people complained (including Blade) that Langa might be suspected of issuing out a directive to Nicholson (just like he did prior to the CC “judges” vs Hlope, in front of SCA).
Pierre, propaganda won’t get you anywhere. But then again you might choose not to publish this comment. Sad!
@ Spuy,
Well, aren’t you young and cute?!! Nice to see you…
BTW you guys should be marching on Helen Zille, rather than Cosatu – at least you are truly representative !!
Mdu, what a well reasoned engagement with the issues! Well done!
Realisticallyspeaking, you are not making sense. How about a reasoned argument. Just a thought.
Prof.,
Told you about deployment by political affiliation as opposed to capacity in the ANC government. Why are you surprised by the utterances of Ramatlodi? This is just the tip of an iceberg that may sink the Titanic (South Africa) I am using MAY as I believe the country has been through worst and has come out strongly so I believe once again that it will get through the storms of the next five years.
Spuy, I’m glad that your shameless self-promotion brought home the goods hahahaha
Congratulations Mr Chairman!
The remark I did not like from Ramatlhodi was the one in relation to no one, not even judges, being above the law. Now I don’t perceive that to be some sort of equalitarian statement to show that the most senior of judges are no “higher” than the lowliest mortal. Rather I perceive it as a warning that judges have no greater authority than politicians. And a warning that when, oh say for example, a defence portfolio chair doesn’t get the additional postponement he wants to delay, oh perhaps a Parliamentary fraud trial????, that politician might just walk out of the dock without being bailed by the Magistrate. For example!
Thanks guys and Yes Mouse thats me in the photo but the cell no changed recently. Now, back to the issue. Prof, I m having a fundamental problem with the CC judges, look now, the whole Hlophe issue has brought our Criminal Justice System into disrepute thanks to our dear leaders of the CC and their premature urge of running to the media on internal issues. I d expect that from the DA or COPE. Judges are supposed to be beyond reproach.
Spuy, so let’s get this straight: The JP approaches the CC judges, asks them to rule in a certain way in a pending case, then lies about it to the media. And you blame the CC judges? Rich!
Spuy // Jun 4, 2009 at 10:02 pm
Spuy: The girls may want your new cell number.
Spuy, you don’t have much competition on the page although you’re probably just the pretty face… But why did your parents name you THAT?
Prof, you’re quite right. I read the M&G yesterday and found Ramatlhodi’s rantings to be amazing. Its funny how its always the shady characters who shout the loudest about the CC. Just some names: Zuma (we know the drill); Hlophe (after his less than proper conduct); Ngubeni (that UCT twit who was disbarred in numerous states in the US) and now Ramatlhodi (admitted as an advocate last month after his corruption charges were dropped). I don’t see how its wise to get a guy who was up on charges of corruption to head the Justice portfolio committee – maybe I just have too high a standard for who I’d like to head a group who deals with the law.
Sirjay, “they”, I imagine refers to the ANC. Its sad to note this but generally, groups will be judged by the prominent individual members. i offer this as a defence to Sirjay and in light of Prof’s pc approach to this. E.g. gay men – if you only ever see “queens” then that the impression you get of everyone else. its only dicrimination when you start treating gay people differently to everyone else…
Langa CJ, would have been correct if he had said that this was a delaying tactic, though I doubt he did. Zuma lost on the facts of his case, he did a great thing by advancing the rights of the poor through his application.
What Ramatlhodi should understand is that for the system to balance they should stop making silly statements and trying to interfere. If you want people who help turn the wheels of jsutice to do their job properly and happily you should get them to suggest the changes and regulations they want in place. Once that is done the govt (not ANC) should work towards rules and guidelines that will guide certain elements of the justice system whilst leaving it to do its job with minimal interference. This constant bullshit of transforming the judiciary is irritating to say the least. The ANC shoud transform themselves and realise that judges cannot make up law that justifies racism, if they believe judges are racist. Some may be but cannot reflect it in the judgements, they should call for transformed approach to law, even if the judges were not anti-apartheid activists or are white (HUGE crime).
Spuy – please take note of the post by Samantha // Jun 4, 2009 at 3:53 pm
Yes, your all-male top structure makes one think a little about all the criticism against Hellen Zille.
But, what are your true views on Ngoako Ramatlhodi. Mine: He has always been a shitty lawyer, a bad Premier and now tries his hand at handling the “Justice” (does he even know the meaning of the word?) Portfolio Committee. I believe he also has his sights on the job of NDPP – neat, earning a judge’s salary and all. And then he also has the audacity to say that the new NDPP must have the political will and capacity to say NO!, when people insists on prosecuting the top Eschelon of politicians. Shamelessly lobbying for such a post when your track-record of delivering justice to the people is so poor?! His remarks that run so directly against the Constitution and the Rule of Llaw are, not only irritating, but irkingly stupid and annoying.
“… And save us from Ramatlhodi being appointed as NDPP?!”
Anonymouse // Jun 5, 2009 at 9:04 am
And Mr Ramatlhodi is back in the news this morning, again for the wrong reasons…
http://www.mg.co.za/article/2009-06-05-the-premier-farm-and-platinum-mine
The trouble is that this goes much wider than Ramatlhodi. The state has become, potentially, simply a device for benefiting the people in charge of it. It’s a fairly explicit declaration that the rulers of the country (or their proxies in government) ought to be above the law, and it’s perfectly consistent with what seems to be universal opinion in the Cabinet and the ANC NEC.
A couple of noseWeeks back, Stent had a very good cartoon about it.
On that sexist note, Mouse, if you were a magistrate would you allow counsel to simply ignore what you’ve just said and rush off and not fine them for contemp in facie curiae?
Futrther, I feel that such actions by Booi’s lawyer were entirely rude and not in keeping with how things are done in SA and should be seen as sexist. I doubt he’d have done the same had a burly old man been the magistrate…
Mayflower – Thanks for the link. I knew about most of these things, but some detail are new and very informative. No wonder Ramatlhodi showed such fierce support for the disbanding of the Scorpions. And now, Seth Ntai, that guy that made such a beeeeg show at the Vusi pikoli hearings without really saying anything sensible, he is also involved in thjios whole issue.
nkululeko // Jun 5, 2009 at 10:03 am
What exactly is it that you are talikng about?
nkululeko – Ek kry nie die kloutjie mooi by die oor nie – “sexist note” (my criticism of Spuy’s organization’s non-representivity juxtaposed against that of Hellen Zille was intended irony – I am also a male); lawyers rushing out; “Booi’s lawyer [being] … rude …” – how do we tie all of this to any of my posts above, to Spuy or to Ramatlhodi?
Prof de Vos – On a quite different thread. Could you perhaps create a post on the Von Abo judgment handed down today (Moseneke DCJ for the Court)? It appears a little forced to distinguish between ‘conduct of the President’ alone, and conduct of the whole Executive (President and Cabinet) in order to determine whether a confirmation of an order of invalidity is required in terms of section 172(2) of the Constitution. Although the President is both the Head of State and head of the national executive [s 83(a)], the executive authority of the Republic is vested in the President [s 85(1)], although he is required to exercise that authority together with the other embers of the Cabinet (appointed by him) [s 85(2)]. Doesn’t it look as if the CC has kicked for touch in this case so as not to become involved in the merits (unconstitutionality of conduct of the President) while no appeal against the High Court’s finding is hanging?
Sorry – the last word “hanging” should read “pending” – just my Afrikaans way of thinking slipping through because I was in the process of having an Afrikaans conversation per phone when I typed the last sentence. But, seriously Prof – can we look into this decidion by the CC?
Mouse,
I think my crazy logic and unorthodox way of joining the dots confused you a bit.
1. I was not suggesting that you’re sexist but that your post had mentioned sexism (in the Zille debate and Spuy’s all male colleagues). Don’t worry, I’d already assumed you’re a man.
2. I was saying that it is members of the very same organisation that criticised Zille’s cabinet as being unrepresentative and sexist who disrespect a female magistrate. I’m assuming that one’s legal representative reflects on the client in this case. Now, was this simply a show of disrespect to a magistrate, a woman or the law? I feel that the actions of Booi’s lawyer were a sign of direspect to a female magistrate and to how the system operates.
I then asked the question: would you have let a lawyer go without a contempt of court charge for the same conduct?
where is Joel Netsitenzhe eintlik? What is he doing now cos i thought he would head the NPC, not Manuel, who took all the credit for his DG s work all these years, and of Gordon while still at SARS.
Well, the SABC used to be a thriving company and now it is on skid-row thanks to the way the ANC has stuffed it up. I suspect nobody really wants to advertise on it, and few want to watch it… and that is why this is happening. So, there goes another functioning body that the ANC destroyed through its rampant anti-white racism.
And NGOAKO RAMATLHODI is actually an Advocate!
nkululeko – I’m sorry, I am not aware of the incident where one “Booi’s” lawyer showed disrespect to some female magistrate – the news-clip must’ve escaped me. Nevertheless, If I, as a presiding magistrate (nevermind my sex) in a matter make a ruling on an application, say for postponement, and I refuse further postponement, and the applicant’s lawyer (or the prosecutor for that matter), just turns and walks out of court, ignoring his/her client’s further plight (or that of the society he is representing, if a proseutor) and thereby insults the decorum of court, I will most surely there and then act on a summary basis for contempt of court in facie curiae.
Mouse, the client promptly turned and walked out of the court with his lawyer, despite having surrendered to the Court!
The lawyer wanted to withdraw due to the client having no funds to pay. The Magistrate refused as the trial was about to commence. The lawyer said he wanted leave to appeal her decision, she said no, just get started. Lawyer and client sweep out of the room. She called them to Chambers with the Prosecutor and warned him if he did that again he’d be held in Contempt. He made the High Court application and was turned down there too and told he had to act for the accused (Booi, former Chief Whip, now Defence Portfolio Chair, who is facing Travelgate charges in relation to R140k worth of vouchers).
This is where I hang my head in shame over my President’s assurances in relation to corruption. How can people continue to soar in their careers when criminal charges are pending?
Mpho – Thanks for the update. I somehow missed the incident. It is a shameful show of disrespect for the courts indeed. The High Court could’nt have intervened with an interdict in the light of the discretionary powers of a trial court to refuse a postponement in such circumstances: See s 73(2C) of the CPA 51/77; R v Second 1969 (4) SA 255 (RA); S v Ngwepe 1995 (1) SACR 486 (T). Not sure, however, whether the Hogh Court coul;d’ve ordered the lawyer to appear. I think that the NPA should still consider prosecuting a contempt charge under common law.
Mpho & Mouse,
I do not know all the facts of the case concerned. However, in as much as it has sort of become customary for postponements to be requested when the attorney of record has not been “properly instructed” as we say, the attorney concerned did not have a right to walk out of the courtroom like you it is alleged.
Caselaw, mandates that the attorneys of record must try to “quit” as such only in a reasonable manner and time so as to avoid prejudice being suffered by the client and also inconvenience being suffered by the other side. This inconvenience is most present especially due to the clogged court rolls in South African courts. The potential of prejudice is more present when the proceedings are criminal in nature and the accused may face a prison sentence, infringing one of the most important post-Apartheid rights, that of freedom (s12 of the Constitution).
Having regard, to the above, the magistrate was prima facie justified in refusing the postponement.