Many South African judges are notoriously prickly about the need to undergo further judicial education. Despite the fact that Parliament passed the South African Judicial Education Institute Act in 2008, the Institute has not yet trained any judges or aspirant judges and it is unclear when it will start its work in earnest. Yet most judges received their legal training before the advent of the new Constitution and there clearly is a need for further training of judicial officers to bring them up to speed with constitutional jurisprudence.
The recent High Court judgment of Hlophe JP in the case of Malachi v Cape Dance Academy and Others demonstrates the urgent need for further judicial training. Although the case was probably decided correctly, the judgment is shoddily written while the constitutional law arguments are confusing and lacking in a basic understanding of constitutional law jurisprudence.
In the case, the High Court declared invalid section 30(1) of the Magistrates Court Act and the common law rule it codified, which allows a judicial officer to order the arrest of a person when it is suspected that the person will flee in order to evade the payment of a debt. In this case Ms Tatania Malachi, an “exotic dancer” (yeah right) from that lovely country Moldova (found by some surveys to house the unhappiest citizens in the world) was arrested after she tried to return to Moldova without paying her employer R20 000 owed to him.
Given the fact that the Constitutional Court declared invalid section 65A-65M of the Magistrates Court Act which provided for the imprisonment of judgment debtors in certain circumstances, the order of invalidity will probably be confirmed by our highest court. It will be surprising, however, if the Constitutional Court endorses some of the unconvincing and badly reasoned “arguments” put forward by the High Court.
First, the High Court found that the rule violated the right to equality because the rule treats poor debtors who are unable to furnish adequate security differently from those who can furnish such security, as the former could be incarcerated while the latter will avoid incarceration. Unfortunately, the judgment inexplicably fails to refer to any Constitutional Court jurisprudence on the right to equality and fails to articulate and apply the tests set out by the Constitutional Court to determine whether an infringement of either section 9(1) or section 9(3) had occurred.
If section 30 is invalid because it infringed on section 9(1), a rationality test had to be applied – something the court did not do. If section 30 is invalid because it infringes on section 9(3), it must be shown that the discrimination was based on one of the grounds listed in section 9(3) (like race, sex, gender or sexual orientation)) or on an analogous ground not listed in section 9(3) (such as HIV status). The High Court judgment inexplicably fails to make clear on what ground the discrimination occurred and why different treatment based on one’s financial position or some other unnamed characteristic would constitute discrimination for the purposes of section 9(3).
The implications of this argument – as far as one can tell – is that any law that distinguishes between rich and poor will constitute discrimination on an analogous ground. If this argument were to be sustained it would call into question the very existence of the capitalist system in South Africa. Maybe this is not a bad thing, but then one would expect the judge at least to make a cogent argument in favor of his position.
If one of my students had written the section in the judgment on the infringement of section 9, he or she would probably be awarded a mark of about 25% for the question as it shows a complete lack of knowledge of the Constitutional Court equality jurisprudence or any appreciation for the consequences of the argument presented.
The High Court also found that the rule infringed on the right to dignity as it allows for an arbitrary deprivation of liberty and allows a defendant to be subjected to cruel and degrading treatment. The High Court unfortunately seems unaware that the Constitutional Court has stated that where another right gives effect to the demand for the respect of human dignity (in this case, section 12(1)((e), which prohibits cruel inhuman and degrading treatment) one should rely on that right and not on the right to human dignity.
In dealing with the application of the limitation clause, the High Court seems unaware that it had to apply a proportionality test, having to weigh up all the factors set out in section 36 of the Constitution to determine whether the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom. Instead the High Court discussed each of the factors mentioned in section 36 separately and failed to weigh the factors up against each other as required by the Constitutional Court jurisprudence. This completely misses the point of section 36 analysis and demonstrates a rather weird lack of insight into a fundamental aspect of Bill of Rights adjudication.
The discussion on the limitation clause is also sloppy and repetitive: at some point the same point, using exactly the same phrase, is made in subsequent paragraphs of the judgment, suggesting that the judgment was not properly edited before it was handed down.
In this case, the lack of engagement with Constitutional Court jurisprudence and the lack of understanding about constitutional principles, did not affect the outcome of the case, as the High Court reached a more or less just outcome that will prevent poor people from facing arrest when they owe money and the person to whom money is owed fears that the debtor will flee the country. It could therefore be argued that no harm came of the ignorance of the particular judge and that justice was served.
But in a constitutional state based on the Rule of Law, the legitimacy of the judiciary and the respect for the legal precedent as annunciated by higher courts suffers when lower court judges ignore or completely misconstrue the law. In the long term this could undermine the independence of the judiciary and respect for the legal system. In more difficult cases such a disregard for the law could also adversely affect litigants who may turn away from the law to rely on arbitration or self-help, which would erode respect for the rule of law.
Given the fact that many judges feel insulted when one points out that none of us are perfect and that – like the rest of us – judges are never too old to learn something new about the law, it seems to me the newly established Judicial Training Institute has its work cut out for it. If it functions effectively, it will enhance the quality of judicial decisions and with it respect for and trust in the law and our courts. This, in turn, will enhance the prestige and respect enjoyed by judges themselves. Judges therefore have a vested interest in judicial training and should embrace the new institute and its work, rather than resist it.
Of course, in the long run this will also be good for especially poor and vulnerable South Africans who may rely on the law to ensure that they are not treated unfairly by the rich and powerful in our society.
Prof
May you please provide a link to the relevant judgment. I have searched for it on Safli, Jutastat & LexisNexis to no avail.
I can’t wait to read the judgment myself. I suppose one would have expected quite a lot from you if they thought you could praise anything coming from that JP. You can’t even get yourself to unequivocally acknowlege that the outcome was correct, notwithstanding the concerns you raise – you talk about “probably decided correctly” and “a more or less just outcome”!!
Of course you might be correct in pointing out the shortcomings but surely the outcome cannot be anything but correct and it is revealing that you would go around in circles instead of just accepting this FACT.
Sine, I have posted the judgment in the Seminar Room.
Mzo, I believe the outcome of the case was just but it has to be confirmed by the CC. I am not a fortuneteller, so cannot say unequivocally that the CC will confirm the outcome.
@ Prof
Thanks very much Prof.
@ Mzo
LOL!
Professor
I fully endorse your call for the judges to undergo ongoing training. It is in the public interest that the judges keep abreast with developments or enhance their knowledge and skills.
With regard to what you have stated, “If section 30 is invalid because it infringes on section 9(3), it must be shown that the discrimination was based on one of the grounds listed in section 9(3) (like race, sex, gender or sexual orientation)) or on an analogous ground not listed in section 9(3) (such as HIV status). The High Court judgment inexplicably fails to make clear on what ground the discrimination occurred…”, perhaps it was too obvious for Hlophe to elaborate on in detail, given the possible need to elaborate on the other more significant parts of the judgment.
To me, the aspects of a judgment that deserve expatiation will always remain a matter of debate. I will not take issue with a judgment when its reasoning is sound and conclusion correct.
Although what you also do, that is, to interrogate judgments is something that should be commended and encouraged; we should not make a big deal out of this judgment since its reasoning is sound and conclusion correct.
Your only problem is that Hlophe did not elaborate on something which you thought was important and there is no error in his reasoning. Unless if you can put forward a counter convincing argument, your lamentation should be regarded as a petty issue, therefore.
mzo says:
January 11, 2010 at 13:15 pm
In all honesty, tho the judgment may be correct…. as stated by Pierre “the judgment is shoddily written while the constitutional law arguments are confusing and lacking in a basic understanding of constitutional law jurisprudence.”
hardly convincing for someone who was deemed to be the promised one to become the Chief Justice.
One would expect to at least know the basics of legal reasoning for such a high position. that it makes one wonder that Hlophes judgment was more of a guess than anything else
I haven’t read the judgment, but if it goes the 9(1) route and then fails to apply a rationality test, the reasoning is most decidedly not sound. It is a fundamental misapplication of South Africa’s equality jurisprudence. This is not a “petty” concern – it demonstrates a total lack of competence, not to be condoned in a JP.
Pierre, I think you are mistaken though – the judgment does not fall to be confirmed by the CC as the JP has struck down a common law rule, not presidential conduct or an Act of Parliament or a Provincial Act. Have another look at s 167(5).
mzo says:
January 11, 2010 at 13:15 pm
“Of course you might be correct in pointing out the shortcomings but surely the outcome cannot be anything but correct and it is revealing that you would go around in circles instead of just accepting this FACT”.
The end justifies the means?
If that is correct why do we need detailed judgments (or even laws for that matter), why not just the outcome as instinctively arrived at by the judge?
Duke, the judgment declares invalid section 30(1) of the Magistrates Court Act as well as the common law rule on which it is based. Hence it will have to be confirmed by the CC.
King Zwakala, with respect, if one relies on section 9(3) one has either to point out that there was discrimination on a listed ground OR that the discrimination is on an unlisted ground. It appears that the latter was the case here. But if a court is going to “discover” a new unlisted ground (so far HIV status and citizenship have been thus discovered to be analogous grounds of discrimination, then one is fundamentally extending the scope of section 9(3) and this would usually require some serious, reasoned and sustained justification by any judge. This did not happen in the case, which, I contend, presents us with a very weakly reasoned judgment. Academics would have very little to write about if they did not engage with judgments which they thought was weakly argued. It happens all the time. See Stu Woolmans scathing attack on the Constitutional Court in his South African Law Journal article on the Amazing vanishing Bill of Rights for an example of this.
Your today’s debate is like the one between two approaches i.e. the transferred culpability approach and the concrete culpability approach.
Prof
Thanks for clarity.
King Zwakala is right.
Hlophe JP is considered by many to be the finest legal mind since Cicero. He is therefore more than capable — without the aid of Constitutional Court precedent — of discerning that an accomplished Moldovan artiste like Tatiana will feel her dignity gravely affronted when subjected to a summary Tamquamming.
Maggs Naidu says: January 11, 2010 at 14:27 pm
You clearly missemy point. I am by no means suggesting that Prof is wrong n pointing out what he consider to be shortcomings in the judgment. What I’m concerned about is his apparent failure to acknowledge (without reservation) anything that comes from the JP.
So, my point has nothng to do with the end justfying the means. Hold your horses!!
Based on what I have read thus far in the judgment, it seems to me that the Professor makes good sense: the judgment is shabby and confusing.
In the passage wherein Hlophe JP considers whether section 30 of the Magistrates Court Act limits the right to equality, one of the reasons as to why he accepts that it does is that it allows for defendants in civil matters to be treated worse than accused persons in criminal matters given that section 30 does not afford the former the enjoyment of the section 35 rights in the Constitution whereas the latter clearly enjoy them.
With respect, the only thing about this argument that vaguely resembles a constitutional law contention is that Hlophe identifies differentiation between civil defendants and accused persons. But as the Professor has made out, Hlophe does not clarify whether he takes issue here on the ground of section 9 (1) or section 9 (3) – although if one were to do Hlophe JP’s job for him, it seems he may have had section 9 (3) in mind. So in short, one can identify some disquieting features of the judgment: one, it does not clarify which constitutional law jurisprudential inquiry is used; two, insofar as the judgment does not make specific mention of the tests applied by the Constitutional Court, it suggests a fairly dismissive attitude towards the highest court.
The Professor has already made out that the rule of law is undermined when judges fail to identify the applicable law or fail to understand it. This point is well-taken. Another problematic consequence of judgments after the fashion of the present one is that they frustrate practitioners. Written judgements serve as guides to practitioners. And it is quite obvious that written judgments that offer muddled and incomplete statements of law will not fulfil that function.
mzo says:
January 11, 2010 at 16:29 pm
I agree that when individuals rather than issues are at the centre, it tends to muddy the waters – as with the beneficiation debate a la Cronin/Malema.
That aside I am more interested in the meaning of “surely the outcome cannot be anything but correct” – I was of the view that the judgment in its entirety was the outcome vs “In the result the following order is made:”.
I say that with caution, remembering that the incorrectly referenced, infamous quote “generally corrupt relationship”, did no more than get some faces red.
@ mzo – I must agree with you though, that the critique by Pierre is more weighted on the JP than the judgment.
Mzo, you make out in your first post that the outcome cannot be anything but correct. And you rely on this position to suggest that the Professor has been unfair to Hlophe inasmuch as he has not unequivocally praised an aspect of the judgment that deserves unequivocal praise.
I think that the Professor has been more than fair to Hlophe. Actually, I think the Professor has been very kind. As you will know, judgments do not only comprise outcomes or conclusions. And while the conclusions are probably the most important features of judgments as far as litigants are concerned, they are often not the most important features to lawyers. Another feature of a judgment is a statement of the applicable law. And it is the statement of the law which is of precedential value. And thus it is the quality of that statement which will encourage or help guard against the erosion of the rule of law and assist or frustrate practitioners.
It seems to me that if a judgment offers an unsatisfactory statement of the law, then even if the conclusion is right, the judgment could be wrong.
How predictable.
The comments are far more revealing than the judgement. And, then, a split straight down racial lines.
Sies!
Has the Constitutional Court not remarked several times that it wants to see the reasoning of the Courts below?
That kind of rubbishes Mzo’s contention.
Would it not be nice for High Court judges if they got the same pay, had rubber UNCONSTITUTIONAL stamps and left it to the CC to figure out WHY?
Well put, Leigh!
Given the 3 possible outcomes of litigation the odds are better that a judgement will appease the chattering classes anyway than the first few questions of ‘Who wants to be a millionaire’…
Once again people are allowing their emotions cloud their understanding of my posts. Let me try to make it easy for everyone.
1. I have no issues with Prof pointng out shortcomings in the judgment;
2. I do not contest that the reasoning in judgments is NB for lawyers;
3. I contend that, notwithstanding Prof’s declaration that he’s no fortune teller, if we are to have an honest debate then we ought to accept that Prof, like most bloggers here, believes that the outcome (to be read, that part of the judgment that is of interest to the litigants and not necessarily to the law professors) was correct. It is a bit disingeneous therefore, in my contention, that Prof should write as if he has any doubts about the correctness of this outcome – simply because, I would argue, the judgment was handed down by Hlophe JP.
I hope that I’ve made my point clear. Oh yes, by the way Brett, to me at least, this has nothing to do with racial lines – wherever those are to be drawn.
Leigh, someone once accused you of blindly supporting Prof and I genuinely thought that the accusation was unfair. Recently I find myself wondering if was perhaps not in a hurry to dismiss such accusations
.
Perhaps the Malachi case was badly presented and argued?
It seems to be that Judges rely heavily on Counsel’s arguments?
Snowman, I think it was reasonable of you to consider whether counsel’s presentation of the case was unsatisfactory. As you make, judges do rely heavily on advocates to offer comprehensive, accurate and lucid statements of applicable law. And if counsel’s statement or engagement with the relevant law is unclear or inept in the heads or at the hearing, well then it is certainly not a great leap of logic to suppose that the judge could be gravely prejudiced in his decision-making function.
But in this instance, I do not think that your reasonable concerns about the efficacy of counsel’s case presentation can cast Hlophe’s judgment in a more forgiving light. I say so because in the ‘right to equality’ passage in the decision, Hlophe fails to refer to well-known and readily identifiable tests that are set out in the constitution itself or at the very least in the Constitutional Court’s jurisprudence. Actually, even a cursory glance at a copy of the Bill of Rights Handbook would have given Hlophe enough law to produce a more respectable judgment. Thus as things appear to me, I will say respectfully that while counsel may not have produced the most thorough display of advocacy, it seems the better view is that Hlophe’s failure to refer to the relevant tests is attributable to either (a) his ignorance regarding the jurisprudence of a court on which he had hoped to sit just a short while ago or (b), a regrettable paucity of judicial skill on Hlophe’s part. If one does not know something, then he is ignorant of that material. Thus if Hlophe was unaware of the relevant jurisprudence and legislative provisions, then he was ignorant. And I say he may well lack a bit of judicial skill because a suitably proficient judicial officer would have done two things which apparently Hlophe did not do. One, a more convincing judge would have consulted the at least one source that unpacked or elaborated on the applicable legislative provision. Two, the better judge would surely have asked: given that this matter discloses a constitutional issue, HOW has our apex court determined whether rules or provisions limit the right to equality?
In my last post, by ‘legislative provision’, I meant the text of the Constitution.
Pierre De Vos says:
January 11, 2010 at 14:53 pm
“See Stu Woolmans scathing attack on the Constitutional Court in his South African Law Journal article on the Amazing vanishing Bill of Rights for an example of this”.
Thanks for that, Pierre.
Disappointment is an understatement.
Dear Mzo, it seems to me in these matters there is always more going on than meets the eye. You take issue with me for inserting one word (“probably”) and asserts that this shows an unfair animus to the relevant judge. You have not similarly attacked me when I – in typical lawyer fashion – somewhat qualified my opinions about what was correctly decided or not when other judges have been involved. Why not? Well, because the judge happens to be Hlophe JP. I see your criticism as part of a larger strategy wittingly or unwittingly deployed in South Africa where the substance of an argument is ignored and a small detail (in this case one qualifying word often used by lawyers to indicate that they are not God and do not know everything or certain) is pounced on to try and discredit the valid criticism in an indirect manner. This allows one to claim that one has no problem with the substantive argument while at the same time hinting that the argument should not be trusted because it is based on hatred of a person or prejudice towards a person. This detracts from an honest argument about the substance of an issue and is often used in South Africa to try and discredit (either directly or by implication) the views of a person that would otherwise be very difficult to answer. It seems to me this kind of ad hominem argument is not conducive to a proper debate about the substance of any issue: peripheral issues becomes the topic of debate instead of the real substantive issues, which is the whole aim of raising the peripheral issue in the first place. A more honest approach, it seems to me, is either to agree or disagree with the substance of an argument and say why you do so and to leave aside the remarks aimed at discrediting the arguer and hence his or her views. Leave that to politicians, who do this sort of thing all the time when they wish to “defend” (without being seen to defend) the indefensible.
So much for cadre deployment, affirmative action and the JSC “selection” process.
The result is that a judicial training institute is needed to train even JP’s.
At a stage last year I was under the impression that this JP might be deployed to this institute???
@ Prof
I wholeheartedly agree with you that the judgment is very sloppy and lazy by the JP, at least from a Constitutional Law point of view. As I was reading through the judgment, it was like I was reading an article in a Daily Dispatch written by a journalist who was previously working as a legal secretary. Hlophe JP has really squandered a splendid opportunity to shine here. His judgment, had it contained the correct legal reasoning as propounded by our Constitutional Court and guided by the Constitutional text itself, would have been groundbreaking and would most probably have turned him to being viewed as the champion of the poor and vulnerable (who are the ones mostly affected by the arrest tanquam suspectus de fuga).
Maybe the man did not realize how serious the matter in front of him was to the country as a whole. His judgment has hinted his lack of respect for the status enjoyed by the highest court in the land in the hierarchy of courts in this country. I am really disappointed in him.
Great post Prof.
Why don’t you guys form an anti-Hlophe and progressive black judges society?De Vos your hatred for Hlophe is vicious.Its a good thing you don’t wield the power.Zuma is a gangster right?
Sine – “…him to being viewed as the champion of the poor and vulnerable …”
Remember this is the guy that ordered some of the poor and vulnarable to be evicted and relocated to a place they did not want to be. I doubt very much whether he is capable of sound constitutional jurisprudence and, therefore, CJ-ship.
Pierre De Vos says: January 12, 2010 at 7:28 am
Prof, you would have noticed that, contrary to the impression that some people might have, I have not always disagreed with you on substantive issues. In fact, I have agreed with quite a number of them.
However, I have almost always taken issue with your reluctance to give credit to Hlophe JP even in situations (limited as they might be) where same is due and your eargerness to accept any information that discredits him (M&G story being a case in point).
Someone once mentioned it, as long as you continue raising these “peripheral” issues in your posts (and thus, in your logic, assuming the role of a politician) we will continue to raise our views on these. It’s unfortunate, but some of us can’t help it.
In any event, in principle, have already concurred with you on the substantive issues (even though I have not had a moment to read the judgment myself).
Anonymouse says: January 12, 2010 at 7:54 am
…and the CC judges did not reverse the Eviction Order!!
Parts of the judgement can be described as shabby and confusing, but it will not be remembered as “horrifying” (with apologies to Judge Lewis). I don’t think anybody can find fault with the result. I would rather comment on the need to undergo further judicial education. The judges are indeed notoriously prickly about the need to undergo further judicial education, and not just on judicial education.
Just one comment on Hlope’s judgement: Para 65: The order of costs: He mentions that “[t]he Constitutional Court has previously ruled that the state has an obligation to amend legislation, which violates constitutional rights”. I think he should have added that the state should not wait for a court order, but has a duty to act mero motu. It was the political responsibility of Parliament to act, but unfortunately not only did they shift their responsibility to the courts, but even made the task of the court more difficult by opposing part of the order sought.
As far the judicial training goes: Perhaps one third of judges have comercial experience. There are many who have very little if any experience in criminal law. How many judges have a sound knowledge of aspects like banking law or tax law. (Not that I blame them, to read Meyerowitz on income tax is not pleasant.) Every judge should spent a couple of hours every day doing research, but often their work load does not allow for it. The only solution will be formal training where they don’t have cases to attend to for a period of time, while receiving formal training.
Mzo, thanks for the clarification. From a legal perspective, a question that will exercise the minds of the CC judges will be whether the rule should be abolished altogether and whether this will not leave creditors without an effective remedy when someone intends to flee the country to avoid payment of a debt. I am not an expert on such matters as I am not a practicing layer trying to get creditors to pay my clients, but I do know the CC has often demonstrated concern that orders of invalidity should not disrupt or sabotage the legitimate commercial activity (hence in the famous Harksen case, the majority found that the provisions of the insolvency law which allowed for a preliminary attachment of the assets of the solvent spouse did not constitute unfair discrimination as this provision fulfilled an important purpose)> Given the extreme nature of the rule here, I suspect the court will agree with the High Court that it is unconstitutional. I am not 100% certain it would give the same remedy. I really tried to be scrupulously fair to the judge in my comments (knowing that some will always wrongly assume animus on my part), while also writing something that could be squared with my knowledge of the Constitutional Court jurisprudence and aware that as a academic who is not well versed in the practicalities of enforcing the payment of debts I might not be aware of the practical consequences of the order handed down by the JP. It is in this context that I felt a bit aggrieved at your comments which seemed to jump to conclusions and failed to acknowledge the possible complexities presented by the case.
Mzo – “…and the CC judges did not reverse the Eviction Order!!”
They did however follow a much more compromising (if not pragmatic) approach in the final order they gave.
I honestly think that Hlophe could have done much better than merely striking down the common law rule – by developing it in accordance with the Constitution and its values. As it currently stands, rich guys that do not want to pay civil debts can flee the courts’ jurisdiction at whim. Why couldn’t he have thought of developing a habeas corpus kind of rule, amending the common law rule to make provision for rich and for poor; and, if tamquam suspectus de fuga should still fall short, place something in place thereof to recover debt legally. Remember, the Constitution in ss 8(3)(a) and 39(2) that courts should where necessary develop rules of common law rather than simply striking them down so as to leave a lacuna for the (incompetent and slow) legislature to fill when it has the time (and resources) to do so. In this sense, Hlophe’s judgment is clearly lacking.
I cannot but help to think that Hlophe JP has more respect for exotic dancers than what he has for the poor and vulnerable.
Pierre De Vos says:
January 12, 2010 at 8:16 am
Exactly – Mzo, please note.
Anonymouse says: January 12, 2010 at 8:26 am
“I honestly think that Hlophe could have done much better than merely striking down the common law rule – by developing it in accordance with the Constitution and its values. As it currently stands, rich guys that do not want to pay civil debts can flee the courts’ jurisdiction at whim. Why couldn’t he have thought of developing a habeas corpus kind of rule, amending the common law rule to make provision for rich and for poor; and, if tamquam suspectus de fuga should still fall short, place something in place thereof to recover debt legally. Remember, the Constitution in ss 8(3)(a) and 39(2) that courts should where necessary develop rules of common law rather than simply striking them down so as to leave a lacuna for the (incompetent and slow) legislature to fill when it has the time (and resources) to do so. In this sense, Hlophe’s judgment is clearly lacking”.
I agree and, similarly, I take Prof’s point at 8:16am.
“I cannot but help to think that Hlophe JP has more respect for exotic dancers than what he has for the poor and vulnerable”.
I disagree and I do not think that there is any justification for your thoughts in this regard. He fell short, as you so eloquently pointed out, but I do not think it’s helpful to suggest improper motives.
Pierre De Vos says:
January 12, 2010 at 8:16 am
“From a legal perspective, a question that will exercise the minds of the CC judges will be whether the rule should be abolished altogether and whether this will not leave creditors without an effective remedy when someone intends to flee the country to avoid payment of a debt.”
Surely there must be other ways to prevent people from fleeing the country, rather than throwing people in jail at a whim?
Is it not an obligation of a creditor to ensure that the debtor will be able to repay the debt in the first instance?
@ Maggs
“Surely there must be other ways to prevent people from fleeing the country, rather than throwing people in jail at a whim? Is it not an obligation of a creditor to ensure that the debtor will be able to repay the debt in the first instance?”
Maggs, what alternatives would you suggest? Seizing debtors’ passports?
You may indeed take the position that the creditor has the obligation to ensure payment of the debt. The obvious means is the posting of some form of security. But what of debtors that do not have sufficient security to offer?
As so often, the JP’s ruling may have an unintended side effect that actually hurts people it is supposed to help. What I mean is that creditors, deprived of the arrest remedy, will respond simply by refusing to extend credit at all to poorer people, and/or those who cannot post security.
Manyova is right.
I demand that De Vos and his acolytes come out into the open, and seek tax-exempt status for their Anti-Black Judges Organisation. (“ABJO”.)
Coincidentally, the first AGM of FOM (“Friends of Motata) is being held next week (Jan. 19), in Randburg. See details on our website. (http://fom.five.roses.co.za.)
Michael Osborne says:
January 12, 2010 at 9:09 am
“Maggs, what alternatives would you suggest? Seizing debtors’ passports?”
If that’s an option, it will be better than throwing people in already overcrowded prisons.
“But what of debtors that do not have sufficient security to offer?”
Don’t extend credit to people who cannot repay – it’s the creditors responsibility rather than that of the overburdened state to firstly ensure that the debtor can pay and to collect from people who can pay.
How is incarcerating someone who does not have the means to pay a debt, at all helpful?
As you are aware, prior to the NCA, poor people were given credit way, way beyond their means.
There’s nothing altruistic about extending credit to the vulnerable, it’s all about the money!
We must also arrest CEO’s of companies who are failing to honour their debts and the poor can also ask for state bail out when they fail to pay.
Thats fair.
Maggs, I note your agreement that passport-seizure may be an alternative to ATQS. Not having read the decision, I do not know whether the “less intrusive means” option of seizing of passports was considered.
But I suppose even that would be subject to challenge; on the JP’s logic, a poorer creditor (one less able to put up security), is more likely to have her passport seized. Does that not also constitute discrimination on the basis of wealth, using the JP’s conception of equality?
I think your recipe “don’t extend credit to people who cannot repay” is a little simplistic. The whole point is that it is difficult to say in advance whether repayment is possible. Advancing credit is about risk, and creditors reducing that risk as much as possible.
On your logic, poor people — the very ones who most need credit — may be squeezed out of the credit market.
Suppose you badly needed credit, and could not put up security, and knew that a bank would lend money only if it was assured that you could be arrested if you attempted to flee the country. Would you not then prefer to live in a legal environment where the bank could have such an assurance?
Finally, I am aware that creditors do not lend money for altruistic reasons. But thanks anyway for the timely reminder!
I have read the judgement and I believe some of the arguments would not arise if one read the argument thoroughly. Arrest for unpaid debts was long abolished in most advanced democracies. In his judgement JP Hlope has offered alternatives to arresting the person.
Firstly, foreclosure is mentioned. If one lends to a debtor without security, then they must leave with the consequences of such reckless lending. If secured lending, then they must ensure that the quality of the security does not deteriorate and the security is enforceable.
Secondly, judgements can be obtained in SA courts and enforced in foreign jurisdiction where the debtors runs to. It it onerous, but that respects human rights.
Respect for human rights demands of us to limit or infrige on human rights where it is the last option.
I meant live not leave
Maggs Naidu says: January 12, 2010 at 9:24 am
I agree with your sentiments in this post. Just to add, why should I, as the taxpayer, foot the bill for a debtor who cannot pay – I understand it costs a couple of thousands of rands a month to keep a prisoner in jail.
@ Gwebe.
Indeed.
“The recession is over but South Africa’s big four banks – Absa, Standard Bank, FirstRand and Nedbank – would report poor earnings for last year and the first half of this year because of heavy bad debt charges, analysts said yesterday”.
http://www.busrep.co.za/index.php?fArticleId=5309248
Michael Osborne says:
January 12, 2010 at 11:11 am
The world wide recession (which is far from over despite what we are reading) was caused by irresponsible extending of credit to people who could not afford it.
The NCA in SA came about mainly because credit was extended to people who could not afford it.
How does jailing a debtor who is unable to repay, assist the creditor in getting repaid?
And, like Mzo correctly points out (January 12, 2010 at 11:15 am), why should the rest of society carry the burden, albeit indirectly, of an irresponsible lender?
Joe Public says:
January 12, 2010 at 11:14 am
To add to this, I can’t understand how arrest tanquam suspectus de fuga would help the Cape Dance Academy get their money.
I see Maggs raises the same point. Clearly the dancer can’t pay (not with money, anyway).
May be there are other motives to keep this dancer locked up and that may create an opportunity for them to raise the money in a specialised cell.
Gwebecimele says:
January 12, 2010 at 12:45 pm
Perhaps more than just a remote possibility.
I say the judges of the CC must receive judicial training in Administrative Law.
They should be thoroughly conversant with the elementary rule that anyone who is suspected on any offense must receive a full hearing within 60 minutes the thought first enters the mind of any person who exercises public power.
In addition, they need to be reminded of the well established rule of evidence that there is no point in cross examination if it appears that the accused will stick doggedly to his story.
Thanks.
“In this case Ms Tatania Malachi, an ‘exotic dancer’ (yeah right) from that lovely country Moldova (found by some surveys to house the unhappiest citizens in the world) was arrested after she tried to return to Moldova without paying her employer R20 000 owed to him” as Pierre puts it.
Interesting – this certainly raises all kinds of questions over human rights as we understand it in South Africa.
Never mind that that I was opposed to his candidacy to the CC, well done on this to the JP!
Ladies and Gents, on the lighter side, think of economics, supply and demand. You know there is a lot of monies flowing in prisons but very few services and goods to buy with that money. An exotic dancer might have monopoly of service inside and charge any price. After all there is no competition commission inside.
mzo says:
January 12, 2010 at 8:49 am
Mzo – I intended that as a joke (irony, … whatever), and was not bent on accusing Hlophe JP of ulterior motive – Hell, if that could be established, I would fight outright for (renewed) impeachment.
Is it possible for me to ask – if I ever needed to – the South African high courts to cede their jurisdiction to this esteemed forum? By the looks of it your more likely to get a fair trial though the collective wisdom and knowledge found on this blog and through the legal system?
Mzo, I do not think one can be accused of blind loyalty where one independently investigates the grounds offered in support of a claim and finds the position convincing. That is, there seems to me to be a significant difference between fairly regular endorsements on the one hand, and blind support on the other. Moreover, the ANC does the same wrong things much of the time: the taking of unlawful decisions, opting for deflection rather than addressing substance, rejecting the notion of accountability. The Professor finds those things to be unacceptable. But then, most reasonable people do and I am happy to associate with reasonable views precisely because they are reasonable. Thus given that the issues as to which the Professor and I agree occur frequently, and he writes about them frequently, it follows that I will agree with him frequently. The true questions are (a) whether I appreciate his grounds and (b) if I do, whether I agree with him because I believe his bases to be sufficiently cogent. So while your remark to me dated January 11 at 19:35 was perhaps only half-serious, with respect, even that half does not pass muster.
This is all highly amusing. We all know the South African Judicial Education Institute Act of 2008 was another skirmish in the godless, shameless ANC’s war on position, a consequence of the ANC hegemonic tendencies, and of course, a reaction to JZ’s legal ‘difficulties’ and an attempt to protect him. The Act is much watered down because of public outrage. Critics argued that the judiciary WAS held accountable – not least by publication of judgements, reasons and public criticism of judicial decisions.
What is the situation here? The ANC has done nothing about implementing its legislation; a quintessential victor in its war on position is being held to public account – subject to public criticism because the dog ate his homework – and the ANC’s shameless supporters are throwing a hissyfit because their hero is getting an object lesson in the accountability that detractors of the ANC’s attempts to ensure hegemony on the Benches insisted was built into the system before the ANC’s attempts to throw the game.
ROTFLMAO!
So what? What if Pierre does not exactly look kindly upon the JP? Is that not so much more likely to make him careful, ensure that he is far more rigourous in his approach when dealing with the JP? Because he understands the consequences of making a mistake because of bias?
We are all not seeing the woods for the trees.
Education in this country is not a logical model.
Last week a kid hanged herself because she failed Matric. No doubt there were more such incidents that did not make the news. There are every year.
We all failed that kid. Firstly, we know that this year’s Matric is not the same as the Matric we wrote. Then, Bantu Education is probably a shining beacon next to the ANC’s education system. 3) No child should be forced to think their lives are over because they failed an exam. Did she know she can write supplementaries? Hopelessness is a sin, but what if it is a world view forced upon one from all sides?
We should look at the further education of judges in context. The Skills Act. The Nation Qualifications Framework. SETA’s. The malaise is generalised.
Pierre, you said you would have given the JP 25% if his was an answer in an exam. Have you ever RPL’d a student for a credit in Constitutional Law?
This country’s universities are serial transgressors. Government daily flaunts its own education legislation. It ignores it. It stamps its own peculiar brand of incompetence on further education.
How could gun owners be subject to a competency regime, forced to undergo training with accredited institutions, pass unit standards? That is patently ultra vires the Skills Act. (Apart from all the constitutional issues.)
Why would the SAPS fight tooth and nail to avoid the administrators of the firearms registration system having to pass a unit standard on the Batho Pele principles? Why would the SGB and ultimately, the management of the SETA corrupt their institution by bowing to police pressure and rubber stamp a unit standard for designated firearms officers that allowed a semi-literate SAPS member with Standard 6 to punish a gun owner in excess of the jurisdiction of the Magistrates’ Court?
The whole education model in this country is rotten to the core.
It could so easily have become a logical model that would have allowed a young girl who failed an exam to view her failure as a temporary setback in a far bigger picture that offered real hope to better herself.
Joe Public – “Secondly, judgements can be obtained in SA courts and enforced in foreign jurisdiction where the debtors runs to. It it onerous, but that respects human rights.”
Jeah, right! Especially where debtors run to states like Somalia.
Maggs and others – It is not only about the ‘ability of people to repay debts’, but rather about ‘whether people want to repay debts’. As far as I know, it is still a crime for an insolvent person to swindle assets in order to evade the payment of debts by the curator. For that, a person can go to prison if properly charged under the insolvency act. What is the real difference between the two situations?
Furthermore, I rather tend to agree with Michael Osborne. The effects of the judgment would rather hurt the poor people who cannot put up security for their loans than what it would do rich people and companies who can afford to repay debts but do not want to so that they can get richer. I am not at all for ‘Micro-lending’, in fact mostly against it should it remain mainly unregulated as it currently exists, but poor people do need credit from time to time. If credit is refused simply because the would-be debtor cannot provide enough security up front, then the poor people will suffer most. And then, without a remedy such as this (and I’m not saying it should remain part of the law – I simply cannot think of any real alternative right now), rich people that can put up security for credit are usually good at debt evasion through swindling securities.
On the question of alternatives that were not properly considered by the JP. The imprisonment without trial for debt sections have been removed from the Magistrates Courts Act. However, if the debtor refuses or fails to appear in court for an enquiry into his/her ability to repay (and whether attachable property exists for sale in execution), it still amounts to the crime of contempt of court for which he/she may be arrested and forcefully brought before court for an enquiry into his/her financial position; and, if properly charged may even result in a sentence of imprisonment imposed for contempt of court. That is certainly less arbitrary than simply justifying imprisonment for non-repayment. Why can’t a similar remedy be thought out here? Just asking.
Anonymouse — You make a good point re it still being open to debtors being arrested for contempt of court. That being so, an adroit and well advised creditor will still be in a position to have a debtor arrested. (Perhaps the crucial difference is that contempt requires a higher standard of proof.)
As for the decision being anti-poor: My complaint is not necessarily that the decision is wrong because it impacts the poor. It is that the discrimination effect is not even recognised so as to be weighed in the balance.
Also, I doubt that Hlophe JP for a moment considered the assault upon the dignity of the poor implicit in the patronising assumption that they are too weak or stupid to deal with the availability of credit.
Michael – I agree. Hlophe JP simply is not CC material, leave alone CJ material. He should to my mind not even be JP; a puny judge, perhaps, but definitely not a JP. But now he is there – and we have to deal with it.
And perhaps judicial ethics training?
Anonymouse says:
January 13, 2010 at 8:10 am
I cannot find merit in the argument that people who are not able to repay debts, will repay debts if the threat of going to jail hangs over them.
In a recent Amanpour on CNN, an Indian activist said that the money lenders in India are demanding the mothers or daughters from borrowers who are unable to repay debts – that’s of course to feed the demand from human traffickers.
I have read elsewhere that body parts are the standard guarantee for loans to the poor.
Back to South Africa, if lenders are unable to reasonably secure their loans, they alone must carry the burden, except where a judge or magistrate after careful consideration thinks otherwise.
I have an issue with jailing an insolvent person, while directors of insolvent companies get to keep the booty, except perhaps in the case of reckless trading.
You are probably well aware that many furniture retail outlets were just a front for predatory money lending schemes – many went bust after the NCA. The argument that they put forward that they were assisting the poor is just a load of crap. Some even suggested that it, the NCA, would adversely affect the poor.
To my mind the only thing that really helps the poor is a means to get out of poverty – debt traps have entirely the opposite effect.
In the Tatania Malachi matter the employers ought to be thrown in jail – this was not “assisting the poor” – it’s more like slick human trafficking and sexual slavery.
Khosi, I meant that as we muddle through, we keep squandering them, but we keep getting second and third and fourth and and chances.
That ‘Bagman’ link placed the ‘inspiration’ you speak of nicely in context. It reminded me of one of my favourite conspiracy theories:
While TM’s ‘sweeteners’ from the Arms Deal went straight back to the ANC JZ caught scent of all that money floating around and could scarely contain himself ….
That performance on ETV that embarrassed our nation before the world might be TM’s revenge?
How to give convincing reasons for a decision:
http://www.businessday.co.za/articles/Content.aspx?id=91278
“The Mbeki administration (of which I was a part) considered the matter very carefully in the early 2000s and decided that it is the very pendency of the apartheid litigation in the US that is against SA’s own sovereign interests.”
What are those interests? How is litigation against them?
Mixing politics with law is not helping anyone here. I could not care less about a political meltdown with the US as long as those who abetted Apartheid are brought to book. If there is a slim chance that this may happen, then that chance must be taken even if it is at a high risk of SA being at political loggerheads with the over-rated USA!
PS: Who knows, maybe we’ll get a chance to use the “goods” purchased through the ‘Arms Deal’ and give the War Veterans something to smile about.
Re: Sine says
January 15, 2010 at 7:31 am
Brett, thanks very much for the link bro…
Maggs Naidu says:
January 15, 2010 at 4:53 am
“I cannot find merit in the argument that people who are not able to repay debts, will repay debts if the threat of going to jail hangs over them.”
I agree, but only to an extent – the key words in the above phrase = “… who are not able …” Therefore, the Magistrates Courts Act makes provision for summonsing the debtor to court to determine (per enquiry) whether he/she is in fact able to repay debts and/or whether there is some form of attachable property/surety to cover the debt. If he/she does not pitch up, he/she can be arrested for a determination whether he/she is guilty of contempt of court. If there is attachable property/security, the property or security is attached and sold in execution. If there is not, the court goes into the financial position of the debtor to determine whether he/she is able to repay. If no, various remedies are available – insolvency/administration, debt counselling, postponement of the enquiry, etc. If yes, an appropriate order is given (usually for payments in installments or emoluments attachment order). If in such circumstances the person does not pay as ordered, he/she can be arrested and brought before court. If he/she can satsify the court that the financial position has changed, he/she will not go to gaol. But, if the court finds that he/she willfully refuses to pay, he/she can be sentenced to a term in gaol for contempt of court. In such cases, the propisition of gaol can have a deterrent effect (which is one of the goals of punishment in criminal law).
That is the kind of situation I have in mind, and therefore, the rule suspectus tamquam de fuga could be modified along the same lines. Perhaps something like, upon affidavit that a debtor is on the verge of running away, a warrant for his/her arrest can be obtained. The difference however being that he/she is not detained until the debt is settled as is the case under the current common law rule. He/she is only detained until brought before court, who can then launch an enquiry, etc., etc. Such a measure will be less arbitrary and less intrusive than the current suspectus rule which was before Hlophe JP. I say, had he applied his mind properly to the case before him, he could have developed the rule so that it conforms with the Constitution. However, with one fell swoop, he chose to declare the rule void, leaving a lacuna, and I doubt that Pparliament will do something about it for a number of years.
On the human trafficking issue, I agree. The circumstances of Tatania’s case might well indicate that the debt was actually a form of financial (debt) slavery, and that it is actually contra boni mores to allow the employers to recover the debt by any means, even in terms of s 65 of the Magistrates Courts Act. I have this thing about microlending as well. Loan sharks principlally act contra boni mores, and they should not be allowed to suck the blood of debtors like leeches, just because the letter of the law says so. Such cases are not tolerated in my court. But this is not what concerned Hlophe JP.
@ Maggs
I still do not see you taking any account of the point that Mousie and myself have made: That removing the creditor’s remedies may have the effect of making it progressively (!) less and less possible for the poor to get credit.
The unintended side effect is to ensure that those already rich are able to raise capital.
It does not assist for you to keep saying that it is the job of creditors to make sure debtors will pay. The only (legal) way a creditor force debtors pay up is to invoke the coercive machinery of the state.
And that machinery will inevitably include the ultimate use of state force against debtors — in the form of a contempt of court order or a forced attachment of property.
Your logic would deprive creditors of these means of enforcement, with the consequence that (a) the poor would be cut off from credit and (b) the “enforcement” of debts would entail the less formal techniques we know from having watched Godfather movies.
Michael Osborne says:
January 15, 2010 at 7:56 am
Now I agree entirely with that which Mouse had to say (Anonymouse says: January 15, 2010 at 7:47 am).
As you are probably well aware, there are many foreigners in Dubai who as a result of the sudden collapse of the world’s economy, find themselves captive there, with no means of income or survival – perhaps you watched Carte Blanche on that late last year.
“It does not assist for you to keep saying that it is the job of creditors to make sure debtors will pay” – why not?
There are all kinds of measures that can be put in place – CGIC for example, security, guarantors are just some options.
I am not sure if lending money to the poor helps or exacerbates poverty – I think it’s the latter.
Until you have politicians like the Clintons come along to ‘liberalise’ mortgage lending sowing the seeds for a debt crisis.
And, we have not even started looking at the effect of Mkontwana.
One thing that consistently puzzles me is how one can have so much dishonesty and betrayal of the public trust in a country where ‘Fraud’ has such a wide definition?
Are the folks at the NPA just lazy?
Why this new found liberal energy from Asmal? It is interesting that he claims to be part of TM decisions when he wants to advance a point but never comes out regularly to defend the other decisions of the past. I am not qualified to judge his line of argument but why he/they never set up an alternative environment unde SA law for these cases to be heard?
Its shame that now after the train has left the station that certain individuals wants to be superstars.
Gwebecimele says:
January 15, 2010 at 8:50 am
“It is interesting that he claims to be part of TM decisions when he wants to advance a point but never comes out regularly to defend the other decisions of the past”.
Like shutting down teacher and nursing training colleges and selling of some of the property?
Or sacking Holomisa because he dared to speak the truth?
Or allowing wetlands to be devastated or the pollution by mines of water tables?
Eish – the list can go on forever!
@ Maggs
“It does not assist for you to keep saying that it is the job of creditors to make sure debtors will pay” – why not?”
Because, Maggs, creditors can only ensure that debtors will pay by relying upon legal enforcement. (How many commercial debtors would pay debts in full out of a sense of pure “honour”?)
You says security can be put in place. Of course. But most forms of security are dependent upon legal enforcement, and behind all legal enforcement is the coercive arm of the state.
But at the heart of our debate is your suggestion that lending to the poor, on balance, exacerbates poverty.
Insofar as what you are saying is that, all things considered, all lines of credit to the poor should be cut off — effectively that only the wealthy should have the right to access capital — you have adopted a position in economics akin to HIV-AIDS denalism in medicine and Creationism in Biology. No further debate is possible.
Michael Osborne says:
January 15, 2010 at 9:13 am
Real poverty alleviation loan schemes :
http://www.kiva.org/about
http://www.grameenfoundation.org/take-action.
28% + pa interest loans to the poor are not poverty alleviation or assistance – that’s sucking the life blood from the poor.
@ Anonymouse:
“Perhaps something like, upon affidavit that a debtor is on the verge of running away, a warrant for his/her arrest can be obtained. The difference however being that he/she is not detained until the debt is settled as is the case under the current common law rule. He/she is only detained until brought before court, who can then launch an enquiry, etc., etc.”
What comfort does this offer to the creditor — if the debtor can in any event flee the country while the enquiry is in progress?
Maggs, you are right.
Given your suspicion of conventional economic theory (even leftish Keynsianism), I can understand well why you are so steadfastly loyal to the ANC. Say what you like about the ANC, it has certainly sets its face against capitalism in all its forms. Under Cmd Zuma, and guided by the profound macroeconomic insights of Cmd Malema, it would seem we are on the verge of the second stage of the revolution!
Reckless lending is a scheme not only to leave the poor heavily indebted but to also attach whatever assets they own. It makes no sense to lend to a person who is unable to pay. Creditor must ensure that their debtor are in a position to service their debts. Failure to do so, they have no right to recourse. There are tools in the trade to determine the level of indebtedness of your applicant and their propensity to pay when you have all the relevant information. Unless a creditor can prove that the applicant failed to disclose information during the application process that would have changed the outcome. Small loans which are secured by withholding ID, BankCards, finance to purchase furniture etc are not assisting in the fight against poverty and are good examples of reckless landing.
Mikhail Dworkin Fassbinder says:
January 15, 2010 at 9:58 am
Hey Dworky – did I say that I have “your suspicion of conventional economic theory”?
Thanks for telling me that I did (my hearing aid is still not going to well, I am thinking of ordering one though).
I agree with you that the Malemanomics is profound.
Mine owners are not going to clean up the mess that is leading to ground, water and air pollution – it’s better for the people of our country if government nationalises (=buys at inflated market rates) those mines and clean it up.
And on the subject of mines, government must also buy (I meant nationalise) mines with depleted or nearly depleted reserves, so that jobs can be saved and capital can then be invested by the former mine owners into other useful ventures – after all what does government know about business (it’s not relevant that business does not know much about business either).
And the beneficiation model is smart too. It sort of goes like this. Set up a few diamond cutting centres, get some people trained to cut diamonds. Make some rings, put the diamonds in the rings and sell it.
People like Cronin are just complicating this for no reason. Things like demand/supply side development, upstream/downstream needs and opportunities, training and development, resource management, infrastructure development, enabling legal and regulatory framework wadda wadda wadda are red herrings intended by capitalists like you to keep the majority of people poor.
I am sure you noted how many, many people in our country got from reasonably rich to super rich by the rather uncomplicated approaches – take a state asset, get funding from the PIC, by the asset, sell the shares to a UK company. Those who bought mines that are now troubled – just get the state to nationalise at market rates (i.e. market rates x a whole number > 1).
That model is much better than your proposal or that of Cronin and the like. It’s quick, it’s easy, it’s uncomplicated.
Keep it simple buddy. Just keep it simple!
Just you watch – there shall be peace and friendship once Malemanomics is implemented!
@ Maggs
You enthusiastically agreed yesterday that Keynes, Marshall, Samuelson etc got it all wrong regarding economic growth (you wisely added Greenspan to the list).
That would add up to pretty much a rejection of conventional economic theory.
But perhaps you were being ironic.
Hey Dworky – me ironic?
Never.
I meant every word which you wrote.
So what do you think of the KISS approach to sustainable development in South Africa – smart, ne?
@ Maggs
“Set up a few diamond cutting centres, get some people trained to cut diamonds. Make some rings, put the diamonds in the rings and sell it.”
Maggs, I fear that our local cutting industry may face the obstacle that diamond cutters in India have two large competitive advantages:
(1) They have an industry based upon centuries of experience, and large supply of experienced cutters.
(2) The Indian cutters are willing to work for very little money.
How would you propose we undercut (so to speak), the competition?
Michael Osborne says:
January 15, 2010 at 10:58 am
I think that illustrates exactly what Dworky meant – there are smart ways around these challenges.
1) We can do a crash course – six weeks should work.
2) It’s the jewelery stores, marketing media that makes the most money – the plan is to set up a string of State owned jewelery stores and word of mouth marketing – that way the workers can be paid more than the exploitative rates in India and China.
Also remember that Indian and Chinese cutters work on the pointers as they call it in the industry – really now, who can make out the difference between a well cut and not so well cut one pointer or less?
@ Maggs
“Mine owners are not going to clean up the mess that is leading to ground, water and air pollution – it’s better for the people of our country if government nationalises (=buys at inflated market rates) those mines and clean it up.”
Why let the mines off the hook? Should taxpayers pick up the tab for
cleaning up the mess?
Given the costs of cleanup, some of these mines may have a negative value — what exactly is the point of “nationalising” such an asset?
Michael Osborne says:
January 15, 2010 at 11:27 am
Why let the mines off the hook? Should taxpayers pick up the tab for
cleaning up the mess?
Given the costs of cleanup, some of these mines may have a negative value — what exactly is the point of “nationalising” such an asset?
———————————————————————————————————-
Same reason as the TARP programme.
Maggs is right.
As in the case of being an advocate, or a judge, experience in diamond cutting is not all it is “cracked” up to be,
UNISA should offer short cutting courses to unemployed youth. (Uncut diamonds can be sent via registered post to students nationwide.)
(BTW, Maggs, I am not sure why you use your hearing aid to read posts on this blog. I find that purely visual inputs often suffice.)
Mikhail Dworkin Fassbinder says:
January 15, 2010 at 11:33 am
Dworky – you missed airline pilot.
You’re gone back to complicating things – UNISA is not needed. If we deploy cutting tables right in the mine, there no need to post to students so we can save costs. There’s an abundance of cutting equipment about now going really inexpensively – that can be bought to save the struggling cutting industry.
Re hearing aid – Should I cancel my order? http://www.freedomscientific.com/products/fs/jaws-product-page.asp
@ Maggs
You will have noted that many on the left were very critical of TARP; it amounts to massive corporate welfare to institutions that continue to pay huge bonuses.
In any event, the analogy does not work. Preventing the banking system from collapsing may justify huge taxpayers bailouts. The same imperative does not apply to mining.
Michael Osborne says:
January 15, 2010 at 12:42 pm
The US is a strange place – despite doing all the wrong things they generally get it right. If I remember correctly, AIG top staff creamed a large portion of the bail out money. But not a problem – if two thirds of their currency in Eurodollars, it’s gonna be pretty hard for those countries who loaned then to call up the loans. If they do, the dollar will crash, by the US fractional-reserve multiplier effect will mean that the US will have a lot more money back in their system, enough to take care of the reduced value dollar and inflation. The just cannot get it wrong even with the biggest blunders.
Don’t stress over mining – Dworky has got it in hand with miner training by correspondence courses, after all a mine is “just a hole in the ground” which anyone can dig.
@ Maggs
Did I ever mention that, at the start of my exile years in Lusaka, I struggled to make ends meet? Fortunately, I landed a job as an ice sculptor behind the old Holiday Inn bar. After only a few hours training I was able to carve your basic cube into ducks, cows, aardvark, and other interesting shapes — much to the delight of the sundowner crowd!
Mikhail Dworkin Fassbinder says:
January 15, 2010 at 13:14 pm
UNISA course?
Who inspired Malema to become a mine-owner?
Note – Maggs studiously avoids commenting on the leaking of the ANC’s draft mineral rights charter which started the slump in our mining industry while investment was at an all-time high and the industry was booming across the world.
Maggs, tell the nice people what has happened to the diamond industry over the last couple of years. Refer to diamond prices please. Then tell us about the pipe dream ‘beneficiation’. Much more productive to teach people to make simulants.
Anyone know where I can find good material on the doctrine of effectiveness? (Besides this thread….)
@ Brett – relax a bit. That stuff was flippancy.
Malemanomics, and most of the rest, is a figment of eclipse Friday.
Dworky did not do ice sculpting.
There’s nothing wrong with my hearing.
Micheal Osborne know that beneficiation does not equal cutting diamonds underground in a mine shaft.
Nationalisation, at least the glib way I talked about it, is nonsense.
I just felt like having a dig at someone today – the proponents of dumb ideas were the targets.
So keep the stimulants for some other occasion!
Maggs, curb your enthusiasm!
BTW, Maggs, my emotional response is that money-lending is unChristian.
I think the poor might be better off not being able to access credit. It is a poisoned chalice.
Do we have the right to project our prejudices onto the poor and make their choices for them? And, ultimately, leave them with fewer choices, to save them from themselves?
@ Brett,
There’s an interesting novel that I read some years ago “City of Joy”, based on real life priest Gaston Grandjean – set in the slum, Anand Nagar, in Calcutta (now Kolkata), India.
What stands out for me in that book (which I think is generally true), in relation to what you just said, is the relationship between the exploited and the exploiter, neither of who can exist without the other.
My only concern is the extent to which the state allows itself to become an agent of the “exploiters”.
Mouse captures it best so far in this thread (Anonymouse says: January 15, 2010 at 7:47 am).
There is a fine line between projecting our prejudices, as you say, and opposing gross exploitation of the vulnerable – the distinction may be difficult to define.
Brett Nortje says:
January 15, 2010 at 17:33 pm
Maggs, curb your enthusiasm!
————————————–
Touche!
Dear Sir/Madam
Am sorry to come back to you, please, with the following, which I believe would finalize the entire text of clarity, if you please add it at the last paragraph but one, Sincerely Belete
There are wonderful whites that their colour is only white, but they are more kinder and lovers of mankind, both black and white, except those who still practice racism, and there are black who are more hateful and prejudice than whites their own black and whites and hence, I have the best from both and all whites are not racists and all blacks are not also hateful, I want you please to understand me. However, if the racists who meddled with my court awards with all the miscarriage as described above and as attached were blacks by now their license to practice law and their Fidelity Fund Certificate would have been withdrawn by now as many of such blacks have been deprived already based on racist, as they themselves reported and the media verified.
For example South African Airways, when it took me on the spot during my interview in Windhoek, by the General Manager of the Station and a Senior Interviewer from Johannesburg SAA’s Head Office, approved by the African Regional Director, the Senior Human Resources Director and the CEO of SAA, I was whisked to Johannesburg to meet most of the management, and started work as the first Ethiopian/African Area Sales Manager for Namibia and Walvis Bay, even before South Africa came out of from its Apartheid Racism Government past, and started work on 16 April 1990, within less than one month of Namibia’s Independence on 21st March 1990, it was from among about 30 whites-only applicants, and I was the only one with a Zambian Sales Manager in Lusaka, as the only two Africans from among about 360 white and 5 Asians/Indians, we were respected, recognized and admired without being discriminated because of the colour of our skin.
Similarly, I was taken on the spot also, during my interview, by two British Directors, CEO for Europe, Asia and Africa and Project and Executive Director, on 22 November 2000, as the pioneer General Manager for Servisiar.com/Equity Aviation.co.za (there are seven GMs since my unfair dismissal of September 05-07 2001), an international ground handling company of about 200 airport stations around the world, which I put as the first and only one at the time, on the map of Africa, not because of my about 30 years civil aviation and airlines professional training and experience of services with Ethiopian Civil Aviation, Ethiopian Airlines, TWA, PanAm and SAA, and not also because of my matured adulthood, but because of my principle of Faith of “truthfulness, trustworthiness, honesty and integrity and obedience and loyalty and good wisher to government laws, orders and rules”.
And I can sight more whites who are not racists and colour blind but only professionally oriented with code of conduct, ethics and professionalism, honesty and integrity, unlike my employer’s and my own legal practitioners
http://www.mg.co.za/article/2010-01-19-kzn-backs-circumcision-programme-to-combat-hiv
KZN requires more than Judicial training, perhaps Ingcibi(traditional nurses). This massive programme will require a number of professionals since it was abandoned long time ago.
Stripper gets SA debt law changed
2010-08-26 14:22
Johannesburg – A stripper from Moldova who was jailed for not paying her debts in South Africa has helped get the country’s law changed.
Tatiana Malachi was brought to South Africa in 2008 by House of Rasputin Properties, which runs a Cape Town strip club. The owners said she owed them for the money spent on her accommodation, visas and other travel costs.
The owners kept her passport to ensure she paid. When they learned she had sought help from Russian diplomats and planned to leave the country in July 2009, they had her arrested. After spending two weeks in jail she returned to Moldova.
In a ruling this week, South Africa’s highest court said portions of the country’s debt law dating back to 1944 allowing for such detention were unconstitutional.
In his ruling, Constitutional Court Justice Mogoeng wa Mogoeng ordered anyone being held in prison for unpaid debt should be “released with immediate effect”.
Mogoeng said that although Malachi triumphed in court, “nothing can undo the degrading effect of incarceration”.
“Freedom is an important right. The detention of any person without a just cause is a severe and egregious limitation of that right,” Mogoeng said.
He said it would be difficult to imagine circumstances in which a law allowing detention without cause could be justified.
http://www.news24.com/SouthAfrica/News/Stripper-gets-SA-debt-law-changed-20100826