When the protest by South African soldiers outside the Union Buildings turned violent two weeks ago, the government finally took notice of protestors. It is one thing for striking workers to toyi-toyi through the streets of Johannesburg and Cape Town or for poor people to burn tyres in protest at a lack of service delivery and lazy and corrupt councillors. But its altogether another thing for soldiers to embarrass the government by taking part in violent clashes with the police right outside the office window of President Jacob Zuma.
No wonder Defence Minister Lindiwe Sisulu announced yesterday that a new National Defence Force Service Commission may be created “as early as next Monday”. As the SABC reports:
Sisulu says the commission’s mandate will include reviewing working conditions, including remuneration in the defence force. “We envisaged that within the Defence Force itself, we will have professional bodies where the military will be able to come together lobby for better conditions but certainly it will not be like trade unions.” She says trade unions are political bodies by their very nature and by introducing them to the Defence Force one creates problems. The call for a new service commission comes after last month’s violent protests by soldiers at the Union Buildings in Pretoria.
Although I obviously take a dim view of the unlawful behaviour of some of the the soldiers outside the Union Buildings, I am not sure the Minister’s course of action is either wise or legally plausible. In 1999 in the case of South African National Defence Union v Minister of Defence and Another the Constitutional Court declared invalid the prohibition on defence force members from taking part in public protests because it infringed on their right to freedom of expression.
The Court also declared invalid the provision of the Defence Act which prohibited members of the defence force from becoming a member of a trade union as this contravened section 23 of the Constitution, which guarantees for every worker the right to form and join a trade union.
In 2007 in SANDU v Minister of Defence and Another many of the regulations promulgated to deal with the 1999 court decision was again challenged in the Constitutional Court. Justice O’Reagan confirmed that members of the defence force had a right to join trade unions and to take part in public protests as long as they were not in uniform and as long as the protest would not cause “actual or potential prejudice to good order and military discipline”.
She also confirmed that the right of members of the defence force who belong to trade unions were otherwise severely limited. They are not allowed to strike. They are not allowed to participate in the activities of a trade union while taking part in a military operation, military exercises or in training. Their trade unions are also not allowed to affiliate to any political party or labour organisation.
After reading this judgment it is difficult not to conclude that members of the military leadership do not like trade unions and in effect tried to thwart the Constitutional Court judgment by taking steps to try and undermine the recognised military union. The Department of Defence unilaterally withdrew from the Military Bargaining Council - which it was legally obliged to take part in – and refused to negotiate with or even consult the defence union unless unilaterally imposed conditions for its participation were met. But the military regulations themselves prohibited the Defence Department from doing this and the Constitutional Court declared the actions of the defence department in this regard invalid.
All this makes clear that Minister Sisulu will have to amend the Constitution to give effect to her plan. Such an amendment will have to exclude soldiers from the enjoyment of the free speech rights in section 16 and the labour rights in section 23 of the Constitution. Meanwhile, in terms of the defence regulations and the Constitution, the Department of Defence has a legal duty to take part in the Military Bargaining Council and to negotiate with the defence union representatives. The suggestion by Sisulu that a newly formed National Defence Force Service Commission will take over this task seems both in contravention of the Defence Act and the Constitution.
Apart from the fact that the Minister seems to have announced that she was going to break the law and breach the Constitution, I am not sure whether her proposed cause of action is wise. There clearly is a lot of discontent among soldiers in our defence force. At present the union presents an avenue for expressing and channelling such discontent. By banning the union and by unilaterally trying to impose a management solution, she will not ban the discontent – just drive it underground and make it more dangerous.
Clearly SANDU members acted unlawfully and disruptively at the Union Buildings and clearly there is no problem with imposing limits on the rights of defence force members to join trade unions and take part in trade union activities. But banning members from belonging to unions seem unconstitutional and stupid.
Wonder who has been advising the Minister.
Wonder who has been advising the Minister.
ANSWER: Paul Ngobeni, who recently famously said the Minister was entitled to fire the troopers because the common law says she can…
Hlope, JP ?
Pierre
Sensitive blog but necessary one. “Sensitiewe onderwerp maar hoogs relevant.”
To Pierre de Vos:
First, I think it is disgraceful to hear a minister announcing that she intends to “…break the law and breach the Constitution…”. How can it be that a minister expects others to respect, follow and obey the law when she is by no means setting an example? This is such a crass example of ministers taking the law into their own hands respectively seeing themselves as being above the law. May I add that I have never heard of any minister in any civilised legal system expressing them in this kind of manner (dictators excluded of course!). A move should be made to have Ms Sisulu removed from office since communicating such messages to a rather fragile society is highly irresponsible and disgraceful to say the least.
Second (and my more concrete question to you), soldiers have a constitutional right to join a union and to participate in union activities (the case mentioned by you), also bearing in mind the proviso of Justice O’Reagan. This taken as a legal fact, I therefore wonder why you maintain that SANDU members “… acted unlawfully…”. What was so unlawful about their actions to protest? I’m sure you also know there is a clear difference between a soldier protesting (a right afforded to him/her under the constitution) as opposed to a soldier striking (a right which is not afforded to him/her under the constitution). If it had been the latter case, I may have understood your argument somewhat better. Note also that the soldiers who protested at the Union Buildings were not uniformed; thereby fully complying with the provisos laid down by O’Reagan and accordingly having acted within the law. I’d therefore like to know the basis upon which you argue that the protest was “…clearly …unlawful…”. Naturally they were disruptive too, but this lies in the nature of any protest and union activities – so I don’t think it is worth taking this issue any further. I doubt any serious-minded lawyer could argue and maintain that “disruptive” was meant to refer to a “disruption of national security and safety interests” in this specific context.
Third, I also wonder that you say that “…clearly there is no problem with imposing limits on the rights of defence force members to join trade unions …”. If this is a constitutional right (confirmed by O’Reagan anyway), why it is then that you feel, by implication I take it, that the right to join a trade union should be limited (even further!). What must be limited (even further) than the right join a trade union? The only other extreme possibility of limiting an existing right to join a trade union would be a limitation of the right not to join a trade union per se. I clearly see a problem (further!) limiting a soldier’s right to join a trade union.
Andy, the court declared the union protest unlawful as the Defence Ministry declared that all soldiers were needed for operational work. This might have been a ruse but there was a court order which was not obeyed.
@Pierre
“This might have been a ruse but there was a court order which was not obeyed.”
Not obeyed by who?
How predictable…
@Koos
It may hve been a ruse (blatant lie) by the minister to say the soldiers were needed for operational work when they were not. The motive behind the ruse (lie) was to prevent the strike. The court believed her and declared the strike illegal.
The soldiers and their union chose not to obey the court’s decision. QED.
You are correct in so far as contemplation of the total ban of military unionism is concerned. This will constitute flagrant disregard of section 23 of the Constitution and ignorance of the profound jurisprudential content injected by the Constitutional Court.
The court did not suggest that the state cannot limit the freedom of expression. It left the question open for creative exploration by the state, so long as the restrictions are not all encompassing as to naturally squeeze life from the fundamental constitutonal rights and freedoms.
What the Minister is entitled to do is to review the regulations if they so wish in respect of the nature of the relationship with military unions, setting out an elaborate procedure for handling of grievances, prohibiting strike action as military service is essential services.
The only convenient moment to strike or embark upon a public protest action a military union is when there is violence, social turbulence or war.The possibility of strikes and protests may undermine the discipline and national security during such trying circumstance will weaken the state in the face of serious threats to peaced and stability.
I reckon the establishment of a commission is not antithetical to the subsistence of the military bargaining council as a proper platform for articulation of the propositions of the parties on matters of mutual interest.
The answer to your delightfully cheeky concluding rhetorical question, is that it is clearly someone who enjoys the idea of changing the constitution when expedient – transformation, I think it is called?
Shades of “not in my back yard!” :p
The observation that unions are inherently political is a big part of the problem. Having organised representation on issues of conditions of employment is one thing – but having a political organisation within the defence force that might tackle issues beyond conditions of employment – a very dangerous thing indeed.
The victims of this travesty are individuals who are very close to my heart.
Here is a clear indication of how the Constitution is distorted. It blows my mind how the Constitution can interpreted to severely restrict fundamental rights when certain South Africans take it upon themselves to serve and, if the need be, die in this servitude. The least we as can do is afford them a significant voice when conditions in which they do this honorable vocation is not fit for even a criminal convicted for murder! If my calling was not to see the re-instatement of the death penalty as an effective deterrent for specifically defined crimes, I would be a fore-runner in the campaign to have uniformed members treated with more respect and appreciation which they current getting and downright deserve!
The “divisional system” which would be used should the minister miraculously succeed in her bid to seriously curtail trade unions in the SANDF and would lead to further victimization of patriotic uniformed members. Grievances will be dealt with in a manner worse than how the Catholic Church deals with some priests little misdemeanours. Jacob Zuma was spot on with his choices for his cabinet but he lost the plot with his appointment of Ms. Sisulu. The previous CSANDF, Nyanda, would have been ideal, as he knows exactly what it is like to be Grunt.
This whole “operational work” and “emergency services” crap to prevent the use of mass action must be re-evaluated. Do you know that parliamentary staff (library personnel) are considered EMERGENCY SERVICES??????
@ Pierre
“In 1999 in the case of South African National Defence Union v Minister of Defence and Another the Constitutional Court declared invalid the prohibition on defence force members from taking part in public protests because it infringed on their right to freedom of expression.”
Yeah, but in 1999 Judge Hlophe was not in charge!
Harold Ferwood
September 16, 2009 at 20:13 pm
“when certain South Africans take it upon themselves to serve and, if the need be, die in this servitude”
Would this include the widely reported rape, murder and spreading of AIDS when serving on peace-keeping missions in Africa ?
Maybe someone can enlighten me how the minister can just fire these soldiers without sufficient proof? How many fired soldiers will have a valid case to take to the labour court for unfair dismissal? Why did the military not simply followed std operating procedure in court martialling the alleged transgressors and, if guilty, give them all dishonourable discharges? It may have taken a few weeks longer, but would have saved the govt much more in embarassment and potential future litigation.
Or was the decision to get rid of these soldiers taken at the highest political offices (because they embarrased the govt) without proper consoltation of the military chiefs? Or maybe the minister is advised by lawyer friends who see $$$$$$ – another scheme to cash in on government screwups…
Oupoot it’s because few government ministers have any sort of experience in admin, due process etc etc. They are appointed solely on their struggle credentials.
I for one would like to see laws preventing any old mamparra from entering politics and ending up in cabinet. A degree in the relevant field should be an absolute minimum prerequisite. Sisulu has an MA in History from York University. How that qualifies her for the job is beyond me. She should at least learn from history.
John Robert says:
September 16, 2009 at 23:28 pm
Interesting take.
Is there anywhere that tertiary education is a minimum requirement for holding political office?
Robert Mugabe has a doctorate, I think. George Bush is a Harvard Graduate.
Maggs–based on your 2 examples, maybe it is better to have people with little formal education, such as JZ. How could he be worse than those 2?
Remember that Plato wanted rule by philosopher-kings–he hated democracy. And many of the leaders of the USSR had significant degrees–lots of engineers, if I remember correctly.
PM says:
September 17, 2009 at 0:17 am
If I recall correctly there was some sort of “job description” for the President of South Africa, that was prepared by our DCJ, that suggested that the President should have at least a post graduate qualification. Maybe it is in file 13 now.
JZ is doing pretty good, with barely a step wrong since 22 May, even the Madam is saying positive things. That’s a far cry from what we had for the previous ten years notwithstanding some pretty impressive post grad degrees.
http://www.businessday.co.za/articles/Content.aspx?id=81678
Absolutely hats of to judge Shehnaz Meer for withdrawing – and not appearing before that “thinly disguised party instrument” – in Zille’s words [ aka the JSC].
I wonder what those selected candidates will think of themselves – when appointed.
As “real” CC judges?
Ag c’mon.
If the current SA govt were to enact legislation to ban trade unions in the army, why just stop at the defense force? How long before govt decide that SAPS members should not be allowed to be members of a trade union? How long before the govt decide that doctors should not belong to a trade union either? And what about nurses and all other medical professionals? I mean, they are all strategic services, right?
Well, given the poor state of our education system and the obstacles that teacher trade unions present, why not extent the ban to joining a trade union to include teachers as well? So with over 80% of state employees banned from joining trade unions, why not extent this ban to all state employees? And so the reduction of trade unions (and their influence) is set in motion: next it could be parastatals, then key national industries, then large industries, and and and .. the list goes on. Before long, trade unions are banned outright.
This smacks of Thatcherism if the motive is to benefit of business, but instituting service commissions sounds more like taking control over the pay and actions of workers. (Not so sure if this is more like the Soviet Communist system or more like the British Laissez Fair system in the 19th century.)
And if making changes to the Constitution is necessary for the first step in this long process to be legal, why not. Some MPs and members of society may actually agree given the conduct of SANDF members over the past few weeks, but we should all beware of the possible long term consequences.
All SAns should protest (not just in posting on the web, but actually taking it to the streets and to the courts and to the media) if the govt wants to change the constitution to take away (for a small minority of SAns) the right to freedom of expression, freedom of association and freedom to protest.
Henri says:
September 17, 2009 at 8:04 am
It’s intriguing why any self respecting judge would want to be appointed to the CC.
The JSC has, after some serious contemplation, dismissed them as fabricators of hectic allegations against Judge Hlophe.
Henri said:http://www.businessday.co.za/articles/Content.aspx?id=81678
Absolutely hats of to judge Shehnaz Meer for withdrawing – and not appearing before that “thinly disguised party instrument” – in Zille’s words [ aka the JSC].
I wonder what those selected candidates will think of themselves – when appointed.
As “real” CC judges?
Ag c’mon.
—————————————————————————————————
Must we take it that we don’t need any CC judges anymore because we disagree with the JSC?
Prof. How is it that because we don’t agree with the JSC we try and put the constitutional court into disrepute? Should we now have no respect for that body? Where in the world has everyone agreed on appointments into the highest courts of those countries? Where in the world have appointments into these courts not been criticised? We must be very careful of playing politics to the extent we forget to respect the fundamental structures of the country. How do I as a layman respect the judiciary? I have seen more political manoeuvring from the judiciary than parliament.
Good post Pierre, but if you want to take a jibe a Mr Paul Ngobeni you your supportes are wrong, this clearly is a political decision as opposed to a legal one for what she is proposing is clearly unlawful and unconstitutional, even a second year law student can deduce that.So for some bloggers here to suggest it’s Paul Ngobeni’s advice is to be vindictive of the fact that he now works for the Defence and the fact that he fiercely defended Hlophe, we can see through that were are not of blinkered perception!
Yes, perhaps Mdu
But are we all absolutely clear that Mr Ngobeni has digested thoroughly the contents of a second year law course?
Thomas says:
September 17, 2009 at 9:02 am
“How is it that because we don’t agree with the JSC we try and put the constitutional court into disrepute?”
The CC had lost its integrity and holding on to threads of credibility long before the JSC decision. Many believed that all was not well in Braamfontein but when it made the “Misconduct” announcement to the Media about J Hlophe that confirmed that the Con Court was one sick little puppy …
Referring back to a Petition that was posted on this very blog in support of the Constitutional Court and the sheer minute number who signed it is indicative of the sorry state the Court finds itself in.
It did itself a serious disservice when it allowed the Petition to be posted on Facebook with a Disclaimer “urging black comrades to sign, as to give it legitimacy”
Thomas says:
September 17, 2009 at 9:02 am
“How is it that because we don’t agree with the JSC we try and put the constitutional court into disrepute? Should we now have no respect for that body?”
If the CC did what Judge Hlophe said they did, then of course we should have no respect for it.
Since the JSC has neither said nor not said, it’s not clear whether or not we should have or not have respect.
If the JSC were a soccer team, they would have lost to Bafana-Bafana (before the we got the new coach that is).
Oupoot says:
September 17, 2009 at 8:15 am
If any amendment is to be done to the Constitution then it would be the re-evaluation of the “right to life”.
The unfortunate protest action at the Union Buildings is indicative of a defence force sorely lacking the most basic and essential element required of the military, namely discipline (let alone honour and dignity). This is just another example of what happens when you have the world’s most liberal constitution that grants every conceivable first world right to all and sundry without distinction. Some of those rights are hardly viable or sustainable in terms of practical enforceability and/or lack the public at large’s moral support. Of necessity certain rights afforded to particular categories of people (eg members of armed forces)need to be limited or the result will be chaos. Dr NJ van der Merwe (author of text books on the law of delict and the law of succession)had a favourite saying: if your premise is incorrect, reality will avenge itself, or, simply put, you will pay dearly for your mistakes.
A true soldier is motivated by honour, dignity and respect, not his or her rights. Save me from a soldier who parks his tank on the street corner, waving a “It is my right not to fight” banner. The army is not a place for clowns and human rights activists – it requires a disciplined individual (volunteer)less concerned with his/her own rights and more concerned with the task at hand.
If you wish to serve in the defence force (not the farce force) you should accept the fact that your rights might be limited with good reason. Unfortunately it seems that to a large degree our defence force has become a free board and lodging haven for undisciplined hooligans.
Harold and Maggs I agree the CC long lost its credibility and I often maintained that before Zuma became President it was beholden on the Mbeki administration and now the Fear of Prof et al is that it will soon be beholden on the Zuma aDMIN. And that is a fact, but some people used to tell us that we are wrong to suggest that that CC is biased, and it clearly is and pleases its incumbent political masters.How do you return a favour to your Prez as CJ Langa if he bestows an honour on you as Isithwalandwe, and you can detect that his Politica Foe is Zuma, you find against Zuma, of course, hence the bizarre Hlophe complaint by all cc JUDGES even those who never broach the Zuma judgment with Hlophe, despite Jafta protestations that he did not want to lay a complaint!
Is there any one out there who is prepared to engage me on the post below?
“Leigh and those who are mocking the majority decision of the JSC – I have now had an opportunity to study the majority decision – my first observation is that it is long in detailing the summary of the evidence led and short on the analysis thereof. However, this does not necessarily mean that the short analysis is flawed. I have not heard anyone taking issue with the summary of the evidence led before JSC-so one can assume that such is common cause.
Other than the technical composition of the JSC, I can not see on what legal ground can the majority decision be reviewable. Prof seems to concur with Prof Unterhalter’s criticism of the majority decision. The pillar of Prof Unterhalter’s argument seems to be the following:
” What was in dispute was whether there was an intention thereby improperly to influence the judges to decide the cases in Zuma’s favour. The complainant thought so; Hlophe denied it.”
Well, in my reading of the summary of the evidence of Nkabinde and Jafta JJ nowhere did I read that the two judges testified that Hlophe JP had intention to improperly influence them.
Before we move to other possible grounds for review, let us resolve Prof Unterhalter’s statement of fact first. By stating “…the complainant thought so” is Prof Unterhalter referring to the Concourt judges as a complainant without having regard to the testimony of the two judges before JSC or is he referring to their evidence???
Bongs says:
September 17, 2009 at 11:00 am
I think this is to shake the trees and see what falls out, especially considering that the JSC is going to be between a rock and a hard place on the technical composition.
Mdu says:
September 17, 2009 at 11:00 am
I am still puzzled as to how all the judges became party to the complaint when only two were directly involved, especially since Hlophe did not have the opportunity to address the CJ on the allegations.
As a lay person, I think part of the issue re the JSC is the fact that they appear to have taken the easy way out and essentially just declared the whole thing a “tie”. Perhaps, given that our legal system is adversarial in nature, does the idea of a “tie” not got against the very idea of there only being one winner?
For me, it does not make sense that we are left with no clear idea of who is lying in this situation and I feel that this, in itself, is the issue that most people might have. Irrespective of the outcome, I, for one, would like to know which of our eminent judges is lying. Until such time, how do we trust the three judges and the decisions they make?
Samantha says:
September 17, 2009 at 11:34 am
It’s certainly hard to decide who is lying, but following some of the recent disputes, I am now convinced :
- that John Edwards is not a shyster, that dead ministers can actually give permission for complex things;
- that there are aliens walking our earth and they have come to earth to give bursaries to some judges’ children;
- that the NIA really are spying on our CC and passing important information to the real protectors of our democracy;
- that it was a closed secret among very few privileged people that approaching judges on matters before them is not acceptable;
- that there is a secret body, maybe the Illuminati, that issues mandates to well placed individuals to guide our CC in arriving at their decisions (it’s true, I saw it on The Simpsons);
- that God has instructed one church to intervene;
- that judges don’t lie.
There’s more to these profoundly spiritual revelations, but for now, the end.
@ Maggs,
Good grief!! You are the new David Icke of South Africa. You just forgot about the lizard people, that no-one walked on the moon and that fugitives from justice can make excellent legal advisers.
Samantha: Being a lay person like you, my worry at the moment is not that one of the three judges lied. Its how do you differentiate between the judge Jafta and Nkabinde and the constitutional judges as a whole? If one of the two judges lied shall we then say the CC was deceived or because they laid the charge as one then they all lied? Why did they just pressurise the two judges to lay a charge against Hlope. Instead they stuck out their heads and reputation to support the two judges without even trying to verify the facts of the matter from judge Hlope. This was very strange to me. Doesn’t the law require that two sides of the story be heard before a finding or does that requirement not apply to disciplinary cases.
Samantha says:
September 17, 2009 at 12:10 pm
Eish Samantha. David Icke is one confused person.
I rely on the legal profession for these deep insights.
Thomas, you can ask that again, I am an attorney by profession but my mind boggles as well, why lay charges as if all 11 Judges were approached and attempts were made to improperly influence all of them?But the answer is simple, it was politically motivated, as I say above.
Mdu says:
September 17, 2009 at 12:21 pm
As you have probably gathered, I am not a fan of Judge Hlophe, the opposite is true.
But our institutions were never intended to get rid of people we don’t like.
It’s not clear why the CJ did not have a face to face with Hlophe, hear his side of the story and then decide which way to go.
As for the other judges, they heard the one side and not the other, but decided that Hlophe was in the wrong. Now that Jafta shifted somewhat there’s egg everywhere.
Rather the entire CC ganged up and now they sit in this mess.
Leigh, Mouse Prof – I am patiently waiting for a response to my post above. If you can point out to me on what legal grounds is the majority decision of the JSC flawed to the extent of being reviewable, I will attempt to argue against such proposition. I think the best point to start with is Prof Unterhalter’s factual proposition as indicated in my post above. We need to resolve facts first before applying law to those facts. My point of departure is that the evidence as recorded in the majority decision is accurate.
Bongs
“I am patiently waiting for a response to my post above. If you can point out to me on what legal grounds is the majority decision of the JSC flawed to the extent of being reviewable”
how about this, how about u point out to us the majority decision was not flawed on legal grounds?
I am so please to see that some are starting to see the light!!
Chris McDaniel says:
September 17, 2009 at 13:35 pm
Harold Ferwood says:
September 16, 2009 at 21:07 pm
Michael says:
September 16, 2009 at 20:55 pm
Harold Ferwood says:
September 16, 2009 at 12:51 pm
I think Kriegler will take extensive time out to do some serious soul searching after the past weekend where his racist and bigotry was so openly exposed!
I’ll put my head on a block that you won’t hear of him in several days … just enough time for him to shrug off his conscience!!!
I don’t see a need for a legal defence when the decision by the JSC hasn’t even been seen to require one as yet …
Should one then arrange an alibi before hand when you about to commit an offence?
All Kriegler has done is what Bulelani Ngcuka did … shout that there is a case to be made, when in actual fact none exists.
Maggs Naidu says:
September 16, 2009 at 21:54 pm
What I meant was that when Bulelani Ngcuka made the Media announcement that there was prima facie case against jacob Zuma, but he doubted that they (State/NPA) could win it. And we have all scene the outcome of that debacle …
Same now with Kriegler ranting that he has a case for taking on appeal the decision of the JSC, before even getting as far as the registrar!!
Harold Ferwood says:
September 17, 2009 at 13:41 pm
Well one needs to be a little patient, we should hear by next week waits happening.
But i am curious to find out from Bongs on what legal reasoning she supports the Majority and how it is water tight? Maybe we all missed something.
“Well, in my reading of the summary of the evidence of Nkabinde and Jafta JJ nowhere did I read that the two judges testified that Hlophe JP had intention to improperly influence them.”
Maybe bongs missed this bit???
She had told Hlophe JP that he should not interfere with the workings of the Court. She also said that Hlophe JP’s approach did not influence her.
what also bongs is missing is this:
Hlophe stated he was unware you are not allowed to apporach CC judges on pending cases your not a panel to?
well bongs answer this, since we dealing with fact:
Nkabinde
“She had made the following clear to Hlophe JP: he was not a member of the Court to talk about the case; even if he were a member he would still not be entitled to discuss the case unless he had sat in on the case.”
Jaftas:
He said that particularly after he heard of the approach to Nkabinde J he considered the approach to be serious and that it was part of an attempt by Hlophe JP aimed at interfering with the independent exercise of judicial discretion by the Judges of the CC. He firmly told Hlophe JP that the Zuma/Thint cases would be decided properly on the facts and the application of the law. He also said that when he heard that Hlophe JP planned to visit Nkabinde J he warned her that Hlophe JP might discuss the Zuma/Thint cases with her.
No if Hlophe was unware of approaching members of a panel he is not part of and is made aware then why does he go to chris jafta first been made perfectly clear that this was improper, then goes to see Nkibande?
Nkabinde J and Jafta JA were clear in their view that the approach by Hlophe JP was improper.
So Bongs do you think Hlophe was caught out in a lie?
@Bongs
“We accept the fact that Hlophe JP discussed the pending matters with two judges of that Court in matters in which he had not sat. His conduct may have been unwise, ill-considered, imprudent, not thought through. But in and of itself it is not gross misconduct within the meaning of the Constitution. This is particularly so because the evidence was that he did not know that the practice in the Supreme Court of Appeal and the Constitutional Court is that the judges, even amongst themselves, do not discuss matters before argument, and even after argument do not discuss the matters with other judges who are not involved. The South African Guidelines for Judges does not raise this conduct squarely as being unethical. The conduct may fall to be addressed by the ambit of the Judicial Service Amendment Act. But the proposed Act has yet to come into force.”
This statement is rather bullshit, lets grant hlophe the right that he was unaware when he approached Jafta but jafta told him that he is not allowed to discuss the case……this now makes Hlophe unwise, ill-considered, imprudent, not thought through.
But…
Hlophe then approaches Nkibande, knowing he is not allowed to apprach her? so does this make Hlophe “not thought through”? or rather stupid?
If hlophe is not committing gross missconduct, then very clearly Hlophe is showing incompetance…..
Ill keep saying this over and over Hlophe should be empeached based on stupidity
Chris McDaniel says:
September 17, 2009 at 14:17 pm
“No if Hlophe was unware of approaching members of a panel he is not part of and is made aware then why does he go to chris jafta first been made perfectly clear that this was improper, then goes to see Nkibande?”
If you are going to make use of Chris Jaftha’s testimony then look at it holistically.
Once in front of the JSC he basically recanted on everything he put in his affidavit. This shows indecisiveness and i am surprised that no-one picked this up and he was allowed to proceed right up to the Highest Court of our land with this clear flaw that no presiding officer can afford to have.
With this in play I wouldn’t of been surprised that it was Jaftha himself that brought the matter up in conversation with Hlophe and didn’t at all mention that it amounted to improper conduct, because, well he was asking advice from the learned JP. Don’t be naive to believe that Judges don’t decide beforehand how a matter will go and speak in their private capacity with close colleagues and friends when finding difficulty in coming to a conclusion …
Chris McDaniel says:
September 17, 2009 at 14:31 pm
I’ve just realized that you are possibly on the right track …..
The Con Court were engaging in a form of entrapment!
” … his now makes Hlophe unwise, ill-considered, imprudent, not thought through.”
This is exactly what one wants to achieve when making use of this. Many married men have been “caught with their pants down” because the “respectable lady” made him feel so comfortable as to let his guard down.
Harold Ferwood says:
September 17, 2009 at 14:36 pm
Irrespective, wheither or not Jafta withdrew his statement, the bottom line is it is common cause Hlophe was made aware he is not allowed to talk about this case, then why go to Nkibane and then claim he didnt know he wasnt allowed to discuss the case?
This is fraudulent he lied and the JSC backed him up on this.
Chris McDaniel says:
September 17, 2009 at 14:50 pm
“then why go to Nkibane and then claim he didnt know he wasnt allowed to discuss the case?”
Because in the first instance (conversation with Jaftha) it wasn’t an issue!!
Harold Ferwood says:
September 17, 2009 at 14:58 pm
thats just sloppy, of cause its an issue, but once again irrespective of that, why did hlophe say he didnt know? when clearly he did know? It is an issue Hlophe lied.
Jaftas final evidence: As pointed out, at best, he said he had made that inference.
@ Chris
Its clear that the difficulty the two of us are having to come to a viable conclusion to what actually transpired between the judges did not plague the JSC as well and could not in their right mind make a finding of misconduct of either parties …
The acquittal of Jacob Zuma’s rape charge is an example that no-one could ever know what happened between the parties concerned, expect the parties themselves …
Bongs, hello to you. I am happy to respond to your post. But before I do, let me gently say the following: people do work you know. Those of us who take admittedly strong exception to the JSC majority are not at your pleasure. I assume I speak for the others when I say that we will answer (a), if we can and very importantly (b), when it is convenient for us to do so. Truly, your conception of what amounts to patience is deeply flawed.
But be that as it may, I will answer largely because you have shown yourself to be a good sport – and because I have, for the first time today, a bit of time.
You put forward that on your reading of the JSC majority decision, neither Nkabinde nor Jafta testified that Hlophe had the intention to improperly influence them. You ask whether Unterhalter’s submission that the complainant thought Hlophe had intended to improperly influence Nkabinde and Jafta was premised on the testimony of the judges as reflected in the JSC majority’s summary of the evidence. It seems that your basic object here is to show that Unterhalter’s submission is not based on the testimony of the two judges as contained in the summary of the evidence.
Let me cut straight to the chase: Unterhalter’s submission is based on testimony reflected in the JSC majority’s summary of the evidence. In order to substantiate my view, I will confine my remarks to some examples of Nakbinde’s testimony from the passage in the decision that deals with what she said on 30 July 2009 I believe.
In her evidence, she said that she ‘expressed her disquiet, in fact rebuffed (Hlophe) when he started talikng about the case’. Nkabinde also said that she snapped at him when he mentioned the question of privilege.
It is, in part, on this version that the complainant bases its case that Hlophe intended to influence the judges. Thus, the complainant’s submission, and Unterhalter’s, are plainly founded on testimony given by at least one of the two.
You will have noticed that Nkabinde did say that she did not know Hlophe’s intention. Of course she would say that. And Unterhalter would never believe that Nkabinde could know the inner workings of Hlophe’s mind.
You see, both Nkabinde and Unterhalter are very intelligent and able lawyers. They do as very good lawyers do. And a good lawyer would seek to determine whether facts disclose a foundation for intention. And the complainant’s case certainly appears to be so premised.
So Nkabinde basically making out that she did not read Hlophe’s mind does no violence to the complainant’s case or to Unterhalter’s very able piece of analysis.
Perhaps you will answer a question for me. If a decision maker is supposed to reach an answer in respect of question A, does it forget itself if it instead answers question B?
Harold
“This is particularly so because the evidence was that he did not know that the practice in the Supreme Court of Appeal and the Constitutional Court is that the judges, even amongst themselves, do not discuss matters before argument, and even after argument do not discuss the matters with other judges who are not involved.”
The evidence points hlophe was made aware. This paragraph is biased and is fraudulent.
Harold
“Because in the first instance (conversation with Jaftha) it wasn’t an issue!!”
How can the JSC claim he wasnt aware based on evidence? when the evidence clearly shows he was aware?
@ Chris
You have certainly pointed to strong evidence that can have the JSC’s decision overturned on appeal. It is clear that if one thing was done correctly by both Nkabinde and Jaftha, and that is to make Judge Hlophe fully aware of his improper conduct in being in their chambers discussing a case which he was not involved in.
No doubt if Kriegler is successful at having his application heard, will the panel presiding, quickly point at this discrepancy.
Chris McDaniel says:
September 17, 2009 at 15:09 pm
“Jaftas final evidence: As pointed out, at best, he said he had made that inference”.
And soon after the Jafta meeting, the NIA told Hlophe about the note on privilege that Nkabinda was writing. That makes sense.
How did Jafta know that Hlophe was going to see Nkabinda? Maybe Jafta has contacts in the NIA also.
Darn where’s Sherlock when we need him most!
Harold Ferwood says:
September 17, 2009 at 15:38 pm
who knows? but it can show collective part where the judgement was lacking in substance and the JSC failing on its own rule that for a hearing into empeachment as there is clear indication the Judge failed to follow prevailing standards
For a JSC’s judgment …. what is the standard of the burden of proof?
Leigh
“Bongs, hello to you. I am happy to respond to your post. But before I do, let me gently say the following: people do work you know.”
You could have knocked me over with a bikini top! You of all people, Leigh. I’ve been wondering for ages if in fact you are retired or a gentleman/woman of leisure or indeed both. You respond so swiftly, so often, at such length and with such great eloquence (save the odd reference to roughly treated dogs) that I had become convinced you couldn’t possibly be having to earn your crust like the rest of us. One can’t help but wonder what fascinating histories lie behind such simple names as ‘Leigh’, ‘Sne’ or ‘Mikhail Dworkin Fassbinder’ (that bastard love child of the antichrist, a radical feminist and a violent misogynist).
Sarah, roughly treated dogs indeed: now you’re talking
Sarah Palin says:
September 17, 2009 at 16:03 pm
Please interpret mine!!!!
Harold
preponderance of the evidence
Harold
I get all these names confused, but aren’t you the one who wrote about being a black navy officer stumbling into an all-white officer’s club? So, although your name suggests otherwise, you’re black, ex-navy and um … a lawyer? Someone interested in constitutional matters? Someone trying to pick me up?
It seems to me it all comes down to whether one respects the law, its legislation, intention and precedents, or whether one emotively supports individuals ahead of the law for whatever personal reasons, prejudice or bias.
Those who support the law speak reason. Those who support the individual as being above the law, or in their view justifiably excused from the law, being noveau privlidged, flout emotion in place of argument.
Leigh, I will resist the temptation to respond to your 1st paragraph as it may blur the substance of our engagement.
I will also confine myself to the evidence of Nkabinde J as recorded in your post above. Nkabinde J’s testimony that she did not know if Hlophe JP intended to improperly influence her is inconsistent with her testimony that Hlophe JP attempted to do so. It is obvious that Hlophe JP did not say to her he was attempting to improperly influence her. So, her view that he did so is based on her interaction with JP that day. the glaring contradiction is this: she can not say JP attempted to improperly influence her and at the same time say she does not know if JP’s intention was to improperly influence her. Her consistent answer should have been: “based on what JP said to me that day he clearly intended to improperly influence me”. This answer does not require her to have read JP’s mind because that is impossible. What is possible though is that she can read JP’s mind by referring to his conduct as she observed it that day. To make it more clearer-the essence of the question to her would have been: based on your interaction with JP that day, are you of the view that he intended to improperly influence you? To bring this point home let me make a some what outrageous example: a complainant who has been raped is asked the following question by the Court: when he took off his pants and took off your underwears and forced himself on you, did he intend to rape you? An answer consistent with a charge of attempted rape (if there is such) is “indeed, m’lord!”
Just based on the above contradiction, the majority was faced with the following dilemma: For JP to be convicted of gross misconduct he ought to have intended to improperly influence the judges (subjective test). JP says he had no such intention.The one who alleges says she does not know what his intention was. There is more than one inference to be drawn from common facts. Now on what basis can we ever come to a conclusion that JP indeed intended to improperly influence the judges???
Back to Prof unterhalter’s factual statement: Leigh, you have already pointed out that Nkabinde J said she did not know JP’s intention. How can you then submit that Prof Unterhalter is correct when he says that the complainant stated that JP intended to improperly influence the judges??
PS: “You see, both Nkabinde and Unterhalter are very intelligent and able lawyers. They do as very good lawyers do. And a good lawyer would seek to determine whether facts disclose a foundation for intention. And the complainant’s case certainly appears to be so premised.”
Leigh you must not forget that Nkabinde J is not a trier of fact here. She was giving evidence of what occured between her and JP and what impressions she formulated based on same. It is for the JSC to decide what JP’s intention was. In doing so they will consider her view of JP’s intention.
Bongs says:
September 17, 2009 at 18:24 pm
“Now on what basis can we ever come to a conclusion that JP indeed intended to improperly influence the judges???”
So he travels twice to see two different judges, claims he has a mandate, has information provided by the NIA and none of that is to influence the CC in anyway.
Kriegler should rather go after the NIA, unless Judge Nkabinde lied about that too.
Sarah Palin says:
September 17, 2009 at 16:35 pm
HAHA! It seems no place is safe from the scourge of social networking! And your description of Leigh, Sne and Mikhail was much more intuitive. You only get 33% pass mark for mine though ….
a 33% pass for Sarah? Things are looking up…..
Sarah, please do report how things go for you on your Washington DC trip to the Values Voters conference.
Bongs, I know you have a lot on you plate. But you are the very first person I have encountered willing to actually defend the JSC majority on the merits.
So, I am excited to hear your explanation of the “we-know-the-JP-will-not -budge-therefore-he need-not-be-cross-examined” rationale used by the JSC majority.
This strike me as a truly exotic argument. Can you cite any authority for it, SA, or from anywhere in the world?
sirjay jonson says:
September 17, 2009 at 17:21 pm
“Those who support the law speak reason.”
Like who?
So far I have all that is emerging is, to steal a phrase from Michael, “truly exotic” arguments.
Years ago I heard what I thought then was a rather crass expression “bullshit beats brains” – now I am rethinking that.
Bongs, Hlophe denies that he intended to influence the two judges. Nkabinde does not deny that Hlophe had that intention. Nkabinbe makes out that she did not know what was going on in Hlophe’s mind. But the complainant’s case is that the facts, on its evidence, disclose a basis from which it can be inferred that Hlophe sought to improperly influence two judges.
You say that more than one inference can be drawn from facts. It is true that a set of facts can give itself to more than one inference. That is why fact-finders make decisions based on probabilities. Another way in which one can formulate the complainant’s case (a fairly technical formulation) is this: on a preponderance of probabilities, the facts show that H tried to improperly influence the judges.
Please bear in mind that this is the case that the complainant wanted to make out. Only, it was denied the chance to do so because the JSC answered the wrong question in its decision making function – as pointed out by Unterhalter SC.
You unpack my reference to Unterhalter’s view as follows: that he said the complainant stated that the JP intended to improperly influence the judges.
Let me try to make this clearer: Unterhalter gave an account of the complainant’s case. That case is that Hlophe tried to improperly influence the judges. Unterhalter also gave an account of Hlophe’s basic answer – which was to deny that he sought to do so. The complainant, and I belief Unterhalter, would both capture the complainant’s case in something of the following way: the complainant submits, based on the facts and circumstances, that Hlophe sought to improperly influence judges. That is materially different from saying that the complainant knew what Hlophe was thinking and on that basis believed that Hlophe intended to improperly influence.
You also caution me that Nkabinde is, in this matter, not a trier of fact. You seem to suggest that I have mistakenly imputed that function to her.
Of course she is not a fact-finder here. I did not say or think that. But a lawyer cannot premise a case on a mere belief. Yes a fact-finder makes the ruling based on the facts. But the litigant (or the complainant here) is to place facts before the fact finder which support its case.
It is as that fine actor Denzel Washington said in Training Day: it’s not what you ‘know’. It’s what you can prove.
Bongs, might I also add that persuasion by ‘knowing’ seems to be how Hlophe understands law. After all, he did say that Moseneke DCJ was party to a conspiracy against him. Are we to believe Hlophe because he ‘knows’ that Moseneke DCJ was a party thereto? Or, are we to require Hlophe to lay a factual basis to that effect upon which a decision maker could determine whether Hlophe made out a case?
I know what I would require of Hlophe. But given some of the reasoning with which you earlier took issue, I am, with respect, curious as to what you would expect of Hlophe as regards his scurrilous allegations against that wise man Moseneke DCJ. Perhaps you would enlighten me.
Leigh says:
September 18, 2009 at 8:44 am
“It is as that fine actor Denzel Washington said in Training Day: it’s not what you ‘know’. It’s what you can prove.”
Hey Leigh, you should acknowledge the fact that I introduced the above phrase to this blog and pointed to its source. You should be acknowledging me and not the original source of the phrase – regardless of whether you also got it from the original source {MD}. It is my intellectual property rights…
On a serious note, I am enjoying Bongs’ and your arguments in respect of the Hlophe issue but I am not willing to partake therein. Keep up the intelligent contributions as they make me richer, mentally of course.
Sne, apologies mate. You are right of course: I really should have cited you
Harold
33% pass? I wish I’d gone to your school. But thank you. My renowned intuition might have failed me on this occasion, but I’m still pleased you gave me the highest mark I’ve ever got in an exam. Was this an exam, by the way?
PM
That was uncalled for. I know I have disappointed millions of people with my no-show but those same people, family values to the fore, understand absolutely that I always put my family first. I will come back stronger thanks to my non-attendance.
Sarah Palin says:
September 18, 2009 at 11:12 am
You wouldn’t want to have gone to my school, unless you had a criminal record … and should you get expelled from my school, only one other school in the western cape would dare take you in.
The percentage mark was merely an indication of how correct you were with your interpretation of my blog name and how it ties in with what I have said as well.
@ Leigh
” What was in dispute was whether there was an intention thereby improperly to influence the judges to decide the cases in Zuma’s favour. The complainant thought so; Hlophe denied it.” Unterhalter
“Let me try to make this clearer: Unterhalter gave an account of the complainant’s case. That case is that Hlophe tried to improperly influence the judges. Unterhalter also gave an account of Hlophe’s basic answer – which was to deny that he sought to do so. The complainant, and I belief Unterhalter, would both capture the complainant’s case in something of the following way: the complainant submits, based on the facts and circumstances, that Hlophe sought to improperly influence judges. That is materially different from saying that the complainant knew what Hlophe was thinking and on that basis believed that Hlophe intended to improperly influence.” Leigh
Leigh, with respect , probably without realizing it, you are contradicting yourself. You seem to be agreeing with Unterhalter that based on the testimony of, at least Nkabinde J, Hlophe JP INTENDED to improperly influence the judges. It can’t be because you also state, correctly so, that Nkabinde J testified that she did not know Hlophe JP’s INTENTION. You cannot assert that a person intended to do something based on what he said or did to you, and when you are asked about that person’s intention you say you do not know. The statements are not consistent with each other!
The second aspect of Unterhalter’s statement of fact, which I submit is incorrect or at least can not be sustained by Nkabinde J’s testimony, is that the complainant thought that Hlophe JP intended to influence the judges to decide the cases in Zuma’s favour. Firstly, Nkabinde J testified that she did not know what the ‘mandate’ was about. She further agreed that if the mandate was about CJ’s instructions to JP there would be nothing wrong about that. JP says so.
Secondly, on the 7th April Nkabinde J speculated that JP wanted the judges to rule in favour of Zuma. I say she speculated because this is what she said:
“He said there’s no case against Mr Zuma. I suppose well, he meant to say the decision that the Court had to make should be favourable to Mr Zuma”.
However, on 30 July Nkabinde J testified as follows:
“She was further asked whether Hlophe JP, for instance said to her, “…you have to decide this case in a particular way?” She answered “He said the issue of privilege must be decided properly. He didn’t say decide in this particular way”.
Leigh, I need not remind you that Nkabinde J has not been cross-examined on these issues. These answers were solicited from her in a more friendly atmosphere. Imagine what concessions would be extracted from her under cross-examination!
You went to Bishops, Harold? I’m impressed. I’m intrigued which school the other one might be.
@bongs
The second aspect of Unterhalter’s statement of fact?
Im getting lost here Unterhalter is giving his legal opinion I would not call this a dramaticly a “statement of fact”??
Bongs
She further agreed that if the mandate was about CJ’s instructions to JP there would be nothing wrong about that. JP says so.
Did the CJ give Hlophe a mandate? did the president give Hlophe a mandate?
I do see this having any bearing?
Bongs dont you think if Hlophe was mandated by CJ, Langa would of said so in his evidence?
Bongs its the mere attempt
Look: He said the issue of privilege must be decided properly. (what business is it to him how it must be decided, according to hlophe then what is the proper way?)
He didn’t say decide in this particular way- (then why decide in a particular manner if not to decide in a particular way?)
He didn’t say decide in this particular way
@ Bongs
You are right. Nkabinde J should have cross-examined.
Now please explain the JSC’s finding that Hlophe JP need not be cross examined.
Bongs, the JSC decision said that Nkabinde had said to them: “I think it is improper for a Judge to interfere in that manner on a matter that he had not sat on. He was clearly influencing the way in which we were going to decide the matter.” Factually your assertions therefore seems to be incorrect.
Sarah Palin says:
September 18, 2009 at 14:13 pm
What a delightful sense of humour! My parents did have ambitions to send me Bishops but I thought I would be safer in an environment dodging bullets, stabbings and teenage pregnancy than there. But then again, I could of been friends with Shuttleworth …
Prof, if anything you are emphasizing my point that Nkabinde J, with respect, testified in forked tongue. Her testimony is self destructive. Just compare what you have quoted in your post above with what I have also quoted in my last post above.
That is why I say a review based on the reasoning of the majority will not succeed because the majority picked the portion of Nkabinde J’s evidence that supports the conclusion they arrived at. The test for review is whether or not the conclusion reached by the majority is a conclusion that any reasonable person (majority of the JSC) could have arrived at based on the material properly before him (it). Put differently, by being inconsistent in her testimony, Nkabinde J gave the majority ammunition to extract portion of her evidence favourable to their conclusion. The minority did likewise!
Bongs, if I wave a cricket bat at someone in a threatening manner, how would you conclude that I mean to strike that person? Would you (a) draw an inference from my demeanour, from what I said, how I handled the bat and my hostile relationship with the person or (b), would you say that you ‘knew’ I meant to strike?
1.If your answer is (b), please explain how you can know what is in my mind.
2.Please advise as to whether you think a fact-finder would listen to a case based on mere belief/knowledge or whether that fact-finder would want proof.
3.Do you dispute the view that people cannot know what others are thinking and can at best draw inferences?
Leigh, after you have drawn an inference (based on the conduct and observations) that somebody intended to do something, when you are asked about that person’s intention, you should be able to say “he/she intended to do this based on this”. Remember that most of the criminal offences require an intention eg murder – a trier of facts will never read what was in the mind of the accused but will draw inferences from the facts. My issue with Nkabinde J’s evidence is that she wants the JSC to draw an inference (from her facts and observations) that Hlophe JP intended to improperly influence her, BUT she herself is not brave enough to say Hlophe did intend to do so!
Bongs, your position seems a bit weird as it does not seem to be in accordance with the facts. You quote Nkabinde as saying ““She was further asked whether Hlophe JP, for instance said to her, “…you have to decide this case in a particular way?” She answered “He said the issue of privilege must be decided properly. He didn’t say decide in this particular way”. But she DID say (as I indicated before): ““I think it is improper for a Judge to interfere in that manner on a matter that he had not sat on. He was clearly influencing the way in which we were going to decide the matter.” So while Nkabinde correctly said that Hlophe did not use the magic words “Decide the case in favour of Zuma” she DID say that Hllophe “WAS CLEARLY INFLUENCING the way” they were going to decide the Zuma case. SO your assertion that Nkabinde never said she thought Hlophe intended to improperly influence them is not true. She did say so. You seem to conflate a denial that Hlophe used specific words with a refusal by Nkabinde to state there was an intention to influence. Her position clearly was that ALTHOUGH Hlophe did not use the words he nevertheless tried to influence them. Your argument is therefore not based on the facts, properly construed.
Bongs, I thought twice about making this post largely because I think the Professor’s last post pretty much covers it. But I have decided that it may be impolite not to respond.
I am going to touch on two points. The first seems to be common ground between us. The second is one which I think, with respect, you will probably have to concede.
In the first place, it seems we agree that a complainant in a matter such as the one involving Hlophe must deduce from facts and circumstances whether the alleged wrongdoer intended to commit the objectionable conduct. I am very glad that we appear to agree on this score as it means that our exchange can properly be called legal.
Secondly, you make out that Nkabinde J did not actually aver that Hlophe intended to influence the case. With respect, I think that your argument is fairly contrived. There are often many ways of saying largely the same thing. And Nkabinde J’s choice of words – which the Professor generously provided – certanly seems to amount to an allegation of wrongdoing.
Perhaps you will let me initiate another exchange on Michael’s behalf. Do you think there is anything objectionable about saying that because Hlophe was adamant, he need not be cross-examined?
And if not, can you provide any legal authority (from any jurisdiction) which is supportive of that view?
I am not a lawyer but Bongs makes sense.
I think Nkabinde back peddled.
Brilliant debate.
Bongs is right.
Nkabinde J would surely have crumbled under the cross examination of the JP’s brilliant lawyers!
By contrast, as the JSC majority found, there would be no point in cross examining the JP. It would be naive to think he could be budged.
Solid. Solid as a rock.