Comments on: Who is advising the Minister of Defence?

By: Mikhail Dworkin Fassbinder

Mikhail Dworkin Fassbinder — Tue, 29 Sep 2009 13:01:57 +0000

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.

By: Gwebecimele

Gwebecimele — Tue, 29 Sep 2009 12:54:04 +0000

I am not a lawyer but Bongs makes sense.
I think Nkabinde back peddled.
Brilliant debate.

By: Leigh

Leigh — Tue, 29 Sep 2009 12:51:47 +0000

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?

By: Pierre De Vos

Pierre De Vos — Tue, 29 Sep 2009 11:32:48 +0000

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.

By: Bongs

Bongs — Tue, 29 Sep 2009 10:26:10 +0000

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!

By: Leigh

Leigh — Mon, 21 Sep 2009 07:21:11 +0000

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?

By: Bongs

Bongs — Fri, 18 Sep 2009 16:43:58 +0000

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!

By: Harold Ferwood

Harold Ferwood — Fri, 18 Sep 2009 14:47:24 +0000

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 …

By: Pierre De Vos

Pierre De Vos — Fri, 18 Sep 2009 14:33:25 +0000

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.

By: Michael

Michael — Fri, 18 Sep 2009 13:54:06 +0000

@ 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.