Thanks Mouse and you too…

Thank you very much for the link, and the article is so enlightening.

Note: Only the em and strong tags should be sufficient. Enclose whatever you want in italic or in bold between an opening tag (without the dash) and a closing tag (with the dash) and your comments will be aesthetically pleasing.

ON TOPIC:
I fear the Ginwala Comission was an enquiry, carefully crafted to give Thabo Mbeki the kind of answers which would exonerate him from any wrongdoing. Pikoli is not a big enough fish to fry, yet he got fried because the bigger fish were getting a little too close to the frying pan and he was in a position to fry them.

Judging by a TV program I saw last night (Interface? Not sure, but the lady in charge made both COSATU’s spokesperson and the president’s spokesperson very uncomfortable..), a poll indicated that the public disagreed with the suspension (and dismissal) of Pikoli. 92% of the public voted against Pikoli’s dismissal. Only 8% voted in favour of president Motlanthe’s decision.

For Mr gorgunzola, here is a good article which posits the quasi-judical Head Prosecutor with the quasi-Executive Head Prosecutor using Namibia and South Africa as the examples. Personally, I believe that the quasi-judical model is best, although the prosecution is in the Public Interest and so this does suggest an Executive-type action. But you will see from it that DGMS is unquestionably correct in his analysis. I just feel we are at a stage now where our Interpretation has to be tightened up or redefined, The status quo is not accetable. http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/horn2.pdf

Merry and a blessed Christmas and a happy and Prosperous 2009 to everyone of the bloggers. Keep well until then.

Therefore, the last part of my first post in response to your argument relates only to the following quote from your post: ” So far as I am concerned, if Kriegler J opined that the NPA forms part of the executive (as he did), and if Concourt decided that the NPA is not part of the judiciary (as it did), then that is good enough for me.” The earlier part of the quote, “The President of the Republic falls under limb (b)(i) NOT limb (a), and (s)he is unarguably comprehended in s.41(1). So you have to abandon your limb (b) point. It just won’t fly.” attracted an argument something like, since the President and Cabinet Ministers already form the “national sphere of government”, they need not be regarded as “organs of state” for purposes of s 41(1) as well. To my mind, “spheres of government” include all the members of the legislating and executive authorities at the national, provincial and local levels. Therefore, “organs of state within each sphere [of government ]” in s 41(1) refer only to departments and admnistrations (including employees of same) within those spheres, in other words, those falling within limb (a) of the definition in s 239. E.g., the Department of Justice and Constitutional Development, and all its employees, from the Director-General right down to the lowest salaried employee in that department falls within the sphere of government of the President (9as head of the national excecutive) and the Minister of Justice and Constitutional Development.

As far as my, incomplete, second post above is concerned, I will break it up as follows.

“On s.41(1)(h)(vi), organs of state are enjoined to “avoid legal proceedings”. Sub-sections (3) and (4), as well as s.167(4)(a) assume the Courts will be involved from time to time – although these do not envisage criminal prosecutions, I grant.”

On what authority can one say that “legal proceedings” and “disputes” in those section do not include or refer to criminal prosecutions?

“In the case of the NPA, s.41(1) is necessarily overridden by s.179.”

Exactly my point. But, I further argue that the whole of s 41(1) is overridden by s 179.

“Not all the behaviour-sets listed in that sub-section fit the NPA/NDPP like a glove, but when one size fits all, cramps often result.”

I argue that s 41(1) does not “fit” the NPA at all because, if it did, s 41(1) would not have qualified that only the “organs of state” that fall under the (a) limb of the definition, in other words “organs of state” that can properly be said to fall “within” or “in” a “sphere of government” are subject to s 41(1). Why would that section use the qualification “within a sphere” if that was not intended, but it was only intended that all “organs of state” as per s 239 are dealt with? I gues my argument on the (b) limb will “fly” after all.

“That is why Trengrove didn’t take the chapter 3 argument on behalf of Pikoli.”

I trust you have authority to base this assertion on? Are you, he?

I’m now unfortunately having to sign off until 2009 and will not be able to take the matter any further during this time.

I trust you have authority to base this assertion on? Are you, he?

It would appear as if you do not understand the difference in rationes dicedendi and obiter dicta in judgments as far as their respective roles in the system of stare decisis is concerned. The former constitutes binding precedent from which a court and lower courts cannot deviate, unless the earlier judgment had been given per incuriam or a court of an equal or higher status than the one that gave the judgment in the first place is convinced upon good argument, that the earlier judgment was wrong in law, and decides to overule it. The latter is usualy regarded by higher, equal or lower courts as of persuasive force only; but, when sound argument can be made that the remark should not have been made or, in the light of new arguments is not the entirely correct exposition of the law in all similar cases, then even a lower court is not bound and may substitute its own judment in its place. Kriegler J’s remarks in this regard clearly form part of the latter category of judgment, and I dont think that, even he, had he still been part of the CC, would in the light of the current scenario uphold his earlier judgment in this regard. Therefore, once again, I think that my arguments above might just “fly”.