I am going to stick my neck out and predict that Judge President John Hlophe will NOT be appointed to the Constitutional Court. There are, of course, many valid and cogent reasons why Judge President John Hlophe should not be appointed to the Constitutional Court. There are also many valid reasons for believing that independent of these factors Hlophe has no chance of being appointed.
We know that Hlophe is a liar. He claimed to have received only “out of pocket” expenses from Oasis when in fact he had received first R10 000 a month and later R12500 a month from them “for services rendered”. (No one has yet stated what services were indeed rendered for the almost R500 000 Hlophe received, but it looks like Oasis made a very bad investment there.) At the time he lied to the JSC – even after it came to light that he was receiving money from Oasis – stating that the amount was R10 000 a month when it was in fact by then R12500 a month.
As Zackie Achmat has now reminded us, Hlophe is also homophobic and hateful of people living with HIV. (See below.) Given the fact that our Constitution prohibits discrimination on the basis of sexual orientation and has also been interpreted to prohibit discrimination against people living with HIV, this means Hlophe has not internalised the values at the heart of the constitutional enterprise.
We also know that Hlophe has an adventurous and innovative understanding of ethics and of conflicts of interest, one not shared by any lawyer I know, and perhaps not shared by any lawyer not practicing in Uzbekistan or North Korea. Newspaper reports state that at his JSC hearing Hlophe denied that he exposed himself to a conflict of interest when he made the decision to grant Oasis leave to sue a fellow judge despite the fact that he was on the pay role of Oasis.
This is astonishing as even people who get all their information from Wikipedia would know that what happened in the Oasis matter was a conflict of interest. Wikipedia states:
A conflict of interest occurs when an individual or organization (such as a policeman, lawyer, insurance adjuster, politician, engineer, executive, director of a corporation, medical research scientist, physician, writer, editor, or any other entrusted individual or organization) has an interest that might compromise their actions. The presence of a conflict of interest is independent from the execution of impropriety.
Hlophe’s interest here was that small matter of having been paid R500 000. This might have compromised his decision to grant the company who paid him this money (which looks suspiciously like a bribe) leave to sue a fellow judge. The fact that Hlophe seems to disagree, is astonishing. This is even more so, given the fact that even the JSC at the time concluded that Hlophe had exposed himself to a conflict of interest.
We also know that President Jacob Zuma’s office has been spreading rumours that Zuma does not like Hlophe and that he has no chance of being appointed to the Constitutional Court. Although Hlophe clearly has his supporters in the ANC, the support does not seem to come from the top. Who wants to be associated with such an embarrassing man?
But this is not why I think Hlophe will not be appointed to the Constitutional Court. Instead, I believe that Hlophe will not be appointed because he is ruthless, will stab his “friends” in the back when it will advance his own interest and therefore cannot be trusted to do what is required. A wily politician like President Zuma must surely know this and will not be stupid enough to trust Hlophe.
A case in point is Hlophe’s statement to the JSC yesterday that he does not know Advocate Percy Gumbi of the Justice for Hlophe Alliance. Nor, so did Hlophe claim, did he know anything about or support the statements of the JFHA.
Gumbi had in the past confirmed that Hlophe sanctions their activities and Hlophe had signed a nomination acceptance form bearing the name and contact details of Gumbi and the alliance. The nomination document also at some point slips from the third person into the first person, suggesting that it was at least partly based on something Hlophe himself had written. But like that guy we are told about in the New Testament, Hlophe decided it was time to cut loose his “friends” and denied what seemed pretty impossible to deny.
Even if I was a fan of Hlophe (which I happen not to be) and even if I was a politician who hoped to appoint “sound” judges on the Constitutional Court who would make decisions that would benefit myself or my party (which I am not), I would not appoint Hlophe to the Constitutional Court. What might Hlophe do when the political winds shift and his interests demand something different from what one had in mind for him?
Only the most gullible among us would back the Hlophe appointment in the hope that he would act in a predictable manner to advance any particular cause (except of course the cause of Hlophe himself).
Besides, Hlophe is Judge President of the Cape High Court in the province run by Helen Zille’s DA. Better to keep him there to ensure the court in the opposition-run province remains dysfunctional and deeply divided. Would serve those bloody voters right who had the cheek not to vote for the ANC.
You must be dreaming.
Firstly, why do you think the JSC let him of the hook? Secondly, can you state categorically that the president does not share the views, that you accuse Hlophe of when it comes to gay people? Thirdly, If Gwede Mantashe wants Hlophe in the CC, Judge John Mandlakayise Hlophe will be Justice John Mandlakayise Hlophe . Period. Stop the delusional denials.
Based on reports so far, it certainly seems there is no shortage of more appropriate candidates.
I would hope that will be the basis of the final decisions. Not so much being for or against Hlophe (or any other candidate) but an objective ordering of suitability.
@ Pierre “I am going to stick my neck out and predict that Judge President John Hlophe will NOT be appointed to the Constitutional Court”.
You have better be right. I got several wagers going on that.
I reckon that the decision will be informed by how Zuma wants to shape his legacy.
So far he has not stepped a foot out of place in the broader scale of things.
It’s unlikely that he would want a CJ that would mess up all that he has worked towards on the last leg of many decades.
Hlophe has shown to be fearless, a characteristic that, in my view is key to the position in question.
It would have been informative if any comments regarding Hlophe had been placed in the context of the other interviews. Considering there is nothing new (you just happen to re-hash, recycle or regurgitate comments already made countless time), one has to wonder then Prof. What is your intention? Is this desperation? Why do you rave every time a ‘negative’ about Hlophe is published? At time you seem to hold to any straw that serves to tarnish his character.
Do you honestly believe you are not campaigning against Hlophes’ ascendancy? Really?
Would it be fair that maybe your audience is the journalist and opposition parties? That ultimately this serves to give them pointers. A sort of direction. At times you are quoted extensively in print, one would almost thing you spend your time giving interviews. However bloggers might have noticed that these journalist just just cut and paste from your post (Rickard did a good job some time back). The DA will then follow on matters with the same arguments raised here.
Considering the JSC refused to entertain this matter (Oasis), are you now trying to canvass it outside the hearings?
It is interesting that Achmat has tried to wade into the Hlophe matter under different guises. At time a co-author of letters. At times a petitioner. Now he has managed to go back in time early 2000 to find Hlophes’ opinions on Gays and Aids. (Out of interest sake, have you read the said articles? I mean, Achmat is Gay and openly living with Aids so should we take his quotes as being objective?).
Is it anathema nowadays to hold any views against Gays and Aids that are not along populist lines?
Chill Prof. Just chill.
The payout on this prediction isn’t very much because the likelihood that he would be appointed this time round is slim … due to the unnecessary publicity he has received – which will undoubtedly but erroneously influence the decision that will be made.
The Professor, endorsing Zackie’s view, fails to notice the growing trend in our society is the consideration that the infliction of HIV/AIDS is a life-style choice. Contemporary society will not tolerate it that long when their tax money and efforts are wasted on HIV/AIDS sufferers who sell and smoke their ARV drugs, continue in promiscuous behaviour and still expected to been scene as victims! The ignorance of the liberal social circles is startling and obviously get some enjoyment of living in a bubble!
The question is … what do you not recognize when our country refuses to support a UN declaration on homosexuality, the ruling party and State backing of the formation of NICL?
scene < seen
Dumisani, I note you do not challenge any of the assertions I make regarding the Judge President. I take it then you agree with all my factual assertions. If you do, and you still think Hlophe is fit and proper, you are selling yourself and every South African very short.
On the S v Moses case, I actually wrote a scathing critique of this judgment in a law journal after it was handed down. Judge Hlophe completely misunderstood the concept of criminal incapacity in his judgment and acquitted a guy who murdered someone in cold blood. Moses went back twice to get a sharper knife to do the job properly – yet it was found that he lacked criminal capacity and could therefore not be guilty of any crime. It was a shocking decision. Imagine the facts were slightly different and the deceased had revealed to the accused that he was actually black and not (a dark skinned) white guy and then the accused had gone in to an angry fit in which he had killed the deceased because he was cross for having been tricked into sleeping with a black man. I am sure you would not have been so sanguine about the matter…..
The remark concerning the fact that it is a rumour that Zuma did not like Hlope is irrelevant for any discussion on this topic. This kind of remark or comment cannot be used as a ground for believing that Hlope should or would not be appointed.
One of your arguments as to why you do not believe Hlope would obtain any appointment i.e. that Hlope is homophobic, is purely of a personal nature and amounts to a personal onslaught which is not really based on fact. You have not provided any real factual or objective basis/argument as to why Hlope should not be re-appointed in this respect. It is one thing arguing that the Constitution prohibits discrimination on the basis of sexual orientation, it is another giving clear and concrete cases of such discrimination by Hlope in support of your argument (apart from merely referring to an article written by Zackie Achmat – which does not count as fact).
Speaking of the if-conditional and excuse the grammar lesson, but according to my English, the sentence should read “If I were a fan… politician….” as opposed to “If I was a fan…politician …”. In fact, the entire sentence construction here is grammatically convoluted.
In summary, I find your argumentation as to why Hlope should not be re- appoint rather thin, unconvincing, if not unsubstantiated; although I fully agree that this type of behaviour is bad, wrong and a reason not to appoint him per se. I therefore wonder that you make such bland statements that Hlophe is homophobic, without substantiating this sufficiently or at all.
On the other hand, if I look at a mere article and the “arguments” propounded by Zackie Achmat, then I seem to find a far greater factual basis as to why Hlope should not be appointed e.g. he states for ethical reasons, he gives clear case studies from which one can extrapolate that a certain and clear personal predisposition exists on the part of Hlope, the unconstitutional interpretation and/or application of the law and Constitution in respect of sexual orientation based on specific cases, higher court reversing judgements made by Hlope etc – none of which can be gleaned from your argumentation. I certainly accept that you may have intended not to duplicate arguments of the same nature. However, you of all people ought to know that making out an argument also means substantiating it on factual and objective grounds and not predominantly relying on an article written by someone else to bolster your argumentation – something which does not further your argumentation at all.
On the contrary you argue that he “…is ruthless, will stab his “friends” in the back when it will advance his own interest and therefore cannot be trusted to do what is required.” If I were a judge and if you argued in front of me on this basis, I would have dismissed this kind of argumentation as highly subjective and speculative.
Dumisani
I hope you don’t have strong views on racism and in particular on violent racist attacks on blacks by white people, because I’d have to dismiss your views on the subject – as a black man’s – as clearly not being objective.
Andy
Would you like to rewrite your comment in Afrikaans? Just a reminder – the Prof (I believe) is Afrikaans-speaking. So your carping about his grammar in English is petty. I understood what he meant and I’m sure all the other readers did. If you didn’t, just ask for clarification.
Secondly, this is a blog, not a journal article.
p.s. Andy
A little spelling lesson for you: the name’s Hlophe not Hlope.
According to conspiracy theory the appointments will be Khampepe, Maya, Hlope and Jafta. The first two to meet the gender thing. The other two are the ANC favorites. And they’re in the same camp – they after all seeked each other’s company in “that” meeting at the CC. Natural allies and obviously in the same corner. If the ANC majority [like in the SABC board or Scorpions matters, etc. etc. etc.} just push through their Polokwane resolutions, it must be those two.
For quality and prestige it should have been Cachalia and Gauntlett. If the appointments had to be Rolls Royces – the best there is.
For an activist court the choice would have been Budlender and Davis. Then it would have been a fireworks CC.
The rest? Uninspiring {imho.}
@ Sarah …
The professor also lectures in the medium of English and most probably grades students on not only their knowledge of Constitutional Law but also their use of the English language and all its nuances. Therefore Andy’s take on the Professor’s post is warranted.
It is surprising that he would refer to the Judge’s alleged stance on homosexuality and HIV/AIDS and say nothing on what he was in actual fact asked by the JSC – dealing primarily on the issue of Racism.
To Sarah Palin,
I have no problem writing my comment in Afrikaans. Just in case you didn’t know: there is a difference in using correct English as opposed to making typo-errors when writing. Furthermore, the fact that Pierre de Vos is Afrikaans-speaking does not justify sloppy, bad or wrong English grammar. He chose this blog to be in English and then, by definition, it is not asking too much to write in proper English too. It was not meant as a snide remark to him but merely drawing his attention to a somewhat sloppily formulated sentence. Now why don’t you offer some constructive comments to his article for a change?
It is clear the Professor’s post wasn’t properly thought through, as it was far more important to get the “anti-appointment” campaign going as soon as possible. It therefore understandable that it would be riddled with errors (as noted by Andy) and bias and subjectivity which is usually associated with arguments made in haste.
Its difficult not to become discouraged in what I think is once again a period of upheaval for South Africa, and likely much worse than we realize. A clash of intelligence is unfolding, that of the educated, considered and compassionate, with that of the street smart and their hunger for advancement at whatever cost.
Malema, now living in Sandton stated in court today that he couldn’t even read a document he was asked about. And being street smart doesn’t exclude some who are educated. Another term for street smart is ‘hustler’, as in ‘your hustlin for that money.’
When those we pay to work on our behalf, lie, cheat, steal from us and from the poor (call it scamming the poor), drive around in their expensive cars with all the perks that the political trough produces, when these people so obviously self serving are adored and admired by the street, surely it can only be that they think such support is their only route to success.
Throughout history Intelligence has been brutalized by ignorance. Although little has changed in this respect, the thought that ‘what goes around comes around’, gives some comfort.
I like Henri’s conspiracies: Khampepe, Maya, Hlope and Jafta.
Maya certainly seems to deserving of a position as well.
Remember though that at least 7 candidates have to be presented to JZ. Who will those 7 be Henri?
Dunno.
But from a conspiracy view those four, and the rest whities. Then its a done thing.
Prof… that groen trui you wore on eTV today ?
Eish… nee man. I understood that gay men had dress sense !
@ PAuL,
If fearlessness is the only attribute on which you would base your appointment of Hlophe, then one might as well appoint Malema. Fearlessness does not, necessarily equate with intelligence, integrity or honour. In fact, if anything, fearlessness can be nothing more than stupidity in the guise of bravado. Personally, Hlophe’s fearlessness is what has resulted in so many of his problems. He has absolutely no fear of the consequences of his actions or of being called to account. Not a particularly redeeming characteristic if you ask me.
@ Andy,
Hlophe has never been appointed to the CC, so your reference to his re-appointment is misleading and factually incorrect. One can only be re-appointed if it is subsequent to a prior appointment.
Harold Ferwood says:
September 21, 2009 at 15:34 pm
@ Sarah …
The professor also lectures in the medium of English and most probably grades students on not only their knowledge of Constitutional Law but also their use of the English language and all its nuances. Therefore Andy’s take on the Professor’s post is warranted.
——————————————————————————————————–
What makes Andy right?
http://david-crystal.blogspot.com/2009/01/on-if-and-waswere.html
@ Pierre
“I was a politician who hoped to appoint ’sound’ judges on the Constitutional Court who would make decisions that would benefit myself or my party”
It sure seems like a conspiracy theory in the making, Prof.
The ANC has been appointing justices since 1994.
Which of the CC judges do you think was/were (:)) appointed to make decisions that would benefit the various Presidents or the party ?
Present :
* Chief Justice Pius Langa
* Deputy Chief Justice Dikgang Moseneke
* Justice Edwin Cameron
* Justice Yvonne Mokgoro
* Justice Sandile Ngcobo
* Justice Bess Nkabinde
* Justice Kate O’Regan
* Justice Albie Sachs
* Justice Thembile Skweyiya
* Justice Johann van der Westhuizen
* Justice Zak Yacoob
Or past :
* Justice John Didcott
* Justice Ismail Mahomed
* Justice Laurie Ackermann
* Justice Richard Goldstone
* Justice Johann Kriegler
* Justice Arthur Chaskalson
* Justice Tholie Madala
@ Andy – The point that PdV is making here is not that there are no real reasons for Hlophe not to be appointed. Anybody with half a brain who argues that he is fit to hold office after his previous history (including now his dubious statements about the JFHA in his interview) is simply beyond argument. The point (if I read correctly – Prof please correct me if I’m wrong) is that he won’t be appointed because it’s not a politically savvy move. The man is a liability.
Although a somewhat astonishing argument on the face of it, there is merit in this position, purely given the ANC’s policy of cadre deployment throughout the civil service, and their stated intention to spread reliable cadres as far and wide as possible, including throughout the judiciary. Appointments are not made (or not made) based primarily on merit so much as along political lines and connections. Therefore it could be argued that there is factual basis for this statement.
Either way, I do hope that Hlophe is not appointed. This is sure to elicit howls of racism from the few silly buggers on this blog who seem to think that saying racism somehow defeats intellectual debate (an indefeatible trump card of sorts), but that is not what my premise is based on. I hope he’s not appointed because he is not fit to be an ordinary judge, given his complete lack of grasp of concepts like conflict of interest. Whether he is overlooked due to party-political expediency or valid reasons, I will still be satisfied, purely from the point of view of protecting the integrity of our judiciary.
I am interested, however, to hear the JSC’s reasons for not nominating him, if it so comes down to that, given that they have been satisfied several times as to his acceptability as a judge, in spite of his admitted shortcomings and mistakes.
Whatever way we look at it, the appointments to the CC are Zuma’s and South Africa’s most important test at this juncture. We will know with certainty whether the direction our country appears to be heading will be, from a judicial standpoint, permitted, even encouraged through perversion of justice. Will the appointments protect ALL the people, you and I, whatever color, culture or orientation, as is intended by the Constitution and the Bill of Rights, or will it promote and permit mediocracy, racism, corruption, phobia and failure, continuing to dog us all down, destroying both our own and our childrens’ future.
Thirty months ago, along with a group of dedicated disadvantaged parents, mostly single, we started a creche and pre school at a squatter camp which is still to this day on the bucket system.
Although registered, the school has received no government support, as Gov’t is legislated and obligated to supply. These are the vulnerable children who must be prepared for entering first grade with a semblance of school basics, which will enable them a greater chance to succeed. After all this time and effort the school will likely have to close.
This is what its about, not the emotional insults and racist diatribes from all angry sides, not the human preoccupation with political celebrities, who mostly are just saying what we want to hear so we’ll support them. These people will always be a select few, yet we encourage them in their greed and incompetence because of their colour, not because of their principles, compassion and intelligence. Is that not racist? Do we not understand that all peoples in all countries need to be protected from Government?
The children are still coming forth from their mothers, growing day by day. What do we offer them?
Samantha: correction taken – of course, it should have read “appointment”. Thanks. Big Slipper: if Pierre de Vos’ contention of Hlophe being homophobic had been one along political lines (you say it’s not a politically savvy decision to appoint him), then I may have understood this. But this is not what he’s argued. On the contrary, he contends that Hlophe is homophobic without providing any substantial evidence and argument to bolster this contention. Merely making reference to Zackie Achmat’s article doesn’t precisely bolster his argument either. The way I read Pierre’s contention is (like I said above): his argument is more of a personal nature, if not a personal onslaught – for me no real basis for any argument. If Pierre did make use of political undertones in his argument (and I fail to see where precisely and explicitly) – then this is merely applying mascara (no pun intended!) to an argument already without substance. The crux of his argument can be located in the par. where he says “But this is not why I think Hlophe will not be appointed…”. He then goes on to why. But what follows is a mere exposé of personal impressions, suppositions and speculation. I would have expected a factual and objective enumeration of why he thought Hlophe would not be appointed, given his basic thesis that Hlophe is homophobic. Pierre, please do not get me wrong. I also agree that Hlophe should not be appointed (quite clearly for different reasons too). However, my problem is your basic assertion that he is homophobic, which assertion remains unsubstantiated respectively poorly thought through. I do not see anywhere in your assertion that you’ve provided concrete reasons to this end (other than perhaps your personal impressions).
The Big Slipper says:
September 21, 2009 at 18:31 pm
The anti-ANC sentiment is unfounded. Sure there’s load of things that ought to have been done differently if not better, including some, not all of its deployments. But where do political parties not dispense patronage or deploy its cadres? Bear in mind that not all of the “non-cadres” were not necessarily good for our country either. I certainly don’t want to defend of be seen to be defending the unacceptable things that have happened or is still happening, but exaggerating it is not helpful.
Re Hlophe, I don’t for a moment believe that he is an ANC cadre. I don’t believe that he had a “mandate”, I don’t believe that the NIA informed him about the goings on at the CC. It’s more the Lotto thin (tata ma chance). I suspect that he was trying to feather his own nest by claiming credit for a “correct” outcome on the Zuma matters. I strongly doubt that Zuma had the slightest to do with that.
If the ANC wants to stack odds in it’s favour it has sufficient power and influence to do that through parliament – it certainly does not need morally disfigured judges to do that.
khosi says:
September 21, 2009 at 13:51 pm
“, If Gwede Mantashe wants Hlophe in the CC, Judge John Mandlakayise Hlophe will be Justice John Mandlakayise Hlophe . Period. Stop the delusional denials.”
So, Khosi, could you tell us whether you find this to be an acceptable state of affairs. From the way that you write, it seems that you do, but it would be good for this to be made plain. But then,maybe I am misreading your intent.
If you are correct, then you have admitted that the ANC does not function on the basis of right and wrong, but on the basis of the power that it wields. We should think about this for a while – it is something that happens quite a lot in public life.
@Maggs
I disagree, most of the ANC’s deployments are purely political appointments designed to ensure the ANC has it’s fingers in every pie and controls everything, from government ministries to parastatal organisations to independent watchdog organisations. We often only see the higher profile appointments, so it is easy to say that there are a few, but not many, appointments which were mistakes. Given my experiences with the inner workings (including being privvy to vacancy interviews and the subsequent deliberations and decisions taken) of the education and health departments at local government level, I know for a fact that cadre deployment is absolutely rife, and not even pretense is made in most cases that the appointment is justified based on merit.
As for Hlophe being an ANC cadre, I don’t recall ever saying this. I also do not believe that Zuma or anybody influenced him to approach the CC judges. Knowing Hlophe, based on his conduct with the Oasis saga, he probably thought (as you mentioned) he could put this in the bank if he pulled it off, and use it to get some favours in return later – he is an astute man, and that was how the ANC was run in those days (how much has changed I don’t know). However, this is my point – the ANC’s policy of cadre deployment requires LOYAL servants in positions – even if they enrich themselves at the ordinary man on the street’s expense, as long as they unquestionably do the ANC’s bidding they are entrenched in those positions. Hlophe is a dangerous man – he has proven that he is out for himself, and he is not your average lackey – the man has a sharp mind, and can think for himself (although I wonder sometimes what he thinks). This is not the person you want in a position of power, he is too unstable.
Thus the argument, which was originally advanced in some form by PdV, that the cadre deployment policy will actually work against Hlophe in this instance. It is not an “anti-ANC” argument – the ANC’s position and policy re cadre deployment is very vividly spelled out in various documents by the ANC itself. I was merely expanding and adding my views to the Prof’s suggestion that Hlophe will not get appointed based on political expediency, rather than his dubious track record.
Big Slipper, you’ve put it so well. My experiences with many departments is identical. Additionally, it is Hlophe himself who will damn himself eventually. Its inevitable. As with all such people. Pity time takes time.
The problem with the Cadre deployment is: “I didn’t join the ANC to be poor.”
May I add: ‘And whatever I need to do to get wealth, I will do’.
The Big Slipper says:
September 21, 2009 at 20:47 pm
I have no serious issue with any political party deploying its people into strategic positions, there’s not much option in that regard.
However, I agree that some of the ANCs deployments have been awful.
I often wonder what got into the minds of people then – the ANC is not short of good people.
It’s going to come back to haunt the ANC in 2012.
At national level the ANC is secure for a long time to come – at local levels it has allowed some really horrible people to rise into positions of power and authority and that will translate to the loss in voter support in the LGE.
Maggs, even in the townships there are mutterings about ANC behavior, don’t be so sure that the next national will even be closely similar. We are in intense times, even the poor are becoming aware within their continuing disappointment. Even the MK feel betrayed.
Depends on COPE and other opposition parties…. ya can’t fool people all of the time, even the uneducated, there’s a limit. Loyalty has limits.
@ Maggs
Yup, I agree with you on the deployment strategy – no democratic government in the world is going to appoint people in key positions who are unsympathetic, that would nullify the decision of the people to elect that government (presuming the government was elected on the strength of its policies).
The issue I have with the ANC’s policy is that it extends beyond the reach of governmental structures, and includes Constitutionally independent bodies like the JSC, as well as parastatals like Telkom, Eskom and the SABC. This is one area where it becomes a huge problem – just look at what happened with Hlophe’s interview with the JSC. While some members wanted to know his thoughts on the Oasis debacle, others, appointed by Zuma (such as the BLA fellow) tried to protect him from answering those questions, which were obviously very relevant (in light of both Hlophe’s admissions and the JSC’s findings, even though they let him off).
As Sirjay points out – the problem with the ANC’s version of cadre deployment is that people see it as a way to live out Mr Smuts Ngonyama’s (sp?) famous mantra – “I did not join the struggle to be poor”. The impact that this anti-ubuntu self-serving mentality has on the people the government is elected to serve is lost in the mad dash for cash. When the ruling party’s stated goal is to have sympathetic people in every nook and cranny of the country’s structures, in business, policy, legislature and oversight, you have what some people might call the USSR, or North Korea.
sirjay jonson /The Big Slipper
As sad as I will be, maybe a cooling off period for the ANC will be good for everyone.
The culture that was established and entrenched by those who left to “defend the constitution” has to be broken.
There’s wholesale looting in just so many areas – it’s a damn disgrace.
Oh well, President Zuma and his team have a year to 18 months to show that they are serious – let’s se what happens.
It is disappointing to read this article Prof De Vos, you have decided to post absolutely rubbish without any facts. Your hatred for Hlophe has made me to believe that education has done little for your, as far as I’m concerned legal professions are suppose to uphold the principles and values that are inshrined in our constitution. Finding somebody guilty without any court proceedings is unfortunate, yourself know how law works, do not act ignorant and stupid (I’m not by any chance doubting your stupidity when you are emotional). Put emotions aside and present facts Prof De Vos.
Lying on the website cannot be translated to Hlophe dispair, for your correction Percy Gumbi is not an Advocate. Percy is a business man, a tax consultant. Please note that Percy and I work together at Justice for Hlophe Alliance, I know him as a friend too.
What you are not telling people is that JP Hlophe is intelligent, an independent thinker, has an command of english language, strong character, patriotic, pro-poor, honest and educated.
Note: comments are made on my personal capacity.
I do believe I have a grasp of the disadvantaged’s claim to wealth, of their anger at Apartheid. What is absent is an understanding that wealth comes from competence, comes from offering what the people as a whole need, whether in business or politics. It may momentarily come from theft and greed in the public service, but at what cost? An elder’s advice: for wealth, please enter business with ethics and true entreneurship.
However, what we who value Democracy see, are ministers and bureaucrats determined to pursue wealth at the expense of service to the people. This latter is only temporary, those who indulge will likely lose all eventually. A straw house as it is sometimes referred too.
We need an understanding in political life that public service is service, business is business. The two do not come together, do not mix without corruption.
It is those committed to public service who we must have in Government. Those who have passion for advancing the people. We do not have these people at this time. And those who support all these abundant frauds, harm not only themselves but their own and their country’s future. Shame!
Jabu Khuluse
September 21, 2009 at 21:45 pm
1. you have decided to post absolutely rubbish
2. Lying on the website cannot be translated to Hlophe dispair
3. Note: comments are made on my personal capacity.
4. …has an command of english language
5. inshrined
errr… that’s ABSOLUTE rubbish
DESPAIR … maybe you meant dat pair ?
IN your personal capacity
ENSHRINED
A command of THE english language
Now stop playing on your daddy’s computer.
@Jabu Khuluse
The Cape Times of 21 September 2009 refers to Advocate Perci Gumbi. Perhaps that is where Prof de Vos got the informationr.
John: can you see where Jabu is coming from? We need to understand how to defend truth, reasonable law, another’s opinion, to question emotion without offending. I’ve read all this material that as whites we shouldn’t advise or instruct blacks. I don’t accept that. I’m arrogant enough to feel I will advise anyone who I believe doesn’t understand.
Life is growth in awareness and understanding, a struggle for all of us.
It’s tough, but we must find a way… for all the people.
@John Robert says:
September 21, 2009 at 21:59 pm
You get my vote for man of the match
@Justice
You are proving my point, Prof De Vos does not have facts.
How can Prof de Vos be expected to know who Percy Gumbi is ?
Even John Hlope doesn’t know who Percy Gumbi is.
@ Jabu
1. There are many references to Adv Percy Gumbe revealed by a simple google search. Either you are lying or he is perpetuating fraud by not correcting these errors. In any event, it doesn’t make a difference to this debate, not that you appear to have bothered to see what this debate is about.
2. Your descriptions of the personal attributes of Hlophe are very nice, althoughs one or two of his judgements have not exactly been pro-poor. In any event, if having those attributes meant that somebody was infallible, then we wouldn’t have had things like the credit crisis. What was your point in mentioning them?
3. What exactly did PdV find Hlophe guilty of?
4. Using your ridiculous logic, you have stated that PdV is telling lies by not posting facts. You also stated he is stupid and ignorant. Therefore you have found him guilty, without him first going to court and it being decided there. You fail. Or is it a case of the JFHA and you get to play by different rules when it suits you?
5. Hlophe avoided court, so we won’t ever know if he’s not guilty. The JFHA seems to say often that he isn’t guilty though. How is this the case, if he’s never been to court? JFHA fail.
6. You have contributed nothing in the way of defending Hlophe with factual reasoning and analysis, which is a common theme among Hlophe’s supporters. Based on the tone of your post, I doubt you have the capacity to do so, but we would all be interested to hear what you have to say if there is a factual legal defense you have up your sleeve. In fact, PdV has requested that somebody do this for a while now – nobody has been able to.
7. Do you seriously wonder why most people with a brain find the JFHA a laughing stock? Seriously?
@John Robert
Its comforting that we all identifying errors.
Jabu: look at the big picture. Service to the people, corruption, fraud. How can we not be angered. Why is it that whites are more concened with the welfare of blacks and non whites, than blacks. Why is it that the majority of NGO’ and NPO’s in South Africa are headed by whites. It’s not racism. Its because they care. Can you get it? We’re all in this togther.
I’m off now, time for a glass of wine and my woman, colored. and beautiful in all ways. cheers, sirjay
I fear that Pierre’s prediction that the JP will not make it reflects his fervent hopes, not his real expectations.
Someone who, like Pierre, has invested so much, intellectually and emotionally, in constitutional democracy cannot readily admit that it is crumbling around him, in the face of the reactionary racial nationalism represented by Hlophe JP.
Here’s an interesting possibility: that the JSC/President will split the baby by appointing one “liberal” judge, with undoubted judicial abilities and a record of proven independence (Cachalia, Davis J or Budlender.)
And appoint Hlophe JP too.
(Plus appoint two non-entities, on racial grounds.)
That way, the “liberals” will be partially placated. And a solid pro-govt, pliable majority will be entrenched in Braamfontein for a generation.
@The Biggest Slipper
Hlophe avoided court?
Can you explain that for me….
@The Biggest Slipper
Hlophe avoided court?
Can you explain that for me….
And how can JFHA be a laughing stock when it has representatives in 8 provinces of this country?
Certainly – the JSC decided his actions in approaching the CC judges were somewhat dicey, and then somehow still came to the conclusion (along a 5-4 split decision) that he didn’t have to go to court.
Therefore he was not tested in a court of law.
How does having a representative in 8 out of 9 provinces prevent anybody from being a mampara? By that logic Julius Malema is an exceptionally non-mamparirific guy.
Jabu, to the issue at hand – I would like you to defend Hlophe’s actions:
1. In the Oasis matter, where he admitted to taking R500k from a company (which was not disclosed to the Justice Minister as required) and then granted that same company permission to sue a fellow judge;
2. In the CC matter, where Hlophe admitted to approaching the CC court judges and making statements to the effect that JZ should be found innocent while the case was still under deliberation (given that the JSC found that his conduct was a bit dodgy); and
3. In the JSC interview where he lied about knowing Percy Gumby
I’m interested in:
(a) For 1 & 2, your legal argument as to why the JSC was correct in letting him off, and
(b) For 3, whether you think it is appropriate that somebody who your organisation nominated for CJ is a liar?
I don’t think you are following your line, we are not talking about what JSC decided to do, you are talking about Hlophe avoiding courts.
If you still have time, please explain further.
Forgive me – point 2 – he didn’t actually say “Find JZ innocent”, I am aware of that. Perhaps saying he implied it would be more accurate. Forgive the error.
I fear that Pierre’s prediction that the JP will not make it reflects his fervent hopes, not his real expectations.
Someone who, like Pierre, has invested so much, intellectually and emotionally, in constitutional democracy cannot readily admit that it is crumbling around him, in the face of the reactionary racial nationalism represented by Hlophe JP.
Here’s an interesting possibility: that the JSC/President will split the baby by appointing one “liberal” judge, with undoubted judicial abilities and a record of proven independence (Cachalia, Davis J or Budlender.)
And appoint Hlophe JP too.
(Plus appoint two non-entities, on racial grounds.)
That way, the “liberals” will be partially placated. And a solid pro-govt, pliable majority will be entrenched in Braamfontein for a generation.
@The Big Slipper
I’m not a lawyer so I will not be able to provide you with a legal opinion as such, but in short:
On point 1 and 2, no legal institution has ever found Hlophe guilty of anything. JSC cleared him on both allegations.
Point 3, Hlophe said it all during the interviews. What makes you believe that he is a liar about this one?
” And a solid pro-govt, pliable majority will be entrenched …”
So where in the western world does this NOT happen ? It happens all the time.
Perhaps it’s time to move on and focus on service delivery.
If Hlope is so pro-poor then once he is in office he can force the government to deliver on their mandate. And surely he will be hugely supportive of the TAC ? Surely he will root out corruption in government because this impacts on the poor. Surely he will re-instate the death penalty because as we all know most of the victims of crime are poor black people.
What do you think Jabu ? Is JP the man for the poor ?
@ Jabu
“I’m not a lawyer …
On point 1 and 2, no legal institution has ever found Hlophe guilty of anything. JSC cleared him on both allegations.”
Now if you WERE a lawyer you would know that that means nothing.
@ John Robert
You ask where in the western world does it NOT happen — that a solid pro-govt majority is entrenched.
__________________
John, we need not look far. The CC as currently constituted does not have a solid pro-govt majority.
And it has not had one since 1994.
Another exampe: The U.S. Supreme Court is far from a solid pro-govt majority. Led by your near namesake, it will look very carefully at anything the current Democratic Congress does.
@Michael
Point taken… but the US SC was pro-gov just a short while ago. With the factional in-fighting in the ANC it’s hard to see how the CC can be pro anybody. A lot may change in 2012.
I do think President Zuma needs Hlophe in the Concourt. Zuma is vulnerable; he needs to solidify his defence even against the coup plotters within the ANC Alliance.
@Mike Atkins,
I am just calling it as I see it.
I am trying to contrast Achmat views on Hlophe and this one provided in the link.
http://www.thoughtleader.co.za/paulngobeni/2009/09/18/will-the-jsc-debunk-the-myth-of-white-judicial-competence/
At first glance it seems to be the same difference. One goes deep researching views which will suit his or her own facts.
Judge Dennis Davis has often remarked that his judgements are the most overturned in the CPD. That has never been held against him.
If it were true that Hlophe held this views, I fail to see what is wrong. The Judiciary has in-built mechanism to rectify any anomalies.
In fact, wouldn’t it have been better if because of his views he should be encouraged to be on that court. To present a diversity of views. Judge Cameron is already there mos.
When all these Billions have been spent buying ARVs and condoms, we will soon realise that the government cannot legislate bedroom behaviour. That at the end it is a choice. I don’t think it is wise to create a mentally which says being homophobic makes you less of a citizen.
http://www.volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253495548
Thought for the day:
“The constitution is what the CC says it is. The constitution ought to be what the text says.”
Hmmm.
And the ANC lynchmen on the despicable JSC [ Moerane, Ntsebeza, et al] is “selecting” nominations for a CC constituted to their liking. That is, then, for a constitution to their liking. And decisions to their liking. As nearly as “cleared” beforehand at Luthuli House as can be.
At least the forces of constitutional darkness are revealing themselves day by day at the JSC with their questions – trying to smoke Krieglerites out!.
Jabu Khuluse says:
September 21, 2009 at 21:45 pm
What you are not telling people is that JP Hlophe is intelligent, an independent thinker, has an command of english language, strong character, patriotic, pro-poor, honest and educated.
———————————————————————————————————
Until there are answers to the many unanswered questions, isn’t it too early to tell?
As best as I can make out the only person who has emerged unscathed so far is Justice Nkabinde.
Everybody else involved in this sordid mess, leaves a lot to be desired.
Maggs Naidu says:
September 22, 2009 at 8:59 am
“As best as I can make out the only person who has emerged unscathed so
far is Justice Nkabinde.”
That is only because she is playing the role she was asked to play to the tee.
Unlike Jaftha, who is a poor actor, and even worse liar!
Dumisani says:
September 22, 2009 at 6:00 am
“I don’t think it is wise to create a mentally which says being homophobic makes you less of a citizen”.
Absolutely! It seems that the Christian heterosexual male is being forced onto the endangered species list, and considered not worthy of saving.
@ Maggs, I think you are setting up an implausible moral equivalence when you say that Nkabinde J is the only one who has emerged unscathed.
How exactly, for example, are the CJ and the DCJ “scathed”?
The JP’s partisans might say that Jafta J looks bad because he changed his story. But even that, I think, is nonsense. See his interview with the JSC yesterday.
Is it not the case that it is still only the JP that has serious charges hanging over his head?
Harold Ferwood says:
September 22, 2009 at 9:12 am
That is only because she is playing the role she was asked to play to the tee.
Unlike Jaftha, who is a poor actor, and even worse liar!
———————————————————————————————————
It does seem that she was pushed into making the complaint. Be that as it may, she’s standing up pretty good so far.
BTW I am still waiting on your response to Maggs Naidu says: September 21, 2009 at 18:00 pm
I’ll go look it up now …
Harold is right.
Judge Hlophe has been vindicated. The CC has been proven to be a bunch of liars!
Homosexual activists and HIV/AIDS patients are ganging up to persecute males who enjoy healthy intercourse with women!
I will just add: our President knows exactly what to do when he meets a sissy-boy!
Harold Fernwood – you are a genuis!
Oh! You speaking about the side-track conversation between Andy, Sarah and myself?
I didn’t say he is right, I did say it is his comments are warranted when taken on the backdrop of what Sarah defended the professor on, him being Afrikaans-speaking.
You must admit it is wasn’t the Professor’s best but I understand your point that why should he be judged on a higher level than all who make use of his blog. In all honesty I never took much notice of things like grammar (though I do have a weird abhorrence for poor spelling) when at school – just to survive till first break without leaking blood was more of a priority.
Michael says:
September 22, 2009 at 9:14 am
I think that the way the CJ handled this has left a lot wanting.
For example, calling Hlophe two minutes before submitting the complaint was a really horrible thing to do. As the head honcho he ought to have had a discussion with Hlophe and hear his side of the story first. After hearing out Hlophe the matter could have proceeded in whatever direction was appropriate.
I still cannot understand why it was necessary or appropriate for all the remaining judges to sign the complaint, after all they were not party to the discussions between Hlophe and Jafta or Nkabinde. I reckon that’s taking sides, which is wrong.
I think it is a lie that the NIA told Hlophe about Nkabinde writing the note on privilege. If I was asked to speculate as to where he learned that, I would venture that it was from Jafta.
I don’t have much regard for Hlophe but using the institutions established under our constitution to “get him” is wrong.
Take into account that the CJ led the JSC that let Hlophe get away with the Oasis matter – now that will probably come back to haunt him.
Harold Ferwood says:
September 22, 2009 at 9:45 am
Yeah – I agree that only the message is relevant.
Anyway the rules for was/were are more complicated than Andy would like us to believe.
So far I am unable to find anything that supports Andy’s contention that Pierre’s use of “was” is incorrect.
Sometimes I wish Pierre is lying about all those allegations against Hlophe. But why isn’t anybody refuting them?
@Maggs …
To say that the CJ (head of our highest court – which in essence is the seat of all that is correct in our land and where we go to determine this correctness) was wanting in the handling of the matter is a bit too kind!
How is it possible that he/they were unaware of administrative protocol? In my book for the Con Court to fail at following correct administrative procedures is grounds for dismissal! Who can trust them to deal on the constitutionality of certain admin/PAJA issues if they do not know how to handle it in their own house??
Harold Ferwood says:
September 22, 2009 at 9:12 am
It seems that the Christian heterosexual male is being forced onto the endangered species list, and considered not worthy of saving.
———————————————————————————————————
I would like to engage you on that comment when you’re available.
It’s almost like if homosexuality is out in the open or recognised in our law, then all Christian males would become homosexual.
Does Christianity really regard homosexuality as contagious?
khosi says:
September 22, 2009 at 5:19
Come on, Khosi, you are ducking the question. I don’t know whether I agree that Mr Mantashe’s word is actually law, but I am curious to hear how you would view that state of affairs.
You see, when people were debating the merits of the claims and counter-claims concerning Mr Zuma, some said, “Bottom line, he is (going to be the President, he is not going to jail – get used to it”.
Ando so it was. Would you like to advance an argument that nobody from the ANC had “talks” with Mr Mpshe before the charges were withdrawn…
Maggs Naidu says:
September 22, 2009 at 10:16 am
There was an earlier comment by someone referring to the professor’s dress sense and it seems that the dominant belief is that only gay/homosexual males are capable of smart dress style, impeccable personal hygiene and of course creativity. Should a heterosexual male show any one of these traits, he runs the risk of being labelled being in the closet – which is a mere ploy to add to their insignificant numbers …
With your question about Christianity (and numerous other faiths) considering it “contagious” is based on moral grounds which manner would discount on obvious reasons …
In your opinion, is it a case of nature or nurture?
Maggs, if what the CC did was so clearly wrong, why did the JSC dismiss the JP’s counter-complaint?
This, after all, was an area where the facts were clear, viz what time the press release came out, when the CH made the phone call. No “he-said-she-said” ambiguity to hide behind on this issue.
Anyway, is it not common for prosecutors to publicly announce they are pressing charges more or less at the same time as they lodge the charges? This may not be very pleasant for the accused. But what law or code does it break, exactly?
Maggs and Michael, there was also a decision by NINE judges of the SCA stating that the CC did not infringe Judge President Hlophe’s rights.
Harold Ferwood says:
September 22, 2009 at 10:29 am
People comment about lots of crap.
Dress sense, grammar, logic, sexual orientation.
Eish!
“In your opinion, is it a case of nature or nurture?”
I dunno, don’t care. I am a heterosexual male and ok with that – it’s really annoying that people think they have a right to comment on others sexual orientation.
I am a Hindu and athiest. There’s nothing that I have come across in our religion that is in anyway anti homosexuality – I have come across religious commentary that respects homosexuality, if that’s the correct word.
There are people who pretend to be Hindu scholars who are opposed, but they’re wankers. I know for sure that the gay dancers are sought out for important cultural events especially weddings and celebrations, not because they’re gay but because the dancers are very talented and entertaining in a way that heterosexual men or women have not been able to perform.
But for the rest of life most Hindu people don’t care either way.
Pastor Ray teaches that the homosexual lifestyle is spread through subtle cultural pressures, the implicit approval in Hollywood’s positive gay role-models etc. So yes, in a sense gayness is contagious.
I pray every night that, if the JSC appoints judges with more affinity for African values to the CC — Hlophe JP being just one example — the tendencies promoted by the liberals of the first generation of CC judges may be reversed.
History will judge that Mandela made a mistake by appoint so many minorities in 1994.
Michael says:
September 22, 2009 at 10:37 am
Maggs, if what the CC did was so clearly wrong, why did the JSC dismiss the JP’s counter-complaint?
———————————————————————————————————
My earlier comment is “As best as I can make out the only person who has emerged unscathed so far is Justice Nkabinde.”
The JSC – double Eish!
“But what law or code does it break, exactly?” – stupid actions does not need to be unlawful.
In any event is that not the same question that Hlophe is relying on?
Pierre De Vos says:
September 22, 2009 at 10:41 am
I hope you’re not suggesting that the CC was correct in the way they handled that matter.
@ Maggs
No, I do not think the notion that the JP broke no law or code is what the JP is relying upon.
It is rather, so far as I understand, a factual argument. (I do not think that anyone disputes that, if Hlophe JP said what Nkabinde said he did, that was a breach of the law.)
BTW, have you actually read the SCA decisions to which Pierre refers?
Michael says:
September 22, 2009 at 11:05 am
I do not think that anyone disputes that, if Hlophe JP said what Nkabinde said he did, that was a breach of the law.
———————————————————————————————————
What law is that?
p.s. I skimmed the SCA decision. I hold the view that it’s always important in matters like this to hear the other side. And by hear I don’t mean a briefing telephone conversation after the decision is made and two minutes before it’s advertised to the world.
@ Maggs
See The Bangalore Principles of Judicial Conduct 2002 (The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November 25-26, 2002) – Judges must be ” free of any extraneous influences, inducements, pressures, threats or interference direct or indirect from any quarter or for any reason.”
I do not think it helps the debate if you merely skim the SCA decision. It contains a long discussion on why the press statement was not unlawful. May I ask that you read it and then say why you consider the reasoning of the SCA to be wrong?
Harold Ferwood says:
September 22, 2009 at 10:29 am
Interesting combination! – Hindu and Atheist ….
I would agree, why give a crap about all the fuss! But it wouldn’t exactly assist you in totally avoiding the issue when it is being demanded that “pro-gay” judges be appointed, an outcry when our government fails to endorse a gay supporting UN declaration and of course the formation of NICL to deal with this “irrelevant” matter, amongst other things …
It seems you just satisfied that you are just a simple heterosexual male, therefore the question about nurture and nature is kinda relevant – is your sexual orientation merely biological luck or environmental mental conditioning?
And the Professor, in his post, strongly relies on Hlophe’s stance on this issue as to why he is not fit to have a seat on the Con Court thus making it relevant as a discussion.
Mikhail Dworkin Fassbinder says:
September 22, 2009 at 11:45 am
Hey Mikhail.
I barely passed matric and even I know that it’s inappropriate to approach a judges on matters before them without having to rely on the Bangalore Code.
Jabu Khuluse says “JP Hlophe is intelligent, an independent thinker, has an command of english language, strong character, patriotic, pro-poor, honest and educated” – so I would expect a lot better from Hlophe.
I will certainly read the SCA judgment but I would still like to hear why my reasoning (that it would have been correct for the CJ/DCJ to have had a face to face with Hlophe, hear his side of the story before jumping to conclusions) is flawed.
I would also like to know which law it is that Hlophe transgressed as suggested by Michael.
Perhaps it would help if I reiterated that I am batting for the CC (for whom I have the utmost regard and respect) and against Hlophe (the opposite is true) – but I need to understand what we are up against in this specific matter and why the matter was handled in the way it was.
Harold Ferwood says:
September 22, 2009 at 12:01 pm
I want neither pro nor anti anything in our Justices. They be committed to our constitution and just do their work. Our Bill of rights is clear enough – that’s it.
Our country’s decision not to support the UN declaration sucks. Our ambassador talked a load of rubbish as to why supported it we did not sign.
I cannot answer your question “is your sexual orientation merely biological luck or environmental mental conditioning?”.
Nobody ever told me to be heterosexual, not my parents, not my teachers, not the priests, not my friends – it’s just the way it is.
The earliest exposure to a gay man that I recall is a visit to our home by a family friend when I was very little. All I remember about that is my now late dad saying “He likes men. Some men like men, other men like women” – that was it.
Beyond that it was school and kids and the silly comments and teasing that kids do.
Maggs Naidu says:
September 22, 2009 at 12:03 pm
“….I would still like to hear why my reasoning (that it would have been correct for the CJ/DCJ to have had a face to face with Hlophe, hear his side of the story before jumping to conclusions) is flawed.”
Maggs, I would love to hear that as well. The last time this was debated in this forum I, regrettably, never got any satisfactory answer to this question other than the lousy excuse that there were no guidelines on something like this and the whole crap about protecting the intergrity of the CC – as if it would not have been protected sufficiently if the CJ had simply done what you are proposing.
As for Prof’s so-called reasons why Hlophe WILL not be appointed, like someone said earlier, there is really nothing new that Prof is telling us – and we’ve all debated all these issues over and over again. Whoever said Prof sounds desperate could not have captured it any better.
By the way, the SCA decision looked at WHAT RIGHTS WERE INFRINGED and not whether the manner in which the CJ dealt with the matter was the best. Therefore, that decision is no answer to Maggs’ question above.
Maggs Naidu says:
September 22, 2009 at 12:32 pm
We leave it at that ….
But don’t be surprised when paedophiles start mobilizing and arguing that theirs is also just a sexual orientation and the practice of demonising them must stop. They wish to be afforded the same rights as their heterosexual and homosexual counterparts because “it’s just the way it is” – That their love for children is no different than the love between two men or women or the versa vice. Its not as far fetched than you think … ask Oprah!
Maggs Naidu says:
September 22, 2009 at 12:03 pm
We lay people sometimes forget how simple infractions can become complex in technicality when it gets embroiled with the Law …
For instances, Harms ripped Nicolson’s judgment to threads for not following basic tenets of law and not following certain procedural issues. But outside this matter, TM was forced to resign and Zuma produced evidence which substantiates Nicolson’s view.
So whether the SCA’s decision to exonerate the Con Court’s conduct towards Hlophe, outside the court we all know they messed up big time and weren’t merely negligent.
Harold Ferwood says:
September 22, 2009 at 12:43 pm
Eish Harold!
Paedophiles are horrible human beings.
I am opposed to the death penalty – but would lobby for it, if it were possible to execute just those low-lives.
Maggs Naidu says:
September 22, 2009 at 12:53 pm
The gonna “piggyback” on the same premises which saw the advocating of gay rights …
Just a quick google will make you see how this taking shape – the similarities to homosexuality is striking, with regard to the fight for human rights!
http://www.albatrus.org/english/lien_of_oz/homosexuality/homosexuality_normalised.htm
Mzo says:
September 22, 2009 at 12:40 pm
I’ve been getting a lot of technically complex input but no answers yet.
Not only here but also from the more erudite of my social circles as well.
I am cool with Pierre raising this in a way that provokes discussion and debate.
The underlying issues, including the National Question, is not going anywhere soon.
@ Maggs
National Question?
Harold Ferwood says:
September 22, 2009 at 13:38 pm
National Question?
——————————————————————————————-
http://www.anc.org.za/ancdocs/discussion/natquest.html
Harold, I am quite surprised and shocked at your comments on pedophiles claiming their rights as it does not reflect well on your ethical commitments and respect for others. This is the same argument used by homophobes of all stripes and put forward by National Party Minister Kobie Coetzee at Codesa. Apart from being deeply offensive and hurtful to people who happen to be emotionally and sexually attracted to members of their own sex, the comment also displays a fundamental ignorance of what section 9 in the Bill of Rights actually says. One of the factors taken into account to decide whether discrimination was unfair and therefore in contravention of section 9, is the purpose of the discrimination. If there is an important purpose for the discrimination, otherwise unfair discrimination will be deemed to be fair. (For example, the provision that states that blind people cannot get a driver’s licence discriminates against individuals on the basis of their disability, but this is not unfair because the purpose of the provision is to ensure road safety.) Discriminating against pedophiles will be fair because it protects vulnerable children from abuse and exploitation. The only purpose for discriminating against gay men and lesbians is to promote or perpetuate personal beliefs sometimes said to be of a moral or religious in nature. Those beliefs – no matter how sincerely held – is based on hatred, fear, revulsion or at the very best disapproval of same-sex love. Those beliefs continue to be used to condemn individuals who harm no one, to perpetuate fear and hatred of such individuals which at best leads to a traumatic disregard for people’s human dignity and at worst to assault, rape and even murder. It is thus a form of prejudice. The CC has stated that prejudice could NEVER justify unfair discrimination. When two men or two women love each other they harm no-one and there can therefore be no legitimate interest for the state to discriminate against them. While the Bill of Rights cannot compel individuals to be decent and to respect others who are different from them, it can compel the state and private institutions not to discriminate against them and to act in a way that does not affront their human dignity.
On a personal note, I appeal to you to reflect on your attitude regarding same-sex love, to consider the effects that your views might have on a vulnerable and marginalised section of our community, and to embrace at the very least the constitutional court’s view that equality is about the right to be different from others – as long as one does not harm others.
I apologise to everyone if may statements here digress too much. But some of the recent talk about homosexuality and paedophilia struck a bit of a cord.
It is really sad that some people still tacitly claim the capacity to choose for others. If two gay people who have the capacity to consent to gay sex choose to do so, then that should be the end of it. It has nothing to do with anyone else.
I would also add that paedophilia is vastly different from homosexual relationships between people who have the capacity to consent thereto. The former involves people who cruelly and selfishly seek to satisfy their base inclinations at the expense of vulerable persons. The latter involves people who do something which is, in a great many material respects, directly comparable to the decidedly uncontroversial and commonplace things that heterosexual people do.
@ Mzo
@ Maggs
I thought Pierre and others had at the time summarised quite carefully the basis on which it had been found that the CC did not act unlawfully.
Do we really have to got through that all over again?
Please, Maggs amd Mzo, just read the SCA decision, which is on the SCA’s website. Of course you may disagree with the reasoning — but it is hard for you to do so meaningfully until you have actually read what they wrote.
I apologise to everyone if my statements here digress too much. But some of the recent talk about homosexuality and paedophilia struck a bit of a cord.
It is really sad that some people still tacitly claim the capacity to choose for others. If two gay people have the capacity to consent to gay sex and choose to do so, then that should be the end of it. It has nothing to do with anyone else.
I would also add that paedophilia is vastly different from homosexual relationships between people who have the capacity to consent thereto. The former involves people who cruelly and selfishly seek to satisfy their base inclinations at the expense of vulnerable persons. The latter involves people that do something that is, in very many material respects, directly comparable to the decidedly uncontroversial and commonplace things that heterosexual people do.
Michael says:
September 22, 2009 at 14:55 pm
I read it.
Maybe Hlophe may not have had the legal right to be heard before the complaint was laid.
I am talking about common courtesy.
It may not have changed anything, buy my view is still that the appropriate thing for the CJ to have done was to meet with Hlophe and hear his side of this matter, considering that it has such profound implications.
Explain why it was ok not to afford him that at the very least.
BTW, how many people in this country have been punished for attempting to influence judgments?
To everyone ….
At no time did I intend to offend or disgust anyone with the subject matter Maggs and myself discussing. Neither did I intend to promulgate the discrimination on the grounds of sexual orientation. I was merely pointing out a trend that has luckily not hit our shores as yet and certainly hope never does.
But I don’t live in utopia and know that inevitably this issue will begin to plague us as it is currently doing in the US. Oprah, who is by far the most influential television personality, has given much of her T.V. time to this issue, possibly due to her own personal experiences but because of that nation’s growing concern on that topic.
I wish to categorically state that I fully understand the distinction between homosexuality and paedophilia, as well as the governing value of the Bill of Rights, particularly section 9. Matters such as the constitutionality of a National Register for sexual offenders and the rights of neighbors to know if a child molester is living next door will be dealt with by our courts, and in terms of the limitation clause …
The reasoning that Leigh so eloquently illustrated in the comment above came with much sacrifice and effort to make society aware of and come to accept. You must however surely concede that this is only a recent development and a work in progress. I do not for one moment think that those who contributed to this would want their efforts be tainted by “others”, “hi-jacking” their ideology for unscrupulous intentions.
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=iol1253624110386J322
Yaaaaaaaaaaaaaaaaaaaaaaaaay.
I won the bet!
Michael says:
September 22, 2009 at 14:55 pm
Michael, I read the judgment when it came out and I still believe that the questions answered there was different from the question asked by Maggs here. Read my last post on this.
Legalities aside (which is what the SCA had to decide) do you really see nothing wrong with the Chairperson of the Bar calling you 2 minutes before informing M&G that the Cape Bar has decided to lay a charge against you – whatever the charge may be!!
Maggs Naidu says:
September 22, 2009 at 16:36 pm
The odds weren’t that great though … But NVM, congrats!!!
But I don’t understand what was so surprising, according to the article.
I just thought of something I needed clarity on, was Bulelani Ngcuka accused of being an Apartheid Spy before or after he made the announcement of a prima facie case of corruption against JZ?
Mzo says:
September 22, 2009 at 16:38 pm
It’s unlikely that we will get the direct response.
It is perhaps improbable that Hlope JP will be appointed, but in the recent past we have learned to expect the unexpected from the JSC.
Whi ch ladies will be appointed?
By shortlisting three ladies, it seems quite clear to me that two of the four appointments will be female.
Will judge Khampepe be in favour or out of favour? If she is in favour, who would be chosen between Judges Theron and Maya? Does Judge Maya have any political pros or cons, and will Judge Theron tick the right demographic boxes?
Is it not really unpleasant that we even think in these pragmatic terms, frather than in terms of who would make the best jurists!
@Maggs
where are you buying the drinks?
Mike Atkins – “By shortlisting three ladies, it seems quite clear to me that two of the four appointments will be female.”
Why wont it be three out of four? You sexist you!!
@ Maggs
Perhaps the CC lacked in common courtesy.
But that was not the question. I objected to what I thought was an implicit equivalence in your earliier posting.
Put it this way; the CC’s failure of common courtesy (if true), does not come close to balancing the infraction of the JP (if true).
They differ by orders of magnitude.
@ Mzo
Please re-post what you wrote in response to the SCA’s ruling.
I was convinced at the time by the finding in favour of the SCA. But maybe you did articulate an argument that would convince me otherwise. In any event, I look forward to debating the matter fully with you.
Re your question about the Chair of the Bar calling me two minutes before calling the M&G – Yes, as Maggs put it, that would be a failure of “common courtesy.” And I would feel terribly affronted on a personal level.
But suppose that, thereafter, I was subject to a disciplinary hearing, and I was found to have infringed a Bar rule. And it could be shown that there was no causal link between the intital irregularity, and the outcome of the hearing.
I cannot think of any court that would on that basis alone set aside the ultimate decision on the merits.
It happens all the time in criminal procedure. The prosecution does something that was against the rules. But there is no plausible causal connection between that infraction and the ultimate guilty finding. The ultimate decision will not then be set aside. I will supply authorities if you desire.
Justice says:
September 22, 2009 at 19:31 pm
My next wager is that Hlophe does not last out his term. I reckon that he will either retire or be “redeployed” soon.
Michael says:
September 22, 2009 at 21:06 pm
Thanks. I did not reckon that they’re equal by any means. Just that Nkabinde comes out the least scathed.
@ Maggs
OK you win.
Neither Hlophe JP nor Motata J even make the shortlist.
Conclusion: Racist anti-transformation Krieglerites liberals still call the shots at the JSC!
@ Maggs
Now what makes you think Mzo will not get a direct response?
Congradulations Pierre, you predicted right again. Maybe you are more influential or insightful than we give you credit for.
Or it could be that you have inside information; or you are just plain lucky.
Anyway, sanity prevailed.
@ Mikhail…if this was the work of Racist anti-transformation Krieglerite liberals then……VIVA Racist anti-transformation Krieglerite liberals VIVA. Personally I belive that this was a simple case of fundamental morals based common sense at work.
Mikhail Dworkin Fassbinder says:
September 23, 2009 at 0:09 am
Hey Dwork.
Do’t be sad.
There’s still a chance for your main man.
Many things can happen between now and the actual appointments.
All strength F-O-M, all strength.
p.s. Maybe a good idea to add FOL (Freedom Over Law) to your campaign.
Michael says:
September 23, 2009 at 0:19 am
Retracted.
*takes bow*
51 South Africans murdered a day!
More than in war-ravaged countries? Worse than Colombia?
Eish, I wonder if Chaskalson can sleep at night, or maybe he’s using the same “tea” that he was drinking while writing that flawed judgment back in 1994, to drown out the voices!
How much does that work out to? Just under 2 people an hour!?! I hope that “walk for libraries” I went on yesterday does anything to change this situation …
Some thoughts on the list of recommended candidates:
Take out the women, as only two of them would be selected for affirmative action re women/gender (to replace Nkabinde and O’Regan):
Maya
Theron
Khampepe
Next, delete the “whitie” – who would never be appointed as the white quota on the CC is already filled/occupied by Van der Westhuizen. His appointment would also not be in line with the Polokwane resolutions regarding the judiciary:
Froneman.
That leaves:
Jafta
Zondo
Mogoeng
J.Z. thus has to choose between those three only. Of them, Jafa and Zondo are the seniors – being on Appeal Courts. That leaves the final selection probably to be Jafta, Zondo, Maya and Khampepe (although any of the women could be selected. That’s a toss-up. But Maya and Khampepe are again the seniors – serving on the SCA and Labour Appeal Court respectively).
The final list again exposes the stranglehold that the BLA / NADEL / AFT / JFHA anti Krieglerite concoction has on the JSC – and thus on the future of the judiciary. Basically only the candidates nominated by those groupings for the interview shortlist, made it to the final seven.
My take on those four (or seven)?
Uninspiring.
A massive yawn.
Richard Calland (Anatomy of South Africa, Zebra, 2006) quoted the following about the CC, at 240: “It has gone from being one of the best courts in the world to one that is good at best and pedestrian at worst.”
The downward spiral continues.
Only Cachalia, Gauntlett, Budlender or Davis could have provided some sparkle. But Cachalia had telephone conversations with Kriegler. Gauntlett serves as board member on FUL. Budlender apparently previously had a fall-out with the ANC and his interview did not go well. He also after several attempts could not make it to the Cape Bench – how could he now jump to the CC? Davis obviously seems not to be within the concoction, and would in any event have been too progressive at the CC for the liking of Luthuli House.
Where are the days when the CC had luminaries like Mahomed, Kentridge, Chaskalson and Didcott serving on it? It doesn’t attract stars like that any more. And the JSC won’t let brilliance through to the CC. And most of those regard it as infra dig to appear before the JSC.
Henri says:
September 23, 2009 at 9:37 am
I am willing to bet on Kroneman and Theron making it and Jafta not.
I am also pretty confident that Hlophe will “retire” before the FUL matter reaches Court.
Maggs, I think Henri is right – and you are wrong.
Froneman (not “(Kroneman” as you have it), will not be appponted.
He is white.
I very much that hope Henri and I are wrong. If Froneman is appointed, I will gladly revise my gloomy conviction that reactionary racial nationalism has become dominant.
Michael says:
September 23, 2009 at 10:09 am
Froneman it is.
I reckon that you are wrong.
The “reactionary racial nationalism” was a 1996 class project – we’re past that now.
Maggs, once again, I really do hope you are right.
Let us have a formal wager on Froneman’s fate.
And I hereby promise to withdraw my reactionary racial nationalism thesis if Froneman is appointed.
Michael says:
September 23, 2009 at 10:20 am
You’re on.
I will even add an annex in your favour that the FUL application will not be heard, that Hlophe will retire before then.
p.s. I am not suggesting that we are free from reactionary racial nationalism, rather that our President is materially beyond that.
[...] As I predicted on Monday, the JSC decided to steer clear of Hlophe. If it had put Hlophe on the list, the little credibility that the JSC might still have left would have been destroyed, so the JSC rather opted for a mixed bag of seven names. Although not always inspiring, the list of names seems mostly credible, perhaps because most of us think (like my father probably did before I showed him that picture) that it could have been much worse. [...]
Maggs Naidu says:
September 23, 2009 at 10:30 am
I sincerely hope that you are right. In any event, the composition of the judiciary should just ‘broadly’ reflect the racial and gender demographics, not ‘totally’. I think that all three ladies and Froneman will make it to the CC Bench. With Froneman out of the EC, there would be room for more affirmative action there, which is also needed. To appoint Jaftha would only mean to give Hlophe a foothold to influence the decisions of the CC (in the light of their friendly relationship and the impunity of the previous attempt to influence the CC), and I think Pres Zuma (at least his advisers) would be very careful before selecting him. Mogoeng had one or two tiffs with the SCA, the one on jurisdiction, the other on failing to recuse while his wife argued the matter on appeal for the state. He also has no experience in CC matters. I do not think he’ll make it. Zondo, I also do not think would make the way to that Bench. So, the three ladies and Froneman.
I also hope that your prediction about Hlophe is correct. He is not supposed to adjudicate any matter at all in this country. But, I don’t think he’ll resign, giving up his tenure. Perhaps he should just be relieved from active duty (golden handshake – JP’s pay for life!) to save his face and tenure. That way he can still drive a Porche (though probably no longer from Government supplies) and make, sell and drink his wine.
@ Maggs …
Did you enjoy 3rd Degree?
Deborah was in her element! Haven’t seen her so cool and collected … was a pleasure to watch!
Harold Ferwood says:
September 23, 2009 at 12:44 pm
Deeply disappointed
I was waiting for the sleazebag to be roasted.
Anonymouse says:
September 23, 2009 at 12:11 pm
I suspect our country needs some respite from the Hlophe matter – appointing Jaftha will not help.
As long as Hlophe is on the bench, this matter and the associated agony will be prolonged – and that will not auger well for the Zuma administration.
So “political solutions” to the rescue.
Maggs, once again, I really do hope you are right.
Let us have a formal wager on Froneman’s fate.
And I hereby promise to withdraw my reactionary racial nationalism thesis if Froneman is appointed.
Michael says:
September 23, 2009 at 10:20 am
Maggs, once again, I really do hope you are right.
Let us have a formal wager on Froneman’s fate.
And I hereby promise to withdraw my reactionary racial nationalism thesis if Froneman is appointed.
———————————————————————–
DN says:
October 5, 2009 at 20:46 pm
Maggs, once again, I really do hope you are right.
Let us have a formal wager on Froneman’s fate.
And I hereby promise to withdraw my reactionary racial nationalism thesis if Froneman is appointed.
—————————————————————————————————–
Either Michael and DN are the same person or there’s the Singapore judge thingy again.
(Dworky help with the big word).
Get ready to withdraw!
I better add that I was wrong about Jafta and Theron.