Constitutional Hill

Why justice is not always blind

Lady Justice, the Roman goddess of Justice, is supposed to personify justice in a modern state. She is depicted as balancing the scales of justice on which she impartially weighs the case for and against those who appear before her. She is also depicted as blindfolded, encapsulating the ideal that justice is or should be meted out objectively, without fear or favour, regardless of the identity, wealth, power, or weakness of the person who is being judged. The reality is often far removed from this ideal.

To be blunt: especially in criminal cases a person’s social status (sometimes associated with his or her race), his or her wealth and political or other connections sometimes play a decisive role in determining whether he or she will be convicted of a crime. It can also influence how a person is treated after conviction.

There are several reasons for this. Some of these reasons can be traced back to the nature of South Africa’s common law criminal justice system – a hangover from the colonial era. Others relate to South Africa’s peculiar history and its specific racial and political dynamics.

The common law model of criminal justice is adversarial in nature, pitting the state against the accused in a highly structured and regulated battle of wits. This differs from the inquisitorial system prevalent in many civil law countries in which a presiding judicial officer takes an active role in the investigation in an attempt to determine the truth. Because the inquisitorial system is not primarily seen as a battle between two evenly matched sides, the procedural rules are less strict than in the adversarial system.

It is assumed that in the adversarial system the battle between two closely matched sides will eventually reveal the truth. There are numerous rules regulating the presentation of evidence at trial to ensure that the accused would not be disadvantaged in this battle. The accused has the right to remain silent and not to testify in his or her own defence — although adverse inference may be drawn from this refusal to testify in certain circumstances. The state has a duty to share information about its case with the defence. During the trial, the ritual of the cross-examination of witnesses often provides dramatic and revealing moments on which the outcome of a trial can hinge.

Because the trial is staged as a battle between the two sides and not primarily as an inquisitorial search for the truth, good lawyers are well placed to exploit these processes to the advantage of their clients.

In an adversarial system the quality of an accused’s legal representation can therefore make a big difference. If an accused has access to unlimited funds, he or she can hire the best lawyers and experts who will be able to pursue every legal loophole and will also be able to exploit every procedural safeguard available to the defence. For example, when President Zuma was charged with fraud and corruption he hired some of the best (and most expensive) lawyers in the country. His legal team could pursue the so called “Stalingrad option”, successfully using every available legal avenue to prevent the case from being heard. Eventually Zuma’s lawyers also managed to have the charges against him withdrawn (with a little bit of help from the spies). If he did not have access to unlimited funds, this would not have been possible and he might well have been charged long before the Polokwane elective conference.

Section 35(3)(g) of the Constitution states that an accused person has a right to a fair trial which includes the right to have “a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly”. There are two problems with this provision. First, no one has an absolute right to legal representation if he or she is charged with a criminal offence. Many accused do not qualify for legal assistance because they earn more than R5500 per month or because they are charged with less serious offences. Most middle class people will therefore not qualify for legal aid, nor would they be able to afford a decent lawyer.

Second, if you qualify for legal aid you do not have a right to the best possible legal representation that money can buy. Some Legal Aid lawyers are inexperienced and are not capable of providing effective assistance to their clients. But even good legal aid lawyers do not have access to the kind of funds that the lawyers of Oscar Pistorius do. They cannot hire independent forensic experts or pathologists and do not have the funds to employ other experts to cast doubt on the evidence presented by the state.

In South Africa, apart from wealth, impermissible considerations relating to social status and political connections can also influence the outcome of a case. Would Bees Roux have gotten often so lightly after killing a police officer if he was not a famous (white) rugby player representing the Blue Bulls? Would President Zuma’s case ever have been dropped by the National Prosecuting Authority (NPA) if he had not been elected President of the ANC and if he did not have connections in the intelligence services? Would cricketer Herschelle Gibbs have gotten off so lightly from his drunken driving charge if he was not a famous cricketer?

Of course, the widespread perception of bias does not only relate to the treatment of the accused. Given the fact that most members of the South African Police Service (SAPS) are not particularly well trained and lack the investigative skills to pursue all cases with equal dedication, some serious crimes are not investigated as well as they should be. Crimes that affect foreign nationals, famous or well-connected individuals, upper middle class people, or crimes which have caused a public outcry are often prioritised. When the media reports on a crime it places political pressure on the SAPS to solve that crime, but many serious crimes are never reported in the media as the victims of these crimes are essentially invisible to the media. We often read about the murder of a famous musician, an acting judge, a starlet or a politician, but how often do we read about the murder of a poor women living in a rural area.

There is also a good chance that awaiting trial and convicted prisoners will receive different treatment depending on their race, social status and political connections. Would Oscar Pistorius have been held in a police cell instead of prison, if he was not a famous sports star? Would the “terminally ill” Schabir Shaik have been released on medical parole to improve his golf handicap if he was not the guy convicted of bribing the President?

Despite these problems, accused person will generally get a fair and impartial hearing before a presiding magistrate or judge. But presiding officers cannot investigate cases, cannot provide better legal representation to those who cannot afford it and cannot ensure that all crimes are investigated with the same diligence and vigour. Neither can they generally ensure that the NPA act without fear, favour or prejudice in deciding who to prosecute and who not. They can only judge the case presented to them by both side in the most fair and impartial way possible, weighing up the evidence like blind Lady Justice. But because the scales used by Lady Justice are not always properly calibrated, the outcomes of different cases can sometimes seem inconsistent and it can appear as if different people get different treatment depending on factors that have nothing to do with the guilt or innocence of the accused.

  • Chris

    Unfortunately all humans seem to share the idea that the rich should be respected and the poor despised. I saw it this week. I own three cars, the most expensive being a luxury Mercedes Benz. the cheapest a 1985 Nissan Pulsar which I keep for sentimental reasons and take for a drive every 6 weeks. On Saturday I took the Pulsar out on the road. People hooted at me, flashed their head lights for to move over. One guy even opened his window to shout some insults at the way I hold him up. When I drive the Merc at the same speed and in the same manner its a totally different story. People move away to make space for me to pass. No hootets, no flashing lights, no shouting. Simply because they percieve me to have money and therfore also power. Just the same in law. Therefore I can’t arrive at court in my Pulsar, because then people see me as a loser and treats me as one as well. Same with the entire legal system.

  • Gwebecimele

    Add sponsorship to that OP gets more than Caster Semenya…?

  • Hlophe

    Pls e-mail me more articles of this nature.

  • http://www.ozoneblue.co.za/ Ozoneblue

    “Lady Justice, the Roman goddess of Justice, is supposed to personify justice in a modern state.”

    Modern AFRICAN states as well? Doesn’t that smell too much of cultural imperialism – then this bit of acerbic post-modernist irony:

    “There are several reasons for this. Some of these reasons can be traced back to the nature of South Africa’s common law criminal justice system – a hangover from the colonial era.”

    Sweet [Roman] Goddes of justice is a hang-over from colonial era. RREALLY?

    LOL.

  • Zoo Keeper

    Chris

    I drove a 1990 corolla until about 18 months ago. No aircon, no power steering. Cops left me alone.

    Bought an A6 after much pressure to upgrade, got touched for a bribe!

  • Zoo Keeper

    Prof

    Its all about checks and balances. Yes, socio-economics do play a role and always will. The checks and balances are there to attempt to bring balance between the power of the State and the weakness of the individual.

    They are there to protect the accused from unfair prosecution and make sure the power of the State is as restrained as possible. It is a different function from what I assume to be the point of your article, which is access to effective justice.

    Whether or not Fingers Jim can afford 10 lawyers to defend himself from yet another apple-stealing charged like Zuma is a therefore separate issue.

    Unless the top lawyers are paid top dollar to represent Fingers Jim by Legal Aid he has no chance.

    In your socialist utopia, your ideal would be for the best lawyers to be paid by the State and available to anyone who asks. However, that puts lawyers under the control of the State and is a critical invasion of the separation of powers.

    There is actually a fundamental principle here that is immovable.

    The best way is not the fairest (as between the accused) but it was never intended to be fair, it is designed to be the safest.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Zoo Keeper
    February 26, 2013 at 7:02 am

    “In your socialist utopia,”

    You clearly have a problem with that. What is your vision for our society then, a capitalist hell? No isn’t that something to aspire to.

  • Chris

    Zoo Keeper says:
    February 26, 2013 at 6:53 am

    My experience is just the opposite. When I drive the Pulsar every traffic officer stop me.

  • Zoo Keeper

    OB

    No such thing as a capitalist hell, but there are plenty of examples of a communist hell.

    You see, the greatest irony is that under communism the Party owns all the means of production on behalf of the population. The population is then stripped of its rights and enslaved to produce for the Party, on behalf of the population.

    To keep going, the Party has to trade with other countries to raise finance because it cannot do so internally. There is no economic growth under communism you see, because it is simply impossible. There is no tax base because everyone works for the State, so the only income can come from foreign sources. This is why each and every communist state is an economic failure.

    Capitalism basically is the opposite – small government facilitating economic growth. Low taxes results in more spending so more tax is raised (Reaganomics I think). Better services and infrastructure is built and the population can employ their talents as they see fit. In the capitalist world, if you want to, you should have a shot at making it. Maybe more than one shot too.

    Under communism, the average Joe and Jane Public have no options and are slaves.

  • Zoo Keeper

    Chris

    When I say pulled over, I mean it the sense of wanting something. I did get pulled over by some metro cops and SAPS for the same reason taxi drivers used to pull me over or ask to speak to me in the traffic – they all wanted to buy it!

    Popular car is a serious understatement!

  • Richard Catto

    Clearly our legal system needs a major overhaul. The ANC has 100% totally failed its electorate by not reforming the legal system to make it accessible to even the poorest person so that they may get justice.

    1. Legal representation should be guaranteed by the state for all matters, civil and criminal no matter what the defendent / respondent earns

    2. Rich and / or famous people must not get preferential treatment at all

    3. Judges must be elected by the people, not appointed

    4. Chief Prosecutors must be elected by the people, not appointed

  • Mike

    @Richard Catto – “elected by the people” that is the biggest myth going. As it is a person living on welfare by the state has the same vote as me paying R100,000 a year in tax, so what do you think they are going to vote for. What do think those living under tribal authorities are going to vote for, well they are going to vote for what the Chief tells them to vote for.

  • Zoo Keeper

    Mike

    An old friend of mine used to say democracy should be qualified. Those who pay no tax should get one vote, and then as you move up the ta brackets you get more votes. So at the top the guys with the biggest tax burden should get, say, 5 votes because its their money that is being spent!

    If the poor guy wants more votes he just has to go out and start working and paying more tax!

  • Richard Catto

    one man one vote is the only system that works. none of your rich man’s version of democracy. if you want that, go buy an island and rule your fiefdom.

  • Anonymouse

    Generally a very good post Prof. During research for my LLD thesis, I rather extensively investigated the way the criminal legal systems work in Continental Europe – I did a comparative study of the approaches of the so-called civil law systems (I chose Belgium, Germany and the Netherlands); the common law system (England and Wales); and the so-called hybrid systems, with traces of both civil and common law (Canada and South Africa) to the legal questions that I investigated from an international law (as opposed to national or muniicipal law) perspective.

    Besides the legal issues that I investigated, the followinng stood out quite well:

    The common law and hybrid systems, are adversarial systems, while the civil law systems as inquisitorial ones. The latter have their advantages as far as fair trials and crimminal justice are concerned – For example, judges and magistrates, who are well trained at law, do their own investigations through the police and private agencies like NGO’s and by questioning all prospective witnnesses in search of the truth (as you highlighted above), and private lawyers are only there to check that witnesses are not being bullied, and to defend the accused person in terms of the law (the facts mostly having alkready been established at trial stage). Judges and magistrates are trained to be impartial – defence lawyers and prosecutors generally not. Furthermore, in civil law systems, the office of the National Prosecuting Office (e.g., the Openbaar Ministerie in the Netherlands and Belgium) more often than not has no choice but to place a case before an investigating judge or magistrate where a private person (any person) filed an official complaint (even a frivilous one), and the thing cannot be sweeped under the carpet bby the NPA as is possible in South Africa. The police are also well trained and would leave virtually no stone unturned to investigate the angles and directions the investigating judge or magistrate requires of them. The investigating judges and magistrates generally do their jobs without fear or prejudice, and they are not at all scared of impugning even people in high office like heads of state or well known politicians or businessmen and women. There is also much more room for judicial activism in civil law systems than in common law or hybrid systems.

    One of the biggest problems in South Africa (and I might be crucified by some members of the Bar and Law Society for saying this) and, to a lesser extent iin Canada, is that the fee structure of private practitioners is not to a degree regulated, and that private practitioners usually rely on sucesses in court for a healthy income and practice. Once someone got out of the NPA (or even the magistracy), except for ‘career prosecutors’ and ‘career judicial officers’ like some I know, and smelled and tasted the lucrative business of the private world they are unlikely to return to public office. Some SC’s even regard it as financial suicide should they take up the position of judges in the High Court or higher up, let alone in the lower courts or in the NPA or at the Legal Aid Board.

    In the UK, however, Queen’s Counsel can be briefed by either the state or private client – at the same fee, and one would often find that, in one case, a QC acts for the defence, but in another case, he or she acts as prosecutor. Judges and magistrates usually earn more than other lawyers appearing before them, and therefore one does not often see the criminnal legal system drawn askew as in South Africa due to the unequal lawyering system we know. And, lets face it, like many legal aid lawyers, many prosecutors inSouth Africa today are not up to lawyering as is required in terms of the criminal legal system that we have – and they are often overshadowed by private practitioners who can (and do) charge an arm and a leg for their sucesses. In this regard – I am all for the new proposed legislation to regulate private legal practice.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Zoo Keeper
    February 26, 2013 at 9:22 am

    “No such thing as a capitalist hell, but there are plenty of examples of a communist hell.”

    Let us not get bogged down in cheap political propaganda. The point is the fees for lawyers/attorneys are exorbitant. Obscene. There are many other very important professions who work under government regulated fee structures, this doesn’t mean that they work for the state as you suggested.

  • Gwebecimele

    “The perks of a new government are not really appealing to me. Everybody would like to have a good job, a good salary… but for me that is not the be-all of struggle. What is important is the continuation of the struggle. The real problems of the country are not whether one is in Cabinet… but what we do for social upliftment of the working masses of our country.” – Chris Hani

    HOW MANY LEADERS CAN REPEAT THESE WORDS TODAY?????????

    “There was a time when fighting for the right of our children for textbooks, water and the right to a toilet in our schools was revolutionary. When standing up and condemning teachers who sexually assault our children in our schools was courageous. When we stood up and spoke against wasteful expenditure and corruption of government ministers and public officials and it was the right thing to do.

    Today, hardworking social activists fighting for these rights are called neo-liberals and counter-revolutionaries.” Jay Naidoo

  • Mike

    @Richard Catto – then why has it failed throughout Africa.The only way it can survive is through a qualified franchise as Zookeeper alludes to.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Zoo Keeper
    February 26, 2013 at 9:46 am

    “An old friend of mine used to say democracy should be qualified. Those who pay no tax should get one vote, and then as you move up the ta brackets you get more votes. So at the top the guys with the biggest tax burden should get, say, 5 votes because its their money that is being spent!”

    So if the ruling classes are clever they can put as little as possible into education, keep wages as low as possible and maintain an abundant pool of cheap labour thorough political control. Your system is not much better different than Apartheid then. In fact it amounts to economic apartheid no doubt.

  • Gwebecimele
  • http://www.ozoneblue.co.za/ Ozoneblue

    Gwebecimele
    February 26, 2013 at 11:19 am

    “A very small number of South African taxpayers bear almost the entire weight of the South African state on their tired shoulders. :

    So I assume then if we liberate those 1.5 mil rich people from the patriotic duty to pay taxes they will be assuming responsibility for building all the roads, highways, harbours, railway stations, power grids, water distribution, sewerage farms, hospitals, clinics, schools, universities, police stations, etc, etc, etc?

    All for themsleves, ie. their private use.

  • Mikhail Dworkin Fassbinder

    @ Jay Naidoo (quoted by Gwebs)

    “Today, hardworking social activists fighting for these rights are called neo-liberals and counter-revolutionaries.”

    With due respect to Mr Naidoo, we view these so-called “social activists” as LIBERALS to the extent they have been co-opted by foreign interests and opposition parties for the purpose of undermining government’s efforts to uplift all our people. We all heard Mr Zuma setting out concrete plans help of our people in his SONA address. Sadly, so called “social activists” often do more to hinder than to help Mr Zuma in this regard.

  • Vuyo

    Pierre, a woman just killed her two sons and then committed suicide. Where is the righteous indignation from the likes of yourself and organisations like POWA. Or is violence fine as long as its men who are victims? And if such is the standard, why (if my gender/sex is disposable) should I as a man be bothered with violence against women? How do you bright activists at 702, leadSA, etc, propose to end the level of violence in our society when violence against men is ignored and is deemed acceptable?

  • Maggs Naidu – Yikes, another seven years! (maggsnaidu@hotmail.com)

    Anonymouse
    February 26, 2013 at 9:59 am

    Superb Post, Doc Mouse.

  • Maggs Naidu – Yikes, another seven years! (maggsnaidu@hotmail.com)

    Vuyo
    February 26, 2013 at 12:07 pm

    Hey Vuyo,

    It’s a really tragic incident.

    A father whose life absolutely revolved around his kids.

    A woman who carefully planned and executed the ultimate act of betrayal on those who trusted her not in the least suspecting that they were no more than objects to be destroyed in pursuit of some insane act of self-aggrandisement who will only be remembered for having murdered her children.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Vuyo
    February 26, 2013 at 12:07 pm

    You need to understand that this massive neoliberal onslaught is very much dependant on a strategy of divide and conquer. It is therefore important to fragment the struggle into a plethora of micro internecine battles – rich against poor, taxpayers against non-taxpayers, Black against White, Coloured against Black, Indian against African, Zulu against Xhosa, Boer against English, man against woman, disabled against abled, gay against heterosexual, rural against cosmopolitan, traditional against modern, short against tall, thin against, fat, ugly against pretty, etc, etc, etc. and so on and so forth.

  • Zoo Keeper

    Vuyo

    You will be stunned by silence.

    Media outcries about 2500 women killed every year forgot to add the 12000 men killed every year.

    If your race and gender doens’t fit, you don’t get any outcry!

  • Chris

    Anonymouse says:
    February 26, 2013 at 9:59 am

    “Some SC’s even regard it as financial suicide should they take up the position of judges in the High Court or higher up, let alone in the lower courts or in the NPA or at the Legal Aid Board.”

    Absolutely correct. The other day I asked an SC after he worked on the high court bench for 6 months when is he going for a permanent appointment. His answer: I can’t, I’ll die of hunger if I do that”.

  • Zoo Keeper

    OB

    I mentioned the theory of a friend of mine. But its worth a thought, even if it gets short thrift.

    In this country it could have a serious backing from the taxpayers who stump up huge amounts in tax and receive nothing back. In fact, not only that, but they make a loss in having to pay for government services themselves – medical aid, security, education etc.

    If taxpayers had a bigger say, if they could bring the government to heel, we’d be better off.

    For example, the State lost R46bn in “wastage” (corruption), no plan to rectify, just raise taxes to make up the R46bn shorftfall.

    That is simply disgusting and in a normal country should be enough to see the ANC into the minority seats.

    Someone who pays nothing but receives everything appreciates nothing. That’s why service delivery protestors destroy their infrastructure. Its always been there and somebody else pays from a bottomless pit of money. So why not destroy it? Its not hurting them and they’re not going to have to pay for its replacement. its destruction is meaningless beyond the smoke and flames which expresses their anger.

    Real democracy only really exists in middle-class societies, where people are paying and want to know what’s happening to the money. Here, the tax base is politically negligible, so it doesn’t matter what the State does to them.

    I believe the poor should pay some tax. For example: it is unacceptable that the “poor” get free pass on the e-tolls. They must pay and feel the pain of their hard-earned cash being squandered. Then we’ll see some real democracy in action!

    Our tax base is shrinking. I have many clients looking to establish a footprint north of the border and get out of SA. The ANC is running this place into the ground – fact.

    Besides, your notion of reducing education etc is idiotic. The reason tax-payers pay is to receive services. They want top class schools across the board. More tax payers will share their burden and there will be more clients.

    Your example is a throwback to an extractive economy which will not last long.

  • Zoo Keeper

    Mouse

    Would love to read your thesis.

    I think our political system is too immature to countenance such State involvement. At the moment, with one party dominance, there would be a major loss of confidence in the independence of the judiciary.

    Certainly, if the civil system were here, I would bet the ANC would pack it cadres and the results for investigating corruption would be even worse than they are already.

    Pay of judges is a problem. Yes they are paid a lot by most people’s standards, but when you have to bring someone off the Bar, you gotta pay them the same or more than they would earn as a silk. You’re looking at quadrupling judges’ salaries at least.

  • Chris

    Zoo Keeper says:
    February 26, 2013 at 13:33 pm

    There was a time when silks joined the bench when they were ready to retire. That is not the case anymore. Judges are becoming younger, and practitioners must with an appointment to the high court accept a substantial lowering in their standards of living. Even magistrates: As far as I know Desmond Nair, who heard Oscar’s bail application last week, earns as Chief Magistrate of Pretoria substantially less that the Chief Prosecutor at his office. Something like R300,000 I’m told. He probably earns less than Gerrie Nel, and we all know he gets a fraction of what Barry Roux makes. Yet the buck stopped with him.

  • spoiler

    I agree that legal costs are prohibitive but the amounts touted in the press for high profile cases are not indicative of the general situation. A bright junior counsel can be had for way less than you’d imagine and there is some control over rates.

    Give me our legal system over a euro or English system any day. Ever wanted to contest a will in the UK – its easy and there are firms which advertise this as a speciality. Why, beacuse the archaic Wills Act requires strict formalities and does not trust a court to make a finding that the will reflects the intention of the the testator, as our act allows.

    Our criminal legal theory ( so eloquently explained by PdV and Annon in the other OP thread) is also streets ahead of some other jurisidctions.

    Our deeds registries system is also the envy of other countries, so there is a lot that is right with it.

  • Anonymouse

    Maggs, Chris and Zoo Keeper – thanks for the kind words.

    Zoo Keeper – unfortunately I cannot divulge the title and whereabouts of my thesis (except for saying that copies thereof have been filed at the SCA and the CC libraries in adition to the University library), simply because by doing so I would sacrifice my anonomity (mouseness if you wish). As a regional magistrate who (by the way) earns the same as Chief Magsitrate Desmond Nair (but not the same as Chief Magistrate Special Grade Jooste of Jhb, who earns the same as a Regional Court President), which is to the tune of 30-35% of a judge’s complete remuneration package, I have learnt that it is best not to be too conspicuous lest judges read my posts. At the momennt I have an excellent track record as far as appeals are concerned (less that 0.5% succeeding), and I am afraid that it might just take a turn for the worse if my identity becomes known.

    Nevertheless – I see we all agree. Judicial officers in this country earn too little (although it may be regarded as too much by some) compared to what Silks, junior advocates and even attorneys earn. Now, that is where the real problem lies. Because the private legal profession is so lucrative (just imagine how much tthe guys at the Marikana Commission earn for representing the vvarious parties involved; or, just imagine what it must cost parties to take their matters to the SCA oor thhe Constitutional Court – definitely not something that I can afford), it becomes bad for bussiness if one’s clients are convicted. Therefore, the bigger the carrot, the bigger the chances of such lawyers using tactics and shows of force that will over-awe junior prosecutors (or even the NPA as in Zuma’s instance); and, sometimes, even judicial officers. This is good for business as far as they are concerned, but bad for the administration of justice, so that, nowadays, more injustice is being dealt by the system thann justice.

  • Zoo Keeper

    Chris

    I remember that being the case too. In effect, the silks used the bench as their retirement. 10 years of service back to the profession at a vastly reduced salary but with the excellent pension package.

    Judges are younger because of transformation – simple. Judges are now becoming career judges and not Bar career followed by Bench. It was a good system until transformation saw so many young judges on the bench. One of the positives was that the candidate would almost always be more experienced than those appearing before her; and would have a proven track record of ability.

    We have different concerns operating but still need the big boys on the bench from time to time. Those salaries have to be increased to make it worth their while.

    Magistrates are a different story. They fulfill more of an administrative role (very crudely put I’m sorry) than being a jurist. Their salary is quite low comparatively speaking and there should be room to grow that a bit. I don’t know their pension arrangements but one would hope its generous like the judges’.

  • Anonymouse

    Zoo Keeper

    February 26, 2013 at 14:27 pm
    “Magistrates are a different story. They fulfill more of an administrative role (very crudely put I’m sorry) than being a jurist. Their salary is quite low comparatively speaking and there should be room to grow that a bit. I don’t know their pension arrangements but one would hope its generous like the judges’.”

    Administrative roles of magistrates have been removed and they are now being (or supposed to be) renered by what is known as Court Managers – people with degrees, but noot necessarily (or not even mostly) in law. Neverrtheless, magistrates are now puerly judicial officerrs and the onlly administration that some of them (notabbly the judicial heads at the different offices – especiially Chief Magsitrates and Regional Court Presidents) do, is the same as that of a Judge President. For the rest, they do court work – just like judges.

    That the salaries of magistrates are low commpared to that of judges, go and look at the papers filed in the remuneration dispute between Association of Regional Magistrates of South Africa (ARMSA) and the President in the CC that was argued on 19 February (the papers are available on the CC’s website), especially those filed by Matt Chaskalson SC on behalf of ARMSA. Suffice it to say that, while in 1983 (the hey-days of apartheid), regional magsitrates received a remuneration package equal to 83% of a judge’s pay. Even though their jurisdiction (by the way – regional magistrates never had any adminniistrative duties – and the title ‘magistrate’ is therefore a misnomer) have been increased to include competency to try all criminal matters (including rape annd murder) except treason (which is reserved for the High Courts); the competency to impose life imprisonment in some matters (on equal footing than the High Courts); and, the newly allocated civil jurisdiction that falls somewhere between that of normal district magistrate’s courts and the High Courts. They do 90% of all the most serious criminal cases, and soon they will be doing the biggest chunk of civiil work in the country. But their salary packages have since 1983 been reduced so that their total remuneration package noow equals in the region of 50% of a judge’s basic salary package. Then on the pension issue – magistrates pay 7.5% of their basic salary packages (60% of the full package), and the employer’s contribution (15%) is structured from the flexiible portion of their remuneration packages. In other words, magiistrates pay for their own pension in full, and the employer does not pay anything in addition to the remuneration packages. This entitles them to go on pension with a monthly pension e

  • Zoo Keeper

    Mouse

    Thanks, I was not aware of that background.

    If magistrates earned 83% of judges, it is difficult to see why that ratio has changed so dramatically when pressed for a reason – except of course the fact that high-ranking struggle folk became judges not magistrates might just have something to do with it.

    I do believe it is a fundamental that those who dispense the law should be incentivized against corruption. That is the rationale behind the pension provisions for a judge. I do not see why it should not be the case for magistrates.

    You are correct, magistrates see to the bulk of judicial work and should be remunerated accordingly.

    R300 000p/a (if that’s the figure) is quite frankly pathetic and about a junior associate salary. The salary of magistrates should be around mid-director level of about R1.2milp/a and pension like the judges of salary for life and then once deceased your spouse inherits the salary (judges are on R1.8m p/a if I’m not mistaken).

  • Anonymouse

    Zoo Keeper

    February 26, 2013 at 14:27 pm
    “Magistrates are a different story. They fulfill more of an administrative role (very crudely put I’m sorry) than being a jurist. Their salary is quite low comparatively speaking and there should be room to grow that a bit. I don’t know their pension arrangements but one would hope its generous like the judges’.”

    Administrative roles of magistrates have been removed and they are now being (or supposed to be) rendered by what is known as Court Managers – people with degrees, but not necessarily (or not even mostly) in law. Nevertheless, magistrates are now puerly judicial officers and the only administration that some of them (notably the judicial heads at the different offices – especiially Chief Magsitrates and Regional Court Presidents) do, is the same as that of a Judge President. For the rest, they do court work – just like judges.

    That the salaries of magistrates are low commpared to that of judges, go and look at the papers filed in the remuneration dispute between Association of Regional Magistrates of South Africa (ARMSA) and the President in the CC that was argued on 19 February (the papers are available on the CC’s website), especially those filed by Matt Chaskalson SC on behalf of ARMSA. Suffice it to say that, while in 1983 (the Hey-days of apartheid), regional magsitrates received a remuneration package equal to 83% of a judge’s pay. In the mean time their jurisdiction (by the way – regional magistrates never had any administrative duties – and the title ‘magistrate’ is therefore a misnomer) have been increased to include competency to try all criminal matters (including rape and murder) except treason (which is reserved for the High Courts); the competency to impose life imprisonment in some matters (on equal footing than the High Courts); and, the newly allocated civil jurisdiction that falls somewhere between that of normal district magistrate’s courts and the High Courts. They do 90% of all the most serious criminal cases, and soon they will be doing the biggest chunk of civil work in the country. But their salary packages have since 1983 been reduced so that their total remuneration package noow equals approx 50% of a judge’s basic salary package. Then on the pension issue – magistrates pay 7.5% of their basic salary packages (60% of the full package) towards a pension contribution, and the employer’s contribution (15%) is structured from the flexiible portion of their total remuneration packages (the other 40%). In other words, magistrates pay for their own pension in full, and the employer does not pay anything in addition to the remuneration packages. This entitles them to go on pension with a monthly pension equal to 75% of the average of their last two year’s basic salary. Judges, on the other hand, make no contribution whatsoever to a pension fund, and they are entitled, when they are removed from active service, to full salary for life (all from the purse of the fiscus). So, therefoore, I can say that regional and chief magsitrates earn to the tune of 30-35% of a judge’s salary.

    When this will improve, I don’t know – we will have to sit out the CC judgment which I think will be in around April. But, as you might well know by now, certain magistrates (notably district court magistrates) are threatening with strike action from 18 March onwards due to their utter frustration that their plight is not recognized by the Presidency. Hopefully that will not happen. In the mean time, magistrates’ independence is under constant threat, because they are paid what the government thinks they should be paid, and, also taking into account that they belong to the Government Employee’s Pension Fund and their leave and other privileges are the same as that of publlic servants, they cannot be regarrded as truly independent.

    Now compare this to what most lawyers successful lawyers (and some prosecutors) who regularly appear before them earn, and judge for yourself whether the magistracy can be said to be truly independent.

    I would like to say yes – certain individuals view themselves as independent, and they do not hessitate to find against the government (or even reject argument of senoir lawyers) when required to do so, but some of them can be regarded as nothing but pure lackeys of the government, just like in the old days of apartheid, when the Exxecutive had full control over the lower court judiciary.

    It is here, on the coal face of jurisprudence in this country, where the biggest problem lies, and where the chances are bigger than in the High Courts that justice is not served due to the lower courts being bullied by lawyers appearing before them, being worn out by overcrowded court rolls (I was fortunate to finiish early today) and their leaving office to go to the private sector and seek greener pastures. A number of Silks I know were once magistrates, and now they do not want to become judges. But, the magistrates courts are where the most cases are being heard, and where citizens get their first, and sometimes only, brush with the law and the recognition and protection of their constitutional rights. That is where greater expertise is required – but experienced lawyesr do not want to become magistrates, just like they do noot want to become judges. Frustrations – frustrations – frustrations. (Yet, some of us are judicial officers by heart, and will even die poor, just because we feel that we have a calling to administer justice to the needy.)

  • Gwebecimele
  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Heard on Highveld this am – between Whackhead and a lawyer sort of here abouts.

    Whackhead : Your law firm specialises in accident claims
    Lawyer :Yes
    Whackhead : I want to claim for an accident at work. I was on my way to the toilet and I could not make – the accident happened before i got to the toilet.
    Lawyer : So you pooed in your pants before you reached the toilet?
    Whackhead : Yes – now I want to claim. Will you assist me?
    Lawyer : Yes. Come and see me. Bring deposit of R2500!

  • Brett Nortje

    Hate to say this because I respect all three of you – and even Pierrot – fascinating discussion, but rather esoteric.

    If you really want to discuss the functioning of the criminal justice system in South Africa you need to look at the outputs – conviction rates – 2,7% of rape and less than 1 % of trio crimes. (Or – if you are more interested in civil procedure- even registered mail as a means of serving process. It isn’t happening any more.)

    I.o.w. the failing state.

    If we were talking about the senior management of failing companies rather than the judiciary….well, they wouldn’t be taking remuneration.

  • Brett Nortje

    Meanwhile, this is the kind of person entrusted with the running of the country…Politics ANC-style (what a bunch of ANusClowns):

    http://ewn.co.za/2013/02/26/Chikas-murderers-must-pay—ANC

    ‘Law must take its course with Chika’s killers’

    8 hours ago
    Thando Kubheka | 8 hours ago

    JOHANNESBURG – The ANC in the North West on Monday said it was shocked by the arrest of local government MEC China Dodovu.

    Police arrested Dodovu during a provincial executive committee meeting in connection with the murder of ANC North West secretary Obuti Chika.

    Chika was shot in the driveway of his Klerksdorp home in December last year and later died in hospital.

    He was serving as the regional secretary of the Dr Kenneth Kaunda district at the time of his death.
    Others accused for the murder are Jeffrey Letuka, North West provincial ANC Youth League chairman Papiki Baboile, ward secretary Paul Molomonyane, councillor Itumeleng Molebatsi, municipal worker William Malefo and taxi driver Kgotso Kali.

    ANC regional spokesperson Kenny Moroleng said the law should run its course.
    “We also believe no one is above the law and those who are responsible for the brutal murder of comrade Obuti Chika must face the full might of the law.”

    Finance MEC Paul Sebegoe will in the meantime take over the running of Dodovu’s department.

    Chika’s murder is one of the many murders of ANC leaders in the North West and KwaZulu-Natal in recent months.

  • Brett Nortje

    Quis custodiet ipsos custodes?

  • Gwebecimele

    FACTS

    “However, Judge Seriti said various public office bearers, whom the commission had consulted, are unhappy with the 5.5% rise.

    He declined to name who these were, but they include magistrates who have taken the commission and the President to court, challenging the right by the President to determine pay rises for public officials and the role of the commission in making salary recommendations.

    Under the new increases, the President’s remuneration (less travel allowance and benefits) will move from R2.49m to R2.62m, while that of the Deputy President will increase from R2.24m to R2.36m.

    The salary of a Minister increases to R2m (up from R1.9m) and that of a Deputy Minister to R1.65m (up from R1.57m).

    Members of Parliament (MPs) will see their salaries rise to R889 383 (up from R843 017), the Speaker of Parliament will now take home R2.36m (up from R2.24m), the leader of the opposition R1.3m and the chief whip of the majority party R1.3m (up from R1.23m).

    Premiers will take home R1.89m (up from R1.79m), executive mayors and mayors R1.05m (up from R991 115) and municipal councillors R401 866 (up from R380 916).

    The Chief Justice’s salary rises to R2.24m to R2.36m, while those for high court and labour court judges rises to R1.53m, from R1.46m and those for magistrates from R671 219 to R708 136.

    For traditional leaders, a king will now take home R978 321 (up from R927 319) and senior traditional leaders R179 451 (R170 096). “

  • Gwebecimele

    Growing up lawyers and doctors were the usual drivers of big luxury cars and owners of mansions. All youngsters wanted to grow up to be one of those. The world is moving along and the role of these professions is slowly changing. Specialisation, technology and other developments are splitting the monopoly of services. All universities produce law graduates.

    Salaries are determined by supply and demand. LAWYERS like everybody else must take their rightful place in society.

    By the way Judges are well paid FOR LIFE.

  • Mikhail Dworkin Fassbinder

    Brett, I say the liberal media obsession with ANC office holders killing each other is pure RACISM! Why does the liberal media ignore the vicious character assassination that is routine within DA circles? Hey?

  • Dmwangi

    @Zookeeper:

    While I agree with the general sentiment of the post, your economic logic here (if one can even call it that) is utterly nonsensical:

    “To keep going, the Party has to trade with other countries to raise finance because it cannot do so internally. There is no economic growth under communism you see, because it is simply impossible. There is no tax base because everyone works for the State, so the only income can come from foreign sources. This is why each and every communist state is an economic failure.”

  • Ze Philosopher

    Doc Mouse :p. Would you be so kind and be my mentor? PdV, “Good lawyers are well placed to exploit these processes to the advantage of their clients”-Greatness isn’t a construct of talent only, but that of hard work and dedication. I have seen quite a number of Advocates at court briefed by Law Firms acting for RAF being complacent, I had an opportunity to ask one guy and he said to me “Comrade, what matters is, I get paid”. So we ought to place the blame at incompetency’s door or friends briefing friends. If not gifted like your counterpart in Court, I believe you should compensate that with hard work. Acquaint yourself with the pros and cons of the matter at hand. But most of our Advocates and Attoreys don’t do that, they rather suck up and heap praises. That’s just being ignorant, it’s hogwash because they never even put their best foot forward. “There is also a good chance that awaiting trial and convicted prisoners will receive different treatment depending on their race, social status and political connections”- Like they say, Some people are more equal than others. Zuma even said something of that nature. Turning to our judges- I think a judge in a court of law is expected to engage in reasoned judgment. He’s expected not only to render a judgment, but also to base that judgment on sound, relevant evidence and valid legal reasoning. He’s not expected to base his judgment on his subjective preferences, on his personal opinions as such. You might put it this way, judgment based on sound reasoning goes beyond, and is never to be equated with, fact alone or mere opinion alone. Facts are typically used in reasoning, but good reasoning does more than state facts. Furthermore, a position that is well-reasoned is not to be described as simply “opinion”. Of course, we sometimes call the judges verdict an opinion, but we not only expect, we demand that it be based on relevant sound reasoning, so how is that ever going to be achieved if one goes to court unprepared? I think injustice boils down to incompetence. I think we should also revisit the President’s powers in our Constitution.

  • Anonymouse

    http://www.news24.com/SouthAfrica/News/Tragedy-hits-magistrate-in-Pistorius-case-20130226

    Poor Des (and family) – but this is what we magistrates must sometimes cope with (my brother’s son was gunned down by armed robbers not too long ago; some of my colleagues have been gunned down by gangsters; I have myself been receiving death threats from time to time; one guy I once sentenced for rape walked out of court, into the holding cells and shot himself in the mouth with a fire arm he wasn’t supposed to have in court; etc – but we still need to stay objective and impartial regardless of such criminal behaviour and personal bereavement also hitting us). What I want to say – we judicial officers are also normal people, with the same (or sometimes worse) stresses as private people.

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Anonymouse
    February 26, 2013 at 17:28 pm

    Indeed Doc.

    “Poor Des (and family)”

    It must be pretty soul-destroying discovering the beast that was within that awful person.

  • Ze Philosopher

    We are sincerely sorry for the tragedy that has befallen Desmond Nair and his family. May the good Lord be with them.

  • Chris

    Zoo Keeper
    February 26, 2013 at 15:08 pm

    A Chief Magistrate and Regional Magistrate doesn’t earn R300,00 but I understand they earn about R300,000 less than a Chief Prosecutor.
    What I can say about the work of a Regional Magistrate versus a High Court Judge: The Judge handles appeals and reviews, constitutional matters and civil cases where the amount involved is more than R300,000. Regional magistrates have in the past decade or so for all practical purposes taken over the criminal work and divorce cases from the High Courts and impose life sentences. Oscar Pistorius will probably be tried in the High Court because of his public profile, but a Regional Magistrate has the jurisdiction to precide over his case. Had he not been well known he would probably have ender up before a Regional Magistrate.

  • http://www.ozoneblue.co.za ozoneblue

    “Oscar Pistorius will probably be tried in the High Court because of his public profile,”

    You mean he has lots of money- dont you. And the much much much more than 300k shysterati – they thrive on this.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Brett Nortje
    February 26, 2013 at 16:18 pm

    “Police arrested Dodovu during a provincial executive committee meeting in connection with the murder of ANC North West secretary Obuti Chika. Chika was shot in the driveway of his Klerksdorp home in December last year and later died in hospital. He was serving as the regional secretary of the Dr Kenneth Kaunda district at the time of his death. Others accused for the murder are Jeffrey Letuka, North West provincial ANC Youth League chairman Papiki Baboile, ward secretary Paul Molomonyane, councillor Itumeleng Molebatsi, municipal worker William Malefo and taxi driver Kgotso Kali.”

    Brett. The ANC leadership in NW is unadulterated racist, criminal scum.

    Apparently when Zuma and Mantashe came here they argued for Combrinck to be left power until 2014 cause they felt that she was doing a good job, but these greedy self-entitlement cunts would have nothing of it.

  • Mikhail Dworkin Fassbinder

    @ OzoneB

    “The ANC leadership in NW is unadulterated racist, criminal scum.”

    Do you really think the DA would do any better? Think about it. The one part of our country run by the DA has descended into a vortex of uncontrolled violence, intimidation and gruesome terror!

  • Mikhail Dworkin Fassbinder

    Pierre, I have looked very carefully, and it appears to me that your “Lady Justice” is WHITISH. Please correct that. As Zapiro will tell you, these little things can be quite important in South Africa,

  • Zoo Keeper

    Dmwangi

    Why is the economic stuff nonsensical? In a communist state the State owns all the means of production. Everyone works for the State. No-one is trading independently.

    If I’m wrong, I’d welcome the correction.

  • Mike

    @MDF – Quite correct she is whitish and so she should be because blacks in this country owe their written langauge, which is barely 200 years old to the white settlers who translated their spoken langauge into a written one.

  • Paul Kearney

    I suppose that because I’m a technical person and understand the law to beTHE LAW; largey applied without fear or favour because its wording is clear and unambiguous (in the main) I struggle to believe that PdV isn’t a cadre deployee as he adopts a fairly common ANC line: a few errors; change the whole system. He quotes a few examples without any real analysis then suggests that the whole system is wrong, colonial relic etc etc. He dosn’t seem to appreciate that his examples are failures of police and prisons it seems; not justice. He doesn’t analyse his examples to show that these are travesties due to political interference, corruption or just errors, not failures of the system.

    It seems that its not only justice who is blind.

  • Zoo Keeper

    Paul Kearney brings up an interetsing point.

    “Colonial relic”.

    What this means is that as soon as colonialism is used as a reference somehow the system is “wrong”. The system is incorrect only so far as it doesn’t work, which requires a factual analysis of the system.

    Mouse has done an LLM on the subject so he is best placed to actually tell us what’s what.

  • Gwebecimele

    Where is Prof Mokgoba, there might be some prevalance of “dethroned Bonobo syndrome” some where in Potch????

    http://mg.co.za/article/2013-02-27-a-monster-of-racism-at-potch

    “This week the vice-chancellor, Theuns Eloff, conceded that “there are some levels of intolerance … It’s not heaven here, but I haven’t seen real issues that haven’t been dealt with properly.”

    He admitted, though, that the largest of its three campuses, Potchef­stroom, where only about 25% of students are black, would not mirror the country’s almost 80% black profile any time soon

    “By 2020, we want 30% black students and 30% black staff,” he said.

    Tufvesson, a coloured woman, became the university’s first executive adviser for transformation and diversity management in 2011. She said she was dismissed because she questioned the way the university approached transformation (“NWU transformation officer to fight dismissal in court”, M&G Online, February 13)”

  • Mikhail Dworkin Fassbinder

    @ Paul Kearney

    “I struggle to believe that PdV isn’t a cadre deployee”

    I also struggle to believe this. Although I do not always agree with what he says, I must admire how effectively PdV disguises his ANC loyalty. He seems almost obsessive in grasping almost every opportunity to depict ANC as conservative, corrupt, anti-poor, undemocratic, hostile to rule of law, etc. Obviously, Luthuli House has instructed him to remain “deep undercover” – for now!

    Thanks.

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    February 27, 2013 at 11:50 am

    LMAO Dworky,

    “Luthuli House has instructed him to remain “deep undercover” – for now!”

    Some people …

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    p.s. Will Paul Kearney please let Pierre know when it’s safe for him to come out of the closet!

  • Mike

    @MDF (alias Deep Throat) – “corrupt,undemocratic,hostile to the rule of law ” yep that’s an accurate description of the ANC.

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Mike
    February 27, 2013 at 10:06 am

    Good point Mike,

    “@MDF – Quite correct she is whitish and so she should be because blacks in this country owe their written langauge, which is barely 200 years old to the white settlers who translated their spoken langauge into a written one.”

    Thanks for reminding us that WHITE people invented written language!

  • Mike

    @Maggs -No they did not invent the written langauge, they introduced it to Southern Africa to black africans.
    Clearly Maggs you cannot debate what is actually written and you attempt to introduce a diversionary argument that was never argued in the first instance.
    Whites dont go around like MDF pronouncing on Romaness and Greekness and Phoenecianess, they accept what previous conquerors have added to their culture.
    And so should black africans if they are honest enough.

  • Brett Nortje

    Typical Maggs deflection. If only he did not stand out like a dusky fellow against a white background….

  • Mikhail Dworkin Fassbinder

    @ Mike

    “Whites dont go around like MDF pronouncing on Romaness and Greekness and Phoenecianess”

    With respect, Mike, my ancestors in what is now Slovenia practiced a rich written culture long before the Phoenician (630 BCE), Greek (420 BCE), and Roman (90 BCE) IMPERIALISTS, imposed their barbaric alphabets. I will lend you fragments of finely texted parchment of you don’t believe me!

    Thanks.

  • Brett Nortje

    Of course, the one example that makes every member of the judiciary look like a bit player in a farce is the refusal by Hulley/Zuma to hand over those tapes.

    Everyone together now:’CONSTITUTIONAL CRISIS!’

  • Mike

    @MDF – Dont know what you point is because all the ancestors of whites in this country came from Europe as you claim to come from.
    Maybe you like Maggs should also put more thought into taking a crap before typing rubbish on the internet.
    Have you heard of the Marian Hill Monestry in Pinetown in KZN, well it is the biggest in the Southern Hemisphere, it was built before the Indians arrived in Natal and it served both the black and white communities of the Durban Pinetown region.
    There is nothing that the indian community has contributed to equal that ever.Some more facts, get out into the northern areas of the Transkei and vist the hospitals and schools, still in existence today that the scots missionary’s built including established some of this countries most countries most beautiful stone bridges.
    One does not know whether you are in fact from the Balkans but you are overstaying your welcome with the crap you write based on your ignorance of this countries history.

  • Mikhail Dworkin Fassbinder

    @ Mike

    “Maybe you like Maggs should also put more thought into taking a crap before typing rubbish on the internet.”

    Mike, I can assure you that, whenever possible, I purge myself fully before I make my first “contribution” of the day. I can’t speak for Maggs; for all I know he practices an elaborate Hindu cleansing ritual!

  • Brett Nortje

    Fassbrander’s problems with constipation are legendary.

  • Mike

    @MDF – As I thought you did not know of the existence of the MarianHill Monastry or the Scottish mission Hospital and Schools of the Northern Transkei areas.
    You made a stupid comment about the whitness of lady justice not realizing that 200 years ago blacks in SA had no written langauge in this country.
    The benefit they received by having their langauge translated into the written word by the Scottish missionaries is very very under estimated and should be put on the same table as these land claim debates.
    In other words lets talk about interlectual property royalty’s on the use of the western alphabet, that should make an interesting debate.

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Mike
    February 27, 2013 at 14:44 pm

    So Mike,

    If WHITE people did not invent written language, did they steal it (just like WHITE people stole most of the land in South Africa)?

    p.s. Don’t worry about the land, Brother Mugabe and Brother Dmwangi (may the spirit of Father Idi Amin be with him always) have a plan to get it back!

    p.p.s. Minister Xingwana want to have a word with you about your Calvinistic tendencies!

  • Mike

    @Maggs – Once again Maggs they converted the black spoken langauges into a written langauge. You seem to have a problem grasping this, maybe the apartheid crutch you hang onto is not so steady after all.
    Yes Maggs Calvinistic tendencies, then maybe you want to comment on the Indian women in Fourways poisening her two sons as I recall growing up in Durban the most used being Wintergreen.

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Mike
    February 27, 2013 at 15:12 pm

    Mike,

    “There is nothing that the indian community has contributed to equal that ever.”

    I have you know that Amichand Rajbansi (God bless his soul) and Vivian Reddy have made huge contributions to South Africa.

    And they did not steal any land – ok maybe just a little, bit but not all!

    Also Shabir Shaik was also in the struggle (after 1994 that is).

    p.s. So WHITE people built bridges, eh.

    Well that’s nothing – Julius Malema also built a bridge.

    It cost hundreds of millions – he could have just kept the money, but no, he did the honourable thing and built a bridge.

    Admittedly it was a small bridge and would have cost a fraction of what was paid for it, but still people can cross pipe when it rains lightly!

  • Mike

    @Maggs – Maybe brother Dmwangi needs to reflect on all the Military Stores of weaponary being positioned in the west of the country as opposed to the east where all the blacks live, maybe the Nats were not so stupid after all.

  • Mike

    @Maggs – Vivian Reddys contribution is what ? I dealt with this gentleman in construction and I dont recall any giving to the community.On monday I consulted with a contractor who was presented with a R50,000 invoice from one of the tripartheid alliance members just for being awarded a contract at Kwa Mashu from one of the goverment parastatals.
    The issue here is that the Scottish missionaries donated those hospitals and schools and the Trappest monks donated Marian Hill to all race groups, now what did the indian community donate, well fuck all because your community just takes.

  • Mikhail Dworkin Fassbinder

    @ Mike

    “You made a stupid comment about the whitness of lady justice”

    Mike, the abstract noun for Lady Justice’s complexion is WHITISHNESS, not “whit[e]ness. Also, each letter of the word should be upper case.

    Thanks.

  • Mike

    @MDF – So what, maybe your idea of lady justice is an image of Winnie Mandela blindfolded with a box of matches.

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Mike
    February 27, 2013 at 16:19 pm

    Well Mike,

    “now what did the indian community donate”

    Well we donated all the labour for growing sugar cane which produced sugar which gave WHITE people diabetes!

    Plus we donated the art of eating chilli which burns WHITE peoples butts when they poo!

    p.s. Some recent research showed that WHITE people are the most generous when it comes to charity.

    What do you say to that eh?

    p.p.s. Vivian Reddy donated money to build the #NkandlaCompound and to pay rent for the First lady’s flat.

    Plus he donates generously to the ANC so his business will grow.

    WHITE people on the other hand form large construction companies which only steal from the poor people by anti-competitive practices – all the soccer stadiums in our country are a constant reminder that, er, Bafana-Bafana lost?

    p.p.p.s Congratulations to your friend for getting the tender.

    p.p.p.p.s. Did you see that WHITE people are selling donkey meat as fish?

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    p.p.p.p.p.s Mike we also donated one slipper!

  • Mikhail Dworkin Fassbinder

    @ Mike & Maggs

    Maggs, I respek everything you Indians have done for our people — and request that you keep right on giving. Meanwhile, let it not be forgotten that it was a dedicated community of Slovenian Orthodox nuns (straight), who, back in 1689, first taught Tswanas the Cyrillic alphabet!

    Thanks.

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Mikhail Dworkin Fassbinder
    February 27, 2013 at 17:23 pm

    Dworky,

    “Slovenian Orthodox nuns (straight)”

    If nuns were sworn to a life of celibacy how did anyone (especially you) know there were straight?

    Is there no chance that they were crooked like ALL other WHITE people?

    p.s. Min Xingwana is right – Brett is a Calvinist!

  • Mikhail Dworkin Fassbinder

    Maggs, this is impertinent and irrelevant question that adds precisely nothing to the debate Mike and I have been having about the respective contributions of various immigrant groups. Why do you not form your own “satellite” blog, dedicated to jokes and liberalism?

  • Brett Nortje

    Maggs, Xingwana is unemployable outside the ANC’s sphere of redeployment.

    Even that presents problems now since the ANC have already deployed her wherever they could. (Whenever they [specifically Mbeki] needed to mobilise the country along racial lines.) She has had a chequered career. Everyone remember her scintilating performance on Carte Blanche a couple of years ago? LOL!

    The methodology of MRC POLICY BRIEF No. 5, June 2004 is highly flawed, but there are some interesting snippets in it.

    Gun Free SA has often stated that half of all white families own guns. The intimate femicide rate among whites is 2,8 per 100 000, a fraction of the overall intimate femicide rate of 8,8 per 100 000.

    So, quite simply, Lulu is, once again, talking bullcrap. . .

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Brett Nortje

    Brett,

    “So, quite simply, Lulu is, once again, talking bullcrap. . .”

    So you deny being a Calvinist?

    You really should be ashamed of yourself for turning your back on god!

    At least Dworky admits to have been sired by straight, celibate Slovenian Orthodox nuns!

  • Brett Nortje

    Maggs, we’ve been crunching the numbers a bit. Simple stuff so ‘progressives’ like you could follow.

    We plotted a graph of the actual homicide rate 1994 – 2011. Then we removed the data from 2004 onwards and added a linear trendline based on the 1994-2003 data set and set it to forecast for 8 years. The end result shows a forecast ratio for 2011 of 19/100 000 vs the actual ratio of 30.

    You see, had it not been for the FCA we would have had less than 10 000 murders last year, almost back to pre-democracy levels of 5000-7000 murders per annum.

    FCA has had the effect of halving the rate of reduction of the homicide rate.

    Had the reduction continued at its pre 2004 rate 5,998 lives would have been saved in the last year we have murder statistics for…

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Brett Nortje
    February 27, 2013 at 20:35 pm

    Hey Brett,

    Fascinating stuff – we’re you playing with Dmwangi recently?

    p.s. If there’s merit in your projections then increasing gun ownership should drop homicides to zero.

    And when it does then there won’t be a reason for you to have a gun?

    p.p.s. How many of the post 2003 homicides were as a result of people being shot and killed?

  • Brett Nortje

    What turns on that, Maggs? (Your p.m.s. question?)

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Brett Nortje
    February 27, 2013 at 20:50 pm

    So G,

    Do you deny that you played with Dmwangi recently?

    Calvinist?

    That you had donkey for dinner?

  • Mikhail Dworkin Fassbinder

    Maggs, from a strictly Calvinist point of view, even apartheid was UNCHRISTIAN! Why, exactly, we are not sure.

  • Brett Nortje

    I’ve explained that to you many, many, many times Fasshouder.

    It is unChristian to try and drive other Christian people to despair. Like the ANC does now.

  • Brett Nortje

    Perhaps Lulu should have noted this tendency among us:

    http://www.beeld.com/Suid-Afrika/Nuus/Kind-dood-na-straf-oor-kos-20130226

    There was a fair amount of magisterial blinking and swallowing while reading this judgement. The prosecutor as well….

  • Maggs Naidu – Caste Away! (maggsnaidu@hotmail.com)

    Brett Nortje
    February 27, 2013 at 21:06 pm

    Indeed Brett,

    “It is unChristian to try and drive other Christian people to despair.”

    I think you should point out the following video to Dworky.

    http://www.youtube.com/watch?v=35rHhxZKGes

  • Alibama

    The prof’s explanations of the FUNDAMENTALS of law is much appreciated:
    > The common law model of criminal justice is adversarial in nature, pitting
    > the state against the accused in a highly structured and regulated battle
    > of wits. This differs from the inquisitorial system prevalent in many
    > civil law countries in which a presiding judicial officer takes an active
    > role in the investigation in an attempt to determine the truth. Because
    > the inquisitorial system is not primarily seen as a battle between two
    > evenly matched sides, the procedural rules are less strict than in the
    > adversarial system.

    This is directly analagous to the difference between Marxism & free-market:
    Marxism assumes that pre-legislated strict procedural rules will handle all
    situations justly; whereas free-market assumes that judicial-human-tweeking
    will always be needed.

    RSA seems to be in the worst possible situation [except for the law people
    who are able to milk the suffering of the population].
    The decades old rules were designed for a settler population, in a FUNCTIONING
    society. [Perhaps the traffic-lights, postal service, municipal billing..etc.
    still functions down there in CT ?] Consider eg. the, assumption of a “fixed
    address” which is embedded in the English-colonial law, which no longer applies
    for the majority of the electorate.

    As RSA increasingly moves into failed-state conditions, time limits can’t be met.
    But the vested interests can’t admit they must change/relax the rules, to
    reflect the new reality, because that would start to ‘break the rule of law’.

    The Jaftha CC-case exposed only one of the many examples of absurd legislation
    which has survived for decades, and even PdV who’s cited it repeatedly here,
    didn’t want to comment on its absurdity. When I say it’s absurd, I don’t mean
    it’s SUBJECTIVELY unjust, like apartheid legislation.
    I mean it objectively doesn’t achieve it’s intended goal, due to the
    incompetence of the SA-boere legislators. And of course it’s unfair to expect
    then to have been up to 1st world standards, other than in braaivleis & rukby.

    *MY* question is: how does a pro se tell the Court, below the SCA level:
    “If you hide behind these blind/inapplicable technical rules like time limits
    and res judicata [should have brought ground in first application] this will
    go higher, where your incompetence will be exposed.

    PS. PdV’s oft mentioned *PURPOSE* of the rule/statute is also much appreciated.

  • Gwebecimele

    Apparently about 41000 South Africans are sitting in jail becasue they don’t have an “acceptable” physical address and few rands to qualify for bail.

  • Anonymouse

    Gwebecimele

    March 5, 2013 at 13:42 pm

    With District Court Magistrates (as opposed to Regional Magistrates, mind you!) threatening with strike action from 18 March 2013 – see Daily Dispatch; Times Live and News 24 reports today – a good number of those 41,000 might soon be released when the magistrates threatening with strike action refuses to go to court and sign J7 warrants for detention when matters are postponed. It would result in utter chaos should that happen – and it would appear that, if magistrates’ demands are not met by 25 March 2013, that may indeed happen. Murderers, Rapists and Robbers who have been refused bail in the past might also fall in this category – putting suspected criminals back on the street even where almost watertight cases have been proven to exist against them for purposes of the bail hearings. Fortunately, at the moment (so I have been told by reliable source), the resolution taken in PE this weekend is that from 18-22 March 2013, the mmagistrates concerned will only do postponement of cases (no trials), but, if by then demands have noot been met or seriously addressed, this action will be escalated to include refsals to go to court.

  • Gwebecimele

    @ Mouse

    Whilst there are good hardworking magistrates in our courts, I am not convinced that our courts are performing efficiently. I hope these salary demands will be accompanied by a proper Performance Management System supported by case stats.

    I hope this is not driven by the desire to close the gap between Judges and Magistrates.

    On the other hand, I doubt if this strike would be felt by the majority of citizens even if it lasts for a month. My guess estimate is that 80% of those who are not suppose to get bail get it anyway and 98% of cases are postponed due to tardiness.

    Remember if municipality officials destroy water infrastructure they will also suffer from water shortage, magistrates are citizens.

  • Gwebecimele
  • Anonymouse

    Gwebecimele

    March 11, 2013 at 13:29 pm

    “I hope this is not driven by the desire to close the gap between Judges and Magistrates.”

    Except for reiterating that the real ‘performing’ courts (the Regional Courts) will not participate in any strike action – ARMSA (Association of Regional magistrates > Regional Courts) has taken a firm decision to distance themselves from the envisaged labour action by JOASA (Judicial Officers’ Association of South Africa > the District Magistrates’ Courts), and has decided to pursue the matter in the courts (see the documents of ARMSA v President of the RSA and Others, which has been debated in the Constitutional Court on 19 February 2013 at http://www.constitutionalcourt.org.za) – I cannot agree with your wish quoted above.

    In 1983, Regional Magistrates earned 83% of a judge’s salary. The apartheid government has wittled that down to 49% in 1993. Currently, it is in the region of 30-35% of a judge’s total remuneration package that a regional magistrate receives. See my posts above.

    Now, take into account that since 1983, Regional Courts have been given jurisdiction to try even mudrer cases (in fact, all criminal cases except treason can now be heard in the Regional Courts); the penal jurisdiction of the Regional Courts was increased from 3 years to 10 and later to 15 years imprisonment; in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997 as amended (the minimum sentencing legislation), Regional Courts are mandated to impose even life imprisonment in certain instances or, where they decide not to impose life, up to 30 years impprisonment; and, recently, the Regional Courts were endowed with civil jurisdiction at an intermediate level between the High Courts and the District Courts, and family (divorce) jurisdiction at a concurrent level with the High Courts – thereby effectively lowering the work-load of judges and accepting and absorbing the increased work-load and responsibility that the increased jurisdiction brought about. In the Regional Courts, we currently do more than 90% of all serious criminal cases in the country, and with the increased civil jurisdiction, we will be doing most of the work that judges did in the past. Our court rolls are currently loaded with between three and six trial cases per day, whereas the High Courts set doown one trial per week (or longer).

    So, why can we not yearn for a closing oof the gap between the remuneration levels of the magiistracy and the High Court judges?

    Yes, it is ttrue that there are some magistrates (mostly District Court magistrates and a small number of regional magistrates) that under-perform and, in some instances, to my mind, are not competent to properly adjudicate cases, but, the low remuneration packages is to blame for the fact that more competent people do not apply for positions of magsitrate at any level. They rather opt to apply for High Court appoinment, where their remuneration and protection oof their independence and tenuure is better. That old adage holds a kernel of truth here: “If you pay peanuts, you’ll mostly get monkeys who apply for the job.” As remarked above, even prosecutors earn much higher packages than magistrates – a Senior Prosecutor earns to the tune of R44,000.00 per month more tthan Senior Magistrates; and Chief Prosecutors earn to the tune of R33,000.00 more per month than Chief Magistrates / Regional Magistrates.

    If you read this, I am sure you will agree that the minority of District Court Magistrates and the majority of Regional Magistrates that perform well have good reason to be agrieved and frustated, even to the level of resorting to strike action (which I however agree is unbecoming of the office of magistrate and will not resort thereto). In fact, by expecting magistrates to perform better before they are paid at a higher scale (as you suggest should happen above), you impinge on the independence of the magsitrates’ courts – it is tantamount to telling a court to decide a matter in a certain way (toeing the line of the government), otherwise the presiding officer will not be paid what he deserves – in other words, the witholding of pay that a magistrate deserves is used as a stick with which to force magistrates to toe the line of the government.

    NO! – The frustration and anger of magistartes is truly justified.

  • Chris

    Anonymouse says:
    March 12, 2013 at 9:50 am

    Some junior judges may dispute what I’m going to say now, some of the most senior judges have confirmed it in my presence: It is accepted by most advocates that when it comes to criminal work, an average regional magistrate is on par with the best judges.

    I knew that senior prosecutors earned more than senior magistrates, and that chief prosecutors earned more than regional magistrates, but I never realised it was that much. The figures you give is absolutely shocking!

  • Chris

    Sorry – figures are shocking.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Dit is ‘n skryende skande!

  • Anonymouse

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    March 12, 2013 at 11:08 am

    Ja dit is ‘n skreiende skande – veral as mens in ag neem dat daar een of twee landdroste (een ‘n streeklanddros) is wat andersins nie ‘slegte’ landdroste was nie, wat tans aangekla word van korrupsie. In die geval van die streeklanddros, is hy en sy aanklaer na bewering betrap in ‘n polisie lokval met gemerkte omkoopgeld in hul besit nadat ‘n ooreenkoms bereik is dat ‘n beskuldigde wat skuldig pleit meer toegeeflik bejhandel sou word as ‘n ander. Dis die tipe ding waarvoor ruimte geskep word deur landdroste swak te besoldig – en dan sal mens kry dat Justicia nie altyd behoorlik geblinddoek is nie.

    Die oorgrote meerderheid van ons (ek sluit myself in) is egter geroepe om regsprekers van onkreukbare karakter te wees – en ons hou by ons ampseed, selfs al word ons swak besoldig. Maar, baie van my kollegas is naby reekpunt – glo my – en ‘n staking deur pparty (veral distrikslanddroste) is nie vergesog nie. Ek hoop maar die Konstitusionele Hoof beslis in ons guns.

  • Gwebecimele

    Advocate Tshole living up to the reputation of the profession.

    “The lawyers shocked the court by saying that Macia had allegedly sustained his fatal injuries days before his death – in a crash while driving a group of children home from a school trip to Mpumalanga.

    “He killed five children . he is responsible for the death of five innocent lives and now the state is trying to blame his death on nine innocent men,” said advocate Elias Tshole. Tempers flared and magistrate Samuel Makamu warned both legal teams to behave “ethically” as they clashed.” Timeslive

  • Gwebecimele

    @ Mouse

    Do yu accept these figures, they look decent to me??

    “The Chief Justice’s salary rises to R2.24m to R2.36m, while those for high court and labour court judges rises to R1.53m, from R1.46m and those for magistrates from R671 219 to R708 136.”

    Like in any other profession there might be some snr magistrates who outperform some jnr judges but that should not be the reason to close the gap instead the system should elevate the good performers to the next level and retire or demote judges who underperform. Performance evaluation is not interference.

    Our courts are failing the poorest of the poor and hide behind a judicial cloak.
    Desmond Nair seem to be a well performing magistrate therefore he needs more than a blanket increase, he needs a promotion.

    Blanket increases and demand to be closer to judges (without commitment to perform) is non starter for me.

    May all hardworking magistrates be rewarded properly.

  • Anonymouse

    Gwebecimele

    March 12, 2013 at 11:49 am

    Wow! … But then again, we are used to hear such fairytales in court, and remarks such as these that border on sheer stupidity – and such lawyers are being paid one helluva lot of money to say such stupid things!

  • Anonymouse

    Gwebecimele

    March 12, 2013 at 12:14 pm

    But – Gwebs – you are surely losing sight of the real problem – unlike judges’ remuneration, the remuneration of magistrates have since 1983 been decreased startingly. And, their jurisdiction, responsibilities and workload increased, whereas that of judges decreased.

    And, the figures you mention (which you regard as ‘decent’ as far as magistrates are concerned) are distorted. Firstly, as I have been at pains to point out earlier on, judges do noot contribute to a pension fund from their remuneration packages that you refer to above, but, they get a (full) salary for life when they are released from active duty (‘retire’). On the other hand, magistrates contribute 7.5 % of their pensionable salary (only 60% of their remuneration packages – that of judges is 75% of their remuneration packages) to the GEPF, and, guess where the employer’s usual 15% contribution to the pension fund (double the employee’s contribution) comes from in the case of magistrattes? From the ‘flexiblle ‘ portion of their remunerration packages (40% of the remunerration package)! In other words, from the total package of magistrates you quote above, magistrates contribute 22,5% of their pensionable salaries to the pension fund – whhere judges contribute none. Compared to judges who retire at 100% of their ‘pensionable’ salary (75% of the total package) – and whose pensionable salay increases together with that of active judges until they die – magistrates become entiltled (after contributing the whole 22.5% to the GEPF) to receive only 75% of the average of their llast two years’ salary! … And then there is the car thing – judges may use 25% of their total salary packages (the otherr being the 75% cash portion) as car allowances and contributions to medical aid fund (PARMED), or plain cash allowances. – But, then again, they may buy their cars from so-called government stock from the manufacturers at almost 52% of the retail value that other mortals pay. And, if they do not buy cars, they can take that as cash allowance, and still get cars fromn the Government Garage to do their official duties with. Magistrates, on the other hand, may use that what is left from the 40% flexible portion after the 15% GEPF contribution has already been deducted as car allowances (max of 25% of the total package), medical aid contributions (not PARMED), annual bonus and/or cash allowances. Trick is, however, magiistrates mmay only buy their soo-called official cars from private dealers (and not at 52% as judges are entitlled to). And, lastly, a portion oof judges’ salarries is tax exempt – not applicable to mmagsitrates.

    So, add all that up, and see for yourself magistrates don’t earn as handsomely as the figures you quote above – they are total remuneration packages, not all cash in the pocket. Compared to judges, the percentage of a judge’s salary that magistrates earn are to the tune of 25-30% (in the case of District Court magistrates that are not Chief magiistrates) and 30-35% (in the case of Regional Magistrates / Chief Magistrates and Regional Court Presidents / Chief Magistrate Special Degree). As I said above – in 1983, a Regional Magistrate / Chief Magistrate earned 83% of a judge’s salary. Today, their total remunneration packages are at 51% of a judge’s total package, but, reduced as above, that reduces to 30% of a judge’s cash in the pocket. I cannoot see that as fair – even if you stand on your hands and whistle “Jan Pierewiet” through your anus, you will not convince me that such a blatant discrimination (whilst shifting the workload and the responsibilitiies onto the shoulders of those below) is fair. So, don’t just look at the figures – which, inciidentally are the figures that the Departtment of Justice dished up to Parliament recently, without reference to the hidden figures as highlighted above. Whan looking at tthe picture as a whle, you cannot but stand in awe at the sheer unfairness of it all. (And then, imagine what judges will do when they are remunerated according to performance as you suggest magistrates should?)

  • Gwebecimele

    @ Mouse

    You know I do not approve of “Handbooks” including the Judicial one. The fact that Judges and Politicians managed to squeeze these past us as citizens should not be the basis to create another stream of gravy for magistrates. The Gap is there we cannot deny it but we can close it by holding back those who are at the top. Why should the only option be to take everyone to the next level. Everybody is demanding a raise that includes teachers, nurses, magistrates etc. The response should be the same “show value add and you will be rewarded”.

    It is common to shift down responsibilities, Principals don’t teach anymore these days, Hospital CEO’s are full administrators etc. We only hear about underperforming judges/magistrates when they appear before the JSC for interviews. It is unfair to hold back this info and only raise it when the poor fellow is applying for a snr position.
    These magistrates and judges should be delivering the kind of justice that makes life better for all unlike their infamous dealing with the e-toll, arms deal, Zimbabwe Report, corruption cases etc.

    I strongly believe efficient courts will solve more than half of our problems such as rape, murder, corruption, theft, nepotism, state abuse etc.

    Most governments like the apartheid government will reward handsomely those officials that are key to implementing or enabling infamous decisions. Magistrates were key in unleashing apartheid justice hence they were looked after in the past.

    A package of more than R700K should put you in the top 2% earners of the country if that is peanuts guess what the rest are eating.

  • Anonymouse

    Gwebecimele

    March 12, 2013 at 12:14 pm

    ” … instead the system should elevate the good performers to the next level and retire or demote judges who underperform. Performance evaluation is not interference.”

    Perhaps you might want to explain this more clearly so that I can understand. So, guys who can finalize more cases and hand down more convictions (for example) should be promoted, and those who do not should be demoted? And, those who find in favour of government agencies and officials should be promoted, and the others demoted? Or, how else should they be evaluated? A Chief Magiistrate who takes three days or more on a simple bail application should be promoted, but one who has to do moore than one of those a day shhould be demoted? (Or is it the oother way round?)

    Each case is diffferent than the other, and accused persons who are facing long term gaol have a motive to delay cases (especially once they are out on bail) – so that witnesses die or their memories fade – a greater chance to be accquitted. And, lawyers have even a greater motive to delay matters for that very same reason, because they are being paid for ttheir efforts. So you cannot evaluate performmance accooridnng too the number of cases being dealt with by some. In this Griekwastad case in Kimberley High Court, I believe the prosecution has mmoore than 90 witnesses on its list – the case is set down for three weeks. The Oscar Pistorius bail hearing – – how many witnesses testified? And, how long did it take? You simply cannot eveluate performannce without being arbitrary and unfair in the process.

    And, to be able to promote and demote judicial offiicers according to their performmance so cllearly impinges on theiir independence – even an 8th-grader can grasp that, because, if you do not perform according to the standards that the governmment set (and, impliedly, if you do not decide cases along the guidelines the government wants you to), you can be demoted; but, if you do, you are promoted. So, the judge who convicted Shabir Shaik, should be demoted, whislt the one who found in favour of Jacob Zuma in the corupption case (or the one in the rape case) must be promoted? … Like bloody hell!! … I’d say.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Dr Mouse, do you believe the criminal Courts (I Hesitate to use the word ‘Lower’ after what you’ve said) should be inquisitorial Courts?

  • Anonymouse

    Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    March 12, 2013 at 14:21 pm

    Indeed I do. We will save much more time (and get much fairer results) than what is the case under our adversarial system today – unless we can import the system of the UK, where, in one case, a QC is briefed by the state, and in another case, the same lawyer is briefed by the defence (as I have pointed out above).

  • Maggs Naidu – GOSA is FUBAR! (maggsnaidu@hotmail.com)

    Anonymouse
    March 12, 2013 at 14:37 pm

    Doc Mouse,

    It will be great for justice.

    But anything which will make lawyers less rich will not go anywhere.

    And lawyers are in control of our justice system – it’s kinda like asking Brett to lead GFSA campaigns.

  • Gwebecimele

    @ Mouse

    We have examples of Judicial officials who take more than six months or year to write judgement. Should I reming you about the rape case postponed 22 times? Why would any case require 90 witnesses that is absurd? Why not send back the state or defence to prepare properly and reduce that number to about 10? Courts are not commissions I doubt that the Farlam will reach 90.

    So what should we do with the examples I have given, leave them alone for the sake of independence.

    I am not suggesting that courts should be measured like a factory production line but doing nothing is not the option.

  • Gwebecimele
  • Gwebecimele
  • Anonymouse

    Gwebecimele

    March 12, 2013 at 16:13 pm

    Your visions of reforming the justice system will not pass constitutional muster. (And, let just one presiding officer in SA prescribe to the state and defence what witnesses they may call and what not, and how many – and see what will happen. All the Constitutional Court Justices will dirty their pants.) The question remains – if judicial work is to be evaluated, according to what standard must judicial officers perform? And, who will set those standards. Judicial systems are not exact and perfect – if they were, there would be no need for appeal.

  • Gwebecimele
  • Gwebecimele

    Mouse

    Here I am talking about basics. The following should raise a flag (If I had data, I would be more accurate)

    Case postponed 5 times or more
    Case last longer than 18 months in one court
    Bail hearing lasting more than 10 days.
    Courts with load below average etc

    These instances can be monitored and reduced.

  • Gwebecimele

    Soon they will be asking for salary raise.

    National
    Fewer clean audits in government, says auditor-general

    Terence Nombembe says that of 536 government entities audited last year, only 22%, or 117, received clean audit opinions

    BDlive

  • Gwebecimele
  • Zoo Keeper

    Gwebes

    Judicial activity is something which does not handle straight-line measures very well at all. Each case is different and takes a different approach. the overriding imperative to be as fair as possible and ensure everyone has his say does make the case take a little longer to the outsider.

    Having said that, the UK seems to have done some good by making judges case managers. This means that a judge is given a case and he manages the case actively, forcing the parties to get on with it. From what I’ve seen from the outside this has been of great benefit in reducing court time and case loads.

    This is because the most work goes in up front, not at the back end like it is here. Maybe we should take some lessons from how the English changed their system?

    Any system which ensures trials get heard quickly and efficiently is a good system.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Gwebecimele, largely I agree with you. If they had tough representatives those cases would have been turfed out long ago. Are you not looking at the wrong culprit though?

    The best example of the ANC’s destruction of the criminal justice system in the name of ‘transformation’ is not a 2,8% conviction rate for rape or a 1% conviction rate for trio crimes.

    It is the rape/murder of Charmaine Maré (16) by Johan de Jager who was charged in June 2008 with the murder/rape of Hiltina Alexander (19).

    De Jager’s first court appearance was 31 January 2011.

    The case was scrapped from the Roll 28 March last year and the poseurs at the NPA did SFA about it (like following it up) until Charmaine was murdered.

  • Chris

    Anonymouse
    March 12, 2013 at 14:11 pm

    I absolutely agree with you. To try and limit the number of witnesses is possibly the most absurd suggestion I have ever heard, it would lead to a travesty of justice. The longest criminal case I have ever been involved in took seven years from plea to judgement. After hearing more than 200 witnesses, the presiding officer had to write a judgement. First, the number of witnesses: Does it make sense to tell the prosecutor listen, you are allowed to call only 10 or 20 witnesses to prove 73 counts against 4 accused? The case was on the roll for months at a time, and at the end the presiding officer had to work though 9000 pages of evidence to write a judgement. Can he do it in a week? I think not. For those who don’t know, judges (and believe magistrates as well) do not get time off for preparing judgements, he has a full roll every day. So when he (or she) gets home in the evening, he takes the 9000 pages and start working. The high courts have researchers to assist, but its up to the judge to read all the cases, evaluate the arguments and dissect the evidence – all done after hours. The only exception is the recess the judges get. Its not a holiday, its to write judgements and do research. In the lower courts the magistrate does everything by him self. Last year a judge asked me to read a concept judgement – on top it said “11th draft”. In this specific case the judgement was more than 1000 pages. Should the judge be impeached because it took him 4 month to complete that mammoth task? Or because he used more than 300 court days to hear evidence? Then of course the remark: “Why would any case require 90 witnesses that is absurd? Why not send back the state or defence to prepare properly and reduce that number to about 10?” It shows just how ignorant some are.

    Have a look at the Saflii website. Every judge I know read each and every one of those judgements published on that site, most of the time on the day it is published.

    Then there is the remark that “Desmond Nair seem to be a well performing magistrate therefore he needs more than a blanket increase, he needs a promotion.” I do not say he is not a good magistrate, but what makes him a “well performing” magistrate? The number of cases he disposes of? His appeal record? I listened to his judgement in the Oscar Pistorius bail application, and with all respect that does not place him in a class above the rest. Pistorius lodged an appeal against some of the bail conditions, and I’m confident that he will succeed.

  • Gwebecimele
  • Gwebecimele

    @ Chris, Mouse and others

    Most south africans are not happy with the performance of our courts and I am yet to see any decent person disputing that statement.

    It does not help to quote exceptions without facts. What standard are we measuring against here ? What makes a case last for 7yrs, is that the standard? If 2% of cases lasts longer than 5 yrs then we should not measure or have KPI around the length of period. Why don’t you abolish gender just because few individuals cannot or prefer not to be classified as either male or female. If we can manage effectively 98% of our “normal” cases we will have good handle on justice system. If there is 2% that is abnormal for what ever reason number of charges, witnesses, death etc those can be handled separately. In performance management there is no “one size fits all mentality” exceptions are catered for separately. Based on historical data there is an average period for processing a house breaking, hijacking etc.

    There is nothing special about court processes they are similar to other business processes.

    I am not convinced that 70 versions (witnesses) of events add more value (than 15) to a case hence in some cases the list is not always exhausted. Unless these witnesses are talking to different aspects of the case but repeating same story 70 times is ABSURD. Infact many can line up hundreds of witnesses just to drag the case as a strategy.

  • Gwebecimele
  • Gwebecimele
  • Chris

    Gwebecimele
    March 13, 2013 at 14:30 pm

    You see, after 30 years earning my daily bread in the courtroom I’ve never heard of a case where 70 witnesses as calledor even 10, to just repeat the same story.

    BTW, a court case is not even nearly comparable to a business. Neither is it a game. Its about human lifes. Sorry, your arguments are without merit. I think you lack the knowledge to rationally debate the subject.

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Perhaps accountants should run the Courts like they do every other industry?

    Gwebecimele says:
    March 13, 2013 at 14:30 pm

  • Gwebecimele

    The Tatane case is a perfect example of what is pushed down our throats by judicial officers.
    The utterances of the magistrate are even more disturbing.

    I repeat, NO INCREASES.

  • Gwebecimele

    In the video I saw an Indian cop who is wearing a cap surely he can be easily identified

  • Gwebecimele
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