The preliminary list of ANC candidates for election to the National Assembly was leaked to the newspapers this week. Two of the names that appear very high up on that list are Winnie Madikizela-Mandela and Tony Yengeni. Questions are now asked about whether these stallwarts of the national democratic revolution are eligible for selection to the National Assembly at this time.
The answer obviously is that neither of them are.
Let’s leave aside for the moment the fact that ANC structures have nominated and have now shown enthusiastic support for two convicted criminals. In a normal society - a society in which criminals are shunned and vilified and not hero-worshipped, one in which a political party would be severely embarrassed if their members nominated two convicted criminals to represent them in one of our democratic institutions – there would have been an uproar about these names appearing so high up on the ANC nominations list.
But we are not a normal society. We are a deeply scarred and quite sick society. Just because we have enjoyed our democracy for 14 years does not wipe away the 300 years of colonialism and racist oppression which have scarred all of us living in South Africa – regardless of our race or sex.
There seems to be an acute distrust in state institutions (a distrust exploited by shady politicians like Yengeni, embattled, ethically challenged, politicians like Zuma and morally depraved sportsmen like Hansie Cronje) and a very strong “them” and “us” kind of mentality based on a perhaps understandable but warped kind of racial solidarity. Most South Africans seem to think like George Bush (if think is not too strong a word to be used in the same sentence as George Bush): “You are either with us or against us and if you are with us then it does not matter what you might have done”.
It is a sick mentality that says: Hey, who cares if you had tortured a few people or stole the odd R500 000 – as long as you support the war on terror or can show that the other side hates you, you are my friend and hero. Who cares if you are a crook, as long as you are vilified by elites, we will support you because at least you are “our” crook.
But nevertheless, I think it is pretty clear that the Constitution prohibits both Yengeni and Winnie Madikizela-Mandela from standing for election to the National Assembly. This is because section 47(1)(e) of the Constitution states that every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except (amongst others):
anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
Yengeni was sentenced to four years in prison without the option of a fine and Winnie to five years in prison without the option of a fine – although her sentence was converted into a suspended sentence on appeal. I think few people will argue that Yengeni could qualify for election, as he actually served time in prison. But what about Mrs Madikizela-Mandela?
It seems pretty straight forward to me that she is not elligible. After all, although Mrs Madikizela-Mandela had never served any time in prison, she was sentenced to a prison term without the option of a fine. This prison sentence might have been suspended but it was a prison sentence and she had not choice to rather pay a fine than live under the cloud of this suspended sentence.
For those people who believe we can interpret the Constitution by looking at the plain language of the text, there would be no way to argue that Winnie is eligible as she was not given the option between a prison sentence or a fine. She was sentenced to time in prison – the judge just happened to be lenient and suspended this sentence for whatever reason.
For those who think we should read the Constitution contextually and purposefully, this should also be a no-brainer. What was the reason for including this section in the Constitution? The framers clearly wanted to make sure that recently convicted crooks are prevented from representing us in Parliament while not preventing individuals who might have been caught doing something stupid but illegal (like shop lifting a can of Coke or pouring tea over the editor of Huisgenoot) from serving the nation.
Courts do not as a general rule impose prison sentences without the option of a fine for trivial criminal acts. (When they do, it is usually because some retarded racist magistrate has not received the memo yet that we live in a democracy where we are all equal.) But usually courts reserve this sentence for serious criminality – as they should. Sometimes there are mitigating circumstances in such serious cases and then a court can suspend the prison sentence but it does not make the crime that was committed less serious.
If we therefore look at the purpose of this provision in the Constitution it was exactly to keep people like Mr Yengeni and Mrs Madikizela-Mandela out of our Parliament – at least for a certain period. One would not want them to defraud the taxpayers by cheating with their travel vouchers, for example.
So, unfortunately Mr yengeni and Mrs Madikizela-mandela will ahve to serve the national democratic revolution in another capacity. As style consultants to the rich donors of the ANC maybe?
“But we are not a normal society. We are a deeply scarred and quite sick society. Just because we have enjoyed our democracy for 14 years does not wipe away the 300 years of colonialism and racist oppression which have scarred all of us living in South Africa – regardless of our race or sex.”
That is why I and others like me have called for an independent inquiry into the arms investigation accompanied by perhaps a general amnesty in return for full disclosure in a second attempt to normalize the situation. Yet Harms did that cause no favors by gleefully obliterating the Nicholson judgment and in fact discrediting independents interested in justice and transparency by using derogatory labels such as “conspiracy theorists”. Nicholson had justice, the spirit of our constitution and the future of our democracy in mind when he indulged in his “personal conspiracy theory”.
Who are are sick and tired of state institutions being abused to settle political squabbles, we are sick and tired of the “cold war” mentality that still seems to be embedded in our security establishment, we are sick and tired of BEE being hijacked by a small elite to enrich themselves, we are sick and tired of foreign governments with vested colonial interest sponsoring our political parties and we are sick and tired of the mainstream media pursuing a political and economical agenda that refers to democracy as vulgar “populism”.
well ozone blue if your so sick of it all then simply vote for a better party who could impliment these structures more effectivly.
its that simple thats why south africans fought for democracy for choices to choose.
look at how many struggle heros have moved over to other parties.
The ANC is not bigger than south africa nor will the ANC last longer than South Africa
@Ozoneblue:
Yet Harms did that cause no favors by gleefully obliterating the Nicholson judgment and in fact discrediting independents interested in justice and transparency by using derogatory labels such as “conspiracy theorists”.
I disagree with that. Harms (and the rest of the high court judges) were careful to point out that they weren’t assembled to rule on political conspiracy theories. It was not relevant to the case of Mr Zuma and the arms deal itself isn’t relevant to determining whether the Nicholson ruling had been correct. That’s why they abstained from commenting on the guilt or innocence of Mr Mbeki and others who weren’t on trial and thus irrelevant to the ruling at hand. It wasn’t an arms deal inquiry, it was a high court ruling to test the validity of the Nicholson ruling. That is all.
Secondly, if the SCA ruling upheld the Nicholson ruling, it would imply that our NPA is in shambles and that there’s nobody fit to appoint a judge to conduct an arms deal investigation, given that the NPA would then be corrupt and part of conspiracy theories. What kind of favours would that have done for a potential arms deal inquiry?
Let’s not forget that Alan Boesak is also a convicted criminal, yet he’s all smiles at COPE meetings lately. We all know that politicians are corrupt, the least we should expect of them is that they’re smart enough not to get caught.
Showing leniency towards the likes of Winnie and Yengeni, and the other travelgate fraudsters does not bodfe well for our democracy.
However, not many people seem to care.
I agree with Helen Zille’s remarks that the general public’s tolerance threshold for corruption seems to be lowering.
Instead, those that are corrupt seem to be rewarded in some way.
I can’t say I am suprised, given the fact that the ANC president is facing over 700 charges of fraud and corruption, but why are the public keeping mum on the issue?
It just boogles me that so many people have faith in a party that continues to enrich the few elite and abuse power accordingly.
On another note, Prof I see that your fellow Hlope JP – hater, Adv Hoffman hasn’t wasted time to lambast the JP’s decision to return to work (if this is true of course).
I have been an ANC supporter for many years now. I haven’t officially joined the party – but I have supported the party’s causes – until more than recently of course.
Anyway I think its ridiculous that Yengeni and Winnie’s names appear on that list.
Ours is a maturing democracy – but the ANC does not seem to think so. People are not stupid.
The fact that the ANC has them on their list for appointment to the National Assembly tells me few things: 1) The ANC largely undermines the moral integrity of its voters and our society in general; 2) Yengeni and/or Winnie has something on the leaders of the ANC that is so serious that they (the ANC leaders) would give into anything not to let it come out; 3) The ANC has lost the plot. They seem to think that they will never lose their two thirds majority. I don’t think so.
Anyway – the political situation in this currently is somewhat ridiculous – but as South Africans, I think that we are in for VERY VERY interesting times to come.
I hope our constitution changes soon. Having ethically challenged politicians, with criminal records, steering our country seems slightly retarded
Mzo, update. Hlophe was told to stay home:
By Ella Smook
Cape Judge President John Hlophe will not return to work today (Friday) after Justice Minister Enver Surty requested him to remain on leave until the complaint against him was resolved.
News that Judge Hlophe had returned to work this week was met with an outcry from the DA and legal commentators who said it was untenable that he would resume his duties with the cloud of “improper interference” hanging over his head.
Justice spokesperson Zolile Nqayi on Thursday night told the Cape Argus that it was Surty’s view that because the complaint against Judge Hlophe was not yet finalised it would not be proper for him to resume his duties.
Former Justice Minister Brigitte Mabandla granted Judge Hlope special leave at his request last year because of the exceptional circumstances and the seriousness of the allegations against him.
Nqayi said Judge Jeanette Traverso would continue to act as Judge President in Judge Hlophe’s absence.
Meanwhile, the Judicial Service Commission, the body tasked with investigating complaints against judges, has called a special meeting to discuss the case of Cape Judge President John Hlophe.
The commission usually only meets twice a year, but following news this week that Judge Hlophe had returned to work after being on leave since mid-June, it called for a meeting to take place before its usual April gathering.
Commission spokesperson advocate Marumo Moerane said a date had not yet been set, but confirmed that the meeting would happen in coming weeks.
The commission has previously indicated that it would not proceed with an investigation into the complaint against Judge Hlophe until all legal processes were complete, and Moerane could not on Thursday say which steps were open to the commission now.
This comes as the opposition DA and legal commentator advocate Paul Hoffman, SC, called for urgent intervention by the minister of justice or the president.
The judge’s return to office was also on the agenda for the monthly meeting of the Cape Bar Council on Thursday night, although the council declined to comment on the matter.
Bronwyn wrote: “I agree with Helen Zille’s remarks that the general public’s tolerance threshold for corruption seems to be lowering…”
I am not sure about this.
But first, let me hasten to say that I don’t like corrupt officials running our public offices; I think it is morally indefensible. But public’s tolerance for corruption, while extremely wrong, is understandable if you are Black like me and have been through hard times. (I know I know, ye olde apartheid excuse is tired…)
As a Black person who was underpaid, with parents who were underpaid (if they were lucky to have a job) and all the other social evils that made it difficult for one to make ends meet, it became, in most cases, necessary to supplement one’s income. The only available avenue was through what we called in those days “isinkwa or ‘doolus’” (bread). You may call it theft or corruption, but it was a popular way of getting by in those days. It was so popular that it became a culture somewhat.
Apartheid is gone and Black people effectively run the country now; but unfortunately not much has been done to change certain manifest mindsets. Call it what you want – corruption, greed, sin, whatever- but some people still see it as “scratching and surviving”.
The fact that a lot of Black people have come out recently to voice their distaste of corruption (including me – yes I liked “isinkwa” once upon a time) and are calling for the heads of those who are seen to be corrupt, is a sign (for me at least) that Black people are moving away from the perception that “isinkwa or doolus” is an acceptable form of earning a living.
The mindset still exists though. Punishing corrupt officials and raising our voices against corruption and corrupt individuals, will help accelerate its demise.
The Scorpions are dead, Long live the……………………. – (i have no idea what to put in there.)
Re Hellen Z’s statement – I think that the fact that there’s so much in the media about corruption that the general public is becoming frustrated with corruption in the public sector
Dumisani Mkhize // Jan 30, 2009 at 2:04 pm
I think a part of the problem is that our “national agenda”, if I can call it that, is being side tracked by an obsession with the issue of corruption – a strategy clearly devised to weaken and discredit the governing party and to distract the focus from more important goals like effective and efficient service deliver. I conceded that these two issues are not mutually exclusive ; but it is very seldom that an incompetent or indolent government official makes the headlines.
The grassroots do not necessarily attribute their plight to corruption as such – they see arrogant, lazy incompetent government officials not doing their job. There is way too much emphasis on intolerance of corruption and way to little emphasis on intolerance of poor service delivery.
‘without struggle comes no progress’,,, I think we are still living in the struggle, I am optimisitc that SA will pull itslef together,,, only time will tell
Having read comments posted by the Prof et al, i have to say that RSA has done it again. It seems that you have texalised this issue. Majority of people are not really concerned about corruption rather than reducing poverty and providing jobs. Corruption may be paramount to YOU, leaving in the lily suburbs of Cape Town, but it is minor to a person leaving in the townships.
@ Khosi
Correction. The Scorpions are not dead, they have been TRANSFERED.
ozoneblue
“strategy clearly devised to”
It’s not a strategy devised, it is the plain result of “seeing” it happen and the effects of it. We’ll talk again when you have to spend weeks trying to get normal requests through a government office, because you refuse to put down “the envelope”.
Corruption eats into public coffers and affects service delivery. In fact it makes service delivery available to those who are able to afford bribes, the same complaint you have for the BEE dudes, only benefiting the “haves”.
Corruption means the poor suffers the most. The foreigner who can afford to “fast track” his interview for refugee status gets preference and the corruption in housing schemes affect the poor the most, whether they realise it or not.
As you say they aren’t mutually exclusive, we don’t have to choose between bad service delivery and corruption. How many times have you heard the term “service delivery” lately? It relates to the incompetence you talk about. The difference is corruption is a crime in this country, so it might get the headline, but the service delivery is talked about a lot.
Who is the governing party that is supposed to do something about “arrogant, lazy incompetent government officials not doing their job”? What is different between you going on about bad governance (laziness), and others going on about the bad governance (corruption).
Do you also have a “strategy clearly devised to weaken and discredit the governing party”?
We do not want to end up like Nigeria and other places where you have to pay a bribe to get your kid into a school, and where it is just normal. We don’t want to become a place where companies have to budget for bribes.
But then I already know of a government contract where 10% is going to a ranking government official, all underhanded of course.
At least it’s better than the Nigerian contract I know of where 10% goes to the CIO and another 10% to an organisation he heads, and a few smaller cuts for the others, and these are WRITTEN into the contract!
I am hopeful we won’t get there, but the only way it will happen is if it is taken seriously.
It may be necessary to put a quota for convicts who can sit in Parliament.
Prof, I think as properly stated by yourself: “The preliminary list of ANC candidates for election to the National Assembly was leaked to the newspapers this week.”
There is no need to jump the gun on the legality of Mrs Mandela and Mr Yengeni being on some preliminary list. Yes, they were convicted and sentenced. But Prof, how many politicians are out there withiout any convictions whats so ever but in actual fact are the scum of the earth? This is a sad reality that we today face. Many who have died for “freedom”, seem to have done so invein.
COPE brings hope in the regard that they might put a check and balance device in place should the preliminary list be made final.
Convicted criminals should not be allowed to occupy any office of importance within the Government!
Yes, the Yellow Suit is a no-brainer, but I badly want to see Winnie in Parliament.
Garg, Allan Boesak received a presidential pardon and therefore no longer has a criminal record.
Ozoneblue and Mqo, I think your comments – while factually not far off the mark in as much as it reflects the general mood of ordinary voters – is nevertheless wrongheaded and morally deeply flawed.
Although this is not easy to see for ordinary citizens who are poor and who have struggled and continues to struggle to survive financially, corruption is a cancer that eats away at our society and is far more detrimental to poor people than to those in the chattering classes. If one is middle class or rich, one can afford to pay the bribe and one will get the services and goods one needs or one will privatise those services. It’s a bother, but one makes a plan. On the other hand, if one is poor and one depends on an efficient and honest government to deliver services and goods, one is directly affected when the government officials starts being corrupt. What we need is some honest and charismatic politicians who can explain to poor people that corruption destroys their chances of a better life.
While corruption is something the chattering classes seem to worry about more (often the worry is really also tinged with a kind of racsit Afro-pessimism), corruption stops service delivery and in the long run destroys the ability of the state to give a hand to those who really need it – the poor, marginalised and downtrodden who most suffered under apartheid. That is why corruption is such a moral evil in our society. Those who support corruption or turn a blind eye to it merely because corruption so obssessess white middle class people, are really the victims of a kind of internalised racism because instead of standing up for what is right and what is best for the victims of apartheid, instead of taking charge of their lives and their world as Biko told us to do, they react to what white people say and in doing so destroy their own futures and the futures of those who cannot contract out of the corrupt state. We need a politician who can convince ordinary people that they have to take back the power from white people, which means rthat they must stop doing things and believing in things merely because it is the opposite of what the majority of whites wants or says. Why give so much power to an (often racist) minority? Take back the power brothers. South Africa desperately needs you to stop living in reaction to us whiteys and to start doing what is best for the poor and the marginalised victims of apartheid. Viva!
Ozone, you make it sound like an obsession with corruption is a bad thing? Corruption is the key to so much…if we could stop corruption, there would be improved service delivery, BEE would be able to start to function a little bit more fairly, and people might even start to get optimistic about the country. Perhaps even skilled labour wouldn’t be emigrating in such large numbers.
Dumisani, while I can understand your point, the fact of the matter is that things have changed to such an extent that it can no longer be a defense. The corrupt politicians we have are no longer struggling to survive, and they haven’t been for a long time. The ample belly’s and fine beverages to be seen at your average ANC function will attest to that. There is absolutely no imperative for them to be taking bribes or rigging tenders. The only motivation for them is pure greed, more money, more status, more power, another Armani suit, another BMW. Perhaps once they had to steal to get by, those days are long gone my friend.
To the topic at hand, I think that our threshold for tolerating corruption has increased – in other words, we’re prepared to put up with much more for longer. It is a natural side-effect of our political climate – politicians are almost brazen in their attempts to garner more moola for themselves. Barely a week goes by without another story in the news. After more than a decade of this, underpinned by the ever-present Arms Deal fiasco, it is only natural that Saffas regard it almost as a fait accompli.
And after having seen so many loyal cadres get hauled up for corruption, found guilty in court, disciplinary hearings, etc, and simply get “re-deployed” instead of outright fired and hung out to dry, people start losing the belief that change is possible.
If indeed the final list contains the names of Winnie and Tony, those two upstanding citizens of law and order *cough*, the ANC would send a good statement by refusing to allow them to stand. Additionally, if JZ is convicted (if ever), the ANC would do well to state now that he will not be eligible for the presidency – it would be a nice change from Mr Malema’s remarks that he will rule from behind bars if necessary.
But that would be in a normal world. Prof, while I agree that our country is a bit sick, I refuse to believe that people in high positions are still unable to distinguish between what is right and what is wrong. I am unable to believe that the ANC NEC believes that it is fine to allow convicted criminals to sit in parliment. I simply believe that they are all mates, and they just don’t give a damn about what anybody says. After the last few years of watching the ANC run SA like it’s own personal fiefdom, I struggle to reach any other conclusion.
Prof, I object to you calling whites an ‘often racist’ minority. As far as my generation goes, most of my white mates are actually NOT racist at all. There are naturally a few, but the majority of us (I believe) don’t care about the colour, but the quality of the person. We get bitter when the predominantly black government keeps labelling us racist, but we don’t get bitter because they’re black – just because instead of engaging with us and allowing us to contribute they call us names.
Clara – “Garg, Allan Boesak received a presidential pardon and therefore no longer has a criminal record.”
That settles it then – if Comrade Kgalema pardons Winnie and Yengeni, which went very quick in the case of Alan Boesak (now behind COPE), and is bound to be quick should they now apply (Winnie wouldn’t have gotten anywhere with Thabo steering), they can be elected to Parliament. I think that is why they have now been included in the LIST – But woe to those IFP guys who have eons ago applied for presidential pardon, but the ministers involved were too busy looking into the bottle to even consider and prepare the submissions to the President. … Some animals are more equal that others, I guess.
Pierre De Vos // Jan 30, 2009 at 6:28 pm
“If one is middle class or rich, one can afford to pay the bribe and one will get the services and goods one needs or one will privatise those services.”
Sure – that sounds like the Anti-ANC’s election manifesto.
You see our political debates are dominated by tabloid trash and very rarely progresses to a point were we can honestly talk about real issues : like economic policies.
ozoneblue, my statement is a statement of the reality as it is now (after 14 years of ANC government!), not of what I think it ought to be. Your response is therefore not on point.
The Big Slipper // Jan 30, 2009 at 7:52 pm
“Barely a week goes by without another story in the news.”
That is not fair, eTV news does tend to vary it with even more sensationalist headlines about rape and murder.
If you want to learn what happened in parliament or Khutsong you have to watch SABC1 in isiZulu – but that is boring rubbish and state sponsored propaganda hey ?
Pierre De Vos // Jan 30, 2009 at 8:29 pm
Pierre but your perception of reality, as you have indicated, seems to differ from the perception of reality of the ordinary voter. Why else are the masses continually voting for corrupt politicians such as Winnie Mandela and Jacob Zuma?
Ozone, if the entire country voted for corrupt politicians, it wouldn’t change a damn thing – corrpution is corruption, in a legal sense. The precise reason that provision is in the Constitution (that hallowed document which the ANC professes to guard with it’s very life) is to protect the public from being governed by people who have breached fiduciary duty in the past. In the same way one is disqualified from being the director of a public company if one has been convicted of fraud, one is prohibited from leading the nation if one has been convicted of fraud.
This is ostensibly to eliminate the situation where an anomaly arises, in that a particular person may be very popular, but has been found to be somewhat lacking in judgement in the past.
What we have is a situation where the masses are continually told that variouss third/dark/western forces are engaged in a campaign against the ANC. In a country still so divided along racial lines, with an education level so low it’s embarrassing, who do you think the masses will believe? A white Professor, a non-ANC editor, or the ANC politicians that their parents grew up fighting alongside?
Looks like a duck, quacks like a duck – it’s a duck. Doesn’t matter if the whole damn world thinks it’s a horse. And we need to be protected against ducks – they’re dangerous.
Ozone – since I don’t understand isiZulu, I’ve never watched the news in that language, and hence, cannot comment. If it’s anything like the English news used to be though…
The Big Slipper // Jan 30, 2009 at 9:32 pm
“In a country still so divided along racial lines, with an education level so low it’s embarrassing, who do you think the masses will believe?”
oh I don’t know – perhaps they will stop believing such irrational and manipulative conspiracy theories once they get to know what Ngcuka told those black reporters at his off-the-record meeting, or they get unfettered access to the state security archive records of Apartheid spies denied to judge Hefer, or they are allowed to read the top secret NIA document with details of a political conspiracy against Zuma that Business Day was prohibited to publish. I suppose even some explanation on what the NPA was trying to achieve with the Browse Mole report or who in fact authored those “hoax” emails that cost Billy Masetlha his job may will help them to become less ignorant despite their embarrassing back log in education.
Pierre, you write that SA is “not a normal society”? I would like to know what you like to think is a “normal ´society. Italy? (which persists in electing as PM an acknowledged fraud.) The U.S.? (in which, as you noted, indicted Alaskan Senator Ted Steven came within a whisker of being re-elected.)
Please do not explain our multiple pathologies by invoking 300 years of “colonialism and racist oppression.” This is a now a very tired trope.
Plenty of African countries that did not experience apartheid routinely elect politicians who are patent scoundrels. (Also, mindless populism has afflicted South American policies, from Peron to Chavez.)
You want to blame our ills upon colonialism? Then consider this: English politics in the in the 17th and 18th centuries makes contemporary SA politics look like a model of Athenian democracy. Yet England had at that time not been colonised for 500 years. How could that be?
You know, Pierre, it is very easy to have blind spots when we are so convinced of our own philosophical and moral positions (I don’t exclude myself here). In particular, it becomes easy to become intellectually sloppy in the manner in which we dismiss those with whom we disagree.
“300 years of colonialism and racist oppression:”. Hmm…, I am not in any means trying to justify colonialism or racism, but the way you put it makes it seem that the moral balance is titled all one way. What about tribal or clan oppression? Are white people the only colonisers?
And then, … Bush. We all knowe that George Bush is very unpopular in many parts of the world, and with the media (who influence much of popular opinion). But if you disagree with him, or dislike his actions and his philosohpies, then explain why. But, he is not a stupid man, and it is arrogant (and intellectually weak) to “win” by insulting his person. If he is wrong, he is wrong – and tell us why. But don’t try and recruit anti-Bushites by petty insults.
We all know of the verbal gaffes, but he has an MBA – from Harvard! My private theory is that he is dyslexic (or the verbal equivalent if there is one). He makes mistakes, but he is not stupid. As an academic, you dishonour yourself by your unwarranted snobbery.
Mike, I agree with you that Bush is not stupid – although the fact that he has a Harvard MBA does not really prove your point.
A couple of years again I saw a documentary called Travels with Bush (made by Speaker Pelosi’s daughter.) Dubya came across, unscripted and one-on-one, as perfectly intelligent, even capable of self-deprecating humour.
No, Bush’s sin was worse than stupidity. It was that he assidiously affected stupidity, in a condescending appeal to middle America. The fact that middle America actually responded to Bush’s feigned anti-intellectualism is a devastating indictment.
Yeah, but …..MO, that anti-intellectualism has a very long and revered history in the US, with echos in SA as well. It comes from roots deep in protestantism (with the emphasis that everyone can read the bible and have a direct relationship with dog, not having to go thru an intermediary//expert such as a trained priest, as well as a frontier sense of self reliance, which again often manifests itself as a distrust of expertise, intellectualism and elites. Sarah Palin is perhaps the most perfect exemplar of this in US politics, but she clearly follows the path that Bush and Nixon and McCarthy and Jackson and many others blazed…
Of course, the huge irony in this is that Bush was able to do this while being in many ways the complete opposite–rich, elite, and hugely well educated. Palin is far more the genuine article.
Was Bush genuine or was it all a huge con job? I do not know. I think that it all depends on just how sincere his “born again” religious experience really was. At the very least, he seems to have been able to convince large numbers of people that it was a sincere transformation, which suggests that he was either very good at pretending, that he was genuine, or that there was a huge Rovian conspiracy….take your pick.
PM
First timer here and this makes for interesting reading. Have not looked at other topics yet but can’t help to ask a few questions. Bear with me if it has already been covered, previously.
1) Can the ruling party change the constitution if it gets more than 66% majority?
2) If so, can they decide that they may want to replace anybody with anybody?
3) We all know about the outrageous corruption and greed – what can be done about that legally – without incurring personal costs?
4) What rights do we as citizens really have to demand that a leadership takes care of its people and not itself?
5) Is it possible to withhold taxes as a form of protest?
6) If so, how can this be achieved?
Instead of reporting on the goings on – is it not possible to start an economic clampdown? I mean, it is afterall us who pay their salaries for services that should be delivered. Surely a succesful country should be run like a business. If top management does not perform – they either get sacked or replaced.
Ah yes, the “often racist” minority. Of which I of course am one. Honestly, I could just kick myself for haven chosen to be born a racist/imperialist/colonialist/racist white, when I could have elected to be a noble black.
What’s that, I didn’t have that choice? What the hell, I think I’ll follow Pierre’s example and beat myself up anyway, because that’s the neo-liberal thing to do. After all, our black compatriots are said to have a special place reserved in their hearts for us neo-liberals, right?
Clara, be Pierre be a neo-liberal masochist, I deem you exquisite sadist, for saying so.
OK, so let’s pick Pierre apart:
“But we are not a normal society”
So what are “normal” societies? European? Western? The very perpetrators of those 300 years of racism and oppression?
If “normalcy” means anything like the “norm” or average, then incompetency and corruption etc. are far more common in this world that not. Perhaps South Africa and the ANC really are “normal” as are Winnie and JZ and Malema, etc.
But who wants to be “normal”?
Clara you can be my Madam any day.
Clara // Feb 1, 2009 at 6:33 pm
Clara : you don’t know how ignorant and pathetic you sound every time you indulge in such profound self-pity and you start abusing words like “neoliberal” in a racial context when the Mbeki-faction in the ANC are the principle proponents of neoliberal policies in South Africa.
Clara, what’s this neo-liberal stuff? You can call me many things but as Michael pointed out calling me a neo-liberal is way below the belt! I protest! Next thing you are going to call me a Hlophe lover….
Clara, I warned you! See, now you have hurt Pierre.
Number one sign of neo-liberal masochist:
Hotly denies being neo-liberal masochist.
You people are pathetic.
You do not have the capacity to maintain any form of intellectual argument. I have read many of the blogs by Prof. de Vos et al, and each one descends into written anarchy that ends in no logical or useful conclusion. Everybody is more eager to insult the other simply because they disagree with a statement
More than half of this blog fails to touch on Winnie or Tony and whether or not they are eligible to be parliamentarians.
Maintaining a victim mentality is too common these days – if one disagrees with a statement or opinion, it does not amount to a personal attack. Stop wasting time with pathetic bickering and racial snares that have no baring on the issue(s). Calling the Prof. a neo-liberal masochist is meaningless and only proves an agenda to boost an ego. How tragic and pitiful.
Oh, I am a 19 year old white law student. I see myself as being equal to my fellow black students… How lucky, or unlucky am I? Please do enlighten me as to the type of person I am based on the above. You all seem to act in much haste in judging each other and indulging in playground name calling.
Eagerly await a reply.
Thank You
Does anyone know who gave Mantashe the legal opinion he referred to in last night’s Press Conference? Was it Heath and Co?
Mpho, thanks my man i forget there was something on this already, thanks for raising this up again
aooooohhhh thats a tough one Mpho can we play hang man? lol…..i smell a Heath in there.
Constitution was silent on suspended sentences?
Well this is the gray area but if this is to apply then Tony Yengeni has every right to also become a member of parliment??
so what do we know or understand about a suspended sentence?
When a sentence is suspended the judge or magistrate gives the sentence but suspends it if the offender agrees to enter into a good behaviour bond for a certain period. That bond may have extra conditions. So, if the person keeps out of trouble and obeys bond conditions they will not have to go to gaol. But the sentence hangs over their head for the term of the bond. If the bond is breached they can be called on to serve the suspended sentence. And if the breach involves another crime they face the sentence for that offence as well.
Now for Winnie to get a suspended sentence she must have been a good prospects for rehabilitation or it was a political solution.
ok so heres the problem a suspended sentence is a real sentence but it gives a last chance.
Ok now the gray area in South African legislation it is all about grey areas and this is the battle ground for great lawyers. If get yourself into prison (or at least in theory) for 12 months without the option of a fine, then you are out of the running… for a while. But, if you wait it out for five years after completing your sentence, absolution. Regardless of the crime.
So this is whats disturbing about the prospect of someone found guilty of fraud or corruption whilst serving in Parliament being allowed back into Parliament simply because time has continued its natural and inevitable progression.
Occupation: former ANC Women’s League president.
Crime: charged in 1991 with the kidnapping and murder of 14-year-old Stompie Seipei.
Sentence: six years imprisonment, which was reduced to a R15 000 fine on appeal.
Crime: found guilty in 2003 on 43 counts of fraud and 25 counts of theft.
Sentence: five years imprisonment, which was reduced to three-and-a-half years on appeal (2004) and suspended for five years.
Eligible for Parliament: The Constitution doesn’t say anything about suspended sentences. If a suspended sentence of the same length carries the same weight as “more than 12 months imprisonment without the option of a fine”, then Winnie is eligible for Parliament. If, however, the emphasis is on the word ‘imprisonment’, then she has no restrictions.
Tony Yengeni
Occupation: former ANC chief whip.
Crime: found guilty of fraud in 2006 (failing to declare a discount on his Mercedes-Benz to Parliament).
Sentence: four years imprisonment.
Served: 20 weeks.
Eligible for Parliament: 2015
Be afraid be very afriad
but not so fast there is a clause which is over looked in the constitution
“Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except unrehabilitated insolvents.”
Heres a list of people who are eligible for Parliment
SCHABIR SHAIK
Occupation: inmate.
Crime: found guilty in 2005 of fraud and corruption.
Sentence: 15 years imprisonment (starting in 2006 following failed appeals).
Eligible for Parliament: 2026
OUPA MONARENG
Occupation: MP and deputy chairperson of the Gauteng branch of the ANC.
Crime: convicted of trying to bribe four police officers in 1996, after being caught driving a stolen vehicle.
Sentence: fined R3000 and given an 18-month suspended sentence.
Eligible for Parliament: 2009
NDLELENI DUMA
Occupation: Agriculture MEC in the North West.
Crime: Travelgate fraudster
Sentence: fine of R30 000 or three years imprisonment.
Eligible for Parliament: 2009
RUTH BHENGU
Occupation: former MP, president of the SA National Civics Organisation.
Crime: Travelgate fraudster who pleaded guilty and was dismissed from Parliament in 2005
Sentence: two years imprisonment or a R45 000 fine and a three-year suspended sentence.
Eligibility for Parliament: 2009
ENOCH GODONGWANA
Occupation: former finance MEC in the Eastern Cape.
Crime: convicted of drunk driving in 2003 (he was two times over the legal limit).
Sentence: fined R8000 or 200 days in jail and given a suspended three-year sentence.
Eligible for Parliament: 2009
BATHABILE DLAMINI
Occupation: former secretary general of the ANC Women’s League.
Crime: a Travelgate fraudster who pleaded guilty in 2006.
Sentence: a five-year suspended sentence and fined R120 000 payable over 24 months.
Eligible for Parliament: 2016 (if suspended sentences apply) or 2009 (if they don’t).
[...] But the Constitution is quite clear and Winnie cannot become a member of the National Assembly. As I wrote on this Blog before [...]
‘Mouse, FF+, Pierre whoever, does this section of the Correctional Services Act not support the ANC’s position that Winnie is eligible?
39. Commencement, computation and termination of sentences.
(1) Subject to the provisions of subsection (2) a sentence of imprisonment takes effect from the day
on which that sentence is passed, unless it is suspended under the provisions of any law or unless the sentenced person is released on bail pending a decision of a higher court, in which case the sentence takes effect from the day on which he or she submits to or is taken into custody.
Very interesting point Mpho. So if a suspended sentence does not take effect, it follows that such sentence can not be completed. This seems to be in line with what I argued under the blog Constitutionally Speaking » One law for ANC, another for the rest? // Feb 26, 2009 at 11:19 pm
…and this Act seems to post-date ‘Mouse’s case law references if I remember rightly.
I was quite shocked when I read this. I believed that a sentence ran from pronouncement but that imprisonment only ran if the Warrant was issued for Correctional Services to detain the convicted person. This section is rather confusing to me. When then does a suspended sentence expire if it never gets going in terms of the CSA?
Mpho
that mya be the ANC’s position but it is wrong
(2) a sentence of imprisonment takes effect from the day unless it is suspended – simply meaning that that person will not go to prison on that day or any other day unless that person brakes the law again but the person is still sentenced
47(1)(e) of the Constitution (108 of 1996). The key word is sentenced it does not mention imprisonment
Madikizela-Mandela was found guilty in June 2004 and sentenced to three and a half years without the option of a fine and the five years will only run to an end in July of this year
Chris, it does include the word imprisonment.
47. Membership
1. Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except …
e. anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
__
Now the issue is, whilst the Correctional Services Act is more than likely trying to differentiate between sentenced and unsentenced prisoners, it clearly states that the sentence runs from the date of imprisonment. I’ve alluded to one of the problems I have with the wording of the section in a post above, but the issue seems more complicated than we had previously considered and this may explain the ANC’s certainty of their position.
Mpho // Mar 17, 2009 at 2:35 pm
my bad and well spotted lol i am human
But the point remains you are refering to the CSA and a section of the act that has no bearing on this…..what the CSA act is telling you is what the process is with a person who is sentenced either to jail or suspended it still does not erase or remove the fact the person is sentenced.
this is the part that I want you to focus on
……………………………………………………………………………………….
“but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired”
……………………………………………………………………………………..
until her sentence is up then she is eligible therefor the ANC is wrong
Chris, for ease of reference I paste what I said earlier abou this matter. Please consider it and present your counter-argument thereto:
IS THERE A DIFFERENCE BETWEEN DIRECT IMPRISONMENT AND SUSPENDED IMPRISONMENT? – MADIKIZELA-MANDELA’S ELIGIBILITY TO BE A MEMBER OF NATIONAL ASSEMBLY
Professors of law, in particular Shadrack Gutto and Pierre De Vos, have commented with some authority that Mrs. Winnie Madikizela-Mandela (“Madikizela-Mandela”) is not eligible to be a member of the National Assembly come 22 April 2009. These eminent commentators went on to harshly criticize the ANC for its decision to include Madikizela-Mandela’s name in its national list of candidates and predicted a constitutional challenge with good prospects of success. It is argued by these esteemed scholars that, because in 2003 Madikizela-Mandela was convicted and sentenced to a term of imprisonment of three and half years without an option of a fine, she is disqualified from being a member of the National Assembly by virtue of Section 47(1)(e) of the Constitution. It matters not, so the argument goes, that Madikizela-Mandela’s imprisonment was wholly suspended for a period of five years.
In justifying the inclusion of Madikizela-Mandela’s name in its list of candidates, the ANC stated that the legal opinion it obtained opined that there is no legal ground disqualifying her from being a member of the National Assembly because the Constitution is silent in respect of the suspended sentence.
The relevant section of the Constitution provides as follows:
“47. Membership.—(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except …
(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.” (my emphasis)
Although I have not had sight of the legal opinion by the legal advisors of the ANC, I am inclined to agree with their conclusion. A sentence of direct imprisonment is not in pari materia with a sentence of suspended imprisonment. The effects and consequences of the former are more egregious than the latter. Those who studied criminology and the theories of punishment agree that a direct custodial sentence is reserved for the worst offenders.
In order to illustrate the glaring absurdity of the interpretation of Section 47(1)(e) advanced by Gutto and De Vos, consider the following hypothetical but practical scenario: In 2003 two co-accused A and B were charged with fraud, convicted and sentenced to imprisonment for a period of fifteen months without an option of a fine. However, because of A’s previous convictions for similar offence, the Court decided to sentence him to direct imprisonment for fifteen months. In respect of B, who was the first offender, the Court decided to suspend his imprisonment on condition that he had to render community service for fifteen months and not be convicted of similar offence during the suspension period of five years. In March 2004 both A and B completed their jail term and community service respectively. According to De Vos and Gutto’s interpretation of s47(1)(e), come 22 April 2009, A – who received a harsher sentence of direct imprisonment, would be eligible to be a member of the National Assembly, but B – who received a more lenient suspended sentence and rendered community service would not be eligible to be a member of the National Assembly!
When it comes to eligibility to serve society in the capacity of being a member of the National Assembly, it could not have been the intention of the legislature that those who wronged the society and had to be removed from it should be treated more favourably than those who, despite their wrongdoing, remained within and served the society. In my view, if the legislature intended to disqualify even a person whose sentence of imprisonment has been wholly suspended, it could have easily done so unambiguously.
Bongs, I do not understand your example. It seems to me both would be ineligible as their sentence ended at the end of the 15 month period and they would be eligible five years after the end of that 15 month sentence. Or am I missing your point?
In any case, I am also relying on the principle of purposive interpretation espoused by the CC which says we must interpret a section in its context while having regard to the purpose of that section. What is the purpose of s 47(1)(e)? It surely must be to disqualify citizens from becoming legislatures if they had committed a relatively serious crime (in other words a crime for which they have been sentenced to more than one year imprisonment without the option of a fine). Whether the sentence is suspended or not will usually NOT depend on the seriousness of the crime but on mitigating factors – as you rightly say. So if one person gets a suspended sentence and another does not because the latter already has a criminal record, it will not detract from the fact that both engaged in serious criminality and – according to the drafters of our Constitution – should not be allowed to represent voters in the legislature.
bongs
thats very nicely layed out
you say IMPRISONMENT suspended or direct
constitution says
(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine
Remember you boldly pointed out that direct and suspended sentence falls under imprisonment.
It is the passing of the sentence, not the sentence itself, that is being suspended. This means that if the person is convicted of another offense during the period when the passing of sentence had been suspended, then the person may be sentenced for the original offense.
The purpose of a suspended sentence is to spare the offender the rigours and humiliation of prison given Winnies stature
now to slice through the CSA and your backing of it
39. Commencement, computation and termination of sentences.
(1) Subject to the provisions of subsection (2) a sentence of imprisonment takes effect from the day
on which that sentence is passed, unless it is suspended under the provisions of any law or unless the sentenced person is released on bail pending a decision of a higher court, in which case the sentence takes effect from the day on which he or she submits to or is taken into custody.
………………………………………………………………………………………
in which case the sentence takes effect from the day on which he or she submits to or is taken into custody.
………………………………………………………………………………………
in the Criminal Procedure Act
In order for a suspended sentence the accused ‘submit himself/ herself which Winnie Mandela did
But bongs please explain this in the constitution
“but no one may be regarded as having been sentenced”
let me repeat that NO one may be regarded as having a sentence!
then goes to say
“until an appeal against the conviction or sentence has been determined
eg) the sentence squashed completely dropped
then goes to say
“or until the time for an appeal has expired”
which in WM case is in July
ANC is wrong on this matter
That bongs is authority not some authority but the full authority of South African law
Prof, you did miss an important point of my example. By 22 April 2009: in respect of A, 5 years would have ended after completing his sentence. In respect of B, although he performed community service for 15 months his sentence was suspended for 5 years, meaning that he will only be legible after 5 years after completion of the 5 year period of suspension … get my point!!!
Chris, thanks for you honest effort. I will reply in due course!
This is quite an interesting point. From the date of passing of the appeal the sentence of three years and five months began to run in spite of its suspension. This is a view by which I seem to be convinced
Prof and his parrots may have a strong case.
Yet bongs’s argument shows that the courts may have to assist in interpretation! We may have to wait for July to install mother of the nation!
I have never seen Tony Yengeni’s name on the ANC list!
Bongs i look forward to a honest reply back….
Ishmael
“Tony Yengeni’s name on the ANC list!”
That is besides the point, the point is if Winnie Mandela can get on the list with a sentence then Yengeni should to…..whats good for the goose is good for the gander.
I really dont like it to be honest with you. Its a moral problem but personnaly i think its a tactic. The ANC fully knows that Winnie is not eligible….I dont think the ANC can be that stupid, either way you look at it she is found guilty and has a sentence that you can not ignore. My thoughts on it is she is being used to help reel in votes thats all, as you said she is the mother of the nation, so why not bring in the big guns esp if you know your chances of a 2/3 majority is being threatend.
The real judgement will have to come from the courts to clearify the matter, but 90% of legal experts all agree that she is not eligible.
why force the issue now? Zuma will most likely get two terms so why not sit it out and let her in the next term then its a completely whole new ball game? why now?
Chris, whilst I am pondering my honest reply to you, what is your take on Allan Boesak being on Cope’s list? He was convicted to direct imprisonment for more than 12 months and received presidential pardon. Is he eligible? I am not raising this as a distraction-but I want to know your take on it for the purpose of my reply.
I’m off to court-check you in the afternoon.
Once again its a moral thing, I believe he was charged and sentenced for fraud.
A presidential pardon as the head of state showed mercy and is a different cattle of fish compared to a suspended sentence so yes he will be eligible.
I however I dont like it cause he was guilty even tho its been cleared and erased by the president himself by law, you still cant wipe out what he did morally you cant…..so i dont think that was a very smart move by COPE but then again the guy is well known and is a struggle hero and this should win support….as it has shown that cope can cut deep into anc territory esp in western cape…
Chris doe nor make a fool of yourself on that point of yengeni it is a factual correction to obliterate the fixation with Yengeni. You can clearly see my point on the crux of discourse!