Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
1 November 2010

Another email exchange (sort of)

Dear Anton

Unfortunately your response does not take us any further. To take us any further you will have to answer the points I made in my previous email about why the stated motive for (and previous affiliation of Ms Love) are not relevant and why her character and actions are. You attempt to do so here by saying the stated motives and procedures are ALWAYS relevant because they are always relevant in all other contexts. And they are always relevant in all other contexts because they are relevant in Administrative Law and criminal law contexts. This is obviously illogical and wrong. It is illogical and wrong, first, because even if we limit ourselves to the legal arena (a proposition that does not hold water as our dispute relates to the political arena) this is not true. Two examples: In the rather famous case of National Director for Public Prosecutions v Zuma, justice Harms stated: “The motive behind a prosecution is irrelevant because… the best morive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal”. In Sandersen v Attorney General Justice Kriegler made clear that in determining whether a person’s fair trail rights have been infringed one looks at the outcome – was there n fact a fair trial or not – and that procedure or motive is not decisive.

Second, your assumption that motives are always relevant assumes that what applies in one context must apply in ALL contexts. From the examples provided above, it must be clear that this is obviously not tenable. Just because one agrees that in the Admin Law field the process and reasons for a decision are relevant, this can surely not mean that one should accept that they should be relevant in ALL other contexts, as this would be clearly absurd? For example, these assumptions do not hold in the context of a decision of who to pick as the Minister of Health, as Miss South Africa or, for that matter as a spouse.
What would be a more interesting debate would be to ask: WHY does the motive or the reasons for a decision IN THIS CASE – given the context – matter? Surely that is the heart of the disagreement, but as you argue from the assumption that this question has already been definitively answered, you do not engage with my arguments to the contrary. (Stripped from the bells and whistles your argument seems to be no more than: “Well, it is wrong because I say so and we all know what I say is always correct.”) Why is it ALWAYS wrong to appoint a person to an independent institution who used to hold a leadership position in the ANC even when that person turns out to be a fantastic appointment? I can see no reason for this to be the case (for the reasons given in my previous email). Merely stating that it should be so because that is the principle that you are committed to (based on your ideological commitments and suspicions about the ANC, perhaps?) seems like a completely circular argument. Our disagreement is thus ideological, not logical.
Second, I am surprised by your claim that I dismiss logic. A careful reading of my post will make it clear that I made no such claim. Our entire discussion rely on the tools of logic, so it would be a bit bizarre for me to dismiss logic. All I am saying is that logic does not operate in a vacuum and that logic in the abstract is of little use. Often it is used to present our views (which might be based on our unexamined or unknown prejudices, ideological commitments or mistaken factual assumptions) as neutral and a-political deductions when they are clearly not. (We may decide what our conclusion is and then build a logical argument to justify the conclusion and our beautiful logical argument would merely represent an attempt to mask our ideological views.) Your own exampe illustrates this perfectly.
Your example is problematic not because (1)+(2) does not equal (3) but because the assumptions underlying (1) is wrong. If one does not deal with the underlying assumptions of the logic formula, no matter how you slice it, one cannot really engage in any meaningful logical argument at all. Unless we engage on this point, we are not having an argument, but are playing a completely irrelevant logics game with no substance. Of course, if one is not aware that the various legs of one’s logical argument rely on deeply held but highly contested assumptions (if one is unaware of one’s “situatedness”, for example, because one happens to be steeped in the dominant intellectual and social culture), one might not understand this. Once we have sorted out the underlying assumptions, we can move on to your (1)+(2)=(3) kind of games.

So maybe its better to focus on these assumptions: why is it ALWAYS bad for a former ANC leader to be appointed to the HRC if that person will be a brilliant Commissioner? You have not really explained this.



PS: On a personal note, I thought the example you chose in your previous email was rather unfortunate and unwise. It did not display the generocity of spirit that I would have expected from you.

NOTE:: Prof Fagan has decided that a further publication of his emails would not helpful. The example referred to in my PS is as follows;

“In so far as logic constrains our reasoning, it has a very valuable role to play in, for example, countering bigotry and prejudice. To see that, consider the following line of reasoning, not uncommon among religious zealots:
(1) Homosexuals engage in abnormal sexual practice.
(2) Pedophiles engage in abnormal sexual practice.
(3) Therefore homosexuals are, or are more likely to be, pedophiles.
Logic tells us why this line of reasoning is wrong. It involves the ‘fallacy of the undistributed middle’: i.e., the assumption that if all As are Cs and all Bs are Cs, then all As are Bs.”
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