Quotes

On International Law and Gaza

The powerful ideology that makes us talk about Israel’s right to defend itself, and not the Palestinians’ or the Lebanese, for that matter, is racism as the core element of the broader system of settler colonial racial capitalism that law has played a significant sole in creating and maintaining. If you condemn the killing of one kind of people but not another, what makes one grievable and not the other is centuries of coding done by the marker of race that serves settler colonial racial capitalism. What I am interested in is how such markers, ‘legal categorisations’ become ones that we identify ourselves with, and how those attachments solidify our attachment to law. They make it personal, as it were.

Grietjie Baars
The uses of Marxist theory of law during a genocide, Critical Legal Thinking

Zondo on cadre deployment

President Ramaphosa’s evidence was that most of those appointments had nothing to do with the Deployment Committee. He however stopped short of implicating former President Zuma in wrongdoing. He did not explain why the ANC allowed the former President to bypass a critical party structure so frequently. This is especially surprising considering that both he and Mr Mantashe vigorously defended the importance and necessity of cadre deployment at the Commission, as well as the party’s insistence that all members are beholden to the decisions of its structures (democratic centralism). According to President Ramaphosa, some of those appointments did go through the Deployment Committee, but the Committee did not know that those individuals would engage in any corrupt acts. The unfortunate implication of this is that the Deployment Committee had been unable to select or recommend individuals who are “fit for purpose.” It had repeatedly recommended individuals alleged to be involved in corruption or other unethical behaviour, as well as individuals with public ties to the Gupta family, who were publicly known since 2011 to be involved in corruption.

Justice Raymond Zondo
Report of the Commission of Inquiry into State Capture, volume 6

On victimhood and guilt

Netanyahu has been brandishing Amalek in the wake of the Hamas attack. The logic of this legend, as he wields it—that Jews occupy a singular place in history and have an exclusive claim on victimhood—has bolstered the anti-antisemitism bureaucracy in Germany and the unholy alliance between Israel and the European far right. But no nation is all victim all the time or all perpetrator all the time. Just as much of Israel’s claim to impunity lies in the Jews’ perpetual victim status, many of the country’s critics have tried to excuse Hamas’s act of terrorism as a predictable response to Israel’s oppression of Palestinians. Conversely, in the eyes of Israel’s supporters, Palestinians in Gaza can’t be victims because Hamas attacked Israel first. The fight over one rightful claim to victimhood runs on forever.

Masha Gessen
The New Yorker, 9 December 2023

On travel by Anthony Borden

It seems that the more places I see and experience, the bigger I realize the world to be. The more I become aware of, the more I realize how relatively little I know of it, how many places I have still to go, how much more there is to learn.

Travel changes you. As you move through this life and this world you change things slightly, you leave marks behind, however small. And in return, life — and travel — leaves marks on you.

The journey is part of the experience — an expression of the seriousness of one’s intent. One doesn’t take the A train to Mecca.

Anthony Bordain

Elena Ferrante on the past

I greatly fear the generations who don’t proudly leave their parents behind. But I’m also frightened by those who, at 20, leave their parents behind to embrace the mores of grandparents and great-grandparents. I don’t understand the young people who would replace the world of today with a golden age when everyone knew their place, that is, in an order based on sexist and racist hierarchies. Sometimes, especially when they declare themselves fascists, they don’t even seem like young people, and I tend to treat them even more harshly than the old people who inspired them. Dreaming of a return to the past is a denial of youth, and it grieves me to discover that young women, too, dream those dreams.

Elena Ferrante

On contempt of court and free speech

The freedom to debate the conduct of public affairs by the judiciary does not mean that attacks, however scurrilous, can with impunity be made on the judiciary as an institution or on individual judicial officers. A clear line cannot be drawn between acceptable criticism of the judiciary as an institution, and of its individual members, on the one side and on the other side statements that are downright harmful to the public interest by undermining the legitimacy of the judicial process as such. But the ultimate objective remains: courts must be able to attend to the proper administration of justice and — in South Africa possibly more importantly — they must be seen and accepted by the public to be doing so. Without the confidence of the people, courts cannot perform their adjudicative role, nor fulfil their therapeutic and prophylactic purpose.

Justice Johann Kriegler
S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001)

On the torpidity and tardiness of the LPC

The [laudable aims of the Legal Practice Act] will remain little more than lofty ideals rather than achievable goals if the necessary will and effort to give effect to them is not present amongst the administrators of the profession. Having a code of conduct which sets out the fundamental rules by which an attorney is to practise and which provides that they shall at all times maintain the highest standards of honesty and integrity and shall treat the interests of their clients as paramount, is all good and well, but it is worth very little unless it is enforced… if those practitioners who contravene the rules and standards of the profession are not dealt with promptly and effectively by [the LPC], then instead of ensuring accountability and upholding the integrity and status of the profession a culture of impunity is fostered and the profession is lowered in the eyes of the public, and the values and principles which are essential to its survival are debased.

SHER, J (BOZALEK J concurring)
Legal Practice Council v Van Wyk (3920/2013) [2021] ZAWCHC 223 (4 November 2021)

Reminder of what Con Court said about Mkhwebane

The Public Protector’s persistent contradictions, however, cannot simply be explained away on the basis of innocent mistakes. This is not a credible explanation. The Public Protector has not been candid about the meetings she had with the Presidency and the State Security Agency before she finalised the report. The Public Protector’s conduct in the High Court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner… The Public Protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC) (22 July 2019)

On the pardon power of the President

The mercy power also triggers philosophical reflection. Any discussion of the mercy power must rest on the fundamental tension between a conception of clemency as a rarely used “act of grace” within the sole discretion of an executive, or a routine, rule-bound process, publicly transparent and amenable to judicial review. Max Weber’s distinction between legitimate charismatic authority and bureaucracy may be relevant here: is a grant of clemency a form of charisma, an other-worldly power outside the
rational world of legal rules, or a routine administrative decision that is repetitive, subject to explicit criteria, and consistent?

Andrew Novak
Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective

On international law and secession

While international law embraces the right to self-determination for all people, and while this right can effectively translate into remedial secession, international law positively allows for this outcome only in the case of decolonization and, perhaps, occupation. Other than these two relatively rare instances, international law does not affirmatively authorize groups to seek secession. Secession inherently undermines the territorial integrity of the mother state, and international law has for centuries espoused the principles of state sovereignty and territorial integrity. Embracing the right of secession would jeopardize the above-mentioned principles and could, as critics assert, potentially lead to global chaos caused by an incessant
redrawing of boundaries.

Milena Sterio
"Self-Determination and Secession Under International Law: The New Framework" (2015). Law Faculty Articles and Essays. 847

[The Public Protector must investigate complaints] with an open and enquiring mind. That state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on.

NUGENT JA
The Public Protector v Mail & Guardian Ltd and Others (2011 (4) SA 420 (SCA)) [2011] ZASCA 108; 422/10 (1 June 2011)

Standards of judicial conduct

The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of their fellow citizens. While the highest standards are expected of a judge, failure to meet those standards will not of itself be enough to justify removal of a judge. So important is judicial independence that removal of a judge can only be justified where the shortcomings of the judge are so serious as to destroy confidence in the judge’s ability properly to perform the judicial function.

Lord Phillips
Re Chief Justice of Gibraltar [2009] UKPC 43

On citizenship

The loss of citizenship – a fundamental right entrenched in s 20 of the Constitution – in these circumstances is arbitrary. Citizenship is an important right that brings with it many benefits. To deprive persons of this right, with no regard for their individual circumstances and the reasons that they are taking out another citizenship is both unfair and capricious.  The legislature is not against dual citizenship we were told. If that is so, why take away South African citizenship by automatic operation of law, and require that its retention depends upon the invocation of a ministerial discretion that is entirely unspecified as to what its exercise is intended to achieve?

Zondi JA
Democratic Alliance v Minister of Home Affairs and Another (67/2022) [2023] ZASCA 97 (13 June 2023)

The right to privacy

The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.

Ackermann J
Bernstein v Bester N.N.O. [1996] ZACC 2; 1996 (4) BCLR 449 at para 67

On redress and past injustice

Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result.  We are required to do more than that.  The effects of discrimination may continue indefinitely unless there is a commitment to end it… The measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities. It may well be that other considerations may have to yield in favour of achieving the goal we fashioned for ourselves in the Constitution.

Ngcobo CJ
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15

On VAERS and anti-vax claims

The main problem with using VAERS to estimate the frequency of As after vaccination is that, in essence, anyone with access to the Internet, mail, or the telephone can report anything to VAERS, as was demonstrated by bloggers years and years ago when one autism advocate filed a report claiming that the flu vaccine had turned him into The Incredible Hulk and another claimed a vaccine had turned his daughter into Wonder Woman. Both reports were accepted. In fairness, ultimately someone from VAERS did contact these people to ask about the reports, and the reports were removed.

David Gorski
As 2021 Shambles to a close, the misuse of VAERS by antivaxers continues apace

Failure to implement recommendations of the Jali Commission Report

Evidently the Department is having difficulty in complying with the recommendations emanating from the various investigations. It is this state of affairs that needs to be attended to by senior officials as a matter of urgency, as it reinforces the perception that members of the Department disregard any form of authority. Furthermore, it confirms the view, which the Commission has come across in the prisons, that the members of the Department of Correctional Services believe that no outsider can tell them how to run the prisons if that particular person has never worked in a prison. This attitude of the members in the Department is definitely self-defeating. This is not a new phenomenon.

Jail Commission Report
INQUIRY INTO ALLEGED INCIDENTS OF CORRUPTION, MALADMINISTRATION, VIOLENCE OR INTIMIDATION INTO THE DEPARTMENT OF CORRECTIONAL SERVICES

Nugent on Mpofu

The document is a disgrace. No less disgraceful than its repetition in [advocate Mpofu’s] address. The content of the document plays fast and loose with the facts, draws inferences from inadequate material, and is littered with abuse, invective, and sinister suggestion, purporting to support an allegation that, so it was said ‘the Commission has prejudged the issues before it and is merely going through the motions to reach a predetermined outcome’. The content of the document is directed also at throwing bait before the media aimed at, amongst others, reviving in the media an allegation that a ‘rogue unit’ existed within SARS.

Nugent J
Ruling on objections lodged by Dali Mpofu on behalf of his client Tom Moyane at Nugent Commission

Public Protector acting in bad faith (again)

It is disturbing that Ms Mkhwebane did not respond personally to numerous accusations made attacking the integrity of her investigation. An explanation was undeniably called for and, as I have said, she was the only person who could respond to these accusations. The effect is that the allegations of bad faith, of failing to apply her mind and of acting with an ulterior motive remain uncontested. investigation of offences under POCA was not within her competence. Her failure to provide any explanation for her signing two different reports is disturbing and gives credence to the charge that she did not apply her mind to content.

Eksteen J
Madikizela v Public Protector and Others, 14 February 2023, ECDB

It amounted to an usurpation of the powers of [the Municipal Council] by a political body which, on the papers, does not appear even to have had sight of the documents relevant to the selection process including the findings of the interview panel. In my view, the involvement of the Regional Executive Council of the ANC in the circumstances… constituted an unauthorised and unwarranted intervention in the affairs of the council. It is clear that the councillors of the ANC supinely abdicated to their political party their responsibility to fill the position of the Municipal Manager with the best qualified and best suited candidate on the basis of qualifications, suitability and with due regard to the provisions of the pertinent employment legislation as set out in paragraph 1 of the recruitment policy. This was a responsibility owed to the electorate as a whole and not just to the sectarian interests of their political masters.

Pickering J
Mlokoti v Amathole District Municipality and Another (1428/2008) [2008] ZAECHC 184; 2009 (6) SA 354 (ECD) ; [2009] 2 BLLR 168 (E); (2009) 30 ILJ 517 (E) (6 November 2008)

On bad faith

The correct approach to determining the existence of bad faith is therefore one that recognises that bad faith exists only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be reasonably inferred and bad faith presumed. This is so because the mischief sought to be rooted out by rendering bad faith so severely punishable, particularly within the public sector space, is to curb abuse of office which invariably has prejudicial consequences for others.

Mogoeng CJ
Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC)

Con Court on Walus parole

The Minister said, among other things, that “in the light of the nature of the crime [the applicant] committed and in the light of the sentence remarks by the trial court and the Supreme Court of Appeal, [to release the applicant on parole] will negate their remarks that the offender’s atrocious crime demands the severest punishment which the law permits”. (Emphasis added). The severest punishment that a prisoner may serve in South Africa is a life imprisonment where he or she is not granted parole. This could happen in a case, for example, where a prisoner is such that he or she does not meet the requirements for parole. In this regard one could think of a prisoner who commits offences while in prison itself or who is always causing trouble in prison and does not show signs of rehabilitation.

Zondo CJ
Walus v Minister of Justice and Correctional Services and Others (CCT 221/21) [2022] ZACC 39 (21 November 2022)

On SLAPP suits

A common feature of SLAPP suits is that the primary aim of the litigation is not to enforce a legitimate right. The objective is to silence or fluster the opponent, tie them up with paperwork or bankrupt them with legal costs. Therefore, the hallmark of a SLAPP suit is that it often (but not necessarily always) lacks merit, and that it is brought with the goals of obtaining an economic or other advantage over a party by increasing the cost of litigation to the point that the party’s case will be weakened or abandoned. They are primarily legal proceedings that are intended to silence critics by burdening them with the cost of litigation in the hope that their criticism or opposition will be abandoned or weakened. In a typical SLAPP suit, the plaintiff does not necessarily expect to win its case, but will have accomplished its objective if the defendant yields to the intimidation, mounting legal costs or exhaustion and abandons its defence and also, importantly, its criticism of and opposition to the project or development. It appears from this initial analysis that both merit and motive play a role in the test for a SLAPP suit and the one may inform the other.

Majiedt J
Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others (CCT 66/21) [2022] ZACC 37 (14 November 2022)

Teffo v LPC

The Respondent has conducted himself in a disrespectful, unethical, unprofessional and contemptuous manner when addressing the Court by speaking out of turn and saying things such as “just listen to me I am talking”, “l respect you as a judge, but I do not worship you”, “you can go elsewhere and report me”, “you are not a sober judge and we cannot continue with a Judge who is not sober minded”, as well as accusing the judge of not being accountable and being biased. The Respondent has failed to show respect and act in an ethical and professional manner at all times during the Court proceedings and when addressing the Judge.

Bokako AJ
The South African Legal Practice Council v Teffo (10991/21) [2022] ZAGPPHC 666 (16 September 2022)

On infusing grace and compassion into the law

PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.

Justice Albie Sachs
Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7

Dignity, children and dagga

The High Court remarked: “It follows then that criminalising children for cannabis-related offences, even under the guise of prevention and/or deterrence, will have a profound disproportionate negative effect on them.  The criminalisation, moreover, is a form of stigmatisation which is both degrading and invasive.  Children accused of such offences risk being labelled and excluded by their peers in circumstances where as a society we have accepted this type of behaviour”. I agree with the High Court that a child is vulnerable to being stigmatised by her peers and loved ones. This has a direct impact on her sense of self-worth as well as her worth in a social context. Imposing a criminal sanction for the use and/or possession of cannabis on a child, therefore, infringes on her right to dignity.

Mhlantla J
Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others (CCT210/21) [2022] ZACC 35 (29 September 2022)

The core problem with the majority judgment in EFF II is that the majority’s public reasons for its judgment are insufficient to explain the case’s outcome. It handed down a judgment that intruded on the ambit of the legislature’s authority and intervened in the highly political impeachment process; without having carefully set out legally legitimate reasons for doing so. The majority’s expressed reasons failed to substantiate the outcome at which it arrived, leaving a ‘reasoning vacuum’ waiting to be filled by competing hypotheses. One potential hypothesis gives the Court the benefit of the doubt: the majority, though handing down a ‘troubling’ decision ‘not justifiable from a ‘traditional’ separation of powers perspective’, was ultimately acting to reinforce the democratic process, in acknowledgement that Parliament had egregiously failed in its duty, as representative of the people, to hold political elites to account.

Lauren Gildenhuys
"Esoteric decision-making: Judicial responses to the judicialisation of politics, the Constitutional Court and EFF II" (2020) South African Journal on Human Rights

On hate speech

Hate speech travels beyond mere offensive expression and can be understood as “extreme detestation and vilification which risks provoking discriminatory activities against that group”. Expression will constitute hate speech when it seeks to violate the rights of another person or group of persons based on group identity. Hate speech does not serve to stifle ideology, belief or views. In a democratic, open and broad-minded society like ours, disturbing or even shocking views are tolerated as long as they do not infringe the rights of persons or groups of persons. As was recently noted, “[s]ociety must be exposed to and be tolerant of different views, and unpopular or controversial views must never be silenced”.

MAJIEDT J
Qwelane v South African Human Rights Commission and Another [2021] ZACC 22

Unfair discrimination by Police

The Minister of Police has not been able to show that no discrimination exists. First, the analytical evidence of Redpath and the data presented shows that police stations that serve poor, Black areas have the lowest police to population ratios, relatively speaking, as compared to wealthier, rich areas which are predominantly White. This is not an adoption of a technical numbers game. Context shows that the poor, Black areas also have the highest rates of contact and violent crime. Whilst, one cannot ignore other crimes, such as theft which appear to occur in greater numbers in commercial areas such as the CBD, it cannot be disputed that contact crime is more prevalent in poor and Black areas.

Dolamo J
Social Justice Coalition and Others v Minister of Police and Others (EC03/2016) [2018] ZAWCHC 181

On xenophobia and the law

Excluding refugees from the right to work as private security providers simply because they are refugees will inevitably foster a climate of xenophobia which will be harmful to refugees and inconsistent with the overall vision of our Constitution. As a group that is by definition vulnerable, the impact of discrimination of this sort can be damaging in a significant way. In reaching this conclusion it is important to bear in mind that it is not only the social stigma which may result from such discrimination, but also the material impact that it may have on refugees.

Mokgoro J and O’Regan J (dissenting)
Union of Refugee Women and Others v Director, Private Security Industry Regulatory Authority and Others (CCT 39/06) [2006] ZACC 23

Koko the criminal suspect

The recommendation for criminal charges is particularly applicable to Mr Anoj Singh and Mr Koko, who by false pretences led Eskom, through the officials who processed the R659 million payment, to believe that the R659 million payment was in the nature of pre-payment for coal, as was the R1.68 billion pre-payment, later converted into a guarantee, when in truth and fact they knew that the prepayment and the guarantee were needed to enable the Guptas to complete and save the sale of share transaction.

State Capture Commission Report
Volume 4, Part IV

On Bullshit

What bullshit essentially misrepresents is neither the state of affairs to which it refers nor the beliefs of the speaker concerning that state of affairs. Those are what lies misrepresent, by virtue of being false. Since bullshit need not be false, it differs from lies in its misrepresentational intent. The bullshitter may not deceive us, or even intend to do so, either about the facts or about what he takes the facts to be. What he does necessarily attempt to deceive us about is his enterprise. His only indispensably distinctive characteristic is that in a certain way he misrepresents what he is up to.

Harry Frankfurt
On Bullshit

Sections 46(1)(d) and 105(1)(d) respectively provide that the National Assembly and Provincial Legislatures consist of women and men elected in terms of an electoral system that “results, in general, in proportional representation”.  The respondents argued that this refers to an exclusive party proportional representation system.  OUTA argued, correctly in my view, that proportionality does not equal exclusive party proportional representation.  The idea of proportional representation is not inconsonant with independent candidate representation.  These sections make no reference to party proportional representation, let alone exclusive party proportional representation.  The focus of the sections is on the “result”: whoever the participants may be, the system must be one that “results, in general, in proportional representation”.

Malanga J
New Nation Movement NPC and Others v President of the Republic of South Africa and Others (CCT110/19) [2020] ZACC 11

Hannah Arendt on the power of the lie

In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and nothing was true… The totalitarian mass leaders based their propaganda on the correct psychological assumption that, under such conditions, one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.

Hannah Arendt
The Origins of Totalitarianism

On impeachment and accountability

Impeachment processes are the means through which accountability and fidelity to the rule of law can be attained.  To leave such processes suspended in mid-air, as it were, for as long as it would take for the matter to be heard in the ordinary course does not accord with the public interest in the finalisation of the important issues raised in this matter. After all, Chapter 9 institution office-bearers perform an important role in upholding a constitutional democracy, and the determination of the validity of the rules that hold these office-bearers to account cannot be thwarted or subjected to delays.

Mhlantla J
Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others [2022] ZACC 1

On favourable treatment of Jacob Zuma

Despite the constitutional injunction of equal protection and benefit of the law, of which the Commission was aware, for reasons that have not been explained the Commission treated the respondent differently and with what I could call a measure of deference. He was only subjected to compulsion by summons when it was too late in the day… The question that arises is whether the current situation in which the Commission finds itself would have arisen if it had timeously invoked its powers of compulsion.

Jafta 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 (CCT 295/20) [2021] ZACC 2 (28 January 2021)

Trump uses religion

Trump continued, “I asked Paula [White] to invite some of her friends here that she believes are in contact with God, so that you guys can pray for me that God gives me the wisdom to make the right decision as to whether I run [for President] or not.

Pastor Darrell Scott
Nothing to Lose: Unlikely Allies in the Struggle for a Better Black America

On the use of International Law

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)

On free and fair elections

It is necessary that the integrity of the electoral process be maintained. Indeed, the acceptance of the election as being free and fair depends upon that integrity. Elections must not only be free and fair but they must be perceived as being free and fair. Even-handedness in dealing with all political parties and candidates is crucial to that integrity and its perception by voters. The Commission must not be placed in a situation where it has to make ad hoc decisions about political parties and candidates who have not complied with the Act. The requirement that documents must be submitted to the local offices of the Commission does not undermine the right to vote and to stand for election. It simply gives effect to that right and underscores the decentralised and local nature of municipal elections.

Ngcobo CJ
Electoral Commission of the Republic of South Africa v Inkatha Freedom Party

Jacob Zuma, the narsissist

A few months ago, author William Gumede described Zuma as someone with a narcissistic personality disorder — a set of traits defined by Austrian psychoanalyst Heinz Kohut as “including an exaggerated sense of superiority, a lack of self-awareness about the impact of their behaviour and having a disdain for others, who they devalue to validate their own grandiosity”. These people lack empathy, have a distorted sense of reality and are incapable of seeing anything from anyone else’s perspective. Narcissists like Zuma, Gumede argues, can’t accept responsibility and don’t care if they take down entire countries with them. The events at Nkandla, sadly for Zuma, only reinforced that perspective.

Rob Rose
Financial Mail

Jacob Zuma’s contempt of court

It is unbecoming and irresponsible of a person in Mr Zuma’s position to wilfully undermine the law in this way.  Mr Zuma had every right and opportunity to defend his rights, but he chose, time and time again, to publicly reject and vilify the Judiciary entirely.  I have already detailed the lengths to which this Court has gone in this matter to safeguard Mr Zuma’s rights despite his insolence towards this Court.  Consequently, there is no sound or logical basis on which Mr Zuma can claim to have been treated unfairly or victimised by this Court.  His attempts to evoke public sympathy through such allegations fly in the face of reason.  They are an insult to the constitutional dispensation for which so many women and men fought and lost their lives.

ACJ Sisi Khampepe
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 (29 June 2021)

On affirmative action

Equality before the law protection in section 9(1) and measures to promote equality in section 9(2) are both necessary and mutually reinforcing but may sometimes serve distinguishable purposes, which I need not discuss now. However, what is clear is that our Constitution and in particular section 9 thereof, read as a whole, embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

Justice Dikgang Moseneke
Minister of Finance and Other v Van Heerden (CCT 63/03) [2004] ZACC 3

Cancel culture is not real

The problem with this perspective is cancel culture isn’t real, at least not in the way people believe it is. Instead, it’s turned into a catch-all for when people in power face consequences for their actions or receive any type of criticism, something that they’re not used to. I’m a black, Muslim woman, and because of social media, marginalized people like myself can express ourselves in a way that was not possible before. That means racist, sexist, and bigoted behavior or remarks don’t fly like they used to. This applies to not only wealthy people or industry leaders but anyone whose privilege has historically shielded them from public scrutiny. Because they can’t handle this cultural shift, they rely on phrases like “cancel culture” to delegitimize the criticism.

Sarah Hagi
Time

On Zuma and Shaik, what the court said

Even if nothing was ever said between [Shaik and Zuma] to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient. If Zuma could not repay money, how else could he do so than by providing the help of his name and political office as and when it was asked, particularly in the field of government contracted work, which is what Shaik was hoping to benefit from.

Judge Hillary Squires
S v Shaik and Others 2007 (1) SACR 142 (D)

Innocent until proven guilty

Although witnesses before the Commission may not assert the rights in section 35(1) and (3) which are reserved for arrested and accused persons, those witnesses may invoke the rights guaranteed by section 12 of the Constitution.  The latter provision protects, among others, the right to freedom and security of the person which, on the authority of Ferreira, includes the privilege against self-incrimination. It is evident from this analysis that a statutory provision that compels witnesses to give self-incriminating evidence would be inconsistent with section 12 of the Constitution.  As a result, when that statute is interpreted, the obligation imposed on courts by section 39(2) of the Constitution is triggered. The Commissions Act is such a statute.

Jafta 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 (CCT 295/20) [2021] ZACC 2 (28 January 2021)

On religious faith and mental health

My colleagues and I often care for patients suffering from hallucinations, prophesying, and claiming to speak with God, among other symptoms—in mental health care, it’s sometimes very difficult to tell apart religious belief from mental illness…. Our conclusions frequently stem from the behaviors we see before us. Take an example of a man who walks into an emergency department, mumbling incoherently. He says he’s hearing voices in his head, but insists there’s nothing wrong with him. He hasn’t used any drugs or alcohol. If he were to be evaluated by mental health professionals, there’s a good chance he might be diagnosed with a psychotic disorder like schizophrenia. But what if that same man were deeply religious? What if his incomprehensible language was speaking in tongues?

Nathaniel P.Morris
Scientific American

Duty not to recuse

Like other Commonwealth courts, the South African courts have acknowl- edged that a judge has a duty to hear a case unless required to recuse him- or herself. In SARFU, the court cited the following comments from the High Court of Australia with approval: “Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

Justices Kate O"Regan and Edwin Cameron
"Judges, bias and recusal in South Africa" in H. Lee (Ed.), Judiciaries in Comparative Perspective

Contempt of court and the right of access to courts

An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)

Con Court on right to remain silent

The privilege against self-incrimination is not the only privilege witnesses before a commission are entitled to.  There may be others.  The test is whether such a privilege would have applied to a witness in a criminal trial, for it to be covered by section 3(4) of the Commissions Act. However, it lies with a witness before a commission to claim privilege against self-incrimination.  In the event of doing so, the witness must raise the question of privilege with the Chairperson of the Commission and must demonstrate how an answer to the question in issue would breach the privilege.  If the Chairperson is persuaded, he or she may permit the witness not to answer the question. Privilege against self incrimination is not there for the taking by witnesses. There must be sufficient grounds that in answering a question, the witness will incriminate himself or herself in the commission of a specified crime.

Jafta 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

Trump and the big lie

Trump’s electoral fiction floats free of verifiable reality. It is defended not so much by facts as by claims that someone else has made some claims. The sensibility is that something must be wrong because I feel it to be wrong, and I know others feel the same way. When political leaders such as Ted Cruz or Jim Jordan spoke like this, what they meant was: You believe my lies, which compels me to repeat them. Social media provides an infinity of apparent evidence for any conviction, especially one seemingly held by a president.

Timothy Snyder
The New York Times

On a rogue Public Protector

To claim that Potterill J “deliberately omitted the words ‘inadvertently mislead’” from the actual Code, is simply astonishing. Besides being a Public Protector, Adv Mkhwebane is officer of this court owes it a duty to treat the Court with the necessary decorum. She not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potteril personally. What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court. She owes Judge Potteril an apology. The Registrar of this Division is requested to send a copy of this judgment to the Legal Practice Council for consideration.

Gauteng High Court
Public Protector v Gordhan and Others

C on Court protects domestic workers

It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA.  If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds.  To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu.  To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.

Victor AJ
Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)

On awful Jared and Invaka

“Ivanka [Trump] is no Princess Margaret and Jared [Kuschner] is not the Duke of Windsor regaling guests with amusing bon mots to a captive audience. No one wants to hear about Sarah Huckabee’s pies or Steven Bannon’s shirts.” A snob like that actually deserves a dynamic duo like them (and may shed light on how President Trump found the traction in the heartland that he did). Javanka can’t protest that they moderated the president, not after his past immoderate weeks of raging against democracy and conniving to subvert it. They can’t retroactively claim some profound but strangled ambivalence about his reign, not after her fangirl phantasmagoria at the Republican convention. No, they have made their bed. Lucky for them, the sheets have a serious thread count.

Frank Bruni
The New York Times

On the US system of government

Assuming Trump steps down, the electoral system will produce a gridlocked government—not because “the voters” or “the American people” wanted it that way, but because strategically positioned voters in small states did. The unrepresentativeness of state governments is even more extreme because of gerrymandering. And Republicans seem to have done well enough at the state level in 2020 to thwart any systemwide move to fairer representation in 2021.

David Frum
The Atlantic

On political populism in Senekal

Senekal last week had nothing to do with solutions. It was all about politicians’ testosterone. It was all about politicians’ egos. What useful idea came out of all that heat and noise generated by all those politicians in Senekal last week? There is nothing. Nothing that makes SA a better place. Nothing that leads us to a better understanding of race relations in SA after 1994. Nothing that is a solution to farm murders – many of whose victims are poorly paid, desperate black people – or a solution to the incredibly horrendous murder and crime problem in this country.

Justice Malala
Sunday Times Daily

The law is like a house

The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.

Martha Gessen
The New Yorker

Trump and Covid

The latest catastrophe, the Covid-19 pandemic, has revealed the deep untruth underlying Adam Smith’s claim that ‘individuals, without desiring or knowing it, and while pursuing each his own interest, are working for the direct realisation of the general interest.’ The truth is that individuals pursuing their own interests produce group identities that have no sense of the general interest, but are rather marked by feelings of oppression, resentment or both. Only social trust and collective action, involving not only democratic co-ordination but genuine leadership, have a chance of returning us to a sense of the collective interest.

Eli Zaretsky
London Review of Books

On the lockdown

Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.

Angelo Fick
Johannesburg Review of Books

Elite Capture of land reform

The Plaas research team gathered data on 66 land reform projects across the country and found that “land reform has shifted from being pro-poor to being pro-elite”. The question, then, is: who has benefitted from land redistribution in South Africa? Who are the winners and who are the losers Elaborating on the concept of elite capture of the land, Mtero says, “[It] simply refers to the concentration of public resources in the hands of a few individuals, and usually it’s the economically powerful and the politically influential individuals. Instead of broadening access to land and reconfiguring the unequal agrarian structure, a select group of black commercial farmers is promoted in land reform.”

Moira Levy
New Frame

Police brutality during lockdown

Tyrone Moeng was only 19 when he became the fifth person to be killed by the police during the Covid-19 lockdown. Moeng’s death did not make the news and his name has been unknown until now. He was only referred to in an Independent Police Investigative Directorate (Ipid) presentation to Parliament as “CAS 40/04/2020”. On the night of 13 April, the Northern Cape teenager was asleep with a friend in his shack in Sternham about 2km from Groblershoop. Police officers banged on the door. He pushed out a side panel of the shack and ran away but the Police shot him as he fled and he died from his wounds.

Anna Majavu
New Frame

Nadia Davids on coronavirus lockdown

You dream one night about walking maskless in the deep cool green of a forest, of inhaling the smell of pine, of damp rich soil and moss. When the lockdown eases and you’re allowed outside, you take your child to a public forest stream in an upscale neighbourhood with all this and more. There are tall oak trees with old knotted trunks, a field of bright, sun-dappled, dew-soaked grass. The world is more beautiful than you could have hoped or remembered. And then you see to your dismay that other people have had the same idea, that other people have wanted the outside, longed for this soft, damp green. You stare at them, willing them away. Your six year old turns to you, his new lessons learned and says, ‘There are too many people here. We should go home.’

Nadia Davids
Johannesburg Review of Books

Mrs Escobar, Henao’s record of her years as the long-suffering wife of the world’s most infamous drug trafficker, opens with a question she has often been asked: ‘How could you sleep with that monster?’ Her answer is that she loved him, and, in retrospect, that she was too afraid to leave. Henao has lived with Escobar’s legacy far longer than she lived with Escobar, who was killed in 1993. She changed her name and the names of her children (Juan Pablo is now Sebastían, Manuela is Juana and she is María Isabel), fled Colombia, went into hiding and fought lawsuits, blackmail and media attacks.

Jessica Loudis
London Review of Books

Piketty on taxes

[Thomas Piketty] shrugs: “As a professor I was already, like, in the top five per cent of the income distribution, and with copyrights I moved to the top one per cent or 0.1 per cent, so it’s not as if I was very low to begin with. I would have liked to pay 90 per cent tax on my copyright. I paid about 60 per cent but I think this is not enough. First, books are also speculative markets, so when you sell 2.5 million copies, it doesn’t mean your book is 1,000 times better than someone who sold 2,500 copies. I’m not naïve about that. I know how everybody at some point wants to read the same book – or buy the same book.

Simon Kuper
WIRED

Piketty n inheritance

It struck [Thomas Piketty] as odd the Australian Government imposed no taxes on those who had been bequeathed multi-million-dollar properties, while governments in the United States and Europe taxed the same gifts at between 40 and 45 per cent. “Japan just raised its top inheritance tax rate from 45 to 55 per cent last year,” Professor Piketty said. “This was under a right-wing government by the way and I don’t hear Angela Merkel or I didn’t hear Cameron in Britain say he wanted to reduce the inheritance tax of 40 per cent to the Australian level of 0 per cent so this [Australia] is very unusual.” The author of the best-selling book Capital in the 21st Century said while small inheritances of 100,000 or 200,000 could remain tax free, it made perfect sense to levy tax on property transfers worth millions of dollars.

ABC News
Australia

On the Public Protector again

The President explained that he deferred taking the action directed in the SARS Report because its lawfulness was being challenged and the question of whether he can take disciplinary action, absent an employment relationship, is yet to be decided. This was the correct approach by the President as it is in line with the decision in EFF I.  The President has undertaken to act as directed, should the SARS Report withstand judicial review.  The interim interdict serves an important purpose – it suspends the binding effect of the Public Protector’s remedial action until finalisation of the review proceedings.  This is not an act that undermines the Public Protector. Rather, it preserves the interdict-applicant’s rights while showing due respect to the binding powers of the Public Protector.

KHAMPEPE ADCJ
Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others (CCT 232/19; CCT 233/19) [2020] ZACC 10 (29 May 2020)

Dominic Cummings, charlatan

I see the latest science Dominic Cummings knows more about than you is optometry. Half an hour late on Monday afternoon – like he’s Mariah Carey and not some spad in inside-out pants – the Islington-dwelling humanities graduate took to Downing Street’s rose garden. There, he delivered the most preposterous address to a nation since Tiger Woods stood in front of an audience, including his mother, and apologised to his wife and sponsors. The difference is that Woods had a problem with cocktail waitresses, while Cummings fucks entire public health messages in the middle of a deadly pandemic. Also, he’s not remotely sorry.

Marina Hyde
The Guardian

Collective cabinet accountability

Once the powers and functions have been assigned, the Deputy President and Ministers are responsible for the executive powers and functions assigned to them. These provisions make plain that members of the Cabinet are accountable independently and collectively to Parliament for the exercise of their powers and performance of their functions. For good measure, section 92(3) of the Constitution restates the obvious which is that, when they exercise the powers assigned to them, members of the Cabinet must act in accordance with the Constitution. This is significant because once Cabinet ministers are assigned powers and functions by the President they are not mere vassals of the President. They bear the duty and the responsibility to fulfil the duties and functions so assigned which in practice take the form of political and executive leadership of specified state departments. The Constitution makes the point that besides the duty to account to the head of the national executive, cabinet ministers bear the responsibility to report and account to Parliament on how they execute their executive duties.

Moseneke DCJ
Von Abo v President of the Republic of South Africa (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC) ; 2009 (5) SA 345 (CC) (5 June 2009)

Jacueline Rose on The Plague and the plague

Today, the insistence is that ‘we’ are all in this together, even as social disparity – the frailty of that ‘we’ – has never been so obvious: in the gulf that exists between families with gardens and those housed in airless, cladded tower blocks, a distinction disregarded by police rounding on people in parks; between the jogging culture of North London and the slums of Bangladesh, where the idea of social distancing, let alone of soap and hand sanitisers in abundance, is a sick joke; between the medical care given to the prime minister, assigned an ICU bed at a time of acute shortage while still fit enough – or so we were initially told – to govern, and the negligence suffered by Thomas Harvey, a nurse from East London who had worked in the NHS for twenty years, whose family were advised he didn’t need to go to a hospital (they called four times) before he died gasping for air in his bathroom.

Jacqueline Rose
London Review of Books

Science vs politics in time of coronavirus

Both the constructive disagreement intrinsic to science and the adversarial scrutiny necessary to politics disappear in this invocation of science as the ultimate authority – this trick will become familiar in the coming months. An extraordinary emergency requires extraordinary powers; no one disagrees with that. But it is politics, not science, which grants these powers legitimacy. How long will they endure?

James Butler
London Review of Books

Acting too late on the Covid-19 virus

In the current crisis another shark has been on people’s minds. In the early days of the coronavirus outbreak quite a few commentators compared Trump to the fictional mayor in Jaws. Steven Spielberg’s mayor refuses at first to accept that a shark is responsible for the fatal attacks – he claims the first was a boating accident. When the evidence becomes hard to refute he still declines to shut the resort. Only when another swimmer gets chewed up on 4 July does he finally accept that he needs to call in the professionals. It’s all rather Trumpian. But only one politician has actually cited the actions of the mayor from Jaws as a model of crisis management, and it isn’t Trump. Boris Johnson used to tease audiences by suggesting that ‘the real hero of Jaws was the mayor, a wonderful politician.

David Runciman
London Review of Books

How to vote during an epidemic

[E]ven if the [coronavirus] is under control, many voters may be cautious about stepping out to a polling place where many people will gather. When I reached out to a wide array of voting rights advocates, election law scholars, and former election officials, I heard the same three-word solution over and over again: “vote by mail.” Mail-in ballots are a major reason turnout did not crater in the Florida and Arizona primary elections held earlier this month. And they are the most straightforward way to ensure that voters can still cast a ballot even if they are stuck at home. In the ideal regime, which already exists in Colorado, Oregon, Washington, Utah, and Hawaii, voters would automatically receive a ballot in the mail in the weeks before the election. These voters should also be given the option to vote in person, in case they do not receive the ballot or lose it, but no one should have to request a mail-in ballot in order to receive one.

Ian Millhiser
Vox

Con Court on the Public Protector

The Public Protector’s explanation of the meeting of 7 June 2017 with the Presidency was, and still is, woefully inadequate. … In this Court, the Public Protector has contended that the adverse findings made against her by the High Court were based on innocent errors on her part.  The Public Protector’s persistent contradictions, however, cannot simply be explained away on the basis of innocent mistakes.  This is not a credible explanation.  The Public Protector has not been candid about the meetings she had with the Presidency and the State Security Agency before she finalised the report.  The Public Protector’s conduct in the High Court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner.

Theron J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC) (22 July 2019)

On elites and democracy

From a realistic perspective, the role of elites and their policies in the process of regime transformation are not so simple. Once it is recognized that all “real-existing democracies” (REDs) depend crucially on the role of representatives who act as intermediaries between the citizens and their rulers – some of whom, either directly in presidential regimes or indirectly in parliamentary ones, become the rulers – then, the difference between autocracy and democracy is bound to be less dramatic. Instead of rule by a few vs. rule by all, we have “rule by some politicians” or “polito-cracy” as the outcome. These newly empowered representatives inevitably form an elite institutionally separate from the electorate that has chosen them competitively or the electorate that has chosen them for their reputation

Philippe C. Schmitter

ON fascism and democracyDylan Riley

Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”

Dylan Riley
Jacobin

On delaying a trial: Porritt

The delay in this matter is totally unacceptable. This case strangely has the hallmarks of the Zuma Principle – to drag the case through even when there are manifestly no prospects. These particular tactics have since become common place in our courts. The delay of some 16 years cannot on any platform be justified. Approximately 17 judges have in one way or another dealt with this matter not on trial but on peripheral issues. The Applicant is using the old well-known tricks to cause a delay. The Applicant is now representing himself. He has dismissed the attorneys from the case and hopefully they will never reappear in this matter at any future convenient time.

Monama J
Porritt v S (SS40/2006) [2018] ZAGPJHC 45 (2 March 2018)

On the limits of religouis freedom

It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.

Minister of Home Affairs and Another v Fourie and Another
Sachs J, Constitutional Court

Subsequent to the above an incident occurred at HLOPHE JP’s residence in Pinelands – not where SALIE-HLOPHE J resides – involving the third party. The incident occurred during recess. SALIE-HLOPHE J was at his residence. She called me, disclosed certain information – which I elect not to set out herein – and also told me that there was an electricity outage at her house. She asked me to go to her house to attend to her daughters for safety reasons. I went to her home. She later arrived at her house. HLOPHE JP’s bodyguard drove her vehicle and another driver followed in a second vehicle. SALIE-HLOPHE J was clearly distressed and in pain. She asked me to take her to hospital and explained to me in graphic detail what had transpired at HLOPHE JP’s house. Her hand, it appears, was injured during an altercation.

Goliath DJP
Complaint against Judge President John Hlophe

On bad cartoons

As with his lord and saviour, Trump, it’s all a con. Jerm’s business strategy is to produce deliberately offensive work and then crow about how the fake news media is distorting his intent. He then turns to his followers and asks them to continue financially supporting his brave crusade. But, for a supposed satirist, he doesn’t seem especially concerned with actually making jokes or wry observations about social folly. Jerm seems to exist under a perpetual cloud of humourless outrage, endlessly frothing at the bit about teen climate activists, post-modernists, anti-fascist groups or whatever other enemy he is pathologically obsessed with at any particular moment.

Christopher McMichael
Mail & Guardian

On Denis Thatcher and drinking

Denis [Thatcher] was always more sociable than his wife. He loved long lunches at his club with his ‘chummoes’, and he had, as Moore puts it, ‘many expressions indicating the need for a drink without delay’. These included ‘blow the bugle’ and ‘let the dog see the rabbit.’

Andrew O'Hagen
London Review of Books

On Boris Johnson

Johnson used to at least be able to give a passable imitation of being Boris Johnson. Now he can’t even manage that. The gags and the mannerisms that used to be his calling card, now just fall flat. A one-trick pony whose one trick everyone knows. The surface has been stripped bare to reveal a core of molten need. Someone who craves attention and fears he wouldn’t exist without it. Someone whose narcissism leaves him devoid of empathy. Incapable of either giving or receiving love.

John Crace
The Guardian

on Margaret Thatcher

As early as 1981, one of Thatcher’s advisers complained that she bullied her weaker colleagues: “You criticise colleagues in front of each other and in front of their officials. . . . You give little praise or credit.” “If this is the best you can do,” she told Geoffrey Howe, a long-abused Cabinet minister, “then I’d better send you to hospital and deliver the statement myself.” On one occasion, when she became particularly “strident,” the Canadian Prime Minister Brian Mulroney had to remind her, “I am not a member of your government, I am the head of a sovereign nation!” But she could just as easily rebuke entire nations, genders, or both at once. “You men, you’re all so weak,” she spat at some Dutch representatives after an episode of failed European negotiation.

James Wood
The New Yorker

Prince Andrew

The most riveting moment in the interview [with Prince Andrew] came at the very end. The Prince, finally acknowledging Epstein’s deeds, said, “Do I regret the fact that he has quite obviously conducted himself in a manner unbecoming? Yes.” Maitlis immediately dispensed with the inappropriate euphemism. “Unbecoming? He was a sex offender,” she replied, forcing the Prince to reckon with the brute fact. Being challenged: Prince Andrew must have found that experience unsettling and unfamiliar—even further from his rarefied experience than eating pizza, taking selfies, and recognizing the personal autonomy of members of the serving class, those people passing through whom one doesn’t need to notice.

Rebecca Mead
The New Yorker

Rugby and rainbows

The almost pathological need to place white people at the center of the national narrative about the future is a blind spot for many well-meaning white people. For too many of our white compatriots, the South African story is built around the fate of white people. This inability to see the future without insisting that the photo frame includes white images represents a strange sort of race-consciousness for a group that often professes not to care about race. The stories that count are their stories even though it is widely accepted at an intellectual level that for South Africa to thrive socially and economically, it is black people who will need to make significant progress.

Sisonke Msimang
Africa is a Country

On #MeToo

If you look at the monsters of #MeToo, it is easy to think that power, in some dark fairytale, requires the sexual sacrifice of women, and that these sacrifices should be not exactly public, but known. It’s possible that the people around these men were in thrall to their monstrosity, that it trapped them in some paralysing or exciting posture with regard to their authority. We don’t speak of men’s attraction to power as being problematic – they want to compete! – but when women are attracted to power they are styled as being complicit in their own exploitation.

Anne Enright
London Review of Books

Butler on Trump

Pundits … say that all this is a form of madness, speculating that Trump is either carrying out a very public suicide or exhibiting some weird genius for survival. But is it really either/or? We have wandered into a psychoanalytic wonderland. Elected politicians are supposed to shy away from the prospect of being shamed or found guilty of breaking the law. Yet Trump owns the things he does, not by demonstrating repentance but through a flamboyant display of shamelessness.

Judith Butler
London Review of Books

On UK politics

The main hall was barely half-full when Matt Hancock arrived on stage to give his conference speech and even emptier by the time he had finished. Under the circumstances, a kindness to everyone involved. Not least the health secretary himself. The past 24 hours have not been kind to Hancock. The Man-Boy has built his entire life on never taking a position he can’t later reverse. Often within weeks, if not days. But now he had finally made the potentially career-ending mistake of saying he believed Charlotte Edwardes to be an entirely reliable witness, without first considering the prime minister’s exemplary record with women.

John Grace
The Guardian

On roll of journalists

The unhappy fact that it is journalists, investigating organs of state and officialdom and the political class and their involvement in corrupt practices to loot the State’s resources, who, by so doing, attract the attention of powerful and influential persons who are capable of suborning the apparatus of the State to smell out their adversaries, cannot be ignored. The examples of abuse of the system have been addressed elsewhere in this judgment. Moreover, the respondents’ perspectives assume that the designated judge is not lied to and is diligent… In my view, in the absence of a rebuttal, this example illustrates a grave vulnerability in RJCA that such an apparent abuse could occur. The common cause examples of blatant lies being told to the designated judge further exacerbates the vulnerability of the system.

Sutherland J
Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others

On Zuma and defamation

Mr Zuma mistakenly assumes that loyalty to the ANC is synonymous with loyalty to him. His assumption is both factually and constitutionally untenable. Falsely or erroneously, Mr Zuma believes that his recall as President was against the wishes of the ANC. However, it was the ANC NEC itself that insisted on Mr Zuma resigning as President of South Africa. Furthermore, it is not only the wishes of the ANC that matter. Mr Zuma offers no evidence that the people of South Africa were opposed to his recall. The people have an interest in what goes on in the ANC not least because it is the majority governing party.

Judge Pillay
Hanekom v Zuma (D6316/2019) [2019] ZAKZDHC 16 (6 September 2019)

Neo-liberals and racism

Other neoliberals may not have endorsed this kind of racism, but when demands for equality between the races threatened to result in the redistribution of property, their positions often converged with Röpke’s. Hayek publicly opposed the use of sanctions against apartheid (even an arms embargo went too far), and didn’t favour black majority rule unless the state could first be stripped of its powers to do economic mischief. He confided to his secretary that he liked blacks no better than Jews. In 1976, Milton Friedman spoke up in Newsweek for white minority rule in Rhodesia, and visited the University of Cape Town to explain to its predominantly white, segregated student body his opposition to universal suffrage in South Africa.

Alexander Zevin
London Review of Books

What Con Court said about the Public Protector

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)

Hlaudi in his own words

I do not believe in research…. You must defend the organisation. No journalist is independent. The COO has the final responsibility for news…. If people do not adhere [to his instructions], get rid of them. We cannot have people who question management…. this is the last time that we have a meeting of this kind. From now on you handle things on your level.

Hlaudi Motsoeneng
Commission of Inquiry into Interference in the Decision-making in the Newsroom of the SABC

Banality of Evil

Evil comes from a failure to think. It defies thought for as soon as thought tries to engage itself with evil and examine the premises and principles from which it originates, it is frustrated because it finds nothing there. That is the banality of evil.

Hannah Arendt
Eichmann in Jerusalem: A Report on the Banality of Evil

Boris Johnson upper class twit

[Boris] Johnson’s belief that Britain would continue to have a seat at the European table after Brexit suggested a profound ignorance not just of his country’s future but of its entire postwar past. This ignorance is not stupidity — Johnson is genuinely clever and, as his fictional alter ego Barlow shows, quite self-aware. It is the studied carelessness affected by a large part of the English upper class whose manners and attitudes Johnson — in reality the product of a rather bohemian bourgeois background — thoroughly absorbed. Consequences are for the little people, seriousness for those who are paid to clean up the mess.

Fintan O'Toole
The New York Review of Books

Indian democracy

In today’s India, as in many other places, power and money define the context. Those who enjoy social and economic privileges, and can summon powerful political influence, play by different rules. Vast quantities of unregulated capital let loose by the neoliberal economy slosh around to twist the machinery of laws and administration. An army of fixers and middlemen operate at every level to distort and corrupt the everyday experience of democracy, turning it into “a feast of vultures”.

Gyan Prakash
Emergency Chronicles: Indira Gandhi and Democracy's Turning Point

On open-mindedness

I find I am much prouder of the victory I obtain over myself, when, in the very ardor of dispute, I make myself submit to my adversary’s force of reason, than I am pleased with the victory I obtain over him through his weakness.

Michel de Montaigne
The Complete Essays

Langston Hughes on justice

Justice

That Justice is a blind goddess
Is a thing to which we black are wise:
Her bandage hides two festering sores
That once perhaps were eyes.

Langston Hughes

On being LGBT in Russia

In March, a member of the Russian senate asked the prosecutor general to look into the issue of yoga in pretrial detention. Yoga classes, organized on the recommendation of human-rights activists, had been offered to a limited number of inmates since September. But then Alexander Dvorkin, a man who is considered the country’s preëminent expert on cults, wrote a white paper warning that yoga can lead to sexual arousal, which in turn can lead to homosexual contact between inmates.

Masha Gessen
The New Yorker

Public Protector fails to be honest

In the matter before us it transpired that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice. She failed to disclose in her report that she had a meeting with the Presidency on 25 April 2017 and again on 7 June 2017. As we have already pointed out above, it was only in her answering affidavit that she admitted the meeting on 25 April 2017, but she was totally silent on the second meeting which took place on 7 June 2017. She failed to realise the importance of explaining her actions in this regard, more particularly the last meeting she had with the Presidency. This last meeting is also veiled in obscurity if one takes into account that no transcripts or any minutes thereof have been made available. This all took place under circumstances where she failed to afford the reviewing parties a similar opportunity to meet with her. The Public Protector failed to make a full disclosure when she pretended, in her answering affidavit, that she was acting on advice received with regard to averments relating to economics prior to finalising her report.

Absa Bank Limited and Others v Public Protector and Others

EFF’s VBS looting

VBS money funded the EFF’s fourth birthday bash, paid for printing of T-shirts, transport and what was described as “Jhb Office Rental”. The source of these VBS funds was obscured when two proxy companies for Malema and Shivambu were used to effect the payments. All in all, the EFF benefited from at least R4.13-million through myriad channels. Of this total amount, Scorpio traced about R1.5-million in VBS loot which was paid directly into two EFF bank accounts. This comes despite vehement denials from the EFF leadership of having benefited from the VBS robbery. Another R454,000 was deposited directly into the bank account of popular party venue Eyadini Lounge in Umlazi (KwaZulu-Natal), paying for the EFF’s fourth birthday party in July 2017.

Pauli van Wyk
Daily Maverick

One Long Scream

Why do we expect, in situations of political injustice, that virtue will accumulate on the side of the oppressed? At the very least, Winnie Mandela does us the favour of demonstrating how misguided that belief is. Why, then, do we rush to divest the downtrodden of the ethical ambiguity that must be everyone’s birthright? It is a truism of psychoanalysis that nobody’s thoughts are pure. We are all traitors inside our heads.

Jacqueline Rose
London Review of Books
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