I do not really want to pick a fight with Helen Zille because I do not have the time. But as she has now also attacked me because I criticised her actions around the appointment of the Erasmus Commission, I guess I’ll have to jump in.
When President Thabo Mbeki told religious leaders that they should “trust him” on Police Commissioner Jackie Selebi, he was rightly vilified in the media and by the Democratic Alliance (DA). Now it seems Zille, leader of the DA, is telling us we should “trust her” on the Spygate matter and should not complain when she impugns the integrity of a judge.
In response to my previous post criticising her response to the Erasmus Commission of Enquiry she argues:
that her name has already been cleared by a Commission appointed by her with terms of reference decided on by her and thus has nothing to hide;
people will appear before the Commission and will make scurrilous and untrue allegations that will damage her reputation and that of the DA;
and
that Judge Erasmus should never have accepted to chair the Commission because it is a political hatched job and she is therefore perfectly entitled to attack him personally.
First, it is true that a Commission headed by a senior advocate cleared Zille and the DA of wrongdoing. But the terms of reference of this Commission were decided on by Helen Zille herself, and she was thus cleared of what she knew beforehand she would be cleared. The terms of reference of the Erasmus Commission are much wider, and thus have the potential to uncover evidence of wrongdoing not covered by the Zille Commission.
It might well be that even these wide terms of reference will not allow Judge Erasmus to make any adverse finding against the leader of the opposition or the party she heads. In that case she would have been truly exonerated by judge, and her name would really be cleared. But by pulling out all the stops to try and prevent this broader investigation, reasonable people without an axe to grind will inevitably become suspicious and will begin to wonder why we should trust Zille. When politicians ask us to trust them, I for one starts getting suspicious – but maybe that is just me.
Second, in a Constitutional democracy that guarantees free speech, a politician cannot choose which allegations she wants to have aired and which ones not. As the Constitutional Court has said, the guarantee of freedom of expression means that we must allow almost all speech – even speech that might be untrue or scurrilous - because in the free marketplace of ideas the real truth will emerge eventually.
Now Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a commission of inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Zille, and creates the impression of serious hypocrisy.
Besides, to say that Mr Rasool might have a political axe to grind and might want to gain a political advantage out of this, and that the whole exercise is therefore illegitimate is also laughable – coming as it does from the DA. When the DA screams blue murder about allegations of corruption in the arms deal it does so knowing that it could gain a political advantage out of the matter. That does not make it illegitimate to ask for a commission of inquiry on the arms deal.
Third, it is true that in South African Association of Personal Injury Lawyers v Heath the Constitutional Court said that given the principle of the separation of powers in our Constitution, a judge should not perform a task that is “incompatible with judicial office,” and that one of the factors that might be relevant in deciding whether the task is incompatible with judicial office would be whether it would “create the risk of judicial entanglement in matters of political controversy”.
But the Court also said that judges can preside over commissions on inquiry because the performance of such a function “ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, weighing-up of information, and giving a decision on the basis of a consideration of relevant information”.
Here we have a commission set up in terms of Provincial Legislation to establish any wrongdoing by the City, which seems very close to the judicial function and therefore does not suggest an infringement of the principle of the separation of powers.
However, if Zille believed that the Erasmus Commission infringed on the principle of separation of powers as set out in the Heath judgment, she would be free to challenge its legality in the Constitutional Court. But she has not done so – perhaps because she has been advised by senior lawyers that such a case has little chance of success? Instead she has chosen to launch a personal attack on a sitting judge not on the basis of any of his actions or decisions (which would have been legitimate) but based on his previous political affiliations (which is undermines one of the main pillars of our democracy).
This personal attack is deeply irresponsible and flies in the face of existing precedent. The Constitutional Court has already found in the SARFU judgment that one should not assume that a judge would be biased merely because he or she belonged to a political party before his appointment. We all have a duty to uphold the independence of the judiciary and to respect the members of the judiciary, and we should not attack their integrity based on nothing more than their history. A judge does not stop being a judge merely because he sits as the head of a commission of inquiry, and to suggest that he does is to engage in mental gymnastics of the highest order.
And once again this was done in a way that reeks of hypocrisy. When Judge Sisi Khampepe was appointed by President Thabo Mbeki to investigate issues around the Scorpions – a politically controversial subject if ever there was one – the DA did not complain or attack the judge for taking on the assignment, and it even launched an action to gain access to her final report.
But now that another judge is appointed to head another commission dealing with politically less controversial matters such as lowly corruption in little Slaapstad, the judge is attacked personally, and in Orwellian manner accused of undermining the independence of the judiciary. This is rich, because, let’s face it, it is the statement by Zille – and not the actions of a judge acting in terms of legislation – that is undermining the independence of the judiciary.
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63 Responses to “Hypocrisy rules again”
Come on Pierre, rise to the challenge.
Put on an independent constitutional legal expert’s hat on and tell us whether the Erasmus Commission’s terms of reference have a place in the democratic country we all wanted. They read like the typical commissions the NP-led government dreamt up to bash students and political activists in the bad old days of apartheid.
If the Erasmus Commission’s terms of reference were being applied to any organisation you represented, would you not also fight tooth and nail about the injustice being meted out to your ‘client’. Try to be impartial about this one -pretend it is one of the anti-apartheid movements in the dock.
We have the DA to thank - not the chattering classes - for being at the sharp end of protecting democratic freedoms and fighting the abuse of power.
It’s time to take off the rosy-tinted spectacles about the ‘great liberation movement’ of South Africa and see it for the naked power monger it is.
And Pierre, political commentary is not for sissies. Take some advice from Zille’s predecessor, that great liberation fighter Helen Suzman. In reply to a journalist’s question about some harsh criticism from Jimmy Kruger (I think)she replied that if you were going to dish it (criticism) out, you must be able to take it. Stop whining and licking your wounds.
Zille and the DA are no different to the ANC they wish to attack at every opportunity. Worried about the silence of Zille’s chihuahua, Patricia De Lille. does she now accept corruption and mismanagement if it suits her organization?
DA’s hypocrisy knows no bounds. Remember their support for crostitution only to reject it when they lost members? what about their vocal MP who is not ambassador to thailand?
The DA is made up of a bunch of hypocrites and I will not vote for either the ANC or DA.
The silence of Patricia “Scandal” De Lille pushes me away from her party and am now left with UDM and IFP, since I consider anyone that peddles religion in politics as a useless dimwit.
I can understand Zille’s frustation. Ever since the DA took over Cape Town the the provincial ANC has tried just about every trick in the book to make it impossible for her to do her job. The ANC is too scared the DA will do a good job. She has to spend more time in fighting off the ANC’s destabilizing tactics than running the municipality
So maybe, Pierre, legally you have a point, but having to accept a commission appointed by a man found guilty of lying to the provincial council and refusing to apologise for that, is a bit much.
I agree with you, probably for the first time, Herr de Vos. The DA’s hypocricy and incompetence has been hidden for a while owing to the shenanigans in the ANC. Society must be wary of imbuing qualities of intergrity to opposition parties solely bacause of the evident flaws of the ruling party. This applies both in South Africa and internationally (including Zimbabwe).
For someone who is supposed to be a professor of constitutional matters, you don’t have a very sound grasp of argument, nor of due process and regulation.
Apparently unaware of the unusual nature of the Erasmus Commission, nor asking why any investigation is not capable of being handled by the usual authorities, nor the free and gutter press, who are usually good at uncovering things.
(Such as three million rounds of ammunition.)
Perhaps it is time SA moved on from race politics and truely started a party where the history of its racial membership was not an issue, and which was a truely independent third way to balance out the ANC-everyone else dialectic.
Such as the Liberal Democrats in the UK, who are usually good for a laugh, sometimes run their own councils, keep threatening hung parliaments, and mitigate the extremes of the other two parties.
Perhaps you would care to put your money and reputation where your mouth is and start the SA Neo- Liberal Democratic Socialist Business Party, and see if you do any better than Zille, or are better loved by the ANC.
I really do not like what I am seeing here Pierre.
In YOUR blog Zille, Zillier, Zilliest you in fact set out to attack Helen Zille and she responded with a very coherent and convincing defence of her actions. Her comments had that comfortable ring of the truth being told. She was not attacking you she was defending herself against your attack. There is a huge difference and readers should look at http://www.thoughtleader.co.za/pierredevos/2008/04/16/zille-zillier-zilliest/#comment-28051
What I do not understand is why you failed to follow standard blogging etiquette and respond to Helen in your original post. This smacks of scattered wits and the need to make a fresh start. This also means that readers lose the original thread and the coherence of arguments already presented.
In your opening comments you are disdainfully dismissive of the mayor and later you make insulting references to Cape Town. This is an attempt to undermine the person rather than attack the issues. Why do you find this sort of thing necessary
Indeed, if this blog is the considered opinion of a professor of constitutional law, then there is much to be worried about. The views are shallower than a bird-bath.
There is the quaint assumption that because Erasmus is a JUDGE and not a dental technician or a lawnmower mechanic, that everything will be fair and impartial. Well, the point de Vos is refusing to recognise is that Judge Erasmus is not heading up a proper judicial commission of enquiry able to subpoena witnesses, process sworn evidence and whose findings can be challenged and reversed on appeal. Erasmus is simply lending shine to an ANC-aligned kangaroo court whose verdict is pre-determined. Erasmus’s bias in favour of ANC polity is almost as well-known as de Vos’s bias in favour of the homosexual point of view in matters where sexual orientation is a point of dispute.
It’s ludicrous to pretend that there is a lack of bias here simply because Erasmus earns his crust by being a judge.
A lawnmower mechanic could do just as good a job of delivering a politically-driven predetermined verdict. He’d do the required hatchet job a whole lot cheaper too.
Jon,
You make the same assumption Ziller makes that because the Judge accepted the job to investigate shenanigans in the Cape Town Metropole that he is automatically biased and already partial.
You also attack Pierre’s stance on the basis that he has a view in homosexual matters (I presume as someone who knows homosexual issues better, he could better lend credence to the debate, rather than a bias towards homosexual issues to the detriment of other issues).
Judge Erasmus is not the first judge or person to head up similar type of enquiries. Take the findings of the SAHRC regarding FBJ. Furthermore, Zille’s own inquiry was frought with contradictions. Imagine that I wanted to have myself exxonerated from something I know I did, what are the chances that I will limit the scope to where I am found innocent?
surely, if yours and Anton is an attempt to find the truth, you should welcome any investigation that will eventually find Zille innocent of these charges.
Unfortunately, her reaction and yours seem to suggest that you both know there is merit to the case.
To take a leaf out of your book:
“It’s ludicrous to pretend that there is bias here simply because Erasmus had agreed to take up this investigation.”
As you say, a lawnmower mechanic could have easily been bought to find Zille innocent and would have come cheaper than the own Zille investigatio which had limited scope to help Zille’s case.
Our judiciary is made up of different type of individuals and it is largely seen as unbiased in that many decisions have been taken against government. We have an appeals court judge who is not only gay but has HIV. We have judges that worked well in the apartheid regime. We have judges that are newly elected. We have judges that worked in the homelands and we have judges whose own personal behaviour has been called into question.
We have safeguards including the constitutional courts which Zille can use to challenge any findings of this enquiry.
It is therefore hypocritical to make claims that there are no ways to appeal against the finding of the Erasmus commission. Witnesses can be called and they can be cross-examined. Zille has ample opportunity to go after the witnesses or those who testify if the information they provide is deemed incorrect or lies. We have laws relating to people who lie under oath, not to mention libel and defemation. So, Zille has many legal ways of getting her own back.
An apartheid era judge made a finding that implicated Zuma and found Shabir Shaik guilty. Are we to then claim since the judge was an apartheid judge favouring similar policies to those now espoused by the DA (Fight Black vs Swart/Rooi Gevaar) he is biased against the ANC and his findings should be ignored?
Thankfully, the decisions of this villified judge were upheld by the Appeals court which includes judges from different eras, backgrounds and political assumptions.
How many judges are alligned with the views of the DA? Are these judges to be considered biased against the DA, or are we to assume that judges can only be unbiased or biased for the ANC?
Come of it, Jon. Use intelligence when you argue, rather than a blinkered DA view.
The Premier of Western Cape was made to admit to telling a lie. Surely, Zille can admit to misusing the Cape Metropole funds for political purposes.
Where does it end?
Everytime i see this blog, i fear looking at it, cause it makes my life a little bit more complicated. You’re attacking the WHITE leader of the WHITE political party? I am completely confused.
Prof, you do know that you’re alienating your white fans, right?
Spend an hour researching our dear Judge Erasmus. I didn’t have much time for Zille’s argument until I did just this. Don’t take my word for it, find out who this Erasmus truly is…
WITH MEM LIKE THIS - IS THERE ANY HOPE FOR OUR JUDICIARY?
No one has really addressed the substance of my post, which is a pity. Mere invective or innuendo does not really take the argument forward. The responses to my post can be categorised into two: (1) those who say I (along with the judge) are ANC lackeys and (2) those who say the Commission is a draconian effort by the ANC to harm an innocent politician from the opposition. It is not really worth answering the first charge because it is so uninformed as to be laughable. Regarding the terms of reference of the Commission, I see in a press release from Rasool that it will look at, amongst other things:
* information that suggests that the Speaker of the City may have issued an illegal instruction for surveillance
* documents which suggest that the Municipal Finance Management Act (MFMA) and Procurement Policies may have been violated
* surveillance records which suggest that methods were used which are contrary to our Constitution and the Bill of Rights, and even the City’s own policies
* information that indicates that such surveillance was not confined to the City of Cape Town
* information that compels us to investigate both the activities of Councillor Badih Chaaban and the events around Councillor Sheval Arendse
* issues which suggest that a confusion or a blur exists between the state and party in payment matters in the City of Cape Town, George, and even in the investigation of the SMS sent allegedly by Councillor Hill and
* cellular phone records which suggest that, contrary to denials, leadership elements regularly interacted with each other and George Fivaz and Associates( GFA).
These all seem issues one would want to have clarified in a democracy that is based on openness and transparency. I for one would not want representatives of any level of government to abuse their position, breach constitutional rights or act illegally. Clearly those who defend the mayor think that that it would be ok for any of these things to occur as long as they are done by the DA and not the ANC. This attitude is rather similar to the attitude of some ANC supporters regarding the ANC. Sadly it is not based on principle - which clearly is the first casualty when politicians of any party get involved….
@ Pierre
I have no doubt that you are your own man, and that Helen Zille is quite capable of looking after herself. My real problems arose with the accusation that Helen Zille was attacking you and the discontinuity of this debate.
You don’t seem to have addressed some of Zille’s answers to your previous blog post. (hardly an attack)
http://www.thoughtleader.co.za/pierredevos/2008/04/16/zille-zillier-zilliest/
She said:
“If there was any hint of wrongdoing by me or the City, we would have been charged in criminal proceedings instituted by the prosecuting authority if that authority was satisfied that there was a prima facie case that we should answer. The Premier has not used the ordinary judicial process because, despite months of investigation, there is no basis for any charge.”
Justice must be upheld, so why a commission? Are these not criminal charges? “contrary to our Constitution”
So why a commission? Just answer this one question.
We all know how media can spin things and how leaving out just the right details can make things look completely different (just read today of Joost’s alleged boom breaking, which two articles spin in two very different ways). So it is not untenable to think that the whole thing is a smear process, since they have control over the commission, but not the police, they have means of controlling the “spin”.
Dear, dear, Pierre. Your colours are clearly nailed to the mast. Basing your argument about the commission on a press release from Rasool!! A politician whose integrity is hardly unblemished - if you follow the proceedings of the provincial parliaments and the DA’s investigations into whose hospitality he’s enjoyed. Now, maybe that’s worth a commission of enquiry.
How sad that you have confirmed my prejudices about the chattering classes who have such disproportionate sway over the public. They rely on cocktail party and conference circuit gossip for their information, which makes it into the newspapers because so few journalists have the energy to do more than call the ususal suspects for a quick sound bite, or regurgitate a press release.
What a pity we’re not better served by analysts and columnists who actually take the time to do original research, and do some independent thinking.
My grandfather was an advocate. He was the founder of Claremont Primary School, legal advisor to the Khamas who helped them by going with them to Britain to get a Protectorate,a Knight of St John, and a founder member of the Liberal Party. I was actually at the first meeting - in my pram! I would not go to sleep and my mother was keeping the minutes.
He turned down a judgeship over and over again. He believed the Nats were offering him a judgeship to get him OUT of politics.
A judge must be unbiased with NO affliation to any party.
A lot more circumspect now hey Pierre. So many “suggests”, an “indicate” and a “compels”. You could be a financial adviser. Jeez I’m glad you’re lurking safely in a university and not actively lawyering (or worse still, judging) somewhere.
Now maybe address Anton’s post instead of whining about people’s invective, categorising their posts and regurgitating the gift of offal that you swallowed a bit too quickly sometime earlier.
Thank you for confirming my post, which you appear to have ignored.
Either the points of reference are criminal fraud and deception, which the police are required to investigate, and Erasmus would be usurping their function.
Or they are normal politics, which Erasmus is interfering with outside the approved procedures of a vote of no confidence or an election.
And in light of the press’s inability to find anything concrete to pin on anybody, it would seem Erasmus is a waste of peblic money in a political flim flam., and officially approved mud slinging.
(P.S. Dear “Professor”, phone records that show people have been talking to each other? Despite demials? Wot? Like the IRA and British govt did? Like Mugabe and Smith and Lord Soames did? Like the Isreali govt and Hamas did? Like the Russians and JFK did?
Welcome to world politics, and stop defending Erasmus and start asking the Govt why they are spending public money on what should be more suited to the subject of a treatise by a History postgraduate student as part of their doctorate course.)
Of course a lawnmower mechanic can be hired to find Zille innocent of any charges, just as what a lawnmower mechanic can be found to find her guilty of any charges.
It’s got nothing to do with his being a lawnmower mechanic either. It’s got everything to do with who is convening this kangaroo court and the agenda they are driving.
Rasool and the ANC are doing this driving.
And they suspect that if they pay a judge — one whose ANC sympathies are as out there overt as De Vos’s gay sympathies — to deliver the verdict they require, that the public will think “he’s a judge and we should trust judges without question”.
Well, sorry. One must NOT trust judges by default. One must treat judges with the same suspicion and, dare I say it, cynicism as one treats anyone else.
And if a “professor of constitutional law” proffers an opinion based on personal animosity towards an office-bearer whose politics he doesn’t like and, moreover, one who has publicly demolished his weak argument, then we ought to hold professors in low esteem too. Abandon the Virgilian dictum of crediting the expert.
There’s a difference between being smart and being a smarty-pants. De Vos is too much of the latter.
I take serious issue with the fact that you think a Judge is above question and reproach simply because of their position in the judiciary.
The fact is governments have used sympathetic (you could actually just leave out the sym- part here) judges to promote their agendas. This has happened in first world countries (US - Bush vs Gore) and third world countries (Zimbabwean being the most glaring and recent example).
I have the right and duty as a citizen of this country to question ANYBODY and so does Ms Zille.
Now, with your knowledge of the law let us settle one argument.
Zille says the DA have no recourse to the courts as this is not a Judicial Enquiry. Does she or does she not?
If she does not then all of your arguments are actually incorrect and you have deliberately muddied the waters to achieve your own agenda.
If Zille or the DA has broken the law, it’s the police’s job (and we have seen how politically biased they are, we can be sure they’ll uncover any dirt)
If it’s not the police’s job, then it’s an attempted political assassination.
But thanks anyway, my research has convinced me that the DA aren’t so bad and the ANC has their lackeys in some strange places. Even you’re starting another blog rather that responding is a typical “Goebels on the politics of lying” tactic. (Goebels was Minister of Propaganda in the Nazi Party and he stated that if a lie is repeated often enough, it is regarded as the truth.)
Do you have the guts to respond to the powerful criticism of both your content and you argument posted on many other sitesor is the only way out to start another thread.
The defenders of Jacob Zuma says that he is innocent until proven guilty and thus because he was never convicted of a crime one cannot criticise him. Now defenders of the DA seems to suggest the same thing - unless a criminal charge is brought there can be no question of wrongdoing and thus no need for an investigation. But not all breaches of the law or the Constitution constitute criminal offenses so this argument does not hold. To say that unless Zille and the DA broke the law and are charged they can and should never be investigated by anyone is to raise the bar very high indeed. Most political maladministration never get to the level of criminality but that does not make that maladministration morally right or ethically defensible.
I have never said that judges may never be criticised. Anyone who has followed my comments on the Hlophe saga would know this. What I maintain is that one cannot undermine the credibility of a judge not for what he has said or for decisions he has taken, but for who he is as a human being - that undermines the independence of the judiciary. When Deputy Chief Justice Mosenekle was attacked by the ANC NEC for something he said at his BIRTHDAY PARTY, the DA was very upset and argued that such attacks undermine respect for the independence of the judiciary. They did not then say that because the judge was talking privately at a birthday party it was ok to attack him personally because he was not acting in his capacity as judge. But now that Erasmus is appointed as the head of a Commission of Enquiry - a quasi judicial function - they have no problem in attacking the judge and to impugn his integrity even before he has made any finding of law or fact. This makes the DA and its defenders spectacular hypocrites.
Has the NPA not started a case against Zuma on various charges? If so this is a matter which may play itself out in a court of law, and in this context he is certainly innocent until proven guilty. That is the law and his supporters are quite correct. By contrast the police have not made any statements that Zille has any charges to answer, criminal or otherwise. In fact despite the required information being made available the police have not taken any further action to the best of my knowledge. Is this not the reason for the Commission of Enquiry as ordered by the ANC controlled Provincial Government. In other words because the police have found no grounds for action the Commission of Enquiry has been ordered as an alternative. Logic tells me that we are dealing with two totally different types of scenarios. To try and draw paralells suggests that you are equating the the Zuma and Zille situations. I fail to see why
This raises a question. Are you suggesting Zille and the City of Cape Town have broken the law and if so on what grounds. Is this not the type of thin ice that you referred to in a recent press article
I would also like to know what a QUASI-LEGAL commission of enquiry is because this seems to be a bit of a contradiction in terms given that quasi means “seemingly” or “being partly or almost”.
Presumably by using the words quasi-legal you are answering Peters question (above) and this is not a Judicial Enquiry
The comment of Len van der Merwe questioning the position of the ID and Patricia de Lille in this matter refers.
The ID have consistently co-operated with all investigations into this issue including the Adv.Jordaan Enquiry, the Speakers investigation,the SAPS investigation and others. We will continue to do so in the interests of transparency and accountability.
Kindly note the media release of 9th April below.
Regards
Simon Grindrod
MEDIA STATEMENT
12H00, 9 April 2008
For immediate release
ID - Patricia De Lille slams Cape Town Speaker’s High Court challenge to Erasmus Commission
ID President Patricia de Lille has slammed the City of Cape Town Speaker Dirk Smit’s high court challenge to the legality of the Erasmus Commission of Enquiry, saying ‘the ID opposes this move unconditionally.
‘We in the Independent Democrats want the dark cloud of suspicion that is hanging over the city as a result of the spy saga to be removed. As such, the ID supports the mandate and authority of the Erasmus Commission,’ Ms De Lille says.
‘The Independent Democrats opposes the attempt by the Speaker to silence the commission. It just does not make any sense that before the commission has even begun its work the Speaker is already trying to gag it.
‘The Erasmus Commission is an independent judicial enquiry chaired by a respected Judge of the Cape High Court and as such we want it to go ahead because the ID wants to get the truth,’ says De Lille.
It’s “quasi-judicial”. Like every kangaroo court anywhere on earth.
And having a judge head up a kangaroo court demeans that judge in inverse proportion to its dollying up the kangaroo court by giving it a gloss of ill-deserved respectability.
But it’s still a kangaroo court.
If you want respect, steer well clear of kangaroo courts.
“To say that unless Zille and the DA broke the law and are charged they can and should never be investigated by anyone is to raise the bar very high indeed. Most political maladministration never get to the level of criminality but that does not make that maladministration morally right or ethically defensible.”, Pierre de Vos
Maladministration and criminal charges are somewhat far removed from each other. We can’t have two police forces, or am I missing something?
You clearly stated some aspects they will be investigating some snippets are: “illegal instruction for surveillance”, “contrary to our Constitution”. These are criminal and not maladmin allegations.
Your style of argumentation is itself geared towards breaking down the person you are arguing against. This is worrisome for a professor, even more so, one of law. You do not quote her arguments directly but instead state her arguments snidely and incompletely and then go on by arguing in a personal manner, talking of trust and making statements as to what she “seems” to be suggesting.
“Now Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end.”
Note that you are not addressing any of the facts or her statements (the way she argued against you), but instead trying to break her down as a person. Your freedom of expression argument can also be extended to yourself, trying to curb it in the case of judges under the guise of “undermining the judiciary”.
“to say that Mr Rasool might have a political axe to grind and might want to gain a political advantage out of this, and that the whole exercise is therefore illegitimate is also laughable”
This statement itself is so laughable. You have a very subtle way with words here, combining two arguments into one.
1. Rasool’s political advantage.
2. exercise is illegitimate.
Clearly, few people would argue point one on its own, to insinuate that it is untenable is the laughable part. But then you throw in part 2, which is clearly correct. So you make it hard to answer the argument, but mixing things up into a nice cocktail.
Your use of logic and argumentation in this article is disconcerting. Is it not fair to ask of you as a law expert to be factual, clear and to the point? That is what Zille’s was, and her argumentation stands far above what you are doing in this article.
Yes, it is an opinion piece. And you have all the rights in the world to say it like you want to. Just be aware that you are exposed by the way you do it.
Japes
Spot on. First thing I though when I read Pierre’s blog was “this man is afraid of loosing his job”
Also - remember what Zuma said about gays?
Len
There are no more “apartheid judges” left. That is a myth.
Simon Grinrod
I used to be an ID supporter. So were my daughter and my husband - who wrote an e-mail to the ID asking to join, which was never replied to, which saved him having to resign later. I openly was known as an ID supporter and wrote a letter to the Cape Times supporting the ID, which was published.
Then after the last elections we saw you on TV attacking Helen Zille. Never will you get our vote again.
Don’t you think it about time the ID decided who it is in co-elition with - the DA or the ANC? Can’t you decide who your friends are?
If Helen Zille has done no wrong, as she claims, what is wrong with having these clearly established by Judge Nathan Erasmus?
Lyndall Beddy,
According to Cosatu, there are few apartheid judges left i.e. judges who worked under the previous regime. It has only been 14 years. You cannot tell me that it is enough time to get rid of a bunch of judges who were so willing to carry out instructions of one system.
You and I might agree that it is the decision of the judge that should count and whether such a decision has basis on fact, but as we know, Cosatu and the DA seem not that much concerned about it.
even if a criminal case against the DA would have been best, Judge Erasmus did not make the decision.
So, why not allow him time to investigate and make a decision.
Furthermore, a criminal investigation would have been a closed matter i.e. it would have taken forever and who knows whether such an investigation would have suffered the same fate other high profile criminal investigations have suffered in the country i.e. missing dockets, etc.
Surely, one would think the DA wants the truth to out? furthermore, if the DA knew all along there was nothing wrong and that only police investigate criminal wrongdoing, why did they insist on their own investigation, rather than lodge the matter with the police? Why are the police so important when the investigation has been expanded but not nrecessary when the DA finds a hack to exonerate it?
Come on people, if you want the truth, listen to the evidence.
If the judge is biased, the process will be open for everyone to see his bias.
Why are you afraid of finding out truth? We keep demanding information and access to information act, but for some reason when it involves a white party, white people jump to their defence and in the process commit high hypocrisy in demanding openness elsewhere. The Zuma case has taken more than 5 years to come to where it is and many challenges have gone by. A criminal investigation of the DA would take ETERNITY and would probably lead to a mere slap in the wrist through a process of ngotiated settlements.
Facts are more important than the punishment.
Lyndall,
If the ID loses your support because they stand up for truth, then I will be delighted to take your space. I am sure the ID would not see your vote as a major loss if you only support them as long as they are hypocrites.
Len
First of all - I believe your comments are backed by vested interests, or you are paid, or you are not even one person - just one computer. I am entitled to believe what I want - but my professional experience has been similar to a cop’s which makes me suspicious.
The ID is “distancing itself from Helen” - except when it suits them - in Cape Town and various other local municipalities. In others they are in with the ANC. They blow hot and cold all the time.
Apartheid Judges were “willing to carry out instructions of one system”. And what would you think if present judges did not carry out ANC laws - also “one system”? Do you know ANYTHING about the law? Parliament makes the laws, the judges enforce them - they can not just make up their own laws! In the beginning years of apartheid the judges gave the best decisions they could - and the Nats then just changed the laws - by statute! Just like the ANC is doing now with the dissolution of the Scorpions! Many judges emigrated or left the bench. The apartheid government tried to appoint right wing judges. Usually it did not work. As my father said “the job makes the man”. I should know. I helped my dad with the editing of the law reports from the time I was 12. In those pre spellcheck and computer days someone had to read the draft copy (me) and someone check the final copy (my father) before it could go to print. He prefered to work from home. My mom did the Afrikaans judgements with him.
Just one exaple - Mandela nad his co-conpirators WERE found guilty of treason. There could have been no other verdict in terms of the law. But the judge did NOT sentence them to death, did he, although he had the power to do so? Many Nats were infuriated with the judgement. Believe me they would NOT have got presidential pardons. Let me quote the apartheid judge:
“The function of this court, as is the function of the court in any other country, is to enforce law…and…the laws of the state in which it functions. The crime….is in essence one of high treason…..giving the matter very serious consideration I have decided not to impose the supreme penalty which in a case like this would USUALLY be the proper penalty for the crime, but CONSISTENT WITH MY DUTY THAT IS THE ONLY LENIENCY WHICH I CAN SHOW.The sentence in the case of all the accused will be one of life imprisonment.”
Get the point? Read it SLOWLY. This is also why we CAN bring back the death penalty - provided we have GOOD judges!
Since 1989, when F W De Klerk was appointed President,no more conservative judges were appointed. That was 2 decades ago ! Do you mind giving me the NAMES of judges still serving who were appointed before 1989. There can’t be many.
“The Zuma case has taken more than 5 years to come to court”
Only because of the continual appeals lodged by Zuma - otherwise it would have been over by now.
“You only support them as long as they are hypocrites”
I stopped supporting them BECAUSE they are hypocrites (in my opinion)
Remember that when Patricia was campaigning before the election she vowed not to support the former ANC mayor of Cape Town. Immediately after the election she did just that!
I wish I could trace the clip of Simon Grinrod’s attack on Helen Zille on TV - but the SABC has probably buried it deep - to protect the ANC. She is as much opposition in SA as Simba is in Zimbabwe. The only thing she has achieved is to expose the arms deals - with information linked to her from pals in the ANC. I would rather support the ANC than the ID - if it was not for Zuma. Nothing will make me support Zuma.
It would be nice if you made an attempt to understand why Zille does not want to subject the herself / the DA / the City of Cape Town / the voter majority, to a QUASI -judicial enquiry. Go back and read all the posts. It is not a difficult issue to understand. Since starting this blog the author has conceded that it is quasi-judicial (in other words “almost” judicial. “Almost” is not quite good enough given whats at stake. See his post of 29 April above
@ Simon Grinrod
You have not responded to the issue of the “Quasi-judicial” nature of the commission. This is the view of de Vos who started this blog and who is a Professor of Constitutional Law. It is NOT a Judicial Commission of Enquiry and this is a critical element of this entire debate. Maybe you were a bit too quick off the mark in your eagerness to score political points. If you felt strongly enough about “transparency” you would review your alliances.
I see those who defend the decision of Helen Zille to attack a judge for accepting to chair the Commission of Enquiry has latched on to my use of the term Quasi-judicial to suggest that it is therefore acceptable for Zille to personally attack judge Erasmus. This is semantics and does not really make any difference to the main point I was trying to make, but because the defenders do not want to address the main point, they will have to hang on to such irrelevancies. My point was and remains that it is unconscionable to attack a judge personally not for what he did or said but merely for agreeing to chair a Commission of Enquiry that was set up in terms of the relevant legislation and Constitution of the Western Cape. One has a right to challenge the legitimacy of this Commission (just as Louis Luyt had the right to challenge the setting up a commission of Enquiry by President Mandela), but when one attacks a judge personally in this way one undermines the independence of the judiciary and shows an utter disrespect for the constitutional institutions that must safeguard our democracy. As I said before, when Deputy Chief Justice Moseneke was attacked by the ANC NEC for what he said at HIS BIRTHDAY PARTY, the ANC was rightly condemned by the DA for attacking him. When one speaks at one’s birthday party I would imagine one is doing something far less than fulfilling even a quasi-judicial function but one does not stop being a judge for that. The same principle apply to Judge Erasmus. One cannot have one set of rules for the ANC and another set of rules for ones own party because that makes one a rank hypocrite. This basic logical argument has not been addressed by anyone.
1/ Were the ANC justified in setting up an enquiry given that police can find no evidence of wrongdoing
2/ Is the manner in which the enquiry has been constituted judicially, legally and ethically acceptable.
The DA and Helen Zille think not and have put forward sound arguments in support of their stance. To dismiss those of us who agree with them as being hypocrites smacks of irritation rather than cogent counter argument.
In my opinion the fuss being made about the attack on the judge is a red-herring when weighed against the legitimacy of the commssion.
When responding to your blog Zille, Zillier, Zilliest Helen Zille very carefully explained her position and included the following comment:
“In accepting the appointment to chair the Commission, Erasmus ignored guidelines laid down by the Constitutional Court, which recommended that Judges turn down appointments OUTSIDE OF A COURT when such positions “create the risk of judicial entanglement in matters of political controversy.”
Nathan Erasmus ignored them and, having done so, he cannot be protected from the consequences. The Commission is not a court, and its chairman is not acting in the capacity as a Judge and cannot expect the deference due to a judicial process. In fact, if anything, it is Erasmus’s decision to chair the Commission that has undermined the independence of the judiciary required, not my criticism of him.”
If Zille is correct then:
1/the question of quasi-judicial rather than judicial is very germane in my opinion.
2/the attack on the judge is not nearly as reprehensible as you would have us all believe.
On a separate but more general note, there is no one within the known universe who is beyong reproach or criticism. Not even the legal profession
I cannot tell you how disappointed I am at your puerile responses from someone who surely only purports to be a “teacher in constitutional law”. You have the bare faced cheek to ask those who comment to address your dancing on the head of a pin points without addressing the gaping holes blasted in your original blog and responses. Let me give you some ammo. I reckon the judge should be criticised for even lending his name to a “quasi-judicial” process with such an obvious political goal. If you say it’s not obvious then you should be tarred with the same brush. Also I do not think anyone is saying judges should not be criticised full stop. But it’s what they say and do that should be open to criticism and counter criticism. It’s the way of the free world, maybe a little puzzling to you and your politicised cronies, but the way never the less.
One of the most fascinating observations about those who claims to despise incompetence, mismanagement and corruption is that they seem to tolerate it when it comes from the same political corner they identify themselves with.
The scope of the investigation is clear and Zille will have a chance to present her case.
Just recently, there was wide acceptance of a result of the SAHRC on its quasi-judicial findings against the FBJ. Neither Anton nor Lyndall had problems with the process followed by the SAHRC. The main difference between the SAHRC process and the Erasmus commission is that Zille and Co will have an opportunity to present their case. They can participate in the process and if they have done nothing wrong, they can rub the salt on the wounds of the ANC and specifically, Rasool.
There was such a hoopla about why Rasool did not ask the police to investigate if there was a crime committed, but the very same people did not ask that question when Zille conveniently set up a commission with limited scope that was designed to exonerate her. Surely, if there was reason to establish a commission, then the police could have been allowed to investigate without wasting taxpayer money on such an investigation.
so, Zille herself established the trend. Obviously, since that commission was designed to find her, the speaker and the DA innocent, sane people (they might exclude a couple of posters on this issue in this blog) innocent, what is wrong in coming up with a commission to extend the scope a lot further.
Furthermore, the enquiry will be done in public i.e. Joe Public will be able to follow the story and can come to their own conclusion. If at any point Judge Erasmus shows cause to doubt his credibility or bias, then obviously that will be there for everyone to see. So, what is so wrong with an attempt to discover the truth? If the DA is innocent as they claim, then surely they should welcome an opportunity to clear their name, right?
Some propose a police investigation. Now, can some tell me exactly the details of Glenn Agliotti’s admission of guilt? Do we really know what he pleaded to, and the people he involved in his plea? We were denied an opportunity of an enquiry by a plea bargain.
furthermore, the DA has been critical of police incompetence, with Sandra Botha almost single handedly saving the Scorpions (oh, btw, I think Scorpions or their role should be retained) from oblivion. So, with that trust in the police (Zille was very critical of their action against her during a Cape flats drug march). Now, we are suddenly to believe the very same police who botched the Yengeni drunken driving, would be so competent as to properly and publicly investigate whether the DA, Speaker Smit and Zille abused their positions in spying on opponents in Cape Town and George?
I also notice that there is no dispute of the prima facie assumptions that there is something to answer for. Is it because even the dogged defenders of Zille know that she needs to answer to something, but would rather the “incompetent” cops do the investigation? I have no doubt the DA would have a field day, as they did with the initial investigations. Also, the police were accused of forcing a confession out of the SPY involved in this saga. Would it not be convenient for the DA to then claim that this is a continuation of the malignement of the DA by the police which started with the so called confession by the SPY/Fivaz Investigator?
Odd how people latch on to useless or sometime incosequential terms, but leave out the facts altogether.
so, here are the questions that the DA needs to answer.
1. Judge Erasmus did not appoint himself and so far has done nothing to determine his partiality, why the attack?
2. If the DA feels it is innocent, as proven by their own investigation (at taxpayer’s cost, as were the spy scandals), then why are they so against being proven innocent once again?
3. This will be a public investigation, meaning that people will be able to make up their minds based on facts as presented. There will be no chance of spin doctoring by the ANC or the police. We will see facts as they are. Surely, that kind of openness is what the DA claims to favour. Has this changed?
4. The DA and Zille have been very critical of police management in the Western Cape with Zille accusing them of being ANC lackeys. Surely, any police investigation on the DA and Zille (police investigations are supposed to be done in private to protect witnesses, etc) would draw similar cries of unfairness. The very same police managed to screw up the drunken driving charge against Yengeni. Is it possible that the DA was hoping that a police investigation can be dragged forever or there could be private submission and plea bargains that will forever conceal the truth?
Lyndall,
You are barking up the wrong tree, Bro.
If you cannot debate facts and prefer to make stupid accusations and assumptions, then feel free.
I am as real as you are and no, I do not work for Government, ANC (in fact, I am no fan of Jacob Zuma and even though I voted ANC in the past, chances are that if Zuma is not in jail, I will not vote). Yes, I know some people in government, but also know people in opposition politics. I have had run ins with Patricia De Lille before as well.
So, if you cannot debate the issues, go ahead, call my existence and perspective into question. That is, afterall, what school bullies do.
Honestly, the ID could into bed with the ANC in Cape Town and wrest control from the DA’s rag tag coalition.With Chabaan gone, the DA would not be able to get a majority without the ID. It is therefore the Da that is benefitting from the situation more than the ID. The ID could even negotiatte a mayorship in Cape Town and who knows, Simon could be mayor.
Talking of principles, what happened to the DA’s innocent until proven guilty. They have maligned Erasmus even before he made any findings or decisions that are considered controversial.
By the way, who created Scorpions? Was it not the very ANC?
Oh, apartheid ended in 1994, in case you were wondering.
As I said again, I doubt if Simon Grindrod and the ID are losing sleep about your not supporting them.
Thank you for telling us your history with apartheid laws. Glad someone in the DA admits to supporting apartheid and the Nats. The rest is really useless. I rather think your take of the law reflects that of a 12 year old and since I grew past that age yonks ago, I will behave like the adult and feel free to behave like the 12 year old.
Seeing that you have continued with your accusations (although you claim you don’t have time), I feel compelled to once again state my case.
Firstly, I cannot recall asking you or anybody else to “trust me” on this issue. If I or the City or the DA has done anything wrong, let us be charged in a court of law where the playing fields are level and the rules are fair. This has not happened because we have done nothing wrong. Even the interim report of the Erasmus Commission’s evidence leader has conceded that there is no evidence of illegal spying.
This precisely confirms the findings of the Advocate Josie Jordaan SC. I asked Advocate Jordaan to investigate the allegations of wrongdoing because I wanted to establish whether there was any truth in them, so that we could rectify the situation if necessary. His terms of reference were broad, and included a thorough investigation into my role in the matter. I had never met Advocate Jordaan before and he had no reason whatsoever to protect me or the City.
He found that:
• An investigation into alleged breaches of the councillors’ code of conduct by Badih Chaaban was not only warranted, but legally mandatory;
• The City of Cape Town was warranted in outsourcing the investigation to private investigators George Fivas and Associates (GFA);
• I was not in any way involved in the institution of the investigation or in the payment subsequently made to the service provider;
• The policy followed to procure the services of GFA was proper and in accordance with relevant provisions;
• There was no factual basis to conclude that the City paid for any services that it should not have paid for;
• There was no evidence that the City had paid for services rendered to the DA; and
• There was no evidence indicating that councillors of parties in partnership with the DA in the city were subjected to surveillance on the instructions of the speaker or anyone else.
Incidentally, as I said in my previous post, after an extensive investigation, the police could find no evidence of wrongdoing either after an unusually enthusiastic investigation. We gave them all the relevant evidence, to the last invoice.
It is ironic that you make the generalisation that politicians cannot be trusted. Yet you are willing to trust a Commission of Inquiry set up by an ANC politician who personally appointed a judge with a history of close alignment to the ANC to investigate the DA, despite the fact that the Constitutional Court has warned judges against accepting these kinds of appointments which fall outside established judicial processes. I would have thought that with your constitutional expertise you would have seen this for what it is, a political witch hunt that is designed to smear me and the DA,for as long as possible, prior to the upcoming elections.
If your accusation about politicians is to have any application then it must be directed at Rasool who has been found guilty of wilfully misleading the Provincial Parliament on three distinct points, yet remains in office. Even under apartheid, Ministers were forced to resign for such breaches. Rasool got away with an apology, but he is at it once more. He signed a wilfully misleading affidavit alleging that I was involved in illegal spying, that I regularly met the investigators and had ongoing cell phone contact with them. These claims are exposed as lies by the Commission’s own “factual summary” compiled by the Evidence Leader, Mr F Petersen and submitted to Rassool. This detailed report, which tooth-combed cell phone records, found that prior to the arrest of Du Toit there was one 24 second-long voice-mail contact between me and one of the investigators, and concedes that there is no evidence of illegal spying. The Commission’s “factual summary” compiled by the Evidence Leader, thus completely undermines Rasool’s own affidavit. Rasool is known to be economical with the truth, but it is really surprising that he would produce lies in a sworn statement that are so easy to expose.
Secondly, this issue has nothing to do with freedom of speech. People are free to say whatever they like about me or my party, within the limits set out in the Constitution.
But this does not entitle a politician to set up a political hit-squad to smear another politician with lies, distortions and innuendo. That is power abuse.
The appointment of a Commission, chaired by a Judge, is designed to give this hit squad a veneer of respectability that many in the media and civil society will fail to see through. Every utterance at the Commission will be reported on as if it were fact. By the time that I am given the opportunity to fix the damage, the lies and distortions will have been banner headlines for weeks.
Thirdly, whether or not Nathan Erasmus has undermined the principle of separation of powers is not the issue here. You have fundamentally misunderstood the point.
The point is simply that Nathan Erasmus chose to accept the Chairmanship of the Commission. He does so in his capacity as a chairman, not a judge. He is therefore not due the same deference that he may have been entitled to if he was acting in his judicial capacity.
I should also point out that Nathan Erasmus’s political affiliations are not the core issue here either. When I said that some judges allow themselves to be abused, I was referring to Erasmus allowing himself to be used by the ANC to legitimise a Commission that we contend is unlawful. So, my “attack” as you call it was not on the basis of Erasmus’s affiliation, but on the basis of his decision to accept the appointment to the Commission.
Lastly, I would also have expected a constitutional law expert to be able to see how the Khampepe Commission differs with the Erasmus Commission.
The Khampepe Commission was set up to investigate the location and mandate of the Scorpions and put forward recommendations on that basis. This is similar to the Van Zyl Slabbert Commission set up to look at the electoral system. Unlike these Commissions, the Erasmus Commission is not designed to put forward any recommendations, nor can it contribute to policy-making.
“Innocent until proved guilty” is only a LEGAL not a moral dictum. Erasmus isn’t heading a legal commission, but only a “quasi-legal” one. And Erasmus isn’t the focus of this witchunt — Zille is.
Zille is perfectly entitled to hold critical views of anyone at all, and so can Rasool. So can anyone.
But we can’t all convent a kangaroo court - a “quasi legal” show-trial - to pursue a public witch-hunt of his political opponent, as Rasool can. And then to stack his kangaroo court with a judge of his own choosing whose party allegiances he proudly, publicly wears like a banner.
That’s like accusing Solly Goldberg from saying that he has no faith in a fair verdict from a panel made up of three Nazi Party judges hand-picked by the Fuehrer himself. Solly’s not going to dignify this biased charade by going along with it, or by going all weak-at-the-knees with respect just because the presiding judge is a real judge with real robes. That judge is a disgrace to himself and the Bench for associating himself with this quasi-legal kangaroo court and everyone should be saying so if they really respect the real pukka-legal proper courts.
It is sad for me to see a professor of law employ these kinds of methods of argumentation.
Len
“Zille conveniently set up a commission with limited scope that was designed to exonerate her”
You reveal that you have already found her guilty, note the absolute use of “was designed”. Maybe you can take your “evidence” to the police and this could come to an end.
I can’t find that commission’s terms of reference, but would be very glad if someone managed to produce them, since then we could argue based on them and not just fanciful ideas (which may even end up to be true, but we have no basis for argument as is, but to say that it “might have been designed to exonerate”).
“so, Zille herself established the trend.”
The issue was not with a commission itself, but with the details of the commission, the judge, the terms of reference. Your argument that she set up a commission so she can’t complain if someone else does, does not hold water. You can argue about the terms of reference but the preceding is invalid.
“Furthermore, a criminal investigation would have been a closed matter i.e. it would have taken forever and who knows whether such an investigation would have suffered the same fate other high profile criminal investigations have suffered in the country i.e. missing dockets, etc.”
So now we should set up commissions because you claim the police cannot do its job?
Answering your four points:
Did you not read the arguments? All of them have been addressed.
1. It was clearly stated that she accused him of allowing himself to be abused based on the constitutional court basically saying judges should be weary of allowing themselves to be put in politically contentious positions. Pierre addresses this above, and differs with them. You are missing the issue.
4. Quoted from the link in 2: “But, despite an exhaustive police investigation over many months, no charges have been laid and no evidence has emerged that the Spygate allegations have any substance.”
You should try and spend some time analysing the arguments of those you disagree with, maybe they have already answered your questions. You don’t have to believe them that is your prerogative. But at least read them properly or we’ll be going in circles.
Hey, lets focus on the issues rather than attacking the messenger. The substance is in the argument, not the supposed age of the person you’re contesting…
I’m from the same side of the political spectrum as you so I’ll have the amazing fun and pleasure of answering your questions:
Len said:-
“Judge Erasmus did not appoint himself and so far has done nothing to determine his partiality, why the attack?”
Are you and I watching the antics of the same commission. He is deeply involved in the ANC structures of the Western Cape, He refused to recuse himself, he refused to stop the commission when instructed to do so by the courts, he finally “settled out of court” when placed under pressure but continues to take written submissions.
The rhetoric question is why did he accept the political appointment?
Len said:-
“If the DA feels it is innocent, as proven by their own investigation (at taxpayer’s cost, as were the spy scandals), then why are they so against being proven innocent once again?”
Innocence and the perception of innocence are vastly different. Even if a political party is innocent, the Western Cape ANC would like to foster an image of malevolent dishonesty equal or worse than their own.
The rhetoric question here is “does a dishonest distortion of the perception of an opposition party advance democracy or diminish it?
Len said:-
“This is a public investigation…”
This is not a public investigation. The dishonourable judge decides what evidence to promote and what to play down. The judge is the spin doctor!
The rhetoric question is “Why does the ANC and the dishonourable need to resort to such disgusting and dishonest tactics?”
And to your final question about a police investigation. Well to be honest, I’ve lost the plot. There has already been a police investigation instigated by the ANC. Would you like them to do it again. (Please remember that the SAPS, being a state organ is one of the ANC monsters so bemoaning their inability to support the ruling party is unfortunately out of line here).
Ag shame Bra
Your argument reinforces the other side. Don’t you think its time for us to clean up our act? Attacking as a form of defence seldom works for very long.
You can Google me and see that I exist. You can’t be Googled - you might as well have called yourself John Smith. Making the kind of comments you do without using a traceable identity is to me the same as anonymous letters.
I am not a member of the DA nor of any other party. Nor have I or any of my ancestors supported apartheid - and they left written and published records! But you know that because you comment on the same posts that I do. You are not too keen on confronting facts are you? You prefer to play the man than to play the ball.
“Who created the Scorpions” is an argument like Fritzl’s - “it is my child so I can destroy it”. The taxpayers of SA paid a lot of money to have the Scorpions trained by the FBI and Scotland Yard. Now they are being head hunted by Australia! We are loosing skills we paid for - AGAIN!
I am so very, very proud of Leonard MaCarthy’s appointment to the World Bank. He will catch them yet! Now he can get to those files from Germany that Mbeki conveniently sent to Jackie Selebi and not to the Scorpions.
Z
Thanks for those links which inserted some logic into this discussion - and saved us all hours of replying.
I stand by my criticism. I fervently believe that you should not have attacked a sitting judge personally and should not have said that he had agreed to be used by the ANC merely for chairing a Commission of Enquiry set up in terms of legislation which have not been found unconstitutional. The DA or the City of Cape Town is of course free to challenge the Constitutionality of the legislation and the appointment of a Commission of Enquiry but personal attacks on a judge is uncalled for.
I maintain that one cannot suddenly say it is acceptable to attack a judge’s integrity for accepting to chair a Commission of Enquiry set up in terms of legislation. The Constitutional Court has not said that judges should not chair Commissions of Enquiry. It has said that given the principle of the separation of powers in our Constitution, a judge should not perform a task that is “incompatible with judicial office” and that one of the factors that might be relevant in deciding whether the task is incompatible with judicial office would be whether it would “create the risk of judicial entanglement in matters of political controversy”.
But the Court also said that judges can preside over commissions on inquiry because the performance of such a function “ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, weighing-up of information, and giving a decision on the basis of a consideration of relevant information”. If Erasmus has made a mistake to accept this job, it is for a Court of law to decide, making use of the guidelines set out by the Constitutional Court.
A politician cannot and should not act as if she is above the law and the legal process and cannot and should not decide that in this case the appointment was inappropriate and that the judge is an ANC lackey. By acting as if it is perfectly acceptable to undermine the credibility of a judge and therefore of our judiciary as a whole just because on your understanding of the situation that the judge acted unwisely, is to fail to respect the Rule of Law and the Constitution. This, to my mind, is dangerous.
A judge does not miraculously stop being a judge just because he acts in a different capacity. Judge Moseneke did not stop being a judge merely because he made remarks that upset the ANC at his birthday party. If we are to build a society in which respect for the law and for the judiciary is fostered and upheld, politicians should refrain from impugning the integrity of officers of the court merely because the politician thought the judge made a wrong decision. It would be appropriate to criticise a judge for his actions and even for accepting the position as chair of the Commission and to say that he made a mistake. But to impugn his integrity and to suggest that he is being used as an ANC lackey is going too far as it is disrespectful of the judiciary and undermines respect for the judiciary.
Sadly you cannot see that your actions is creating a dangerous precedent that if it goes unchallenged will have the potential of opening the floodgates of personal attacks on judges. Next time a judge makes any comment that displeases the ANC, and the ANC Youth League or the ANC NEC attacks that judge as an apartheid dinosaur or an untransformed judge, will the DA stand up for the independence and respect of the judiciary and if it does, will it have any credibility in the matter?
It’s naive to imagine that ANY judge should be above criticism. They are only judges, not saints and angels. If judges do stupid things, let’s call them stupid.
And when a judge lends the authority of his silken position to running a kangaroo-court for the party he openly supports, he IS a stupid judge for doing so. A very stupid one. He has earned every scintilla of the derision he is getting.
Dangerous precedent? What utter humbug! There’s no danger at all in calling judges to account when they make bad and stupid choices. Doesn’t matter who the judge is or what other parties might be involved.
As for Prof De Vos — OF COURSE you’re going to stick to your point of view because for you to climb down from the stand you have taken would make you look even sillier than you’ve successfully done already.
The judge was most emphatically not attacked in his capacity as a “sitting judge”. He was criticised in his capacity as a chairman of an ANC appointed commission. Huge difference
This preoccupation with the “sanctity” of the legal profession is getting to be a bit much. When a judge is acting in the capacity as a judge I will agree that he is entitled to the respect attendant on his position, provided that he acts with the requisite judicial dignity and discretion. When he acts in a non (quasi) judicial capacity then he must takes his lumps just like the rest of us. To try and infer some sort of godlike status is simply silly.
Zille has not said that she is above the law. She is happy to submit to the COURTS as she has stated repeatedly. Furthermore the commission is not “legal process” because as you have said yourself it is “quasi” legal”.
When I acted as a director I was carrying out my fiduciary responsibilties but if I made a mistake in any other capacity my role as a director did not entitle me to any special protection. In fact I was obliged to ensure good coduct in all my activities to protect my role as a director. I suppose you could call it exercising good JUDGEment.
I happen to feel that this sets a valuable precedent because it will dissuade judges from becoming involved in politically explosive situations. This will ensure their judicial independence which is the whole point of the relevant Constitutional Court requirement.
This looks more like the article you probably should have written. A more balanced and to the point post.
I can agree that she did not need to attack the judge directly in the manner she did, whether or not there is truth to it.
I have an honest question:
Does presiding over a non judicial commission which investigates allegations of criminal acts by a political party or high profile members of it, not create the risk of “judicial entanglement in matters of political controversy”?
Notes on the question:
Let’s say for arguments sake they uncover criminality and political plotting which eventually ends up in court. After all, the commission is investigating things they believe might be true, so if they end up being true then would the logical conclusion not be a court case against the guilty?
Would the judge not then have to testify and so have judicially entangled himself in the whole debacle?
Would the nature of the allegations not carry the risk of ending up of a political nature?
The Commission of Enquiry was not appointed by the ANC but by Premier Ebrahim Rasool in terms of the Provincial Commissions Act 10 of 1998 in his capacity as Premier. If Judge Erasmus made a mistake in accepting to chair this Commission or if Mr Rasool exceeded his powers or if the Act is unconstitutional Mrs Zille should be free to say so and to give reasons for her argument, but of course it is ultimately for a Court to decide on these matters (I have never expressed a definitive opinion on any of these matter so will rather keep my job even if Rasool loses on any of these points). For me the main question is when and how should one criticise judges (because judges are NOT above criticism). I have written a more comprehensive piece about this question which will hopefully be posted on Thought Leader in the next day.
Unfortunately on my previous comment I did not realise that what you wrote was a response to Helen Zille, since it was not posted here but on your blog.
Though I think your response would have been a better starting point, I see that you once again failed to answer her on a point for point basis. You did make many more accusations in this blog than merely the criticism of a judge and I believe you have failed to respond to them.
Here are some of your other allegations:
1. You have accused her of setting up a biased commission to clear herself. (yes it is directly implied)
“Now Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a commission of inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Zille, and creates the impression of serious hypocrisy.”
2. You have accused her of not believing in freedom of expression. Yes you did use the words “seems to suggest”, but they were merely used to inoculate yourself against this criticism as in the very next sentences you imply it to be true (”therefore”). At the very least she has said that it is untrue and therefore you should feel obligated to defend or revoke your “seems to suggest”.
“The Commission of Enquiry was not appointed by the ANC but by Premier Ebrahim Rasool in terms of the Provincial Commissions Act 10 of 1998 in his capacity as Premier.”
Oh please!!!!!!!!!!!!!!!
With regard to the right to criticise a judge, we will agree to differ
With regard to another new blog on the subject….3rd time lucky?
Zille COULD go to court to challenge Erasmus’s decision to chair the quasi-legal kangaroo court convened by Rasool under the Provincial Commissions Act 10 of 1998.
Or she could save herself the time and money and just say “Stuff you. I’ll simply have nothing to do with this kangaroo court and the robed political lackey hired to give it a gloss of respectability.”
Pierre
Hypocrisy rules again……..
George Fivaz, who’s company investigated these ‘facts’ published an interesting article in the Sunday Times (13/07/2008)(page 19), Where he launches an attack on the Scorpions.
One should just follow his track record to find that he was the worst commissioner of the SAPS second to Jackie Selebi, since 1913.
He is now tauting Jacob Zuma for a job if/when he becomes president of SA.
Fivaz was a run-away-come-back to the SAP. He wore two hats and could be regarded by some as a traitor of Apartheid, which he served loyally.
He then refused to wear the SAP uniform post 1994 after becoming commissioner. What a hero, or fool!
What about his investigations skills into RDP fraud, spying (I though only the NIA was licensed to do this), using Apartheid investigators in his company? Word has it that he could not take a proper statement…
Then, recently he sacked half of his detectives and forced them to sign away their rights to compensation against him.
He was also involved in the investigation into fraud in the Road Accident Fund. What was the results? Zero productive conclusions.
He had to make use of a SAB official Maiya (the bee) Khan, who was replaced because of affirmative action in SAB.
Oh, my point?
Hypocrisy rules again…..
The Erasmus commission was unconstitutional, Erasmus was wrong to accept the position as chair due to seperation of powers, much as Zille suggested, Rasool was acting out of political self interest, and the police acted illegally by giving evidence to Rasool.
Helen Zille 1 Pierre VD Vos 0
(Not that you’ll have the grace to admit it, you are just too ’small’ for that).
Well, Pierre, the full bench verdict of the High Court striking down the politically-motivated Erasmus Commission as unconstitutional and unlawful also implies that Helen Zille was right and you were wrong.
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Professor Pierre de Vos teaches constitutional law at the University of Western Cape. His writing has been published widely in both scholarly journals and in the popular press on a wide range of topics, including gay rights, the right to equality, social and economic rights, and affirmative action. Since October 2006 he also publishes a blog, Constitutionally Speaking.
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Come on Pierre, rise to the challenge.
Put on an independent constitutional legal expert’s hat on and tell us whether the Erasmus Commission’s terms of reference have a place in the democratic country we all wanted. They read like the typical commissions the NP-led government dreamt up to bash students and political activists in the bad old days of apartheid.
If the Erasmus Commission’s terms of reference were being applied to any organisation you represented, would you not also fight tooth and nail about the injustice being meted out to your ‘client’. Try to be impartial about this one -pretend it is one of the anti-apartheid movements in the dock.
We have the DA to thank - not the chattering classes - for being at the sharp end of protecting democratic freedoms and fighting the abuse of power.
It’s time to take off the rosy-tinted spectacles about the ‘great liberation movement’ of South Africa and see it for the naked power monger it is.
And Pierre, political commentary is not for sissies. Take some advice from Zille’s predecessor, that great liberation fighter Helen Suzman. In reply to a journalist’s question about some harsh criticism from Jimmy Kruger (I think)she replied that if you were going to dish it (criticism) out, you must be able to take it. Stop whining and licking your wounds.
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