SENIOR advocate Patrick Mtshaulana says he will ensure that ANC disciplinary procedures are followed to the letter when he represents Julius Malema and Floyd Shivambu. Malema, who is the first accused, will appear today and Shivambu tomorrow to face charges of bringing the ANC into disrepute and sowing divisions within its membership.
Mtshaulana, a former uMkhonto weSizwe combatant, told Sowetan yesterday that he was drafted into the case late. Mtshaulana is a member of the Duma Nokwe group of advocates. The Sandton-based group of lawyers is named after the late Nokwe who was first African advocate of the Supreme Court of the Transvaal and an ANC stalwart.
"I am meeting Malema and Shivambu today. I have not held consultations yet. I am not sure whether I will also be representing all the other ANCYL members who have been charged," Mtshaulana. "I do not wish to comment further about the case except to say that we will assist in making sure that the disciplinary procedures are followed."
Source: The Sowetan
Showing posts with label Patrick Mtshaulana. Show all posts
Showing posts with label Patrick Mtshaulana. Show all posts
Tuesday, August 30, 2011
Friday, May 7, 2010
Superior courts bill meets with praise and caution
The legal fraternity has hailed the reworked Superior Courts Bill for ensuring the administrative independence of the courts, but warned that the enhanced power it gives the Constitutional Court could prove fraught.
The long-awaited bill, withdrawn by then President Thabo Mbeki in 2006 amid an outcry, was finally approved by Cabinet this week with any vestige of initial attempts to place the administration of courts under the Justice Minister understood to be removed. In its new incarnation, the bill makes the office of the Chief Justice responsible for running the country's courts, including the magistrates' division.
Justice and Constitutional Development Minister Jeff Radebe said that this provision would be reality before the end of the year and would enshrine the "independence, impartiality and dignity of the judiciary".
Legal experts welcomed it as a radical departure from the Mbeki-era draft that was slated by the opposition as seeking to give the justice minister the power to hand-pick judges and the ruling party the ability to sideline those deemed unsympathetic to its cause. "The threat to the independence of the judiciary has been completely averted," constitutional law expert Pierre de Vos said on Thursday, after Cabinet announced it had approved the bill.
But the chairperson of the General Council of the Bar, Patrick Mtshaulana, said that it would be misguided to see the new legislation as purely the product of the Zuma administration and blame Mbeki for all that was once wrong with it. He pointed out that after withdrawing the bill, Mbeki put it in the hands of Radebe, as head of the African National Congress's (ANC's) policy unit, with a brief to take into consideration the criticism heaped onto the legislative project.
That fed into resolutions taken at the ruling party's watershed Polokwane conference and into the final version of the bill, that has won rare praise from the Democratic Alliance for "restoring the proper relationship between the executive and judicial branches of the State".
Said Mtshaulana: "I understand that this minister does not want to in any way effect the independence of the judiciary and it is consistent with this purpose." He voiced concern, however, about the bill's confirmation of the Constitutional Court as South Africa's new Apex Court, a move that breaks with the Commonwealth and European justice models to borrow from the American system.
Mtshaulana argued that the creation of an Apex Court contradicted the agreement reached in negotiations on the constitution at Kempton Park that made the Constitutional Court the final authority on constitutional matters but conferred on the Supreme Court of Appeal an equal status on all other matters. The bill removes the distinction and seals the jurisdiction of the Constitutional Court as the highest court in the land for all litigation. The prospect has divided legal experts for years, with some warning that it would put the ANC in a position to dominate the judiciary by doing away with the notion of two centres of judicial power. "Once a court acquires the status of an apex court, what that court decides is the beginning and the end. It becomes possible for one court to dominate the judiciary," Mtshaulana said. "I can foresee that, in years to come, what we have seen in the last two years will be nothing. I mean the conflict between the executive and the judiciary with the executive believing that the courts come too close to taking political decisions."
A hint in this direction was heard in the National Assembly in March when Human Settlements Minister Tokyo Sexwale said that government could approach Chief Justice Sandile Ngcobo over a landmark ruling in the South Gauteng High Court could throw housing policy into "chaos". Sexwale told Members of Parliament that there was a danger that case law could impact on policy with dramatic consequences, in that particular case by denting State coffers. The court evicted squatters from a building in Berea but ordered the Johannesburg city council to provide them with temporary accommodation, or pay each occupier or household head R850 to rent elsewhere.
De Vos said that differing views about the creation of the Apex Court endured. "One view is that it is not healthy because legal certainty is compromised. "Others, and I subscribe to this view, say that there is a need to transform the law to infuse ordinary lives with the values of equality, respect for dignity and procedural fairness and the price to pay for that is less certainty."
De Vos said that in practice, the ambit of the Constitutional Court had already grown beyond as innovative lawyers realised that any question in law could be "made into a constitutional matter". But he warned that once the bill cast that tendency in stone, the court's caseload would increase considerably.
"I'm a little bit nervous that the highest court will be overburdened and it would make it difficult to sustain the level of thoughtfulness we have seen up to now."
Source: Polity
The long-awaited bill, withdrawn by then President Thabo Mbeki in 2006 amid an outcry, was finally approved by Cabinet this week with any vestige of initial attempts to place the administration of courts under the Justice Minister understood to be removed. In its new incarnation, the bill makes the office of the Chief Justice responsible for running the country's courts, including the magistrates' division.
Justice and Constitutional Development Minister Jeff Radebe said that this provision would be reality before the end of the year and would enshrine the "independence, impartiality and dignity of the judiciary".
Legal experts welcomed it as a radical departure from the Mbeki-era draft that was slated by the opposition as seeking to give the justice minister the power to hand-pick judges and the ruling party the ability to sideline those deemed unsympathetic to its cause. "The threat to the independence of the judiciary has been completely averted," constitutional law expert Pierre de Vos said on Thursday, after Cabinet announced it had approved the bill.
But the chairperson of the General Council of the Bar, Patrick Mtshaulana, said that it would be misguided to see the new legislation as purely the product of the Zuma administration and blame Mbeki for all that was once wrong with it. He pointed out that after withdrawing the bill, Mbeki put it in the hands of Radebe, as head of the African National Congress's (ANC's) policy unit, with a brief to take into consideration the criticism heaped onto the legislative project.
That fed into resolutions taken at the ruling party's watershed Polokwane conference and into the final version of the bill, that has won rare praise from the Democratic Alliance for "restoring the proper relationship between the executive and judicial branches of the State".
Said Mtshaulana: "I understand that this minister does not want to in any way effect the independence of the judiciary and it is consistent with this purpose." He voiced concern, however, about the bill's confirmation of the Constitutional Court as South Africa's new Apex Court, a move that breaks with the Commonwealth and European justice models to borrow from the American system.
Mtshaulana argued that the creation of an Apex Court contradicted the agreement reached in negotiations on the constitution at Kempton Park that made the Constitutional Court the final authority on constitutional matters but conferred on the Supreme Court of Appeal an equal status on all other matters. The bill removes the distinction and seals the jurisdiction of the Constitutional Court as the highest court in the land for all litigation. The prospect has divided legal experts for years, with some warning that it would put the ANC in a position to dominate the judiciary by doing away with the notion of two centres of judicial power. "Once a court acquires the status of an apex court, what that court decides is the beginning and the end. It becomes possible for one court to dominate the judiciary," Mtshaulana said. "I can foresee that, in years to come, what we have seen in the last two years will be nothing. I mean the conflict between the executive and the judiciary with the executive believing that the courts come too close to taking political decisions."
A hint in this direction was heard in the National Assembly in March when Human Settlements Minister Tokyo Sexwale said that government could approach Chief Justice Sandile Ngcobo over a landmark ruling in the South Gauteng High Court could throw housing policy into "chaos". Sexwale told Members of Parliament that there was a danger that case law could impact on policy with dramatic consequences, in that particular case by denting State coffers. The court evicted squatters from a building in Berea but ordered the Johannesburg city council to provide them with temporary accommodation, or pay each occupier or household head R850 to rent elsewhere.
De Vos said that differing views about the creation of the Apex Court endured. "One view is that it is not healthy because legal certainty is compromised. "Others, and I subscribe to this view, say that there is a need to transform the law to infuse ordinary lives with the values of equality, respect for dignity and procedural fairness and the price to pay for that is less certainty."
De Vos said that in practice, the ambit of the Constitutional Court had already grown beyond as innovative lawyers realised that any question in law could be "made into a constitutional matter". But he warned that once the bill cast that tendency in stone, the court's caseload would increase considerably.
"I'm a little bit nervous that the highest court will be overburdened and it would make it difficult to sustain the level of thoughtfulness we have seen up to now."
Source: Polity
Wednesday, February 17, 2010
Bench probed for judgments outstanding
South Africa's judiciary is again under the spotlight - this time for failing to deliver a long list of outstanding judgments, some of which have been pending for six or even 10 years.
This has prompted the General Council of the Bar of South Africa (GCB) to formally lodge a complaint with Chief Justice Sandile Ngcobo, requesting that the issue be addressed and that incompetent judges "should be persuaded to do the right thing before we have another public spectacle involving the judiciary".
"We should accept that our society no longer recognises the ivory tower where judges used to be," GCB chairman Patrick Mtshaulana SC said in a letter to the chief hustice. He asked that the matter receive urgent attention for the sake of the judiciary and the legal profession. "The judiciary is vulnerable and criticism of this nature may lower its image in the eyes of the public," he said.
Chief Justice Ngcobo responded that he was aware of cases where there were outstanding judgments and that these were reported to the Judicial Service Commission (JSC). He asked the GCB to furnish him with details of all cases in which there were outstanding judgments and to include the names of the responsible judges as well, as whether the issue had been reported to the head of the court. The General Bar Council issued its members with a circular on January 25, asking for these details by Friday.
The Cape High Court's up-dated list of reserved judgments shows that 10 judgments have been outstanding since April 2008, an additional 29 since March 2009 and 16 since the beginning of this year. Acting judges were responsible for 19 of the 55 judgments. Two of the outstanding judgments were to have been delivered by Acting Judge Patrick Maqubela, who died before he could deliver them. Mtshaulana said Judge Maqubela's cases would have to be reheard before another judge.
Acting Cape Judge President Jeanette Traverso did not want to comment on the situation in the Cape, saying that it was already before the chief justice. Cape Bar Council chairperson Jeremy Muller SC said the Bar "periodically" received complaints about outstanding judgments. He said the situation in the Cape appeared to have improved since the court started distributing a list of reserved judgments to judges and advocate Mtshaulana said he could not give an idea of how widespread the problem was because he had been receiving the information in "dribs and drabs".
Mtshaulana said he had initially thought the complaints related to three or four cases, but added that "it's far bigger than I realised". However, he said that litigants in Johannesburg and Cape Town had been more vocal about the situation than in other areas. This did not mean that Johannesburg and Cape Town were the main culprits, he stressed. Mtshaulana said judges had to deliver judgments within a reasonable time, although this depended on the circumstances of each case. In addition, judges were also allocated new cases once a matter was finalised and often did not have time to prepare their judgments.
Some cases were also more complex than others and warranted more preparation. However, Mtshaulana said that if judges were simply lazy or incompetent, they should be dealt with.
"It's unacceptable that people have to wait so long for judgments...
"Justice delayed is justice denied," Mtshaulana said.ocates.
Muller said he had personally spoken to advocates at the Bar about any judgments they may have left outstanding after completing a stint on the Bench.
Source: IoL
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