THE judiciary has adopted a programme of action to increase the efficiency of the courts and asserted its institutional independence after an "honest and brutal" self-examination of the bench by senior judges at a recent retreat.
Increasing access to the courts through more efficient court administration is Chief Justice Mogoeng Mogoeng’s particular passion and it is widely hoped this will be the signature of his incumbency as chief justice.
"The leadership of the judiciary emerged out of its retreat last weekend determined to make a decisive break with the underperformance of the courts over the years," Justice Mogoeng’s office said in a statement yesterday.
The programme of action had been adopted "for immediate, medium and long-term implementation".
Justice Mogoeng’s spokeswoman, Lulama Luti, said that the weekend’s strategic planning session was a "build-on" to the access to justice conference organised by former chief justice Sandile Ngcobo in July last year. It was the first time Justice Mogoeng was able to meet the heads of courts to thrash out the practical implementation of the resolutions taken at that conference.
At the retreat, attended by "all senior levels of the judiciary in the country", judicial leaders underwent "honest and brutal self-introspection and examined the challenges it (judiciary) is facing", Justice Mogoeng’s office said.
Among the key decisions taken was the adoption, "and immediate implementation", of a judicial case management system involving early intervention by a judge or magistrate to dictate the pace of litigation in order to prevent postponements and case backlogs.
The judges made a "renewed commitment" to the overall pursuit of excellence in administering and dispensing "quality justice to all" and ensuring the institutional independence of the judiciary, through a judiciary-led court administration, and the enhancement of stakeholder relations and more community outreach, said the statement.
Justice Mogoeng said the judiciary would "work tirelessly to ensure that the situation in our courts is turned around and we have set ourselves to achieve a great deal by this time next year". A report setting out all the resolutions would be released soon, Ms Luti said.
Source: Business Day
Showing posts with label Sandile Ngcobo. Show all posts
Showing posts with label Sandile Ngcobo. Show all posts
Monday, August 20, 2012
Thursday, December 1, 2011
SCA: Simelane's appointment as NPA boss 'invalid'
The Supreme Court of Appeal has ruled that Menzi Simelane's appointment by President Jacob Zuma as the director of public prosecutions at the National Prosecuting Authority (NPA), was invalid. The case was brought to the appeals court by the Democratic Alliance, after its bid to have Zuma's decision to appoint Simelane as the NPA boss set aside failed in the North Gauteng High Court in Pretoria last year.
On Thursday morning, Judge Mahomed Navsa ruled that Simelane's appointment was "inconsistent with the Constitution and invalid". The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA's costs. In its application, the DA argued that Zuma "acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions".
Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court. "Naturally, we are disappointed but respect the court's judgment in this matter," said Tlali on Thursday. "We will study the judgment in order to understand its implications as it unfolds further. The court's order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be."
The DA's Dene Smuts told the Mail and Guardian on Thursday: "We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job." The foundation of the DA's case against Simelane was the "misleading and untruthful evidence" he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.
The inquiry looked at the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli. Ginwala labelled his evidence before the inquiry "contradictory and without basis in fact or in law" and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.
Simelane's conduct was "irregular" and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.
Although a formal inquiry was set up to inquire into Simelane's conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions. The DA argued that Zuma made Simelane's appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.
Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: "I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right." He went on to say: "On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."
The judgment was careful to prove precedent for judicial scrutiny of the president's appointment of a public prosecutor. In recent months, Zuma and other members of the executive have made several statements taking issue with an "unelected" judiciary passing judgment on executive decisions. During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: "We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections." He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.
Source: Mail & Guardian
On Thursday morning, Judge Mahomed Navsa ruled that Simelane's appointment was "inconsistent with the Constitution and invalid". The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA's costs. In its application, the DA argued that Zuma "acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions".
Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court. "Naturally, we are disappointed but respect the court's judgment in this matter," said Tlali on Thursday. "We will study the judgment in order to understand its implications as it unfolds further. The court's order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be."
The DA's Dene Smuts told the Mail and Guardian on Thursday: "We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job." The foundation of the DA's case against Simelane was the "misleading and untruthful evidence" he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.
The inquiry looked at the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli. Ginwala labelled his evidence before the inquiry "contradictory and without basis in fact or in law" and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.
Simelane's conduct was "irregular" and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.
Although a formal inquiry was set up to inquire into Simelane's conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions. The DA argued that Zuma made Simelane's appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.
Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: "I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right." He went on to say: "On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."
The judgment was careful to prove precedent for judicial scrutiny of the president's appointment of a public prosecutor. In recent months, Zuma and other members of the executive have made several statements taking issue with an "unelected" judiciary passing judgment on executive decisions. During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: "We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections." He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.
Source: Mail & Guardian
Thursday, October 6, 2011
'Justice system overhaul would mean no more meddling'
A proposed overhaul of South Africa's justice system will prevent "meddling" with case files, says the high court's Judge Eberhard Bertelsmann. A proposed overhaul of South Africa's justice system will prevent "meddling" with case files, North Gauteng High Court Judge Eberhard Bertelsmann said on Thursday. "With this system, judges will be given §an electronic case file the moment a case is opened. The electronic files will be saved in a server and will have certain features to prevent meddling," he said.
Bertelsmann was talking at the opening of the Consumer Goods Council of SA annual conference in Johannesburg. He said the new system was decided on at a national judiciary meeting in 2009, and was being initiated this year. "Previous chief justice Sandile Ngcobo endorsed this model, and his enthusiasm has been carried over with new chief justice Mogoeng Mogoeng." He said the system would speed up trials. "Delays are simply not good enough. Our criminal justice system is creaky in its joints. We have 40 000 people awaiting trial in prisons. Some are granted bail, and others can't even raise R300 needed for bail. "It is unfair that we punish people, at a cost to ourselves that is greater than R300, because these people are poor. That does not sit well with a Constitution that demands equality and dignity."
He said an efficient, and technologically advanced justice system would benefit the consumer goods council as well. "How would we deal with crime, protect brands and patents, guard against unfair competition and protect labourers from being exploited if we never had courts? ... We are embarking on a very exciting trek ... that has filled us with optimism. This new process demands a new culture, and we need the support of all members of civil society, including consumer organisations."
Source: Mail & Guardian
Bertelsmann was talking at the opening of the Consumer Goods Council of SA annual conference in Johannesburg. He said the new system was decided on at a national judiciary meeting in 2009, and was being initiated this year. "Previous chief justice Sandile Ngcobo endorsed this model, and his enthusiasm has been carried over with new chief justice Mogoeng Mogoeng." He said the system would speed up trials. "Delays are simply not good enough. Our criminal justice system is creaky in its joints. We have 40 000 people awaiting trial in prisons. Some are granted bail, and others can't even raise R300 needed for bail. "It is unfair that we punish people, at a cost to ourselves that is greater than R300, because these people are poor. That does not sit well with a Constitution that demands equality and dignity."
He said an efficient, and technologically advanced justice system would benefit the consumer goods council as well. "How would we deal with crime, protect brands and patents, guard against unfair competition and protect labourers from being exploited if we never had courts? ... We are embarking on a very exciting trek ... that has filled us with optimism. This new process demands a new culture, and we need the support of all members of civil society, including consumer organisations."
Source: Mail & Guardian
Wednesday, August 17, 2011
Deadly dangerous Judgment Day
Many South Africans were stunned this week by President Jacob Zuma's nomination of Constitutional Court Justice Mogoeng Mogoeng to succeed Sandile Ngcobo as chief justice.
It would appear a wholly inadequate appointment and from informal settlements in Durban to law offices in Johannesburg, the initial stupefaction gave way to conversation. Talk was not merely about the number of years Mogoeng has spent in judicial robes, as the presidency would have us believe judging by a spurious statement it released on Wednesday which set out to address the "disappointing inaccuracies and distortions in the responses and commentary on [Zuma's] nomination". South Africans are more sophisticated than that.
From shack dwellers who have successfully approached the court to fend off legislation allowing arbitrary eviction from their homes to middle-class human rights activists buoyed by the prospect of a more humane society after the repeal of the death sentence, we have been analysing the probity, jurisprudence, independent-mindedness and integrity of the man Zuma has chosen to lead the highest court in the land.
It matters to us. Our fundamental human rights, as enshrined in the Constitution, are essential, as is the attainment of a more egalitarian society. The judicial guardians of the Constitution are vital to these rights and aspirations. Yet, instead of selecting a stellar defender of the Constitution Zuma appears to have made a political appointment, choosing someone with a lack of constitutional experience, who, by virtue of his unlikely appointment over the heads of more suitable colleagues, is indebted to the executive.
A jurist who, considering the paucity of reported judgments and an inability to rouse himself in court to engage with legal arguments, appears patently wanting. There is also the no-small matter of his lack of judgment: Mogoeng has failed on more than one occasion to recuse himself from hearing matters in which his wife has acted as prosecutor.
He will be a chief justice cast very much in the image of the president: someone with dubious judgment, a social conservative, a traditionalist, with apparently homophobic tendencies and religious to boot -- they are both ordained pastors. This, while the message sent out to the judiciary is that subservience to the executive, not independent-mindedness, will get you promoted.
Mogoeng, if confirmed, may go on to prove his numerous detractors wrong. But there is a frightening lack of sophistication in both the president's and the ruling ANC's understanding of the expected tension among the three arms of government in a constitutional democracy.
In statements made this week ANC secretary general Gwede Mantashe suggested that, because of some of its rulings, the Constitutional Court was hostile to Parliament and the executive and that the judiciary as a whole sought to "arrest the functioning of government". What is, actually, the normal modus operandi of a constitutional democracy -- the constitutional testing of legislation -- appears to be a "problem" for Mantashe.
Mantashe's problem with the judiciary appears to be that it is unelected, unlike the ANC, which purports to represent the will of the masses. Zuma's gripes appear much more personal. Following various Constitutional Court judgments against him, including his most recent attempt to extend Ngcobo's term, the president seems driven by malice when engaging with that court. There is a profound lack of understanding by two of the most powerful men in the land about the role of the judiciary in a constitutional democracy. It is deadly dangerous.
Source: Mail & Guardian
It would appear a wholly inadequate appointment and from informal settlements in Durban to law offices in Johannesburg, the initial stupefaction gave way to conversation. Talk was not merely about the number of years Mogoeng has spent in judicial robes, as the presidency would have us believe judging by a spurious statement it released on Wednesday which set out to address the "disappointing inaccuracies and distortions in the responses and commentary on [Zuma's] nomination". South Africans are more sophisticated than that.
From shack dwellers who have successfully approached the court to fend off legislation allowing arbitrary eviction from their homes to middle-class human rights activists buoyed by the prospect of a more humane society after the repeal of the death sentence, we have been analysing the probity, jurisprudence, independent-mindedness and integrity of the man Zuma has chosen to lead the highest court in the land.
It matters to us. Our fundamental human rights, as enshrined in the Constitution, are essential, as is the attainment of a more egalitarian society. The judicial guardians of the Constitution are vital to these rights and aspirations. Yet, instead of selecting a stellar defender of the Constitution Zuma appears to have made a political appointment, choosing someone with a lack of constitutional experience, who, by virtue of his unlikely appointment over the heads of more suitable colleagues, is indebted to the executive.
A jurist who, considering the paucity of reported judgments and an inability to rouse himself in court to engage with legal arguments, appears patently wanting. There is also the no-small matter of his lack of judgment: Mogoeng has failed on more than one occasion to recuse himself from hearing matters in which his wife has acted as prosecutor.
He will be a chief justice cast very much in the image of the president: someone with dubious judgment, a social conservative, a traditionalist, with apparently homophobic tendencies and religious to boot -- they are both ordained pastors. This, while the message sent out to the judiciary is that subservience to the executive, not independent-mindedness, will get you promoted.
Mogoeng, if confirmed, may go on to prove his numerous detractors wrong. But there is a frightening lack of sophistication in both the president's and the ruling ANC's understanding of the expected tension among the three arms of government in a constitutional democracy.
In statements made this week ANC secretary general Gwede Mantashe suggested that, because of some of its rulings, the Constitutional Court was hostile to Parliament and the executive and that the judiciary as a whole sought to "arrest the functioning of government". What is, actually, the normal modus operandi of a constitutional democracy -- the constitutional testing of legislation -- appears to be a "problem" for Mantashe.
Mantashe's problem with the judiciary appears to be that it is unelected, unlike the ANC, which purports to represent the will of the masses. Zuma's gripes appear much more personal. Following various Constitutional Court judgments against him, including his most recent attempt to extend Ngcobo's term, the president seems driven by malice when engaging with that court. There is a profound lack of understanding by two of the most powerful men in the land about the role of the judiciary in a constitutional democracy. It is deadly dangerous.
Source: Mail & Guardian
Tuesday, August 16, 2011
Zuma picks Mogoeng as chief justice
President Jacob Zuma on Wednesday said Justice Mogoeng Mogoeng was his preferred candidate for the new chief justice. Zuma said in a statement that Mogoeng had demonstrated his "expertise and keen interest" in the transformation of the judiciary and played a leading role in programmes designed to promote court efficiency and transformation. The statement said the position had become vacant at midnight on August 14 "as a result of the discharge from active service of former chief justice Sandile Ngcobo".
In June, Zuma extended Ngcobo's 12-year term under Section 8(a) of the Judge's Remuneration and Conditions of Employment Act, which was met by a Constitutional Court challenge by civil society organisations who argued that it was unconstitutional for the president to extend the chief justice's term of office. Only an Act of Parliament may do so, they said. According to the presidency's statement Mogoeng was part of a five-member committee, led by former chief justice Pius Langa, which investigated allegations of racism and gender discrimination within the judiciary. He also organised workshops for judges and magistrates on leadership and sensitivity training as well as workshops for magistrates on judgment writing and trial administration.
Professor Steven Friedman, director of the Centre of the Study of Democracy at the University of Johannesburg, told the Mail & Guardian on Tuesday that the choice of Mogoeng was a "missed opportunity". "On the one hand you could have had continuity as well as the message that our government is comfortable with a chief justice with clear political independence in the appointment of Deputy Chief Justice Dikgang Moseneke instead of Mogoeng. "Additionally, it could have been a great coup for the empowerment of women if either Justice Sisi Khampepe or Bess Nkabinde were appointed," said Friedman. Nonetheless, Friedman said he had no reason to believe Mogoeng's appointment was not in the best interests of the Constitution.
Mogoeng started his professional career as a supreme court (now high court) prosecutor in Mafikeng, holding this position between March 1986 and February 1990, when he resigned to undertake pupillage at the Johannesburg Bar. He then practised as an advocate in Johannesburg until the end of 1991. He then terminated his membership of the Johannesburg Bar and became a member of the Mafikeng Bar Association (now known as North West Bar Association) until May 1997. While at the Mafikeng Bar, Mogoeng served as the deputy chairperson of the Bar Council and as the chairperson of the Bophuthatswana chapter of Lawyers for Human Rights. He was also a part-time senior lecturer in criminal law and criminal procedure at the University of the North West's Mafikeng Campus from 1992 to 1993. He was a member of the Industrial Court from 1989 until it ceased to exist. In 1994 he served in the legal section of the Independent Electoral Commission in the North West province. In June 1997 he was appointed a judge of the North West High Court in Mafikeng. He was appointed as a judge of the Labour Appeal Court in April 2000. In October 2002 he was appointed judge president of the North West High Court.
Mogoeng was born in Goo-Mokgatha, north-east of Zeerust on January 14 1961. He graduated from the University of Zululand with a B Juris in 1983. In 1985 he completed his LLB at the University of Natal in Durban. In 1989, he completed his studies at the University of South Africa, where he studied towards a LLM concentrating on labour law, the law of property, the law of insurance, the law of evidence and the law of criminal procedure.
Mogoeng is also an ordained pastor. Prior to joining the judiciary in 1997, Mogoeng also served as chairperson of the North West Parks Board and as chairperson of Golden Leopards Resorts. He was also a member of the Black Lawyers Association. He has since resigned from these positions.
Source: Mail & Guardian
In June, Zuma extended Ngcobo's 12-year term under Section 8(a) of the Judge's Remuneration and Conditions of Employment Act, which was met by a Constitutional Court challenge by civil society organisations who argued that it was unconstitutional for the president to extend the chief justice's term of office. Only an Act of Parliament may do so, they said. According to the presidency's statement Mogoeng was part of a five-member committee, led by former chief justice Pius Langa, which investigated allegations of racism and gender discrimination within the judiciary. He also organised workshops for judges and magistrates on leadership and sensitivity training as well as workshops for magistrates on judgment writing and trial administration.
Professor Steven Friedman, director of the Centre of the Study of Democracy at the University of Johannesburg, told the Mail & Guardian on Tuesday that the choice of Mogoeng was a "missed opportunity". "On the one hand you could have had continuity as well as the message that our government is comfortable with a chief justice with clear political independence in the appointment of Deputy Chief Justice Dikgang Moseneke instead of Mogoeng. "Additionally, it could have been a great coup for the empowerment of women if either Justice Sisi Khampepe or Bess Nkabinde were appointed," said Friedman. Nonetheless, Friedman said he had no reason to believe Mogoeng's appointment was not in the best interests of the Constitution.
Mogoeng started his professional career as a supreme court (now high court) prosecutor in Mafikeng, holding this position between March 1986 and February 1990, when he resigned to undertake pupillage at the Johannesburg Bar. He then practised as an advocate in Johannesburg until the end of 1991. He then terminated his membership of the Johannesburg Bar and became a member of the Mafikeng Bar Association (now known as North West Bar Association) until May 1997. While at the Mafikeng Bar, Mogoeng served as the deputy chairperson of the Bar Council and as the chairperson of the Bophuthatswana chapter of Lawyers for Human Rights. He was also a part-time senior lecturer in criminal law and criminal procedure at the University of the North West's Mafikeng Campus from 1992 to 1993. He was a member of the Industrial Court from 1989 until it ceased to exist. In 1994 he served in the legal section of the Independent Electoral Commission in the North West province. In June 1997 he was appointed a judge of the North West High Court in Mafikeng. He was appointed as a judge of the Labour Appeal Court in April 2000. In October 2002 he was appointed judge president of the North West High Court.
Mogoeng was born in Goo-Mokgatha, north-east of Zeerust on January 14 1961. He graduated from the University of Zululand with a B Juris in 1983. In 1985 he completed his LLB at the University of Natal in Durban. In 1989, he completed his studies at the University of South Africa, where he studied towards a LLM concentrating on labour law, the law of property, the law of insurance, the law of evidence and the law of criminal procedure.
Mogoeng is also an ordained pastor. Prior to joining the judiciary in 1997, Mogoeng also served as chairperson of the North West Parks Board and as chairperson of Golden Leopards Resorts. He was also a member of the Black Lawyers Association. He has since resigned from these positions.
Source: Mail & Guardian
Friday, July 29, 2011
Zuma acted unconstitutionally, says ConCourt
The Constitutional Court said on Friday that President Jacob Zuma's decision to extend outgoing Chief Justice Sandile Ngcobo's term was unconstitutional. The judgment was unanimous. The court declared Section 8a of the Judges Remuneration and Conditions of Employment Act -- in terms of which Zuma extended Ngcobo's term -- unconstitutional.
The court found that the section allowed the president to "usurp" the power of Parliament and held that Parliament alone had the power to extend a Constitutional Court judge's term of office. Zuma and the justice minister were ordered to pay the costs. Earlier in July, the court, without Ngcobo at the helm, heard a mass application against the way Zuma had offered Ngcobo an extended term.
Ngcobo's integrity was not in question, but the Council for the Advancement of the South African Constitution, Freedom Under Law, the Justice Alliance of South Africa and the Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand said that according to the Constitution, Zuma needed to first consult with the Judicial Service Commission (JSC) and political parties before granting an extension.
Ngcobo's integrity was not in question, but the Council for the Advancement of the SA Constitution, Freedom Under Law, the Justice Alliance of SA and the Centre for Applied Legal Studies at the University of the Witwatersrand said that according to the Constitution, Zuma needed to first consult with the Judicial Service Commission (JSC) and political parties before granting an extension. Zuma did it the other way around -- he granted the extension and then informed political parties and the JSC.
They further argued that the section of the Judges Remuneration and Conditions of Employment Act that allowed Zuma to extend Ngcobo's term was unconstitutional because, according to the Constitution, a Constitutional Court judge's term of office could only be extended by an act of Parliament.
Professor Ralene Keightley, Cals director, told the Mail & Guardian on Friday she felt "vindicated" by the decision and was extremely pleased with the unanimous verdict. She said the president had been poorly advised. Keightley said Zuma's legal advisors should have known the Act "was unconstitutional and would be challenged". She said the advisors had known when Ngcobo was appointed that he only had 18 months still to serve.
ANC chief whip Mathole Motshekga denied that Zuma should "feel embarrassed about his decision" and that the president could not be blamed for the unconstitutional nature of 10-year-old law. He said the "only regret the ruling party has is the loss of the chief justice".
Zuma must now appoint a new chief justice by August 15th.
Source: Mail & Guardian
The court found that the section allowed the president to "usurp" the power of Parliament and held that Parliament alone had the power to extend a Constitutional Court judge's term of office. Zuma and the justice minister were ordered to pay the costs. Earlier in July, the court, without Ngcobo at the helm, heard a mass application against the way Zuma had offered Ngcobo an extended term.
Ngcobo's integrity was not in question, but the Council for the Advancement of the South African Constitution, Freedom Under Law, the Justice Alliance of South Africa and the Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand said that according to the Constitution, Zuma needed to first consult with the Judicial Service Commission (JSC) and political parties before granting an extension.
Ngcobo's integrity was not in question, but the Council for the Advancement of the SA Constitution, Freedom Under Law, the Justice Alliance of SA and the Centre for Applied Legal Studies at the University of the Witwatersrand said that according to the Constitution, Zuma needed to first consult with the Judicial Service Commission (JSC) and political parties before granting an extension. Zuma did it the other way around -- he granted the extension and then informed political parties and the JSC.
They further argued that the section of the Judges Remuneration and Conditions of Employment Act that allowed Zuma to extend Ngcobo's term was unconstitutional because, according to the Constitution, a Constitutional Court judge's term of office could only be extended by an act of Parliament.
Professor Ralene Keightley, Cals director, told the Mail & Guardian on Friday she felt "vindicated" by the decision and was extremely pleased with the unanimous verdict. She said the president had been poorly advised. Keightley said Zuma's legal advisors should have known the Act "was unconstitutional and would be challenged". She said the advisors had known when Ngcobo was appointed that he only had 18 months still to serve.
ANC chief whip Mathole Motshekga denied that Zuma should "feel embarrassed about his decision" and that the president could not be blamed for the unconstitutional nature of 10-year-old law. He said the "only regret the ruling party has is the loss of the chief justice".
Zuma must now appoint a new chief justice by August 15th.
Source: Mail & Guardian
Thursday, July 28, 2011
Ngcobo case: What were Zuma and Radebe thinking?
The section of the Judges' Remuneration and Conditions of Employment Act, on which President Jacob Zuma relied to extend Chief Justice Sandile Ngcobo's term of office, was "almost certainly unconstitutional", constitutional expert Pierre de Vos said on Thursday. De Vos said on his blog site Constitutionally Speaking that Ngcobo had "unwisely" accepted Zuma's offer to extend his term of office.
Zuma recently extended Ngcobo's term for five years after being told it would expire at midnight on August 14. De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision. This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac). Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter. The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament -- and only an Act of Parliament -- to extend the terms of office of any Constitutional Court judge.
The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power. It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges. The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.
De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.
Playing party politics
"The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice."
With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.
On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this. Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary. "Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held," Radebe said.
De Vos said government's original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction. "By then -- belatedly -- proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster."
Vos questioned why the justice minister and the president had not thought -- a year or two ago -- whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice. "How can one govern a country when one does things at the last minute in the hope that one can bluster one's way through by denigrating those who insist on upholding the Constitution? By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him."
Vos said the big question now was who Zuma would appoint to the position. Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity. "We are aware that this would have been a very difficult decision for the chief justice to take."
It was unfortunate that government's failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision. In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice. It was the use of Section 8(a) that was the focus of the challenge. The court's decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future. "We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice," Casac said.
Source: Mail & Guardian
Zuma recently extended Ngcobo's term for five years after being told it would expire at midnight on August 14. De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision. This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac). Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter. The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament -- and only an Act of Parliament -- to extend the terms of office of any Constitutional Court judge.
The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power. It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges. The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.
De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.
Playing party politics
"The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice."
With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.
On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this. Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary. "Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held," Radebe said.
De Vos said government's original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction. "By then -- belatedly -- proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster."
Vos questioned why the justice minister and the president had not thought -- a year or two ago -- whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice. "How can one govern a country when one does things at the last minute in the hope that one can bluster one's way through by denigrating those who insist on upholding the Constitution? By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him."
Vos said the big question now was who Zuma would appoint to the position. Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity. "We are aware that this would have been a very difficult decision for the chief justice to take."
It was unfortunate that government's failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision. In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice. It was the use of Section 8(a) that was the focus of the challenge. The court's decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future. "We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice," Casac said.
Source: Mail & Guardian
Friday, June 10, 2011
Zuma's move on Ngcobo 'illegal'
Hoffman described Zuma's recent decision to extend Ngcobo's term by another five years as "unconstitutional, illegal and invalid". "I say this with a heavy heart. Sandile Ngcobo is a proper judge because he knows what the role of the rule of law is in a constitutional democracy. "And if an Act of Parliament were to be passed that would extend his term, I would welcome his reappointment," said Hoffman. "But as no Act of Parliament that allows this extension has been passed, I must be true to the law and therefore critical of the president's decision."
Ngcobo's 12-year term is coming to an end in September, but Zuma announced last week he would be extending the term to 2016 in terms of the Judges' Remuneration and Conditions of Employment Act. Legal sources said that Moseneke was widely regarded in legal circles as "too independent" for the post. In 2008 the ANC issued a statement complaining that comments Moseneke made at his birthday party had shown disdain for its delegates to the ANC's national conference in Polokwane in 2007, but it later retracted its complaint. At the time Moseneke was quoted by the Sunday Times as saying: "I chose this job very carefully. I have another 10 to 12 years on the Bench and I want to use my energy to help create an equal society. It's not what the ANC wants or what the delegates want; it is about what is good for the people."
Hoffman said Zuma might also be concerned about three coming legal challenges in the Constitutional Court, two by the Democratic Alliance -- the controversial appointment of Menzi Simelane as prosecutions boss and the decision by former acting prosecutions head Mokotedi Mpshe to drop corruption charges against Zuma -- and Terry Crawford-Brown's bid to force Zuma to appoint a commission of inquiry into the R30-billion arms deal in which Zuma himself was implicated. Hoffman said the Constitution clearly stated that a Constitutional Court judge could hold office for a non-renewable term of 12 years, or until he or she reached the age of 70, whichever occurred first, except where an Act of Parliament extended the term of office of a particular judge.
Professor Pierre de Vos, a constitutional law expert, wrote in his online blog, Constitutionally Speaking, that the Constitution was amended in 2001 to accommodate respected former chief justice Arthur Chaskalson and extend his term of office but after much heated debate Chaskalson retired. "At the time, many constitutional lawyers argued that this amendment was unwise and opposed it. Some lawyers who respected and even revered Chaskalson had a problem with the amendment (generally known as the Chaskalson amendment) because it was argued that as a matter of principle it was unwise for politicians to be involved in extending the term of office of a judge, especially the chief justice." The problem was that it would create the impression that the judge was not independent, he said.
Professor Raylene Keightley, director of the Centre for Applied Legal Studies at Wits University, said the legal provisions that the president used to extend the chief justice's term would be challenged. "We wish to emphasise that the challenge is not directed at the current chief justice, or at his competence, integrity or other attributes. The case raises fundamentally important constitutional issues involving among others, the independence of the judiciary. "Clarity on these issues is of vital importance to the administration of justice in South Africa and our challenge is therefore brought with the broader public interest in mind," Keightley said.
Source: Mail & Guardian
Thursday, February 25, 2010
Constitutional Court upholds pardons decision
The Constitutional Court on Tuesday upheld a high court decision interdicting the president from granting pardons to perpetrators of political violence without first consulting victims.
Afrikaner Weerstandsbeweging (AWB) member Ryna Albutt appealed against the decision in the Constitutional Court after it was handed down in the North Gauteng High Court in Pretoria on April 29 2009. Albutt applied for pardon under a special dispensation introduced by former president Thabo Mbeki in 2007.
In a unanimous judgement, Chief Justice Sandile Ngcobo found that the exercise of the power to grant pardon had to be rationally related to its purpose. Mbeki had hoped the special dispensation would achieve national unity and national reconciliation and said he would be guided by the criteria, principles and spirit of the Truth and Reconciliation Commission (TRC) amnesty process, Ngcobo noted. He held that, given the country's history, victim participation was the only rational means of contributing to national reconciliation and national unity.
Victims had to be given an opportunity to participate to determine the facts on which the pardon was based. Ngcobo emphasised that the court's finding applied only to pardons brought under the special dispensation and not to any other categories. He dismissed the appeal with costs.
The Centre for the Study of Violence and Reconciliation approached the high court for relief after Mbeki established the special dispensation process for applications by people convicted of politically motivated crimes, but who did not take part in the TRC. Mbeki established a Pardons Reference Group (PRG) on which each political party in Parliament was represented. The PRG was formally constituted on January 18 2008. It considered 2 114 applications for pardons and made recommendations to the president. From February 2008 to March 2009, the Centre for the Study of Violence and Reconciliation and other non-governmental organisations unsuccessfully tried to ensure victim participation, greater transparency and public disclosure. They then brought the high court application, which was found in their favour.
Albutt, who was jailed for an attack on black residents in Kuruman in Northern Cape, was joined in his challenge of the high court decision by the president and the justice minister.
Source: Mail & Guardian
Afrikaner Weerstandsbeweging (AWB) member Ryna Albutt appealed against the decision in the Constitutional Court after it was handed down in the North Gauteng High Court in Pretoria on April 29 2009. Albutt applied for pardon under a special dispensation introduced by former president Thabo Mbeki in 2007.
In a unanimous judgement, Chief Justice Sandile Ngcobo found that the exercise of the power to grant pardon had to be rationally related to its purpose. Mbeki had hoped the special dispensation would achieve national unity and national reconciliation and said he would be guided by the criteria, principles and spirit of the Truth and Reconciliation Commission (TRC) amnesty process, Ngcobo noted. He held that, given the country's history, victim participation was the only rational means of contributing to national reconciliation and national unity.
Victims had to be given an opportunity to participate to determine the facts on which the pardon was based. Ngcobo emphasised that the court's finding applied only to pardons brought under the special dispensation and not to any other categories. He dismissed the appeal with costs.
The Centre for the Study of Violence and Reconciliation approached the high court for relief after Mbeki established the special dispensation process for applications by people convicted of politically motivated crimes, but who did not take part in the TRC. Mbeki established a Pardons Reference Group (PRG) on which each political party in Parliament was represented. The PRG was formally constituted on January 18 2008. It considered 2 114 applications for pardons and made recommendations to the president. From February 2008 to March 2009, the Centre for the Study of Violence and Reconciliation and other non-governmental organisations unsuccessfully tried to ensure victim participation, greater transparency and public disclosure. They then brought the high court application, which was found in their favour.
Albutt, who was jailed for an attack on black residents in Kuruman in Northern Cape, was joined in his challenge of the high court decision by the president and the justice minister.
Source: Mail & Guardian
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
Wednesday, August 19, 2009
Appointment of judicial officers
In terms of Section 176 (3) of the Constitution of South Africa: "The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal."
[Sub-s. (3) substituted by s. 13 of the Constitution Sixth Amendment Act of 2001.]
A CV of Deputy Chief Justice Dikgang Moseneke can be found here.
A CV of Justice Sandile Ngcobo can be found here.
Source: the Constitutional Court of South Africa
[Sub-s. (3) substituted by s. 13 of the Constitution Sixth Amendment Act of 2001.]
A CV of Deputy Chief Justice Dikgang Moseneke can be found here.
A CV of Justice Sandile Ngcobo can be found here.
Source: the Constitutional Court of South Africa
Thursday, August 6, 2009
South Africa: Zuma Nominates New Chief Justice
South Africa's President Jacob Zuma has moved to end a political battle which has threatened to damage the country's judiciary and its independence by making an early announcement of the nomination of a relatively uncontroversial candidate to be the next chief justice. Zuma told the National Press Club in Pretoria on Thursday that his choice for the post was Justice Sandile Ngcobo, who is already a member of the Constitutional Court, South Africa's highest court.
Source: All Africa.com
Source: All Africa.com
Wednesday, April 29, 2009
Five held for attack on ANC motorcade
Five more people have been arrested for the murder of an ANC supporter and the attempted murder of six others in Swayimani near Pietermaritzburg, KwaZulu-Natal police said on Wednesday. This brought the number of people arrested in connection with Monday's ambush on the ANC motorcade to seven.
Mphatiseni Gumede, 27, was arrested just a few hours after the attack. Police confiscated a firearm. He briefly appeared in the Camperdown Magistrate's Court on Wednesday on charges of murder and attempted murder. Police spokeswoman Director Phindile Radebe said Gumede would stay in custody until his next court appearance on May 13. Radebe said a further two firearms were found when the five suspects were arrested on Wednesday.The ANC motorcade was ambushed as party members were celebrating the party's election victory. ANC provincial secretary Senzo Mchunu welcomed the arrests. He said one of those arrested was an IFP chairman. "This is not the first time that the IFP leadership has been linked to the murder of ANC members. In Nongoma an IFP councillor Hezekiah 'Fish' Ngwenya was arrested for the murder of ANC member Jabulani Khumalo and is currently out on bail." Khumalo was shot dead in March.
Another IFP councillor was arrested for the shooting of ANC member Bongani Ngcobo in the ANC's offices in Nongoma, said Mchunu. "The IFP leadership must come out strongly to condemn their members' involvement in the attacks of ANC members, otherwise people will start believing that they are acting on the mandate of their top leadership." The IFP on Monday criticised ANC leaders for jumping to conclusions during the early stages of the investigation.
IFP national organiser Albert Mncwango said ANC leaders were "reckless and irresponsible". Their statements could fuel tensions between IFP and ANC supporters, he said.
Source: IoL
Mphatiseni Gumede, 27, was arrested just a few hours after the attack. Police confiscated a firearm. He briefly appeared in the Camperdown Magistrate's Court on Wednesday on charges of murder and attempted murder. Police spokeswoman Director Phindile Radebe said Gumede would stay in custody until his next court appearance on May 13. Radebe said a further two firearms were found when the five suspects were arrested on Wednesday.The ANC motorcade was ambushed as party members were celebrating the party's election victory. ANC provincial secretary Senzo Mchunu welcomed the arrests. He said one of those arrested was an IFP chairman. "This is not the first time that the IFP leadership has been linked to the murder of ANC members. In Nongoma an IFP councillor Hezekiah 'Fish' Ngwenya was arrested for the murder of ANC member Jabulani Khumalo and is currently out on bail." Khumalo was shot dead in March.
Another IFP councillor was arrested for the shooting of ANC member Bongani Ngcobo in the ANC's offices in Nongoma, said Mchunu. "The IFP leadership must come out strongly to condemn their members' involvement in the attacks of ANC members, otherwise people will start believing that they are acting on the mandate of their top leadership." The IFP on Monday criticised ANC leaders for jumping to conclusions during the early stages of the investigation.
IFP national organiser Albert Mncwango said ANC leaders were "reckless and irresponsible". Their statements could fuel tensions between IFP and ANC supporters, he said.
Source: IoL
Thursday, August 21, 2008
'Cabinet acted unlawfully'?
Businessman Hugh Glenister's lawyer argued hard in the Constitutional Court on Wednesday to stop the legislation that would move the Scorpions to the police.
But, the judges of the court kept expressing concerns over the ramifications of the intervention in the parliamentary processes. "This is a case where initiating the legislation gives rise to the destruction of an institution," argued Glenister's lawyer, David Unterhalter. He submitted that by initiating legislation made on a resolution made by the ruling African National Congress, Cabinet was subordinating the law so that certain ANC national executive committee members could avoid scrutiny.
Unterhalter said the separation of powers was just a doctrine of prudence and there could be cases which justified judicial intervention in parliamentary process.He said the Cabinet had acted unconstitutionally by initiating the legislation and this gave the Constitutional Court the power to intervene.
But the judges remained sceptical. Judge Sandile Ngcobo said: "These considerations should be placed before parliament. Presently there are hearings which are hearing these issues. "And, presently we are sitting as the court looking at these issues. That just can't be right... That just can't be right." Judge Kate O'Regan said it was speculative to argue that the Scorpions would be ineffective until the process was complete. She was also not convinced that staff departures during the legislative process were cataclysmic. She calculated that only about 10% of the Scorpions? staff had left. "I am not sure that is the cataclysmic kind of effect that requires interfering with parliament," she said
Source: News 24
But, the judges of the court kept expressing concerns over the ramifications of the intervention in the parliamentary processes. "This is a case where initiating the legislation gives rise to the destruction of an institution," argued Glenister's lawyer, David Unterhalter. He submitted that by initiating legislation made on a resolution made by the ruling African National Congress, Cabinet was subordinating the law so that certain ANC national executive committee members could avoid scrutiny.
Unterhalter said the separation of powers was just a doctrine of prudence and there could be cases which justified judicial intervention in parliamentary process.He said the Cabinet had acted unconstitutionally by initiating the legislation and this gave the Constitutional Court the power to intervene.
But the judges remained sceptical. Judge Sandile Ngcobo said: "These considerations should be placed before parliament. Presently there are hearings which are hearing these issues. "And, presently we are sitting as the court looking at these issues. That just can't be right... That just can't be right." Judge Kate O'Regan said it was speculative to argue that the Scorpions would be ineffective until the process was complete. She was also not convinced that staff departures during the legislative process were cataclysmic. She calculated that only about 10% of the Scorpions? staff had left. "I am not sure that is the cataclysmic kind of effect that requires interfering with parliament," she said
Source: News 24
Tuesday, October 30, 2007
Thousands at Matatiele hearings
on 18 August 2007, Constitutional Court Judge Sandile Ngcobo declared that the part of the Twelfth Amendment Act of the Constitution that altered the boundaries of KwaZulu Natal was invalid because it was not adopted in a manner consistent with the Constitution.
Although the Eastern Cape held public hearings on the matter of Matatiele being incorporated into the Eastern Cape, KwaZulu-Natal did not. There was therefore not sufficient public participation in the legislative process, which was inconsistent with the Constitution. Ngcobo suspended the order of invalidity for 18 months for Parliament to adopt a new amendment to the Constitution if it wished to.
Matatiele-Maluti Mass Action Organising Committee chairman Mandla Galo said on Tuesday the organisation would be presenting 3 920 written submissions against the district's continued incorporation into the Eastern Cape. "The reasons for wanting to stay in KwaZulu-Natal are economic. The distance between Matatiele and Bisho is the same as going from Matatiele to Pretoria." He said most people in the district were oriented towards Durban and Pietermaritzburg. The opposition to being incorporated into the Eastern Cape went across the colour spectrum. "White business and farmers are behind us. I must sincerely thank them for giving their workers time off today to come here (to the stadium)."
Matatiele was incorporated into the Eastern Cape on 28 February 2007, hours before voting started in the local government election of 2006.
Source: News 24
Although the Eastern Cape held public hearings on the matter of Matatiele being incorporated into the Eastern Cape, KwaZulu-Natal did not. There was therefore not sufficient public participation in the legislative process, which was inconsistent with the Constitution. Ngcobo suspended the order of invalidity for 18 months for Parliament to adopt a new amendment to the Constitution if it wished to.
Matatiele-Maluti Mass Action Organising Committee chairman Mandla Galo said on Tuesday the organisation would be presenting 3 920 written submissions against the district's continued incorporation into the Eastern Cape. "The reasons for wanting to stay in KwaZulu-Natal are economic. The distance between Matatiele and Bisho is the same as going from Matatiele to Pretoria." He said most people in the district were oriented towards Durban and Pietermaritzburg. The opposition to being incorporated into the Eastern Cape went across the colour spectrum. "White business and farmers are behind us. I must sincerely thank them for giving their workers time off today to come here (to the stadium)."
Matatiele was incorporated into the Eastern Cape on 28 February 2007, hours before voting started in the local government election of 2006.
Source: News 24
Thursday, June 24, 1999
KZN warfare described to TRC
Any deaths of family members caught in violent clashes between the leaders of the ANC and the IFP in Shobashobane on the south coast in the early 1990s resulted in the counter-attacks that led to the high incidence of bloodshed in the area. This was the evidence of an amnesty applicant before the amnesty committee of the Truth and Reconciliation Commission (TRC) on Wednesday. The TRC also heard that the two political organisations "did not see eye to eye as to which one should operate in the area".
Ziphakamise Nyawose (30) told of how people closest to him were killed during the attacks, which made him flee the area to stay in the bush for three months."As a member of the ANC I was also a victim of these attacks. In 1991 I was attacked on three occasions at my home. In 1992 my house was attacked twice and I was also attacked at the taxi rank. In 1993 my brother Bongani was murdered and his decomposed body was found in the bush after a week. "In the same year I was in the company of Mandla Blose when we were attacked at a taxi rank. On that occasion we retaliated by shooting back at our attackers," he said.
Nyawose said he went to report the shooting to the police but was told that they would not investigate matters involving ANC supporters. "From there it was clear to us that the police were collaborating with our attackers. These attackers were known in our area. Their names were Mhlati Mbambo, Thokozani Blose, Dudu and Sithombe (Goodman) Ngcobo. They were all IFP members," he said.
Nyawose has applied for amnesty for the murder of Bhekabantu Samuel Cele and attempted murder of IFP strongman and businessman Goodman Ngcobo in 1993. Nyawose said Cele had died in the shoot-out but he was not the target; he was only caught in the crossfire. "Ngcobo was attacking us because some members of the ANC had killed his mother in 1990, but I was not involved in that killing," he said. He said he lost everything when his house was burned down by IFP supporters during the violence. He told the amnesty committee that he had since reconciled with Ngcobo.
Source: IoL
Ziphakamise Nyawose (30) told of how people closest to him were killed during the attacks, which made him flee the area to stay in the bush for three months."As a member of the ANC I was also a victim of these attacks. In 1991 I was attacked on three occasions at my home. In 1992 my house was attacked twice and I was also attacked at the taxi rank. In 1993 my brother Bongani was murdered and his decomposed body was found in the bush after a week. "In the same year I was in the company of Mandla Blose when we were attacked at a taxi rank. On that occasion we retaliated by shooting back at our attackers," he said.
Nyawose said he went to report the shooting to the police but was told that they would not investigate matters involving ANC supporters. "From there it was clear to us that the police were collaborating with our attackers. These attackers were known in our area. Their names were Mhlati Mbambo, Thokozani Blose, Dudu and Sithombe (Goodman) Ngcobo. They were all IFP members," he said.
Nyawose has applied for amnesty for the murder of Bhekabantu Samuel Cele and attempted murder of IFP strongman and businessman Goodman Ngcobo in 1993. Nyawose said Cele had died in the shoot-out but he was not the target; he was only caught in the crossfire. "Ngcobo was attacking us because some members of the ANC had killed his mother in 1990, but I was not involved in that killing," he said. He said he lost everything when his house was burned down by IFP supporters during the violence. He told the amnesty committee that he had since reconciled with Ngcobo.
Source: IoL
Wednesday, June 23, 1999
Sisters oppose brothers' amnesty
TWO sisters have turned against their brothers, one of whom pursued and shot dead their 79-year old father, who was also necklaced and set on fire. Ms Zodwa Cele and Ms Nkosazana Cele on Tuesday opposed the amnesty application of their brother Mr Roy Cele (40), who killed his father, Mr Amos Cele, in the late 1980s. The sisters testified at the amnesty hearing of their brothers Roy and Thulani Cele (34), who together led a group of youth in the Inanda area. Both men have applied for amnesty for the murder in December 1989 of their IFP-supporting father and of their relatives Ms Dudu Ngcobo and Mr Martin Ngcobo, who were also aligned to the organisation. The brothers were each sentenced to five years in jail for public violence and 15 years each for the murders.
The Cele sisters told the amnesty committee of the Truth and Reconciliation Commission, sitting in Durban, that their brothers used the community to settle a domestic dispute following previous conflicts with their father. They dismissed any political motive for the crime. "I pursued somebody and shot him in the bush. I think it was my father, because he was found the next day at that spot," said Roy Cele. He said his father's houses were also set alight by the groups he led.
The amnesty committee, led by Judge Sisi Khampepe, spent time cross-examining Cele. Zodwa Cele told the committee that the two other victims were related to Thulani and Roy, the leaders of the vigilante group. She said they had come from Umlazi to Inanda for Christmas and not for political activities. Trouble started when Martin Ngcobo was found dead at a bus stop. A group of people then came from Umlazi to Thulani and Roy's house to inquire about the murder and the arm missing from the body.
Evidence that a group of people came looking for the brothers was denied by Zodwa Cele. Instead, she said the group beat her with a sjambok, assaulted her with stones and left her bleeding. "As I was running back home I saw a group of people led by Thulani Cele beating up Dudu (Ngcobo)," she said. She told of the chaos in the family when Roy led the group to his father's house. The sisters, one pregnant with twins, held their children and fled from their house. The Cele sisters said they would not like their brothers granted amnesty because they lied in their testimony.
Source: IoL
The Cele sisters told the amnesty committee of the Truth and Reconciliation Commission, sitting in Durban, that their brothers used the community to settle a domestic dispute following previous conflicts with their father. They dismissed any political motive for the crime. "I pursued somebody and shot him in the bush. I think it was my father, because he was found the next day at that spot," said Roy Cele. He said his father's houses were also set alight by the groups he led.
The amnesty committee, led by Judge Sisi Khampepe, spent time cross-examining Cele. Zodwa Cele told the committee that the two other victims were related to Thulani and Roy, the leaders of the vigilante group. She said they had come from Umlazi to Inanda for Christmas and not for political activities. Trouble started when Martin Ngcobo was found dead at a bus stop. A group of people then came from Umlazi to Thulani and Roy's house to inquire about the murder and the arm missing from the body.
Evidence that a group of people came looking for the brothers was denied by Zodwa Cele. Instead, she said the group beat her with a sjambok, assaulted her with stones and left her bleeding. "As I was running back home I saw a group of people led by Thulani Cele beating up Dudu (Ngcobo)," she said. She told of the chaos in the family when Roy led the group to his father's house. The sisters, one pregnant with twins, held their children and fled from their house. The Cele sisters said they would not like their brothers granted amnesty because they lied in their testimony.
Source: IoL
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