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Justice Zondo Got it Wrong – Dr Paul Ngobeni

The Zondo Commission is, according to Dr Paul Ngobeni, fraught with existential, substantive and procedural irregularities.

It blurs the line between the executive and the judiciary, thereby disregarding the separation of powers doctrine; its flirtation with state law enforcement agencies following the president’s extraordinary changing of the rules during the game brings it into collision with the constitutional imperative of judicial independence; its conduct of its proceedings is in sharp contrast with well-established international norms and standards.

All this, says Dr Ngobeni, opens the Zondo Commission up to judicial review.

But will South African courts see it that way? Read for yourself, and decide.

Read the full analysis here: Why Justice Zondo Got It Wrong

By |2020-11-22T08:55:46+02:00Nov 21st, 2020|Analyses and Reviews|5 Comments

In Conversation with Deputy Chief Justice Raymond Zondo – 2nd segment

In this segment, South Africa’s Deputy Chief Justice, Justice Raymond Zondo, discusses matters of substantive law.

Some of the issues covered include

  • the so-called “reasonable employer test” as a standard of review in unfair dismissal cases
  • the day in the life of a Constitutional Court Justice

Also discussed is why legal representation in Constitutional Court litigation is dominated by white male advocates when almost all cases that go before the Constitutional Court involve government in one form or another.

By |2020-10-28T20:57:58+02:00Oct 26th, 2020|Legal Voices|Comments Off on In Conversation with Deputy Chief Justice Raymond Zondo – 2nd segment

In Conversation with Deputy Chief Justice Raymond Zondo – 1st segment

Meet South Africa’s Deputy Chief Justice who currently chairs the fraught “State Capture” Commission also known, eponymously, as The Zondo Commission.

In this first segment, Deputy Chief Justice Raymond Zondo literally unveils himself.

Did you know that Justice Zondo has a specialist university qualification (Master of Laws or LLM) in Patent Law, has written a judgment in Patent Law as a Judge of the High Court, but has never received a single brief in Patent Law while in practice? Find out why here – and more …

By |2020-10-26T06:04:57+02:00Oct 14th, 2020|Legal Voices|Comments Off on In Conversation with Deputy Chief Justice Raymond Zondo – 1st segment

#BlameMeOnApartheid: Colonialism, Apartheid and the legacy of townships as peripheral spaces for ‘non-beings’ – A Book by Thamsanqa D. Malinga

The telling of too many of our stories as black South Africans is often done by people who have not experienced the life we have lived, and the avoidable difficulties to which we have been subjected.

Even the stories of Nelson Mandela (South Africa’s first President under the first universal franchise), Winnie Madikizela-Mandela (his wife and a fiery socio-political activist in her own right dubbed “Mother of the Nation”) and Steven Bantu Biko (leader of the Students’ movement in the 1960s and 1970s and a Black Consciousness Movement advocate and leader) have been told largely by people who have not walked one mile in their shoes. And so in all three cases, the lack of authenticity is palpable.

#BlameMeOnApartheid is a welcome departure from that mould. Mr Thamsanqa D. Malinga, a child of South Africa’s townships, tells his own story from his own perspective and in his own words. No interpretation required. Even this review does not seek to water down the substance of the book by interpreting it for you. It simply seeks to pay tribute to a project well-executed.

Read the full review here #BlameMeOnApartheid – A Book by Thamsanqa D Malinga

Book Orders at masefakobook@gmail.com

By |2020-10-14T14:54:07+02:00Oct 13th, 2020|Analyses and Reviews|Comments Off on #BlameMeOnApartheid: Colonialism, Apartheid and the legacy of townships as peripheral spaces for ‘non-beings’ – A Book by Thamsanqa D. Malinga

The Zondo Commission Regulations Amendment: A Looming Constitutional Crisis? By Adv Gcina Malindi SC, Pan African Bar Association of South Africa

On 28 July 2020, the President of the Republic of South Africa gazetted some amendments to the Regulations of the Zondo Commission.

These amendments include enabling the National Prosecuting Authority to access information that has been gathered by investigators of the Zondo Commission, during the course of their employment by the Zondo Commission, and using that information in criminal proceedings against persons implicated by that information in criminal conduct.

Adv Malindi SC explores the constitutional challenges that these amendments pose. For example, if a witness called to give evidence at the Zondo Commission at a time when s/he is facing criminal prosecution, what implications does that have on the right against self-incrimination, among other rights of an accused person, if the Zondo Commission compels the person facing such criminal prosecution nevertheless to give evidence before it?

Read the full paper here Zondo Commission and Criminal Prosecution

By |2020-09-13T14:12:12+02:00Sep 13th, 2020|Analyses and Reviews|Comments Off on The Zondo Commission Regulations Amendment: A Looming Constitutional Crisis? By Adv Gcina Malindi SC, Pan African Bar Association of South Africa

Covid-19 Regulations vs Students: A Critical Analysis of Judgment in Leave to Appeal. By Thabo Nongogo BA(Law)(English Lit) UCT

On 4 August 2020, the Western Cape High Court, in Cape Town, South Africa (the Cape High Court), granted leave to appeal to the Supreme Court of Appeal, the second highest court in the South African hierarchy of courts.

The Cape High Court comprised two Judges. Reading the judgment, one got a sense that there was no appetite to grant leave. Extraordinarily, in a 43-paragraph judgment, it only emerges in paragraph 41 that leave may be granted.

This is an analysis of the judgment by a recent BA(Law) graduate student from the University of Cape Town. He laments the judgment as an opportunity lost to dealing with procedural and substantive rationality from a constitutional perspective, and hopes that the SCA gets to grips with that question.

Read the full paper here Analysis of LTA Esau Judgment – Thabo Nongogo 19 August 2020 Website

By |2020-08-19T15:47:35+02:00Aug 19th, 2020|Analyses and Reviews|1 Comment

This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

Many people view the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission” or “the Commission”) with suspicion, at best, and as a witch-hunt specifically for President Zuma’s associates, at worst.

But is this justified?

A cursory reading of the Commission’s Terms of Reference and Rules reveals that such suspicion can either be blunted or blown out into the open or completely disproved.

ANYONE, whatever his or her status in life, who believes that any person should be called as a witness on specific issues, and be questioned on those issues by the Commission, can ask the Commission Chair to call that person as a witness. All you need do is send a written request to the Secretary of the Commission in which you

  • identify yourself
  • identify the person/s you want called
  • specify the issue/s on which you want the person/s questioned
  • explain why that evidence is likely to be valuable to the Commission in the performance of its work
  • link the issue/s on which you want the person/s questioned to at least one aspect of the Terms of Reference.

(The Terms of Reference – to which a link is provided below – have been amended since first being promulgated in January 2018, but not in a manner that materially affects the discussion here)

In this regard, Rule 9.1 of the Commission Rules says:

“If any person considers that a particular witness should be called to give oral evidence, a written request to this effect should be made to the Commission and shall include the reasons for the request and the likely value of the evidence of such witness. Such witness may be called at the discretion of the Chairperson.”

If the Commission Chair invites the person concerned, s/he must be questioned in terms of Rule 3.2 of the Commission Rules which says:

“A member of the Commission’s Legal Team may put questions to a witness whose evidence is presented to the Commission by the Commission’s Legal Team including questions aimed at assisting the Commission in assessing the truthfulness of the evidence of a witness. Subject to the directions of the Chairperson, the Commission’s Legal Team may ask leading questions.”

Since the primary purpose of a Commission of Inquiry is the pursuit of the truth, you are free to suggest a line of questioning to the Commission on the issues that trouble you. Ultimately, whether the person you have identified is invited to give evidence and be questioned at the Commission is for the Chair to decide. But the discretion of the Chair must be exercised judiciously, not on a whim.

If the Chair should refuse your request, you are entitled to reasons. If no reasons are given, or you find the reasons inadequate or irrational or unreasonable, you have a right to challenge the decision on review in the high court.

If the nature of the questioning should strike you as “sweetheart” questioning of the sort that is intended simply to go through the motions without any intention of extracting the truth, you have a right to challenge the process on review to the high court.

Now, the purpose of this brief opinion is this: it is unhelpful to stand on the sidelines hurling invective at the Commission when you can participate in making it a success. We live in what should be a participatory Democracy. PARTICIPATE.

Read an example of a Written Request by clicking on the link below:

Request to State Capture Commission – Website

RELATED DOCUMENTS

State Capture Commission DAY 133 TRANSCRIPT DD 2019-07-15 – Zuma Evidence

State Capture Commission Rules

State Capture Terms of Reference – Original

By |2020-08-16T20:21:58+02:00Aug 16th, 2020|Cases of Interest, South Africa|Comments Off on This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

August 2019 Interview with Chief Justice Mogoeng Mogoeng: BONUS Segment

Join Adv Ngalwana SC in this BONUS SEGMENT in a frank interview with the Chief Justice of the Republic of South Africa, Justice Mogoeng Mogoeng.

In this segment, Chief Justice Mogoeng Mogoeng shares his insights on the following important issues:

  • Judicial Activism vs Judicial Restraint
  • In what circumstances can a Court grant relief that a litigant has not sought – as a just and equitable relief?
  • How far does the Presumption of Judicial Impartiality extend?
By |2020-07-30T14:00:37+02:00Jul 26th, 2020|Legal Voices|Comments Off on August 2019 Interview with Chief Justice Mogoeng Mogoeng: BONUS Segment

August 2019 Interview with Chief Justice Mogoeng Mogoeng: 4th Segment

Join Adv Ngalwana SC in this fourth segment in a frank interview with the Chief Justice of the Republic of South Africa, Justice Mogoeng Mogoeng.

In this fourth segment, Chief Justice Mogoeng Mogoeng continues to share his insights on the following issues:

  • Judges and Populism
  • Media abuse of Judges: what are the Judges’ recourse?
  • Judicial Freedom of Expression: Judges expressing views in public outside judgement
  • What is the Chief Justice’s Judicial Philosophy?
By |2020-07-26T19:20:04+02:00Jul 23rd, 2020|Legal Voices|Comments Off on August 2019 Interview with Chief Justice Mogoeng Mogoeng: 4th Segment

August 2019 Interview with Chief Justice Mogoeng Mogoeng: 1st Segment

Join Adv Ngalwana SC in this first of four segments in a frank interview with the Chief Justice of the Republic of South Africa, Justice Mogoeng Mogoeng.

In this first segment, the Chief Justice shares his insights on the following issues:

  • The state of the Judiciary and its challenges
  • Access to Justice
  • Technology and Effectiveness of the Courts
  • Whether an equally split-bench at the highest court is a failure of justice.
By |2020-07-14T20:16:49+02:00Jul 14th, 2020|Legal Voices|4 Comments