Legal Expert Kickstarts ‘SA Courts are Incompetent’ Debate

Legal Experts Argue about SA Courts Incompetence

2011-02-14 22:58
Phillip de Bruin, Beeld

Two of the country's top experts on constitutional law are in disagreement the state of the justice system and especially the constitutional court.

Adv. Jeremy Gauntlett SC, who has been a judge in Cape Town, has kickstarted the debate with a speech (The Silence of the Lawyers) at a conference of the Association of Law Teachers in Stellenbosch.

Jeremy J Gauntlett SC

Jeremy was called to the Bar in 1974 (commencing practice in 1977) and took silk in 1989. He became a member of Group 621 in 1999.

Jeremy is also a member of Brick Court Chambers in London, a barrister of England and Wales, an advocate of the High Courts of Lesotho, Namibia and Zimbabwe, and a Judge of Appeal of Lesotho.

He has contributed three titles to the Law of South Africa and has written a number of journal articles.

Jeremy was President of the Cape Bar in the years 1997 to 1999, and Chairman of the General Council of the Bar in the years 1999 to 2002. He is a member of the South African Law Commission and of the Council of the University of Cape Town.

Gauntlett did not walk on egg shells and said the time has come to put an end to the approach that aparthy is the appropriate response to analysis of court decisions and how courts operate.

Prof. Pierre de Vos of UCT responded yesterday with a sharp attack on Gauntlett's statements on his blog.

The Empire Strikes Back:

It is always good to have one’s feet held to the fire. Criticism of the legal profession and of legal academics should therefore be welcomed – whether it comes from traditional conservative quarters or from more progressive voices in our society. Criticism (hopefully) encourages self-reflection. Incisive criticism may start a debate, which might help to enlighten us and might improve the way we all engage with the law.

It was therefore great to read that Adv Jeremy Gaunlett had delivered a speech in which he criticised the legal profession for a “lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa”. Gauntlett – who was nominated for appointed to the Constitutional Court and the Cape High Court but has not been appointed to either court – argued that there was a complacency amongst lawyers and legal academics about problems facing the legal system in South Africa.

I think as a general proposition this is correct. Lawyers and legal academics are often far too hesitant to engage with (and speak out about) issues of social injustice and the manner in which our legal system still favours the rich and well connected and disadvantages the poor and those who do not have friends in high places.


Further reflections on academic criticism of courts:

Adv. Jeremy Gaunlett’s criticism of legal academics and of the Constitutional Court has elicited much discussion and debate. As I said before, such debates should be welcomed. In South Africa people in positions of influence and power (even academics with very limited influence and rather limited — or no — power) tend to be far too precious about criticism levelled against them.

It is not often that a lowly academic like myself get the opportunity to engage with the “ideas” of a person who is often said to be one of the most eminent and accomplished lawyers in South Africa. In my previous post, which was jotted down between sessions of a symposium which I was attending in Durban, I only touched on some of the problems with Gauntlett’s speech. I thought it might therefore be appropriate to re-read his speech and to engage more fully with it.

What forcefully struck me on a second reading of Gauntlet’s speech, is the rather cavalier manner in which the talk engages with the purported facts on which some of his criticism is based. One would have thought that a highly regarded advocate would get his facts straight and would not make misrepresentations on which he then based some of his criticism. Such tardiness suggests — rather ironically — that when Gauntlett stated that “it is time to end an approach which is insufficiently rigorous”, he was referring just as much to his own speech delivered to law teachers, than to the output of judges and legal academics.

Gauntlett cited the following examples regarding the constitutional court, where "six of the 11 judges were appointed without any judicial experience whatsoever. The other five, had only an average of four years experience."

This, he says, is in sharp contrast to England, where the top judges on average have 14 years of court judicial experience before they are appointed.

"Can it be said that some Constitutional Court appointments last year are significant of a continuing disregard of the candidates judicial excellence?"

Gauntlett also expressed his views about the laziness of Constitutional Court judges

"In 2008, the court heard 22 cases. The Supreme Court of Canada heard 82."

De Vos, responded that: "One would think that a highly respected advocate would get his facts right and would not misrepresentations the facts upon which he based his criticisms."

About Gauntlett's allegations that there was a lack of criticism and analysis of the rulings and work of the constitutional court's work, De Vos said it was "absurd".

"This statement of Adv. Gauntlett is bizarre and totally removed from reality."

Gauntlett said in response to de Vos's statements: "I'm sorry that the Professor has not chosen to encourage the debate that I started, and has chosen instead to personalize it. This is unworthy. I have no further comment."

» » » » [Beeld] [Excerpt: Adv. Jeremy Gauntlett] [Address: The Silence of the Lawyers]
» » Prof. De Vos: [Excerpt: The Empire Strikes Back] :: [Excerpt: Further Reflections]

Proudly SA Magistrates: Respect Their: Assassination HitLists, Pornography addictions, SMS sex-texting, 22 children, fraud, bribery, et al

Magistrate arrested over hit list

Isabel Venter, Zoutnet
Date: 21 January 2011

Controversial regional magistrate Ronnie Rambau was arrested yet again over the past weekend, this time on a charge of conspiracy to commit murder.

Rambau’s arrest follows the discovery of a hit list compiled in his own handwriting. The list was handed to members of the police’s Counter Intelligence Unit for investigation.

Among the names on the hit list is that of district magistrate Chris Mthombeni, district magistrate Marie Viljoen, senior state prosecutor André Weideman, district prosecutor Reino Mostert, district prosecutor Hylke Janse van Rensburg, senior prosecutor Deon Laminga and three policemen, one a captain and two sergeants. All nine are involved in Rambau’s pending corruption case in Musina.

Two local witch doctors, who turned state witnesses, stated that they had already received payment from Rambau to murder the people on the list. The one told police that he had been paid R850 to kill all nine, while the other was paid R3 500.

The complainant in the case, whose identity is being withheld at this stage for her own safety, handed the list to the police, fearing the worst. In her police statement, she says Rambau repeatedly told her that his gun was not for shooting birds, but for shooting people who made him angry.

A warrant for Rambau’s arrest was issued on Friday (14th). Although he initially told police by telephone that he would hand himself over, police waited in vain outside his Louis Trichardt home. Rambau eluded police for several hours, but eventually surrendered himself at around 01:30 on Saturday.

Rambau was locked up in the police cells in Louis Trichardt, but once again his influence as regional magistrate apparently scored him some points with local police. According to information, senior police officials had to intervene once again over the past weekend when they found out that Rambau had received assistance in an attempt to bring a bail application in Giyani for his release, without even being charged yet. Rambau apparently has two brothers, one a warrant officer and the other a lieutenant-colonel, working at the Makhado SAPS.

» » » » [Excerpt: Proudly SA Magistrates: Respect Their: Assassination HitLists, Pornography addictions, SMS sex-texting, 22 children, fraud, bribery, et al]

Q to Cape Law Soc: Which argument/s in Radical Honesty SA Amicus in RSA v. Dewani is/are ‘without substance or legal basis’?


Excerpt

RE: Law Societies statement that Radical Honesty SA Amicus Application in RSA v. Dewani is ‘without substance or legal basis’

I write regarding your statements in SA citizen challenges Dewani extradition, The South African, 01-02-2011, wherein Rob Boffard states the following:

Nalini Gangen, director of the Cape Law Society, says, however, that Ms Johnstone’s views are “without substance or legal basis”.

“There is no reason to doubt that Mr Dewani would receive a fair hearing. South Africa has one of the best constitutions in the world and the Constitution provides for the instruments of democracy to be protected. The Constitution provides for the separation of powers and in particular the independence of the judiciary.

“South African legal processes are clearly defined and any accused would have the freedom of choice of legal representation.

“We have confidence in our judiciary,” she added.

I’d appreciate it if you could please clarify the following issues for me:

1. Which argument/s stated in the Radical Honesty SA Amicus Application in RSA v. Shrien Dewani is/are ‘without substance or legal basis’?
   
   
2. If the legal reality is that there is reason to doubt that Mr. Dewani would receive a fair hearing in an Ubuntufied SA court of law; would you:
   
   
   1. lie and cover up that reality pretending it does not exist, in accordance with the South African legal, political and academic elite’s Edward Bernaysian Public Relations Protocols (Radical Honesty Guru Scott Ginsberg describes Bernaysian PR protocols as “the ever-rising tide of corporate and political bullshite” )
      
      
   2. tell the truth, the whole truth and nothing but the truth, and support Mr. Dewani to receive a free and fair trial, in a British court of law where there is more certainty for him to receive a free and fair Descartian trial?
   
   
3. What percentage of European, African, Indian and Coloured Cape Law Society Attorneys would be willing to provide Judge Riddle with written affidavits, swearing under oath that they have ‘confidence in the political, legal, ideological, intellectual, ethical and psychological independence and competence of SA’s Descartian judicial officials’?
   
   
4. Do you think Carl Wille would sign such an affidavit?
   
   

   Is Hlophe fit to hold office?
   Published in: Legalbrief Today
   Date: Thu 11 October 2007
   
   As a lawyer, I am tempted to engage in unemotional reasoning to reach a logical conclusion in this matter. I shall however refrain from doing so, as any such reasoning by a white South African regarding this extremely serious matter is likely to be attacked by my fellow black lawyers as being racist and in conflict with African values.
   
   What I prefer to do is to appeal to my fellow black lawyers to seriously contemplate whether you think that Judge Hlophe is fit to hold office and whether he is the type of person that you would like to preside over an important matter impacting on your life? If you feel that he is fit to hold office, I would appreciate you sharing your reasoning with us, so that I can gain a better understanding of this matter. If you however feel he is not fit to hold office, I appeal to you to share your views with us and to take appropriate action, even if it jeopardises your career prospects and threatens African values. You may want to consider the content of the Prevention and Combatting of Corrupt Activities Act 12 of 2004 while contemplating your position in this matter.
   
   Look forward to your views on the matter.
   
   Carl Wille

» » » » [Read Further]