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DEFEND STATUS OF TRUTH & RECONCILIATION COMMISSION BEFORE THE COURTS
DEFEND THE PREAMBLE TO THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA
I have less than one month in which to file an SCA appeal in terms of s17 (2) (b) against AJ Martin’s racist decision (CA18417/17) to not provide relief with regard to representation in a matter affecting the TRC and its Final Report.
The High Court decision literally agreeing with Legal Aid SA in first instance, that it ‘would take a long time to read the report’ and therefore it can be ignored, and also, in second instance, upholding validity of LASA chief officer‘s view that the matter has somehow ‘prescribed’ since the commission ‘wound up its work some time ago‘, is demonstrably racist.
Attacking the legal basis of the TRC, an inquiry into gross violations of human rights under apartheid, still a crime against humanity, for which there is no statute of limitations, trivialises the report, lowers its status before the courts and denigrates the memory of the victims and survivors. It is certainly contrary to our Constitution and its preamble which states, ‘recognising the injustices of the past …’ not to mention several statutes each one promulgated in order to prevent ‘repetitions of the past’.
The decision impacts and affects my case before the Equality Court of South Africa (EC19/2015) brought to defend the report against the vicious and racist attacks by Naspers/Media24 and thus failure to defend the law by the former Min of Justice, Michael Masutha. My not possessing an attorney at state expense as contemplated in the constitution, is a substantial injustice when it comes to the odious task of defending the TRC.
AJ Martin’s sloppy and incompetent decision is nothing less than racist double standards, since I have already been taken to task on a previous occasion during the proceedings of Lewis v Media24 (2010) for my not having ‘read the report’, in particular chapter 4, and thus according to Adv Kahanovitz SC, ‘knew who I was getting involved with when I joined Media24’, a racist organisation at the time, opposed to the TRC.
Kahanovitz SC further claimed that the report was a ‘public record’ to which I could not claim ignorance, at the same time that he claimed the commission was ‘simply a commission’, and the report, ‘simply a report’. AJ Cheadle, who admitted to presiding over a case involving his own client (and thus a judgement written up by the opposing party), then proceeds to state in his 2010 decision at para 98: ‘His evidence is unreliable because he is engaged in a campaign against the Respondent for its support of apartheid and its refusal to apologise for doing so before the Truth and Reconciliation Commission.’
Now Martin declaims loudly from the bench that it is okay to simply ignore the report, echoing Kahanovitz SC earlier direction that the report should be ignored when doing so favours his client, but be upheld when it affects my own legal standing.
Not only did AJ Martin refuse to recuse himself from the High Court, Western Cape on Monday 20 May 2019, after this contradiction was pointed out to him, but he has had the audacity to claim his decisions and findings in the matter are somehow obiter (merely in passing), and also “Judges can make mistakes that is what superior courts are for, correcting error.” There also appears to be some confusion here as to whether or not the court has the requisite power to review decisions taken by a ‘national public entity’ and thus other schedule 3 entities such as boxing clubs. Martin then proceeded to deny me leave on the basis.
The determination amounts to an exclusion of the Preamble to the Constitution of the Republic of South Africa, not to mention the Bill of Rights. The separation of powers is between the judiciary, the executive and the legislature, not the public sphere versus the judiciary and represents a new low so far as the justice system is concerned.
The calumny against the TRC Act is not surprising since the the High Court of the Western Cape still houses portraits of apartheid and colonial era judges. Albert van der Sandt Centlivres for instance, was the Chief Justice of South Africa from 1950 to 1957, and the result is an embarrassing racist rogues line-up, book-ended by a beaming portrait of current Judge President of the Western Cape, John Hlophe. Portraits of Centlivres et al deserve to be in a museum not the chambers of active judicial officers.
I urgently require assistance in filing my documents on appeal in Bloemfontein, failing which an appeal directly to the ConCourt. If I cannot retain an attorney to accomplish this, I will be required to travel to Bloemfontein and/Jozi. I am also required to furnish the SCA/ConCourt judges and parties with the transcripts and records of the proceedings, all of which costs money. Some four hours of transcription is required.
Please assist me in defending the TRC and its Final Report in the matter Lewis v Legal Aid SA CA18417/17. This matter affects similarly-situated individuals and is a major test of the foundation stones of our democracy.
NO TO HIGH COURT APARTHEID
NO TO RACIST DOUBLE-STANDARDS
THE first I got wind of some of the more troubling underlying ‘facts’ surrounding the Caster Controversy, was after a posting by the Dagga Party’s own Jeremy Acton. In a posting on social media, Acton argues that ‘Semenya’s XY chromosomes’ prove the athlete to be both a “man” and a “fraud in athletics”.
“I do not care that this view might upset anyone. It is my Section 15 right to have this opinion and my Section 16 right to express my viewpoint,” Acton added.
In the post, the leader of the Dagga Party stated that he only supports “real women’s rights”, adding that he wants Semenya to return all titles and earnings, and that “his” records should be declared null and void.”
While the net is full of opinion pieces, some comparing the IAAF investigation to treatment of Saartjie Baartman, they are invariably thin on substance, compared to the citations provided by Acton.
You can read Acton’s views in the Citizen article.
If one follows the links to the story provided on Letsrun.com, you will find the real dope on Caster written up by one Robert Johnson.
Letsrun is a longstanding site for “Olympic track and field fans” with athletic articles and popular message boards.
Johnson writes “its absolutely mind-boggling that virtually every major outlet in the world reporting the Court of Arbitration for Sport ruling yesterday has failed to mention one of the most important facts of the entire case.”
“Caster Semenya has XY chromosomes. It was generally accepted by people following the case closely that Semenya was XY, but now it’s been confirmed as fact since the CAS press release specifically says, “The DSD covered by the Regulations are limited to athletes with ’46 XY DSD’” (DSD = difference of sex development).
The scientific reality, if true, unfortunately places Caster in the troubling terrain of birth defects and other childhood deformities, instead of traditional femininity insofar as athletics is concerned. There is some speculation here as to the role of external, environmental factors at birth, such as exposure to dioxins by poor, under-serviced communities.
And there I was thinking that Caster was potentially intersexed, not simply sex reassignment at birth, and all this was a case of interpretation (see Against Interpretation by Susan Sontag), see my earlier piece Caster Deconstructed.
On the other hand D. Myron Genel, a professor emeritus of pediatrics at Yale University, still believes “Semenya is a female with a birth defect, simple as that”. There is a good article on the crisis of definition in the Washington Post.
This contrarian view however elegant, doesn’t deal with the reality that Caster is technically, neither male nor female. It is not simply a case of testosterone, nor even transgender for that matter.
(Listen to this podcast on Eusebius McKaiser show, still focusing on hyperandrogenism and the test issue, but a good history of similar controversies).
It would seem that when it comes to the IAAF, biology most certainly overrules psychology (and even the advances of jurisprudence and socio-political rights) since while anyone may change legal gender these days, by identifying as either male or female, one has to be a genuine, ‘bone fide women’ in order to compete in athletics. Fair is fair after all.
Blur the gender boundary too much, and’all sports events become men’s events’, says sports scientist Dr Ross Tucker.
The rights of ‘real women’ according to this admittedly binary view, need to be taken into account, and it will take decades to unravel the truth behind the Caster saga, even if the period of s/he, and WoMans reign, much like the Zuma administration, was an interesting, and very public joy ride.
For the record, Medialternatives was one of the first outlets to champion Caster’s ‘right to be a women‘ in the face of scientific determinism.
What are your views on the subject, please use the comments section below.
IF YOU remember South Africa during the 1980s, then you probably were never there. Check out this review of Carsten Rasch’s semi-autobiographical work ‘Between Rock and a hard place’, written up by Michael Hardaker on Litnet. “This is a vital, tumbling, scrambling, breathless, profane, sweat-stained, music-infused, whisky-soaked, acid-tinged, dagga-scented, sometimes poignant, often side-splitting, speed-freak roller coaster ride through early 1980s South Africa,” says Hardaker.
At least that’s what he claims, and who really knows if Rasch just made up a character named Lew? Or contrived a literary work of imagination? The Latin word fictus means “to form” rather than to inform. All I can confirm is that like many of my generation, I was at the Harbour Cafe when James Philips played pool.
It’s the raw and honest beat culture that Media24 and Multichoice have been desperately trying to suppress, alongside the history of cannabis and jazz music. The case involving what jazz legend, Robbie said or didn’t say, is now in its 12th year, as I bring a review application exposing the corruption by the apartheid dirty tricks brigade.
While you’re busy smashing your DSTV decoder just like Steve Hofmeyr. (See Steve Hofmeyr Syndrome) you can catch some banned alternative South African counter-culture online. Getting Afrikanerdom to implode by itself is what we were contemplating, all along.
Bask in the glory of James Philips, Radio Rats and the local punk scene.
I have sought leave to appeal the judgement in a TRC-related matter concerning the right to legal representation, and a decision handed down by Acting Justice Martin. Needless to say I had to hand deliver the following document containing my grounds for leave to appeal, to the judge in chambers on floor 1 of the High Court. Walking past a long lineup of apartheid and colonial-era judges, their pictures still hanging on the wall. The respondent, Legal Aid South Africa, has already served notice of intention to oppose on behalf of the executive of the country. Does Cyril Ramaphosa have a heart? Obviously not.
SOUTH AFRICA’s Copyright Act is stuck in the 1970s paradigm of ‘fair-dealing’, in this interview on Capetalk, it may appear that the main innovation here is fair-use. This discussion avoids the troubling issue of the failure of legislators to include permissive licensing schemes, which currently fail by default under the Amended legislation.
In terms of the amendment, there is no way to opt-out of the default copyright regime, and creators will not be able to ‘sign-away’ or gift their copyright in favour of permissive licensing, for example under the creative commons.
This is a significant failing in the new act and the last time I looked, the legislation erred in favour of large collection agencies and publishing houses such as Independent Group who feel entitled to publish without payment.
In effect we still in the old days of agencies collecting on behalf of creators who never receive a penny.
The debate also touches on the successful campaign to include resale royalties waged by persons such as myself.
Readers may be aware of a dispute in the visual arts world in this regard going back to the 90s and the resulting backlash by monied art-dealers.
We’ll let you enjoy the audio