by davidrobertlewis -

Most of all I am offended as a Secularist

IN 2010 I led evidence in a South African court that ‘Judaism was not monolithic’, or to use the parlance of Amma Khalid (see link below) ‘monothetic’, i.e based on a single basic idea or principle. There were many different expressions of Judaism I told the court, in particular there were those who disputed claims made by the Orthodoxy regarding the origin of the Torah, as too were there divergences on issues of Sabbath observance.

The Torah itself was unclear and contradicted itself. Since the Haskalah (Jewish Enlightenment) or Reform, progressives such as myself believed in a ‘separation between Synagogue and State’. Instead of upholding my right to privacy in the face of the obscene ecclesiastical charges and racist propositions put to me by Kahanovitz SC acting for apartheid media company Media24, the court decided to adopt a moral position consistent with ultra-Orthodox, Rabbinical Judaism.

AJ Cheadle found that since I was a ‘Jew in breach’ of my alleged religion, I could not claim discrimination i.e. Antisemitism on the basis of the offensive inquiries and objections made by the respondent in the matter, who not only disputed my Jewishness but had proceeded to impugn whether or not I was indeed a Jew and outrageously denied they knew I was Jewish even though they were now insisting on authoring and issuing such inquiries.

As Thomas Jefferson put it in an 1803 letter to an English politician, 26 years after establishing an Act enshrining religious freedom in 1777: “I never will, by any word or act, bow to the shrine of intolerance or admit a right of inquiry into the religious opinions of others”

Cheadle then claimed to reserve judgement in the doctrinal dispute, despite his open bias towards the respondent (who it turned out was not simply his client, but also a business partner) demonstrated by his adopting their position in the matter.

The company had initially objected to my attendance at a ‘mixed race’ music venue on the Sabbath, and appeared to also object to my use of a company vehicle on Shabbat, supposedly in contravention of Jewish law. My own pleadings in the matter were simply ignored and mocked, with the respondent’s version of the case along with false and misleading narrative, uplifted and handed down.

The result is an anti-Secular screed at best, the product of a kangaroo court lacking objective reality.

Thus Cheadle upheld a false claim inter alia, reiterating apartheid-era justifications for separate development, whilst proceeding to trash the findings of the Truth & Reconciliation Commission, an inquiry into gross violations of human rights under apartheid in which the company had essentially been found guilty as one of the ‘handmaidens of the apartheid regime’.

The company had also attacked my byline, infringed upon journalistic privilege, sought a gagging order, and made a number of frivolous and vexatious allegations regarding several interviews conducted with jazz musicians. In turn I accused the company of censorship, race profiling of readers, de facto newsroom segregation and denial of my rights as a journalist. Restrained from calling any witnesses in the matter, I was forced to lead my evidence from the witness box, sans an attorney.

I was not given leave to appeal nor even present when the decision was handed down and a petition to the Labour Appeal Court was turned down in my absence. You can access a repository of material related to the case here.

Today I was thus surprised to find pretty much my own case regarding the racist Anti-Secular Inquisition by Media24, reiterated in support of an Art History Professor, cast out due to similar sensitivities to do with religion. It is a welcome respite from the machinations of the religious police and theocrats in my own country to read the argument in support of an Enlightenment in Islam.

Almost 17 years since the initial incident which led to my complaint being filed, I continue to condemn the anti-Secular, partisan,1994-denialist decision of the corrupted Labour Court of South Africa. I once again demand that my rights to an identity independent of the state’s religious authorities and especially religious policing, be restored alongside my rights as a journalist.

SEE: Did ‘ou krokodil’ Ton Vosloo just wake up to the fact that his company continues to mock the TRC report?

SEE: Living in the Heart of Kakness

by davidrobertlewis -

EXPOSED: Did ‘ou krokodil’ Ton Vosloo just wake up to the fact that his company continues to mock the TRC report?

TON VOSLOO, the former Naspers chairman, appears to have suddenly realised that he is ‘living in a different country’. A piece published by Tammy Petersen of News24 carries details of his sudden change of heart, in which he selectively refers to events effecting the company’s standing in relation to the Truth & Reconciliation Commission.

In 2010 the company mocked the TRC Report during a hearing before the Labour Court of South Africa and proceeded to oppose a 2015 application before the Equality Court, brought to review the company’s opposition to the TRC Report and its continued hostility.

Vosloo makes no apology for acting in this way but appears keen to put other matters to rest. His employees think nothing of assisting the ‘Old Crocodile’ in his latest spin on events, in the process we uncover yet another fraud, courtesy of the Internet Archive.

Referring to a letter published on Netwerk24 and Die Burger, Petersen relates that after attending a graduation ceremony, Vosloo suddenly became ‘ashamed of his beliefs and actions’

Why did we act “so mockingly” against those who warned about the dangers of apartheid? Vosloo appears to ask.

“These musings of an elderly Afrikaans speaker are far too late. Why did we, in our fiery youth and with our prowess as seasoned journalists, act so mockingly against those who warned us about the perils of forced racial segregation?” he wrote.

“Why did we support the government of the time when it violated the Constitution by filling the Senate with staunch Nationalists to remove the so-called coloureds from the electoral roll?“

Past tense, not so fast

The piece is remarkable for in placing emphasis on the past tense, Naspers appears to narrate a new version of the historical record, one varying the company’s previous attempts at revisionism and spin-doctoring.

A previous 2015 mea culpa issued via the company, was essentially a case-limited half-apology by Media24’s Esmerie Weideman, issued two days after I filed a review application before the Equality Court citing the company’s opposition to the TRC. The apology referenced a sole individual, one Conrad Sidego, who had experienced difficulties with separate facilities at the company.

Peterson now seems to have discovered a news report purporting to be from that time claiming:

“When apartheid was abolished, the Afrikaans press declined to make a submission to the Truth and Reconciliation Commission (TRC), News24 previously reported.

“However, more than 100 Afrikaans-speaking journalists later submitted affidavits to the TRC in their individual capacity, acknowledging the Afrikaans press had been integral in helping to keep apartheid in place and should have accepted moral responsibility for what happened.”

According to the Internet Archive’s Wayback Machine, the report was published no earlier than the period surrounding 4 October 2022, when it was first recorded by the Archive’s webcrawler, and is thus fraudulently introduced as if it were published in 2015 and contemporaneous with events from that period. The archive has three snapshots of the page stemming from this later date, when it was presumably published with the fraudulent dateline.

Lying once again

Media24 manager Ishmet Davidson had at the time lied about the TRC episode on camera — the company, keen to manage its apologia and mea culpa, essentially suppressed its own history and continues to censor any negative criticism of its operations. In 2006 the company sought a gagging order in its attempt to quash criticism.

Peterson then out of the blue, and in the light of Vosloo’s regrets, now suddenly refers to hard facts first published on Medialternatives: “JBM (Barry) Hertzog formed the Nasionale Pers (National Press) in Stellenbosch in 1915, soon after founding the National Party. The party later governed the country and enforced a system of racial segregation.”

None of the statements released by the company at the time acknowledged the independent submissions made by journalists in their private capacity. Instead Ton Vosloo is recorded by his biographer as having taken a bleak view of what he perceived to be nothing less than ‘an act of betrayal’, a view-point which continued under Koos Bekker.

Vosloo’s page on Wikipedia is a self-authored hagiography (one treating its subject with undue reverence) in which the term ‘apartheid’ along with the Krokodil’s association with the regime, is simply airbrushed out of history, aided and abetted by corruption within our justice system.

A review application brought to examine the above in the public arena, has been wrecked due to lack of attorney representation following the absurd 1994-denialist outcome of Lewis vs Legal Aid SA (LASA). A scandalous decision in which AJ Bernard Martin of the High Court in 2019 proceeded to support the assertion by John van Onselen of LASA, to the effect that ‘the TRC Report would take a long time to read and may be ignored’.

For the record, the author condemns the crude High Court decision as ‘repugnant, vulgar, indefensible and contrary to our constitutional order’, one which includes a Preamble urging ‘recognition of the injustices of the past’.

by davidrobertlewis -

Yes, Adriaan Basson is automatically a racist

BOUWER van Niekerk, a Johannesburg-based attorney penned an opinion on a statement this month, written by a group of concerned advocates who “were outraged by what they viewed as racist attitudes toward black legal practitioners.” In the process he unwittingly raises a point in law, regarding the status of persons who like Basson, may not have gained amnesty for crimes under apartheid.

Niekerk states without any sense of irony: “If I utter racist views, I should be held accountable and prosecuted accordingly. But the mere fact that I may differ with the views of the concerned advocates should not automatically make me a racist. Such a conclusion is simply erroneous. (And, for the record, I am not a racist.)”

The trouble with this assertion, which of course, assumes the parties, including Basson and Dali Mpofu are ‘innocent until proven guilty’, is that when it comes to an opinionated critic of the Judicial Service Commission (JSC), Basson is also an “editor-in-chief of South Africa’s largest website News24” and former editor of Die Burger, and thus a member of an organisation opposed to the ‘transitional justice process’, in other words the outcome of the Truth and Reconciliation Commission (TRC).

Basson is essentially the pitbull for a publishing concern which, despite its case-limited apology in 2015, clings to a version of history that is anything but truthful. A case of the pot calling the kettle black, since he took Dali Mpofu to task for his unsubstantiated aspersions against Judge President Dunstan Mlambo, during a round of hearings before the JSC, but thought nothing of his company deploying the exact same tactic when it came to hearings involving the TRC?

Naspers and its subsidiary Media24, has gone to elaborate lengths to avoid history, including tarnishing and scandalising the truth and reconciliation process before the courts, in the process engaging with acts of malfeasance and state capture (documented here), all calculated to stymie the victims and survivors of the apartheid regime. The company gave the ANC R1 million last year.

In its conclusions to the special inquiry into the media, Volume 4 of the TRC report stated: “As predicted by the chairperson of the Commission at the start of the media hearing, the absence of the Afrikaans press led to its being condemned as an extension and willing propaganda organ of apartheid.” [para 103, page 186]

The report thus issued its findings, including that: “The Afrikaans media (at least until the last few months of PW Botha’s tenure as State President) chose to provide direct support for apartheid and the activities of the security forces — many of which led directly to gross human rights violations.” [para 115, page 189]

It found also that: “The racism that pervaded most of white society permeated the media industry. This is supported by ample testimony presented to the Commission concerning the failure of many white journalists to delve thoroughly enough into allegations of gross human rights violations involving black people.”

“With the notable exception of certain individuals, the mainstream newspapers […] failed to report adequately on gross human rights violations. In so doing, they helped sustain and prolong the existence of apartheid.

Persons such as Basson were thus essentially found guilty in absentia in a proceeding whose legal authority and standing has never been tested in a court of law.

SEE: TRC: No to Naspers dirty tricks

SEE: Naspers “half-apology” ignores decade-long battle for justice and contrition

SEE: Following Reconciliation Day, an open letter to the TRC Commissioners

by davidrobertlewis -

Tutu, a leading light of the anti-apartheid movement was no Saint

MANY eulogies following the death of Desmond Tutu exaggerate the Anglican cleric’s post-democratic contribution in the process glossing over serious shortcomings. That Tutu was a leading light in the struggle against apartheid can never be cast in doubt, and I take pride in having marched with him on the famed Cape Town Peace March (1989).

So too, the manner in which Tutu’s civil disobedience campaign tackled 80s beach apartheid and rankled the feathers of the apartheid regime with calculated showmanship and aplomb, and riled later governments.

However, the failure of the leading figure behind our nation’s Truth and Reconciliation Commission to do anything tangible in defending the commission’s findings before the courts, must rank as a form of complicity in a regime he otherwise vigorously attacked. 

Primarily a theologian,Tutu’s morality turned out to be incompatible with justice, requiring that we “believe” in an intangible God, and practice Christian forgiveness instead of acting upon our convictions and dealing with reality.

In this sense, Tutu’s position, (aside from his use of satire and laughter as a weapon), was one of ‘speak out but do nothing’. Provide amnesty to those who came clean, but then go the extra mile in awarding de facto blanket amnesty to those who did not. Thus the perpetrators were let off Scott free, while apartheid’s many victims still sit outside our courts without any hope of justice.

In 2015 I filed a case before the Equality Court of South Africa, citing a similar failure by then Minister of Justice Michael Masutho to render any support in a matter affecting the status, prestige and outcome of the TRC.

Having been granted leave to sue Legal Aid SA, I ended up with a decision effectively stating inter alia that since the ‘TRC Report would take a long time to read, it may be ignored’ (see decision para 5 below). As an earlier submission by the second respondent, an apartheid-era media firm maintained, the report was ‘simply a report’ and the commission, ‘merely a commission’. Consequently Tutu was merely the leader of a Sunday School outing, not the figurehead behind our transitional justice system.

Writing this piece on Martin Luther King Day, it is clear that Tutu could have been colossal, someone after whom Holidays are named — if only he was consistent in his outlook, for instance his support of LGBTIQ+ rights and Same-Sex marriage which was entirely absent when it came to expressing solidarity with the cause of Palestinian Nationalism. A movement still opposed to LGBTIQ+ rights, and which much like our own country’s struggle, has decoupled its narrative from the reality of past injustices.

Just why this is so, is all the more poignant in the light of ​a ​UN resolution proposed by Germany and Israel aimed at combating Holocaust denial (and subsequently passed without a vote by the 193-member General Assembly), and follows the school banning of Art Speigelman’s Maus. It needs to be said, Palestinian leadership involvement in Hitler’s Final Solution​​ predated the formation of an All-Palestine government in Gaza by Amin al-Husseini.​

A foremost proponent of replacement theology, Tutu’s support of the Anglican Covenant which views the Church as the colonial inheritor of the Old Testament’s Hebrew Covenant was perhaps Tutu’s only political constancy. Thus Tutu preached Freedom for Palestinians whilst denying there was anything at fault with the Palestinian leadership which had earlier signed a pact with the Devil as it were, collaborating with none other than Adolf Hitler in pursuing a Jew-free Arab world, and campaigning as Hamas does to this day, for a world without Jews.

It was to my dismay that Tutu refused to engage with those like myself who view the ongoing conflict as a tragic case of ‘injustice vs injustice’ or to use the words of writer Amos Oz, a situation of ‘competing juridical systems’.  And thus a never-ending war being fought by adults against children.

The world is poorer for the African clerics’ prejudiced conclusions — Tutu’s failure to link the struggles of the Tibetan people with the struggles of those Palestinians who still suffer under occupation, and yet have been unable to advance their cause because of an abject failure to articulate a secular solution, one which does not negate nor deny the rights of minority religions.

Despite his insistence on meeting the Dalai Lama, amidst his government’s own intransigence on the issue, and his open support of the Ba’hai faith in Iran, Tutu paid lip-service to secularism and never managed to escape the Anglican cloister of easy homilies, cheap platitudes and hackneyed sermons that cast the Jews as simple stereotypes and the Palestinians as lost sheep in need of guidance into the greater body of Christ.

Tutu’s political sermons on the subject of the Middle East, in the absence of a Palestinian Freedom Charter, must therefore rank alongside those of earlier Popes and Bishops who painted Jews as apostates and heretics and the Jewish faith as heresy. Tutu’s astonishing failure to defend the TRC Report should be listed as one of the root causes of the current malaise affecting our society.

It is a harsh criticism I know, and may be unpalatable to some, but as the saying goes, ‘if the shoe fits, wear it’.

DOC065Download
by admin -

FW de Klerk, Media24 book award, Timol inquest, Nattrass and all that TRC Hypocrisy

NEWS that FW de Klerk had decided to cancel a US trip amidst an outcry over his statements earlier this year, was greeted with relief in some quarters. Apparently the former politician hastened to avoid embarrassing his American Bar Association hosts ‘in the current charged racial climate.’

This after a group of local attorneys including Lukhanyo Calata, the son of slain anti-apartheid activist Fort Calata, and members of The Pan African Bar Association of South Africa (Pabasa), condemned the ABA for providing De Klerk with a platform ‘to speak on racism’.

The cancellation comes after protests surrounding the murder of George Floyd, and one can only wonder at the double standards at work here, involving academics and members of the legal profession, those who are quick off the bat, when it comes to soundbites, but resoundingly fail on the detail, when it comes to the hard task of preserving our Constitutional dispensation and especially the contents and spirit of our Preamble back at home.

As I write this, there are several similar stories involving police brutality, apartheid denial, racism and the rule of law. And all impacting upon freedom and the boundaries of acceptable discourse.

A sorry state of affairs which may lead one to believe that our nation’s Preamble really begins, ‘ignoring the injustices of the past’ before moving on to an ironic statement:  ‘South Africa belongs to some of the more well-heeled and connected people who happen to live here in possession of legal aid.’

First up, there is the blarney over lack of representation and diversity at this years Media24 book awards. Bare in mind that this is an annual event which has come and gone each year for some decades, without the slightest peep of discontent from the black literary world, not to mention the academic black caucus.

It is not all that surprising, given the general myopia at work, that relatives of Albert Luthuli, Steve Biko, Ahmed Timol and Neil Aggett “just a few of the families of activists killed during apartheid” are still forced to question, under a black majority government, why it is, that President Cyril Ramaphosa ‘hasn’t acted on their call to investigate the suppression of cases from the Truth and Reconciliation Commission.’

I have only to refer to my own dismal experience, the failure of the High Court to deliver justice last year in a matter affecting the status of the TRC final report, to point out that we have anything but the rule of law in this country, a sham democracy if ever there was one, where the default is 1994-denial, and where persons such as myself are denied any defence against racism.

Instead of an evidence-based legal system consistent with our Constitution, we have an extremely costly opinion-based boondoggle, one which unevenly dispenses justice to those who can afford it, while maintaining apartheid-era race privileges that hark back to the days of colonialism, and whither academic freedom and the institutions, whose ivy league temples equally provide sustenance to the system?

If necessary readers may follow my detailing of the capture of the justice system by ANC membership, in several posts published here. But still wonder at the temerity of those on the bench and silks allied to the justice system, who have time and again moved to squash open debate, while failing to render any remedy, — the Kobus Faasen fiasco in which Media24 escaped censure for referring to persons of color as ‘Bushmen’, springs to mind.

Remarkable since Faasen like myself was a pro se ‘self-represented’ litigant. If anyone needs to know, the system is designed to circumvent pro se litigation, all that the other more well-heeled party need do is to introduce a legal confusion, a complex side-bar issue, Mr Elephant said something in Bull vs Shite 1820, for the process to become derailed.

The result of the miscarriage of justice, in which the perpetrators of apartheid walk Scot free, despite being condemned by the TRC, and lacking amnesty is a massive public deflection. Whether it be the deflections of the FW de Klerk foundation or the bizarre extra-curricular academic argument occurring on the nations campuses, sparked by the latest student hiccough, the Nicoli Nattrass saga.

The outcome is invariably lack of due process, short circuiting of open debate, and the closure of the public mind. “Next year, we’ll be living in the new South Africa”, we used to tell ourselves. Next year, indeed.

by davidrobertlewis -

South Africa’s judiciary, too many gone to the dogs?

IF THE probe of 5 Kwazulu-Natal judges fingered in a UK investigation of a $2 trillion-a-year (R28 trillion) money-laundering ring isn’t enough to grab your attention, or the revelations of judicial impropriety, influence-peddling and nepotism levelled against Western Cape High Court Judge President, John Hlophe by Deputy President Patricia Goliath, doesn’t get your goat. Then surely, the revelations before the Aggett Inquest by Advocate Howard Varney of state capture of the justice system is certain to raise your ire?

The problem is a lot more widespread than reported, (see my comments below). In his opening remarks before the court, counsel for the Aggett family, Howard Varney, said the Aggett inquest has “been plagued with ongoing delays”.

“We now know that post the winding up of the TRC [Truth and Reconciliation Commission], decisions were taken at the highest political level to close down the investigations into the cases referred by the TRC to the NPA … including the Aggett case.”

“Such interference” he says “amounted to state capture of the criminal justice system in relation to this class of cases. It allowed powerful forces in society to impose their will on institutions meant to uphold the rule of law. In doing so they guaranteed total impunity for some of the most serious crimes ever committed in South Africa.”

As a post-TRC litigant I can confirm the extant of the capture of the judiciary by nefarious forces associated with the past regime.

Not only has pressure been brought to bear, to influence the appointment of judges, as in the allegations against John Hlophe, while criminal syndicates are allowed to operate out of courts as alleged by civil rights group Constitution Accountability, Sedition, Independent, State, Access (CASISA), but both the NPA and judiciary have actively suppressed the TRC transitional justice mechanism, acting as if the judicial instruments of the apartheid state are somehow concurrent with the constitutional dispensation.

What appear to be a series of boardroom deals brokered by apartheid financier Johann Rupert and members of the Sisulu family during the CODESA negotiations have directly lead to the situation —  one in which Rupert Bellegings Pty Ltd, the ultimate controller of a vast media cartel involving businessmen Koos Bekker, Ton Vosloo and Terry Moolman and invested inter alia, in Remgro, Kagiso, Caxton and Naspers, was able to suppress a TRC-complaint before the Labour Court and by implication, the Equality Court.

The direct capture of the Labour Court was most certainly effected via a company known as the Resolve Group, whose director at the time Michael Halton Cheadle also held a directorship at Cheadle Thompson, Haysom (CTH). The respondent, Media24, a company which had previously attempted a gagging order, for my blowing the whistle on newsroom racism at WP Koerante, the owners of the People’s Post. Media24 were at the time clients of CTH at the same time that both Kagiso and Remgro were providing media content to MIH, a subsidiary of Media24.

In papers before the Cape Law Society, Cheadle acknowledged Media24 was a client of his law firm, but failed to explain why he had not revealed this fact on record before the court. He further attempted to justify his relationship on the basis of a decision in Bernert vs Absa Bank in which a judicial officer’s holding of over-the-counter (OTC) shares of the bank, during the proceeding, had been found to be de minimus, in other words not significant enough to effect the outcome. 

Far from being insignificant,  Cheadle’s shareholding flouted the ‘nemo rule’ (nemo judex in causa sua), one of the pillars of our justice system.

Kagiso then owned a 25.9% stake in Resolve, alongside former speaker for the House of Assembly Max Sisulu (5.7%). In 2005 Remgro (formerly Rembrandt Group) bought a 37% stake in Kagiso (reduced to 36.3% when Kagiso-Tiso was formed). Significantly this meant that a company with strong ties to apartheid, bought into a group associated with the former democratic struggle, in the process making good on a business relationship which had bloomed during the CODESA process.

Several partners at Resolve had ties to Media24 and/or CTH and/or the ANC, including Peter Harris, Nicola Galombik, and Murphy Morobe.

Galombik at the time was the executive director of Yellowoods, then majority owned by TBWA Hunt Lascaris who listed Media24 as a client. (“TBWA Media24 showcase”)

The NPA have declined to prosecute a complaint, after a docket was handed to the authority. The JSC appears to be toothless according to William Saunderson-Meyer. 

Further allegations against Hlophe have surfaced in a piece by the Daily Maverick.

In March of last year, AJ Martin handed down a racist decision trashing the TRC report, “as too long to read”, in the process crushing hopes of legal representation in a collateral matter before the Equality Court brought to defend the TRC from vicious attacks emanating from Naspers and Media24 counsel. (please see my open letter to the TRC Commissioners). The unlawful, irregular and repugnant Labour Court finding most certainly played a part in the outcome of Lewis v Legal Aid SA.

Records from the trial of General Magnus Malan, a Pretoria secureaucrat implicated in apartheid death squads appear to be  missing from the South African legal information institute database.

This week, the official opposition party, DA called for John Hlophe to be immediately suspended, as did National Association of Democratic Lawyers (NADEL) and Freedom Under Law (FUL). John Steenhuisen said the allegations faced by Hlophe were a threat to the credibility and independence of the judiciary at large, and said they had to be taken seriously. Constitutional law scholar Pierre de Vos is also talking about a “credibility crisis” as is Legalbrief, an online law professions site.

“The current head of the Western Cape High Court is compromised. Until such time as a proper investigation is completed and all consequential processes – which may include impeachment – are completed, Judge President Hlophe cannot be allowed to exercise the powers of a judge,” said Nicole Fritz, Executive Director FUL, in a statement, supported Nadel’s call for the suspension of Hlophe.

The same principles should apply to  allegations emerging from the Aggett inquest, in particular the latest revelations that it was a piece of paper provided by Barbara Hogen, which lead to the arrest of Aggett.

Ethical norms, not political compromises, should also apply to those behind the campaign against the TRC being waged with the full support of a captured judiciary.

As former solicitor-general under Reagan and Harvard Law Professor Charles Fried said of Trump: “You lie down with dogs, you get up with fleas.”

 

Remgro Organogram showing 36.3% Kagiso-Tiso holding

Kagiso Asset Management Organogram, showing Remgro 32.6% holding of KTH

 

 

 

 

 

 

 

 

MORE READING:

https://ewn.co.za/2020/01/22/spat-between-deputy-judge-president-goliath-and-judge-hlope-plays-out-in-public

https://www.news24.com/SouthAfrica/News/goliath-vs-hlophe-deputy-claims-cape-judge-president-wanted-judges-favourably-disposed-to-zuma-on-nuclear-deal-case-20200121

https://www.politicsweb.co.za/opinion/the-problem-isnt-hlophe-its-the-jsc

 

 

 

 

 

by davidrobertlewis -

Following Reconciliation Day, an open letter to the TRC Commissioners

Messers Desmond Tutu, Sisi Virginia Khampepe, Wynand Malan, Yasmin Sooka, et al.

Dear Commissioners,

I write this letter having had good cause to reflect upon several events of this past year on Reconciliation Day.

It should be noted that Reconciliation Day, formerly ‘Day of the Vow’, or ‘Day of the Covenant’ or ‘Dingaan’s Day’ became the source of some controversy this year when a well-known pastor made a reference to the Covenant within racist terms that brought back memories of the quasi-religious holiday commemorating the ‘Voortrekker victory over the Zulus at the Battle of Blood River in 1838′.

As a secular humanist of Jewish origin, I have on more than one occasion, rejected theological justifications for race segregation, in particular the apartheid euphemisms used to justify separate development as a mere ‘accident of nature’, or a ‘miracle of sameness’ and the like.

My beliefs and faith (or lack thereof) unfortunately became the subject of a race-based interrogation of my Jewish identity during the course of an unfair proceeding in 2010 in which absolutely nothing was done to protect my rights. The least of which is that the TRC itself was under the machinations of senior council reduced to ‘merely a commission’, and your report ‘merely a report’. And where those selfsame euphemisms were trotted out to justify racism.

It was thus within a bizarre inversion of reality, that I was deemed not to ‘be a credible person’ on the basis of my ‘opposition to apartheid’, by a corrupt adjudicator presiding, it appears, without the necessary authority, over a matter effecting not only his own client, but also his business partners. All explained away in a report to the Cape Law Society in which a corrupt relationship is justified on the basis of a decision in Bernert v Absa Bank Limited.

The labour proceeding against Media24, was anything but a fair hearing, an ‘irregular proceeding’ if you will —  not only did I not possess an attorney (following the group’s 2007 gagging attempts which put paid to my legal insurance), but I was further restrained from calling any witnesses. I was therefore not present when the decision was handed down, was not granted leave to appeal, nor did I secure a successful petition to appeal to the Labour Appeal Court.  This after the respondent’s ecclesiastical case alleging inter alia, I was more than simply a “Jew in breach of my religion” but also ‘guilty of driving a car on a Friday night, and/or attending a mixed race nightclub apparently in violation of my religion’. Nothing less than a piece of savage quackery, written up by the respondent and cut and pasted, and handed down as the purported decision of the court.

In 2015 I thus filed a distantly related complaint before the Equality Court against then Min. of Justice Micheal Masutha and also Naspers, the holding company of Media24, citing the former’s failure to exercise powers in terms of the TRC Act and thus the astonishing failure of the TRC Unit to defend both the TRC and its recommendations from ongoing acts and omissions in the face of racism and a culture of impunity.

My filing sheet thus also listed an apartheid media company named as a ‘gross perpetrator of human rights violations’ in the final report that all TRC commissioners signed off on. It was filed two days before Media24 issued a mea culpa to the heavens referencing one case-limited example of a single ’employee of colour’, Conrad Sidego, who had apparently experienced problems with separate amenities.

It further went on to list several shortcomings of the first TRC, in particular the failure to deal with extra-curial evidence — evidence arising after, and subsequent to the first commissions winding up. It noted other failures, including errors with acronyms, Congress of South African Writers ( COSAW) is not Congress of South African War Resisters (COSAWR).  It may be demonstrated that TRC One represents the absence of an in-depth inquiry into the role played by women, war resisters, the struggle press, the environmental movement, the use of technology by the state, coercive psychiatry and so on.

Despite the merits of the case,  I once again found myself in court sans attorney and I was eventually granted leave to formerly seek legal aid by Judge Bozalek after the Equality Court had previously acted under Judge Veldhuisen to deny me access to legal aid.

I thus sued Legal Aid SA in a collateral matter before the High Court, Western Cape, which took some three years of my time.

It was more than a little alarming to find that in the interim, ‘apartheid memory’ had been relegated to the dust-heap by our judiciary, alongside our constitution. That portraits of apartheid and colonial judges still hung from chambers, and AJ Martin of the High Court of SA, now agreed with a racist merit report by John van Onselen, of Legal Aid SA, stating in his decision of 2019, that he was now ‘entirely satisfied that the TRC report would take a long time to read, and may thus be ignored’.

Despite my application for leave to appeal the racist decision, and despite oral testimony citing the High Court’s misreading of the Separation of Powers, (Legal Aid SA is not a constitutional entity as such, but rather directly answerable to parliament — a result of the Legal Aid Act, which makes LASA subject to the Public Finance Management Act, as a Schedule 3 entity alongside Boxing SA) both the application for leave and for Martin’s recusal from the proceeding were rejected out of hand. In the process a racist exclusion to the Preamble was created, one which has had the deleterious effect of derogating rights commonly held under our constitution.

As we near the end of 2019 following a troubling period in which several well-known activists of my generation have passed away, including Peter Horn, Sandile Dikeni and Ben Turok, I find myself reaching out to a public case that has been at the back of my mind ever since the TRC Report was released.

Surely, you as commissioners knew that when you signed your name to the report, that it was an incomplete report at best, and would require further redress in the future?

Surely,  you as commissioners, knew that when the TRC Act was promulgated under the interim constitution, that it was a necessary pre-condition for the constituent assembly to pass Act 108 of 1996, in other words our Constitution, whose Preamble says, ‘recognising the injustices of the past’?

Surely, TRC commissioners are aware that if you did not broker any guarantees from the state, to make good on the recommendations issued that you would be opening the doors to accusations that you are yourselves complicit in a crime against humanity and the after-effects thereof?

Surely you as commissioners are aware that in doing nothing except write letters to our President, of which there have been quite a few following the winding up of the first inquiry, that you would indeed, stand accused, as you do now, of doing absolutely nothing of any consequence to uphold the legal framework upon which the entire transitional justice arrangement was based, and that anyone wishing to bring civil litigation to defend rights in law is now faced with the odious task of defending the public record left by yourselves?

I therefore have no hesitation in stating here on Reconciliation Day, that the current TRC process is an abject failure.

Not simply because of the conduct of the Minister’s TRC Unit, but because of the collective conduct of the TRC commissioners.

Instead of defending the report to which you have placed your signature, you have instead been regaling all and sundry on the joys of turning the other cheek, travelling the world like religious pilgrims claiming to have discovered a novel process of reconciliation.

Engaging conference after conference and airtravel that merely pumps out CO2 while promoting your own estate as a national treasure and depriving the victims of restitution.

Those persons like myself, who were never called to testify, and yet suffered the consequences of apartheid dirty tricks need to be told the truth.

Future generations and ordinary South Africans need to be told the truth of what has occurred in the name of the TRC and in the the name of justice.

I beg your forgiveness, as fellow citizens, it may no doubt still be in the public interest to motion for yet another TRC process, TRC Two.

Sincerely yours

D R Lewis

 

SEE: Corruption could undermine the integrity of SA’s legal profession

SEE: Mogoeng Mogoeng’s lack of judgment

by davidrobertlewis -

Is it time to see Koos Bekker in an orange suit?

AN OP-ED in today’s Business Report asks the question: ‘is it time to see Koos Bekker in an orange suit?’ Sizwe Dlamini writes, “Naspers and Media24, by their own admission, were responsible for actively supporting the apartheid government. Naspers benefited by receiving textbook contracts as well as television licenses in exchange for hiding from the South African public the atrocities and destruction which the apartheid government put black people through. We know that these executives, along with their friends during apartheid, stole tens of billions from South Africans. This is fraud and corruption on a scale, which is far greater than that which Basson refers to.’

‘The ultimate irony of the new South Africa is that Naspers remains the largest dominant media company – the apartheid era from propaganda remains the dominant propaganda machine today. No other country or society in the world would have ever allowed a business such as Naspers, which was wholly complicit in apartheid-era crime and corruption, to exist today.’

Dlamini’s piece fails to mention Naspers opposition to the TRC, Naspers corruption and unlawful capture of the Labour Court and as a result the High Court. Naspers fraudulent and unlawful race-based 2010 inquiry into my own Secular Jewish identity and also repugnant interrogation of my struggle history, Naspers and its relationship to Remgro, and the questionable post-Codesa purchase of Kagiso and the resulting pathetic racist media cartel which runs a significant portion of SA media at the behest of apartheid bosses Bekker, Moolman, Rupert and Vosloo.

Read more here

 

by davidrobertlewis -

Let’s face it, South Africa’s judiciary leaves a lot to be desired.

SOUTH AFRICANS may be suffering under a collective delusion, the rule of law. If one reads the latest round of media commentary, we are either stricken with a hopelessly corrupt judicial system, or driven by ulterior motives to question an infallible judiciary. In this binary view judges are either devils in black robes, or angels and saints in silk who can do no wrong.

The reality is that for the most part, we have an imperfect system inherited from a period of apartheid and colonialism. A time when citizens were not accorded equal rights and status before the law.

Attend judges chambers at the High Court of South Africa in Cape Town, and you will be greeted by the portraiture of past judge presidents on floor one, going all the way back to the Cape Colony and Apartheid. Obscene pictures of Centlivres et al, still hang from the walls in an eerie twilight reminiscent of that macabre republic. Our institutions however, are rather proud of their racist lineage, and the tainted display is headed up by a current photograph of a grinning judge president Hlophe, still under investigation by the JSC for misconduct.

Under the present system, the process of impeachment of sitting judges who possess tenure, requires a supermajority in Parliament. The process for the removal of acting judges on the other hand, those drawn from the profession on an ad hoc basis is less clear. The manner in which such persons gain authority, often in conflict with their standing as directors of various law firms and businesses, is an awkward one.

For Raymond Edward Chalom, who has been in the legal profession for almost 50 years, the judiciary is a hotbed of corruption. He says “judges are appointed on the basis of friendship, trade-offs between lobby groups in the sector and affiliation to legal bodies rather than history, legal minds and experience.” I can only concur with this observation and possess an as yet  unserved affidavit alongside supporting documents,  demonstrating the resulting corruption of influence and manifest bias by a well-known member of the profession.

The process of judicial reform has not been easy. The South African system is really just an elegant compromise, for the most part, a sorry colonial edifice to which several innovations such as Family Court, Equality Court and the apex Constitutional Court have been bolted.

And therein lies the rub, since our constitution, a visionary, civil rights document if ever there was one, requires that all citizens gain untrammeled access to rights yet is seemingly oblivious to the reality of a legal process that is overly circuitous and expensive at best. The justice system in our country has unfortunately turned into a mere business system, one designed for millionaires and their cohorts in management and the professions, but where access to justice for ordinary citizens is a practical and tragic impossibility.

Witness Steven Friedman’s recent column in Business Day. According to the newspaper’s resident lefty in the debate among middle-class people which shapes politics, hardly anyone undermines courts and judges. In stating the obvious, (qui bono, who benefits?) Friedman avoids the uncomfortable fact that the majority of the country’s citizens are neither middle-class, nor possessed of sufficient financial clout required to be considered readers of his own column. The working class is drawn from the ranks of the dispossessed, the downtrodden and unemployed, for want of a better phrase.

The reality for most of us, living in the aftermath of a crime against humanity, and several decades of misrule by the ANC, is that nearly every legal issue these days, ends up turning into an expensive constitutional drama, one which only the apex court is able to rectify, resulting in the juniorisation of the High Court and Supreme Court of Appeal.

For instance it took nearly three decades to end cannabis prohibition via the courts while effecting a delay on the promise of rights gained in 1994.

Sadly the lower courts with one or two exceptions, (cannabis is an exception) have shown themselves either powerless or reticent to enforce new freedoms, preferring to solicit business for the entangled profession. Our Bill of Rights for such individuals is little more than a ‘carrot on a stick’, bread and butter for an academy that has seen fit to create exclusion after exclusion to our rights.

Witness my own troubles with gaining access to legal aid in a matter affecting the life of the TRC and its final report (Lewis v Legal Aid SA). Application dismissed by AJ Martin without so much as leave, in the process creating a racist and unacceptable exclusion to the Preamble to our Constitution. Racism on the bench here has simply grown in leaps and bounds.

The Constitution, for all intents and purposes, adopted in a piecemeal fashion in 1996, has meant that the status quo for the most of us, still resembles the old order, while the new order which was meant to be, including our rights and freedoms, has vanished like a chimera.

Take a problem inherent to any system overly reliant upon the settling of disputes by intermediaries known as attorneys. In this jury-less world, professional jurists, comprising entirely of members of the self-same profession of law, adjudicate and interpret law, and then deem themselves fit to determine the facts.

The result is a system that is not evidence-based as such but rather scholastic, obscurantist, medieval. The Earth circles the Sun, well that’s just an opinion so far as these hucksters are concerned.

When it comes to facts about apartheid, the profession has not been exactly the cradle of rocket scientists. Witness PW Botha’s successful defense of his racist position in the face of a subpoena by the TRC. Or Wouter Basson, a darling of the courts.

South Africa is certainly stricken by an over-reliance on interpretation and opinion. Not evidence-based terrain so much as thick, fat, obscenely bureaucratic, opinion-based largess writ large. Access to a jury option in capital crimes and defamation cases would put such quibbles to rest.

Spare a thought for the victims of rape, in case after case, often dropped by the justice system, or reduced in value by the lack of mandatory sentencing for offenders, making rape no longer a capital crime in South Africa so far as the law is concerned.

On the whole South Africa’s legal system is too caught up with kowtowing to prevailing authority from the old days, to notice when it gets science spectacularly wrong. Instead of deriving truth from facts, as a nation, we tend to derive truth from ideology, in this respect our legal system is no different. Ditto the debate on legal positivism, and a position that is increasingly absent in our supposed secular world.

Attorney’s writing up judgements, well, that’s just par for the course.

Acting judges advertising their services and experience on the bench to clients when they’re not moonlighting as articled clerks — just another modern innovation in letters.

Apartheid happened, separate development, the Land Act — all facts not speculative conjecture, as our courts have deemed fit under the Cheadle Doctrine, while slipping into a void of  fantasy and fable. Apartheid denial is the very essence of a decision handed down by the labour court in 2010, in which I myself am the complainant.

Where jokes have abounded that ‘the rule of law so frequently turns into the law of rules’, I merely have to cite my own sad experience with a rotten system to observe that the law has failed us all miserably.

published in part, in Star & Daily News 12/9/2019

Rethinking the Courtroom

by davidrobertlewis -

Justice for Neil Aggett

TIMES LIVE reports that justice minister Ronald Lamola apparently wants the deaths of anti-apartheid activists Neil Aggett and Hoosen Haffejee to be re-investigated. Only time can tell if he is serious this time.

Lamola announced on Friday, according to the online daily, that he had requested the judges president of the Gauteng and KwaZulu-Natal divisions of the high court to each designate a judge to reopen the inquests in relation to the deaths in detention of the activists.

The justice department is reported to have said Lamola’s decision was in terms of Section 17(A) of the Inquest Act of 1959 and follows an application by the National Prosecuting Authority (NPA) for the reopening of the inquests.

Readers may remember that Aggett was a doctor who died in detention in Johannesburg in 1982, aged 28. The inquest into his death held that no one was to blame. Yet another reason not to trust the apartheid-era justice system.

READ MORE HERE