My Lord it is high time that you take your jacket and get out of Chambers!

vally

By Carl Niehaus

vallyJudge Bashier Vally

What an amazing collection of generalisations has judge Bashier Vally presented to us as reasons for his extraordinary judicial over-reach ruling that President Zuma has to provide the Democratic Alliance (DA) with his reasons for the cabinet reshuffle!

The reasons that judge Vally presented can only be described as his own subjective opinion, informed by highly selective cherry-picking of only those views held by some people in society, that suits him.

http://www.saflii.org/za/cases/ZAGPPHC/2017/148.html

Let’s analyse the reasons that he provided sentence by sentence:

⁃        “The announcement caused a great deal of consternation for a significant proportion of the populace”. There is not a single verifiable fact – or quantification – in this whole sentence. On what factual evidence does the learned judge base this finding? His own consternation or unhappiness where he was sitting on his couch watching the cabinet announcement on television? Can he tell us whether it is not equally possible that the majority of the population were actually unperturbed and perfectly happy with the President’s decision? I do not know if that is the case, but by the same token the judge also does not know whether this is the case.

⁃        “It is no exaggeration to say it was received with shock, alarm and dismay by many.” Is the honourable Judge sure that he is not actually exaggerating (what yardstick is he using to come to the conclusion that it is no exaggeration)? His own subjective sense of shock? Oh, and I also cannot help but to wonder what he means by “many”?… A hundred, a thousand, a million?… Who actually knows?… And how many people were actually pleased with the decision? There are also “many” people who expressed their happiness with, and support for, the decision… A hundred, a thousand, a million? … Eish, we are truly on subjective quicksand here!

⁃        “One reason for this is that it came on the heels of an extensive public complaint that incessant malversation has imbedded itself in our public life and that the country was mired in the quicksand of corruption.” Wow, the hyperbolic generalisations are even worse than the terrible sentence construction – and that takes some doing! “One reason” for the so-called unquantified outrage is this ‘extensive public complaint’ about incessant malversation, so there may be other reasons too, but the learned judge does not find it necessary to share those with us… So I (or anyone else) may find our own reasons, which as far as I am concerned should also include the false news and propaganda produced by the mainstream media, who are owned by White Monopoly Capital, because they are unhappy with the President’s appointments for the position of Minister and Deputy-Minister of Finance, because these threaten their control of the Treasury. Is there any objective or verifiable reason why my understanding of how certain sectors of public opinion is being manipulated, that makes it any more subjective than judge Vally’s reasoning? Oh, and we are “mired in the quicksand of corruption”? Really? Is there a single quantifiable objective fact being presented here, or are we just expected to accept this subjective opinionated generalisation as fact? I dare the honourable judge to find any academic worth his or her salt who will be prepared to do so!

⁃        “The Minister of Finance and the Deputy Minister of Finance perform important functions, that amongst others, involve the control of the public purse.” Well, nothing surprising here, this is to state the obvious, accept if judge Vally is implying that the two new appointees will not be able to carry out this duty. The question then arises, on what does he base this shadow that he casts over them? These are two senior ANC members with substantial governance experience – the aspersions that the judge raised are purely subjective and entirely unsubstantiated!

⁃        “It is these dismissal decisions (the decisions) that have prompted the applicant, a registered political party, to approach this court on an urgent basis to essentially review the decisions…” Yes, that is true, but what prompted the honourable Judge to have made the extraordinary decision that he made that the President must provide the DA with all the relevant documentation that informed his decisions, and must explain his decision to them? Having dissected and analysed the judge’s own words above, the only reasonable conclusion that one can come to is that he was informed by his own very subjective and biased understanding of the situation.

Yet, somehow judge Vally wants us – as reasonable citizens – to accept that this is actually good enough reason for him to cast aside the constitutional prerogative of the President to constitute cabinet!

I am sorry My Lord you have over-reached yourself and your judicial authority. This is just not going to fly… The only thing it does is to fly strait in the face of what any reasonable citizen should expect from you as a judge.

In my opinion it is time that the JSC tells you to take your jacket and get out of Chambers before you cause even more embarrassment to yourself and the judiciary.

*Carl Niehaus is a former member of the NEC of the ANC and MK veteran.

All Carl’s articles can also be found on his blog, Carl’s Corner: www.carlniehaus.co.za

16 Comments on "My Lord it is high time that you take your jacket and get out of Chambers!"

  1. The sooner this ‘Judge’ leaves the Chambers the better as he is going to cause civil war in South Africa if he stays as a judge.

    • Pinky Khoabane | May 10, 2017 at 9:24 am | Reply

      It is interesting that the two men for whom the DA & the Judge are appealing for an explanation haven’t challenged their dismissals. They understand they are political appointments which don’t require an explanation.

  2. Jeff Koorbanally | May 10, 2017 at 6:07 am | Reply

    Well put Carl!
    Mzilikazi the courts have declared war already this is not the only bias judgerment & Judge Vally is not the first nor the last.Our judiciary needs a total review, as they have become political.

  3. Phelelani Ndlovu | May 10, 2017 at 7:49 am | Reply

    We have plenty of judges with this kind of mentality in this country. It boils down to the same warning that was raised by Chief Justice Mogoeng that some judges are now populists.

  4. I encourage us to go read paragraph 33, fourth sentence of the judgment. In this section, the President agrees that the Applicant is entitled to reasons. This means that President Zuma doesn’t dispute that he must give reasons for his decision. The President only disputes having to furnish the “record”.

    The “record” is the documentation which was before the President when he took the decision.

    So people must stop saying the President need not give reasons for the decision, the President himself admits that he has to give reasons.

    I trust that this explanation, will put this aspect of the matter to rest.

    • Greg Mashaba | May 10, 2017 at 9:13 pm | Reply

      I am not sure that I agree with you Mdu . From a procedural point of view , this is part one of two-legged process . The first leg entails application by the DA to compel the president to release “the record ” ( if any such record exists ) . The DA hopes to use such “record” in the second and main stage of its application , namely to prove that the president acted in an “irrational ” manner .
      This is a highly technical matter . The DA and its allies are champions of arguing very highly technical matters which can confuse many , myself included.

      • Pinky Khoabane | May 11, 2017 at 9:47 am | Reply

        Greg, I’ve just posted an article by James Grant who I believe confirms what you are saying in terms of the procedure. He’s an Advocate, Member of Jhb Bar and visiting associate professor at Wits.

  5. Its so unfortunate that some of our leaders abuses their positions like this.

  6. Mdu,
    I don’t believe that you are Mdu though.

    Please read the comment I posted in response to another Uncensored Opinion on the very Controversial Judgement of Bashier Vally and tell us whether you agree that in future the Opposition Parties should appoint the Cabinet Ministers through the courts.
    If that happens will you still say that South Africa is a Democratic Country or a Dictatorship by the Opposition Parties through the courts.
    The Opposition Parties claim to be the defenders of the Constitution which they are currently busy violating, because, according to the Constitution, the Party which wins the country’s elections appoints the Cabinet Ministers and the party winning elections in a particular province will appoint the Premier and the MECs of that province.

    Mzilikazi | May 10, 2017 at 3:54 pm | Reply

    What is this Judge telling us in essence (if his judgement is to be sustained), is that, in future when the president (this president or any newly elected black president)
    appoints his/her cabinet, must consult the opposition parties first and discuss about who must be or must not be in the cabinet. And I say the black president because the aim here is to carry out the West Imperialists Mandate of removing a problematic black president and replace him with White President or a Proxy Black President in the likes of Mmusi Maimane, Thuli Madonsela, Sipho Pityana, Julias Malema, Mosioua Lekota, Bantu Holomisa, Mangosuthu Buthelezi or one of the brainwashed black Professors, Bishops, Priests, Reverends, Pastors, the list is endless, who will not care at all about the sufferings of the black majority in this country, as long as WMC pays him/her well.
    If that situation can be allowed, that will be handing over the power back to the Oppressive Monster being the DA and its opposition allies because we have already seen that they (Opposition Parties) have oppressive tendencies of oppressively ruling the people who did not vote them through the courts.
    In those discussions of appointing Cabinet Ministers the DA will forceful force that the Sitting President appoint their (DA and its allies) members as Cabinet Ministers or he/she will be taken to court to prove the rationality of not appointing the DAs members to his/her cabinet and the court will rule against him/her.
    That will be the worst rape of the constitution of this country (which is also working against the people most of the time) but which Racist Zapiro and his ilk will always miss.
    That judge and many like him must be investigated and impeached.

    Mzilikazi | May 10, 2017 at 11:13 pm | Reply

    And why Gordhan and Jonas in particular?
    These people are very cancerous to our democracy and are used to destabilize this country.
    They and their handlers must be brought to book.
    They must be investigated if they are not part of the WMC click capturing our judiciary.

  7. Good People (Uncensored Opinion, BLF, ANC, ANCYL, ANCWML,MKMVA, all supporters of Radical Economic Transformation),

    We need to make sure that Gordhan and Jonas are not allowed to go back to Finance Ministry no matter the judgement from this DA shenanigans of trying to bring them back through the courts.
    If they are allowed back through the courts, that will mean the majority black people still don’t have a vote in South Africa and a few privileged oppressive white people of the DA (who can afford the expensive legal cost or maybe even capture the judges) are ruling this country no matter the outcome of elections.
    We need to fight this and defend our freedom through blood, sweat and tears.

    • Pinky Khoabane | May 11, 2017 at 8:01 pm | Reply

      Dear Mzilikazi

      I can assure you that if the courts find that President Zuma was irrational and reinstate Gordhan & Jonas, this country will go up in flames. Not so much because we hate these two comrades but on the principle of what we understand the vote to mean. We didn’t vote for the DA and we don’t need to explain to them who our leaders are going to be.

      We will go to the streets without a doubt…..Enough is Enough. We know the toyi-toyi better than anyone else.

      Kindest

      PK

  8. Greg Mashaba | May 11, 2017 at 5:25 pm | Reply

    Many thanks for sharing Adv Grant’s article with us Pinky. This article certainly underlines the point I made in response to Mdu’s comment , namely that the matter at hand is one which from both a procedural law and a substantive law point of view is very highly technical and complex. Even after Adv Grant has given us a helpful exposition of the law as it applies herein , we need to tread with much caution in advancing our opinions. The fact that the DA , its allies and its proxies are experts at the politics of deception will not make our tasks and those of our leaders in the broad liberation movement any easier. In fact , arguing legal, political and constitutional issues on narrow , highly technical terms is an old strategy of the right-wing not only in South Africa but also internationally. One only needs to note the technical challenges which the DA and its surrogate party the EFF normally raise in parliament regarding interpretations of the rules of Parliament. I hope to address this matter at length in an article which I hope to post ( with your permission ) herein soon.
    With all due respect to Mdu, I am of the opinion that he has misdirected himself by arguing that the president did not, and does not, oppose Judge Vally’s ruling that he must submit the “record “. In doing so Mdu refers to the judgement issued by Judge Vally instead of relying on the president’s heads of arguement and his replying affidavit as submitted by Adv Semenya in court. Perusal of the latter documents ought to reveal the president’s legal position to the DA’s application .
    I am also concerned that the president was given a very early deadline by the judge to give reasons for his decision to reshuffle the cabinet. Perhaps the jurists out there can help clarify what time-frames are normally given in such situations. I am looking in the direction of Adv Grant for possible assistance…..
    Finally , in view of the fact that cases which are more highly technical are brought before our courts with amazing frequency, I wish to appeal to you Pinky to help solicit the help of senior counsel and other jurists to help us with exposition of the law in respect of each case as it is lodged in court. In that way we shall all be in a position to make better informed inputs and thereby contribute to a richer political and scholarly debate.

    • Pinky Khoabane | May 11, 2017 at 7:57 pm | Reply

      Dear Greg

      I look forward to the article you will be submitting and many more…

      Yes I take your point on getting lawyers to submit pieces which can help enlighten us on the many regime-change cases taking place in our country.

      Kindest

      PK

  9. Dear Greg

    With respect, you seem to have misread my comment above.

    The point I made was simply that the President concedes that he must give reasons (not the record, but reasons) for his decision (the judgement states this clearly, unless you arguing that the Judge misrepresented the President’s arguments ).

    What the President objects to is providing the “record”, irrespective of the existence or non-existence of such a record.

    Thus the President draws a distinction between “reasons” and the “record”, he concedes on the requirement to disclose the former but not the latter.

    That the President concedes that he must disclose his reasons, is nothing remarkable if you understand the principle of legality, the constitutional principle that all exercises of public power must be lawful and a minimum component of such lawfulness is rationality.

    Even on the President’s heads of argument in the upcoming UDM matter in the Constitutional Court, the President accepts that his power to appoint/dismiss Ministers must be exercised rationally. For a court to determine such rationality it needs reasons.

    I hope that clears it up. I welcome your further engagement.

    PS
    I shall now read Prof Grant’s views on the effect of the appeal, thanks to PK for publishing them here.

  10. Lol, I am indeed Mdu, I don’t know how to prove it to you though, okanye ufuna ndibhale ngesiXhosa nomangesiZulu.

    Mzilikazi all I’m doing is trying to show that there’s nothing irregular or devious happening in this matter. You might disagree with me, that’s fine, but I can only prove my point by making reference to the law and if you are conversant with South African constitutional law, you’ll realise that there’s nothing earth-shattering happening here.

    You gravely misinterpret the judgement, it is no implication of Judge Vally’s order that the President must consult opposition parties when appointing ministers, the judge never said that nor is it implied in his judgement.

    One final thing, the identity of the parties bringing a matter to court is irrelevant when it comes to deciding which party is right (I’m not talking about locus standi, Greg), so whether its the DA or some other body or individual bringing a matter it is irrelevant, what matters is that a proper statement of law must be given by judge and that’s how a just system must operate.

    Therefore there’s nothing wrong with anyone (whether political party or private individual) going to court to assert their rights. That’s what it means to have a justiciable Constitution.

  11. Greg Mashaba | May 12, 2017 at 9:26 am | Reply

    You do seem to be getting more and more confused Mdu . Firstly , I never raised the issue of the locus standi of the DA in this matter . Indeed our Constitution does allow any aggrieved party to seek redress in the courts . What we are contesting here however is the growing tendency of the DA and its allies and surrogate organisations to seek to settle all political disputes in the courts rather than debating them in parliament and the town halls . Indeed a number of our judges , including Chief Justice Mogoeng and retired Deputy Chief Justice Moseneke, have expressed concern at this phenomenon which they saw as a politicisation of the courts .
    Secondly , given the fact that legal terminology seems to have crept into your style of writing in your last comment above ( congratulations ! ) , I will assume that you are conversant with the law . If that is indeed the case , then you ought to know better than others that the president’s view can only be correctly determined in this case by have having reference to his official documents as lodged in court on his behalf by Adv Semenya SC.
    I sincerely hope that it is not your intention to saw confusion into this debate . If it is your intention to do so , you are bound to fail dismally .This is a platform for serious and sincere debate and not ENCA .Have a blessed day Comrade Mdu.

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