Thursday, August 21, 2008

What Hugh Glenister is really up against

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Without fear or favour.

Wednesday, August 20, 2008
Court concerned about Glenister application
August 20 2008 at 12:52PM

The justices of the Constitutional Court repeatedly expressed concern that they might be usurping Parliament by deciding on the constitutionality of legislation currently underway, aimed at disbanding the Scorpions.

Calling it an "exceptional" case, they asked whether it would not be better for businessman Hugh Glenister, and political parties associated with his bid to stop the legislation, to wait until it is passed and only then challenge it.

"We've been called upon to do something extremely intrusive," said Judge Albie Sachs.

Chief Justice Pius Langa asked: "By stepping in at this stage, are you not usurping the functions of Parliament?"

At its conference in Polokwane in December, the African National Congress resolved to move the Scorpions to the police, in a move which is criticised as an attempt at diluting corruption and fraud cases against high profile politicians, including its president Jacob Zuma.

National police commissioner Jackie Selebi is also the subject of a Scorpions investigation.

Parliament is currently working on legislation to finalise the move, and public hearings were held countrywide.

Glenister wants to stop the legislation, saying it is unconstitutional, against the interests of peace and security, and was to protect private interests.

Glenister's lawyer David Unterhalter argued that the courts could step in at this stage because the second reading of the bill had not yet taken place.

He said Parliament "is acting for private sectional interests, and that it may not do".

He said he submitted that because the executive was not acting within it's constitutional mandate which was why this challenge was being brought.

"They are carrying out narrow sectional interests of a party, not of the public".

Before the hearing began, when asked how he felt, Glenister simply replied: "Good". - Sapa

Comments by Sonny
The Constitution is supreme and not 'parliament' as the ANC sees it.
Parliament is accountable to the 'people of SA.'
Parliament so far abused its functions and made a mockery of public hearing into future of the Scorpions.
President Mbeki is supposed to be above parliament.
Why did he withdraw from this debate?
Let's hope he is not running scared of the ANC.
If parliament should first decide on the future of the Scorpions, (Judge Alby Sacks)then they, (parliament), are supreme and the constitution can be scrapped as well!
That is precisely what Hlope would like to have happen.
Posted by Sonny Cox at 3:42 PM
Labels: Constitution is supreme.
Tango said...
Albie Sachs

Albie Sachs (1935-) is a justice on the Constitutional Court of South Africa. He was appointed to the court by Nelson Mandela in 1994.

Justice Sachs recently gained international attention in 2005 as the author of the Court's holding in the case of Minister of Home Affairs v. Fourie, in which the Court overthrew South Africa's statute defining marriage to be between one man and one woman as a violation of the Constitution's general mandate for equal protection for all and its specific mandate against discrimination on the basis of sexual orientation. Justice Sachs is also recognized for the development of the differentiation between constitutional rights in three different degrees or generations of rights.

As a young white man in South Africa, he worked as an attorney, defending people charged under racist statutes and repressive security laws under South African Apartheid. After being seized by the police and placed in solitary confinement for his work in the freedom movement, Albie Sachs went into exile in England and then Mozambique. In Maputo, Mozambique in 1988, he lost his arm and his sight in one eye when a bomb was placed in his car by South African security agents. After the bombing, he devoted himself to the preparations for a new democratic constitution for South Africa. He returned to South Africa and served as a member of the Constitutional Committee and the National Executive of the African National Congress.

In 1991 he won the Alan Paton Award for his book Soft Vengeance of a Freedom Fighter. The book chronicles his response to the 1988 car bombing. He is also the author of Justice in South Africa (1974), The Jail Diary of Albie Sachs (1966), Sexism and the Law (1979) and, most recently, The Free Diary of Albie Sachs (2004).

He helped select the art collection at Constitution Hill, the seat of the Constitutional Court.

August 20, 2008 8:02 PM
Tango said...
Judges | Chief Justice Pius Langa

Born in Bushbuckridge, South Africa on 25 March 1939, Pius Nkonzo Langa, the second of seven children born to deeply devout parents, completed his high school education through private study and then obtained the B Iuris and LL B degrees (in 1973 and 1976 respectively) by long distance learning through the University of South Africa. His working life commenced in 1957 at a shirt factory; between 1960 until 1977, he served in various capacities in the Department of Justice from interpreter/messenger to magistrate. He was admitted as an Advocate of the Supreme Court of South Africa in June 1977, practised at the Natal Bar and attained the rank of Senior Counsel in January 1994.

When the Constitutional Court of South Africa was established with the advent of a post apartheid constitutional and democratic era in 1994, Justice Langa was appointed together with ten others as the first Judges of the new Court. He became its Deputy President in August 1997 and, in November 2001, assumed the position of Deputy Chief Justice of South Africa. He was appointed as the country’s Chief Justice and head of the Constitutional Court with effect from June 2005.As Chief Justice, Langa is chairperson of the Judicial Service Commission and is also the current chairperson of the Southern African Judges Commission, a forum of Chief Justices in Southern and East Africa. He is also a member of the Permanent Court of Arbitration.

Langa’s practice as an Advocate reflected the struggle against the apartheid system and his clientele thus included the underprivileged, various civic bodies, trade unions and people charged with political offences and under the oppressive apartheid security legislation.

He served on the executive committee of the Democratic Lawyers Association (DLA) and was founder member of the National Association of Democratic Lawyers (NADEL) and served as its President from 1988 to 1994. He has served on the boards and as trustee of various law-related institutions, and was involved in the founding of the South African Legal Defence Fund (SALDEF). He served as Commissioner of the pre-Constitutional Human Rights Commission (later known as the Human Rights Committee).

As a township resident in his early working life, he was always involved in community work and in attempts to improve the quality of life among the communities around him. He helped organise civic organisations and residents' associations and gave guidance to youth and recreational clubs.

During the ‘80’s and early ‘90’s, he served in the structures of the United Democratic Front (UDF), was involved in the work of the Convention for a Democratic South Africa (CODESA) and of its successor, the Multi-Party Negotiating Forum. He was also a member of the Constitutional Committee of the African National Congress and was in the advisor group during the Groote Schuur and Pretoria “Talks-about-Talks”. He served as a founder member of the Release Mandela Committee (Natal) and was a member of the Regional and National Reception Committees formed to prepare for and accelerate the release of political prisoners. He was appointed to the Police Board to assist with the transformation of the Police Services under the aegis of the National Peace Accord, which was set up to stem the violence that plagued parts of South Africa in the eighties and early nineties; chaired the Technical Committee to review and rationalise Health Legislation, served as a member of the Commission of Inquiry into Unrest in Prisons and was a member of the Commission of Inquiry into certain alleged covert SADF activities.

In 1998 he chaired a Commission to probe the Lesotho elections on behalf of the Southern African Development and Economic Community (SADC). In 2000 he was appointed the Commonwealth’s Special Envoy to assist the Fiji Islands’ return to democracy. He has participated in the work of constitutional review commissions in Sri Lanka, Zimbabwe, Rwanda and Tanzania. He led a delegation of the International Bar Association to Cameroon, at the request of the Cameroon Government, to review and integrate that country’s system of criminal procedure. He is a member of the Judicial Integrity Group which was responsible for the compilation of the Bangalore Principles for Judicial Ethics.

He has, over the years, organised and/or participated in numerous conferences, workshops and seminars on human rights, justice and other constitutional issues and also delivered speeches on various related topics in South Africa and in many countries abroad.
Langa was appointed Honorary Professor in the Department of Procedural and Clinical Law, University of Natal in June 1998 and has served for several years as Distinguished Visiting Professor at the Southern Methodist University, Dallas, Texas in the United States of America. He was Chancellor of the University of Natal (1998 to 2004) and is currently Chancellor of the Nelson Mandela Metropolitan University.

He has been honoured with awards for the advancement of justice and human rights by the Black Lawyers Association, the National Association of Democratic Lawyers and the Judicial Council of the American National Bar Association. He was awarded the 2004 Justice Prize, jointly with the then Chief Justice of South Africa, Justice Arthur Chaskalson, by the Peter Gruber Foundation in the United States of America and received the 2006 Sydney and Felicia Kentridge Award for Service to Justice in 2006. On 11 March 2008 he was honoured with the eThekwini Living Legends award together with other local heroes who have excelled in their respective fields. On 22 April 2008, the President of the Republic of South Africa, Mr T Mbeki, bestowed upon him the Order of the Supreme Counsellor of the Baobab: Gold.

Langa has been awarded Doctor of Laws degrees, honoris causa, by the Universities of Zululand, Western Cape, Cape Town, Unisa, Rhodes, Yale (USA) and the National University of Ireland and the degree Doctor of the Public Service, honoris causa, by the North Eastern University, Boston, Massachussets, USA.

A family man, Langa married Thandekile (born Mncwabe) in 1966 and they were blessed with six children and now enjoy the company of a growing number of grand children. Langa enjoys walking and jogging, listening to music of various kinds, reading and watching a variety of sports.

JSC interview

August 20, 2008 8:06 PM
Tango said...
Personal details
Kate O'Regan grew up in Cape Town. She is married and has two children.

O'Regan obtained her LLB cum laude from UCT in 1980 and an LLM degree with first class honours from the University of Sydney in 1981. She holds a PhD from the University of London and honorary doctorates from the University of Natal and UCT.

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Professional history
From 1982 to 1985 she worked for a firm of attorneys in Johannesburg, specialising in labour law and land rights. During this time she was an executive member of the Industrial Aid Society, an advice office for the unemployed, as well as a roster lawyer for Actstop and the Black Sash.

In mid-1988 she was appointed as a senior researcher in the Labour Unit at UCT. In 1992 she was promoted to associate professor at the same university.

During her years at UCT, she was a founder member of the Institute of Development Law and the Law, Race and Gender Research Project. She was also a trustee of the Legal Resources Centre.

In 1994 O'Regan was appointed a Judge of the Constitutional Court.

She has been an honorary visiting professor at the University of South Africa and at the University of Cape Town, and holds honorary degrees from the University of Natal and the University of Cape Town.

August 20, 2008 8:50 PM
Tango said...
The Bill of Rights - an overview and the text
Human rights in South Africa
Vertical and horizontal application
First, second and third generation rights
The limitation clause
Enforcing your rights
Interpreting the Bill of Rights
Changing the Bill of Rights
The rights of women, children, gays and lesbians, and workers
Chapter 2: the text of the Bill of Rights
Human rights in South Africa
Human rights are those basic and fundamental rights to which every person - for the simple reason of being human - is entitled. These rights are inalienable: a person has them forever and they cannot be taken away.

The natural rights of South Africans received no protection before the country became a constitutional democracy in 1994. (See the history of the Constitution for the background to the struggle for human rights and democracy.)

Chapter 3 of the interim Constitution introduced legally protected fundamental rights to South Africa for the first time. Now fundamental human rights are entrenched in Chapter 2 - sections 7 to 39 - of the 1996 Constitution.

The Bill of Rights is arguably the part of the Constitution that has had the greatest impact on life in this country. As the first words of this chapter say: "This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom."

It has also been the source of the majority of the groundbreaking rulings the Constitutional Court has handed down. To read more about selected rights and the way the Constitutional Court has interpreted them, see children's rights, women's rights, gay and lesbian rights, workers' rights and access to information.

Vertical and horizontal application
It goes without saying that the Bill of Rights is binding on the government. Section 8 says it binds the executive, the judiciary and all organs of state - which means everyone from the president to the police.

But a recurring theme in Constitutional law is whether private individuals and bodies (such as clubs, companies and private schools) are also obliged to observe such rights. It is widely recognised that some private bodies, such as large companies, can have great power. Shouldn't citizens be protected from non-state bodies that, for example, discriminate unfairly?

This question, left unanswered in the interim constitution, was cleared up by Section 8 of the final Constitution: the Bill of Rights doesn't only apply vertically (from the state downwards, to its citizens) - it also applies, where applicable, horizontally (between one citizen or private body and another).

First, second and third generation rights
Human rights fall into two broad classes - first and second generation. Civil and political rights, those traditionally included in constitutions around the world, tend to be considered first-generation rights.

These rights, which were given expression by the Enlightenment thinkers, were the first to be recognised by law. They begin with the basic rights to life, dignity, equality and privacy. But they also include the fundamental freedoms associated with democracy: freedom of expression, association, assembly, opinion, belief and religion, and movement.

Second-generation rights are those connected to the social and economic features of life. South Africa is one of only a few countries in the world to entrench rights such as access to food, water, housing, healthcare and social security - section 27. The right to education and the special rights of children also fit in here.

Third-generation rights - a relatively new field in human rights - concern the environment and development, as well as culture and language.

The limitation clause
At first glance it might seem strange to include, in a document dedicated to protecting rights, a clause that allows rights to be limited. But this is a necessary feature of life in society: people inevitably have competing and conflicting rights.

One person's right to dignity, for example, may clash with another's right to freedom of expression. One citizen's right to be protected from violent suspected criminals will conflict with that suspect's right to freedom of movement.

It's an established principle, then, that rights can be limited. The challenge, though, is to allow them to be limited only under strict conditions. If the Bill of Rights simply allowed any kind of restriction, its very purpose would be undermined.

As a result, section 36 of the Constitution, known as the limitation clause, lays down a test that any limitation must meet. The two central concepts in this test are reasonableness and proportionality. Any restriction on a right must be reasonable and must be proportional in that the impact or extent of the restriction must match the importance of the aim served by the limitation of the right.

Enforcing your rights
Section 38 gives a person who believes an infringement has occurred the right to go to court. This clause makes it clear that it is not only people acting for themselves who may use the law to protect their own rights: "class action" suits - by people acting for a group or in the public interest - are also allowed. See how to approach the Constitutional Court, as well as the list of organisations that can help you enforce your rights.

Interpreting the Bill of Rights
The Bill of Rights is unlike any ordinary piece of legislation. The language used in many of the sections is broad, which means the rights need careful interpretation by the judges who apply this document.

There is some explicit guidance, however. An important instruction is contained in section 39(1)(a): "When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom."

Judges are reminded to keep these values - which crop up frequently in South Africa's constitutional law - at the front of their minds when dealing with the Bill of Rights.

Changing the Bill of Rights
The Bill of Rights cannot be changed by a simple parliamentary majority. Rather, it can only be amended by a Bill passed by the National Assembly, if at least two-thirds (67 percent of the members of Parliament) vote for it; and the National Council of Provinces, if at least six provinces vote for it.

August 20, 2008 8:57 PM
Tango said...
Enforcing your rights to Save the SCORPIONS-

Section 38 gives a person who believes an infringement has occurred the right to go to court. This clause makes it clear that it is not only people acting for themselves who may use the law to protect their own rights: "class action" suits - by people acting for a group or in the public interest - are also allowed.

August 20, 2008 8:59 PM
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A servant will never betray his masters, if he is fed properly!




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