PACTA SUNT SERVANDA AGREEMENTS SHOULD BE HONORED OR SHOULD IT? What does Justitia say about this lot?

 

Part of my law library referencing some of South Africa's brightest legal minds 

that is pre 1994

Agreements should be honoured – or should it? May a court of law [in South Africa that is] interfere? My word is my bond? Gentleman’s agreement? Trust? Ethics? Morality?

Courtesy the internet. Beautiful image!!!

Justice for all? Justice and Justitia – Oh my word!! What a ride I had on the internet searching for appropriate images of the goddess of justice: click on Justitia. It is a joy ride so to speak. One common thread that I see in my search for images is that it is a young lady that is extremely well built who is blindfolded holding scales in her hand. That is more or less where the comparisons end and the interpretations start. This reminds me of two Constitutional judgments in South Africa emanating from some of our brightest legal minds – but I hasten to state clearly and unequivocally that it is our brightest legal minds post-apartheid [read here: after 1994 when democracy descended from on High].

The bright legal minds of pre-apartheid days are almost gone and forgotten. Yet Justitia reigns “supreme” in her blindfolded state as it were. David Pannick in his book JUDGES wrote about this judge who argued with his hormones when a well-endowed lady advocate walked into his court room. His stated loud and clearly: “Wow! What a pair of boobs!” His was promptly censured for his remark in open court - David does not say whether that Judge’s remark was to the point so to speak or not. That remark fits all of the sculptures of the queen of justice: well endowed: you can read a short resume of that book by clicking on this link,  

Why do I refer to lady Justitia? Well, she is blindfolded, is she not? Maybe the two judgements of our ConCourt reminds me of that blindfolded lady – please note carefully she is blindfolded and not blind [you should really trust me on this one for a moment]. But, for this blog post, I want to steer away from her blindfold, and try and enter her mindset; in this blogpost “her mindset” is the mindset of the judges who their judgments under discussion. To enter their mindset, I have to read what they wrote and then draw my own inferences. Sad to say, I think that these judges were a bit confused – that is what I think of the ConCourt’s two judgments that are taking up hundreds of pages to clarify the position. I am referring to the following judgments:

Botha: click here to download the entire judgment.

Beadica: click here to download the entire judgment.

Please read on.

“Public policy requires that parties should in general comply with contractual obligations that have been freely and voluntarily undertaken.” Judge Nkabinde of the Constitutional Court was clear about this – but she didn’t stop there. She continues: “There can be no doubt that the matter raises constitutional issues.” And with that sentence, she opened the floodgates of uncertainty and subjective issues. She spoke these words during her judgment penned in 2014 in the judgment of the matter that is now known as BOTHA and another v RICH and others in the ConCourt.

The moment a court of law is of the view that constitutional issues are at stake, you know for sure that something odd is going to happen that would change the legal horizons for some time.

The ConCourt was busy working on these constitutional issues floating around the well-established approach of pacta sunt servanda – a man should honor his word. And it happened in the Botha matter and it was further “clarified” in the Beadica matter. In paragraphs 86 & 87 of the Beadica-matter, the court distinguished between the time prior to 1994 and after 1994 in our beautiful country. Oh boy, and the moment April 1994 sticks its ugly head out of the woodwork, the sparks are going to fly high and low and everywhere.

This [Beadica-matter] is a massive judgment to work/read through: Three judges filed their judgments: the first judgment [the majority] contains 104 pages; the second judgment [dissenting] almost 100 pages and the last dissenting judgment almost 30 pages. In total 232 pages of judgment. You must bear in mind that the legal teams of the parties also filed their contributions and I don’t know how many pages and how many hours they spent on writing and re-writing and re-thinking and once again re-writing their heads of argument. The Botha judgement is not that lengthy: a mere 35 pages.

And yet, after 267 pages of legal writing, it is not clear what was said – legal minds suffer and battle to understand this and to explain it to their clients. To explain it to my blog readers is also a battle of gigantic proportions – no I am not going to even try to explain it to you lest I should lose you for ever and that I am not going to do. A bright young advocate at the Johannesburg Bar forwarded me a piece of his legal mind to explain and even he battles. What shall we do? The judges have spoken – and they are not going to explain it further [I think even they can’t explain it further that is why the majority judgment is 104 pages long and the first dissenting judgment was almost 100 pages long].

What is my story to you? I once read an apt remark, or shall I say a timely warning, by one of South Africa’s top legal minds who was sitting as an eminent judge in the then Appeal Court of South Africa, he is reported to have said something to this order: “Litigation is somewhat of a gamble.”

Dare I say more? I shall refrain from taking up the cudgels with him. Yes – it is a very dicey affair because some you win, and some you lose.

Please write me a letter at neelscoertse@wirelessza.co.za

Thank you for reading my write-ups.

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Prophet Bushiri and glamorous wife Mary: AN OPEN CHALLENGE

 

TWO ALLEGED PROPHETS ON THEIR WAY TO COURT IN MALAWI

Prophet Bushiri and glamorous wife Mary: AN OPEN CHALLENGE: COME BACK TO SOUTH AFRICA AND HAVE YOUR DAY AS AN INNOCENT MAN AND AN INNOCENT WOMAN. You maintain your innocence. Why then did you flee justice in the RSA? 

My previous blog write up was drawing the attention to these so-called prophets and some of their alleged shenanigans in South Africa, and subsequently their flight from justice from South Africa and their extradition case in Malawi. This charismatic couple’s shenanigans sparked a religious tourism like no other from across the continent of Africa towards Malawi to get an “anointing” from this couple.

Looking globally, it seems to me as if there is an avalanche of this kind of a fleecing good natured people’s pocket. Promise them health, wealth and happiness and you will laugh all the way to the bank – the “secret” is to quote a verse from the Bible and give an “in depth explanation” and your assurance that you will get rich and healthy and happy at a drop of the hat. And then you have enough money to buy your way thru immigration ports to “freedom” in your home country.

I read this snippet “The Lilongwe Chief Resident Magistrate Court on Monday, July 11, 2022 dismissed preliminary applications by the State to have witnesses in Prophet Shepherd Bushiri case testify in South Africa.” Snippet from the newspaper MARAVI POST [click here to read the article. I must say that the language used in this newspaper article looks like English to me but I am not too sure – read it yourself.

It is lamentable to read these stories about people who, on the face of it, confess to be followers of Jesus Christ. I dare say that your name should not even be linked to these atrocities: charges of theft, fraud, forgery and failing to comply with bail conditions [clickon this link. A woman who is accusing Malawi Prophet Shepherd Bushiri of raping her has said she fears for her life because the pastor is a dangerous man - this is against a so-called Christian?

I do challenge this so-called prophet and his wife a so-called prophetess, to come to SA and have your day in court; come and show us that you are innocent. It is a real challenge.

Please write me what you think of this lot: neelscoertse@wirelessza.co.za

Neels Coertse

 

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MY FRIEND LEENDERT JOUBERT IS 80+ AND STILL WORKING ON HIS LATHE

 

MY FRIEND LEENDERT JOUBERT IS 80+ AND STILL WORKING ON HIS LATHE

This is one of the blocks of wood that he used

I am so excited to tell you about my friend Leendert Joubert.

He is 80+ years and still working on his woodturning lathe. I find it remarkable. You will notice that I did not write: 80+ years “old.” Why? Read my blogpost below and form your own opinion of this friend of mine.

This story is about my friend Leendert and his woodturning lathe; if you happen not to know what a woodturning lathe is, I suggest that you stick with me and you will see it; you don’t have to google it, Leendert will show you. And a side issue of him helping his wife in the kitchen.

This side issue is about him working in the kitchen with his wife, Lilia. She has problems with her eyes to the extent that it is difficult to read. This of course, hinders her baking coffee cookies and other nice stuff. It is no problem for this enterprising couple: there is nothing wrong with his eyes! So, he started reading the recipes to her. Then he gets naughty at times and would deliberately exaggerate the quantities and add or subtract ingredients just to get a reaction from her. And every time his does that, he gets the desired reaction. And you can guess yourself what that is.

Him working on his lathe, impressed me so much that I shot a couple of videos on my cell phone, edited it and eventually published it on my youtube channel: click here to watch it.

The title is in Afrikaans, our mother tongue and I called it LEN SE MAAKSELS – loosely translated it means: LEN’S CREATIONS or LEN’S CREATURES or something similar. To be quite frank with you, it is actually not me that chose the title; it derives from his granddaughter referring to Grandpa’s “creatures.”  He explains how it came about making all those candlesticks. His one granddaughter saw something similar that he turned and she decided she wants some for her wedding. She told her grandpa that she is so massively impressed with his creatures and asked him to make some as decoration on the tables at her wedding.

He immediately accepted her invitation; and for him it was also a challenge. His son brought some pallets home for his dad to use for whatever pleased him. Leendert took the small squarish blocks of wood separating the top and bottom planks and he started using those squarish blocks of wood destined to be thrown away. He glued it together and turned it in candle holders. He explains that the one he was shaking, he started from the “wrong end” of the block – he only realised it right at the end of the “creation.” And he very wisely, asked the question: “Does it really matter?”

To my mind this golden oldie was inspired by his grand daughter to do something very special for her wedding day. And he took old scrap pieces of wood destined for the fire or the trash heap, and he turned it in something of value. I am sure that the wedding guests will enjoy it. In turn [pardon the pun] it turned me on to take some video clips of this process. I had to go back to his home to take several video clips to get the sequence right.

Back at my home I spliced it together. I was still not satisfied with the result. I asked him what music shall I use as background music? He took some time and came back with his list. And being the man that he is, he told me that it was difficult to give me a shortlist; there are just too many good music scores that he loves and that he could have chosen. The music might be subject to copyright issues, but my take on that is that I have used just a slice of it and it should be considered fair use and by the way it is for private use.

While I was writing this, I watched an internet archive video about Christopher Columbus’s son, and his library. To my big surprise Hernando built his library on a dung heap just outside the city of Seville. I suggest that there is something inside both Hernando and Leendert: taking something odd and reshaping in something of value. You can watch the internet archive’s video by clicking on this link; if you are in somewhat of a hurry, you can move your cursor to about 32:52 minutes to listen to the narrator telling this fascinating story of Hernando’s library. Click here to watch the video about shipwrecked books.

I find it truly inspirational. Thank you Leendert, Lilia and Hernando and internet archive.

What do you think? Please write me an e-mail at neelscoertse@wirelessza.co.za

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REFUGEE CHILDREN PEOPLE FROM UKRAINE

REFUGEE CHILDREN PEOPLE FROM UKRAINE

STOCK FREE IMAGES: PEOPLE FLEEING

Walking to my office/study at home, I invited my dogs to come inside as I have an electric heater in the office as protection against the winter cold of South Africa. And it struck me very forcefully that there are people outside in the cold without protection. Not only close by my house in Rivonia, Johannesburg, but further away and then internationally there are people fleeing from the madman Putin’s war in Ukraine.

And my mind drifted towards refugees who are just drifting more or less aimlessly to escape what other humans are doing to them.

Yes, I know there are untold thousands of people in all the parts of the world that are living on the streets – poverty stricken and homeless. I am constantly thinking of them as well.

But for the moment I am aiming my thoughts and writing skills towards refugees: from deepest Africa and then more specific towards those millions on people fleeing from that mad man Vladimir Putin’s war against Ukraine. It is alleged that there are more than 12.5 million refugees and/or internally displaced persons from Ukraine [and counting]. See some write-ups about it by clicking here and the UNHCR’s website. To put it into perspective, there are about 2 million people in Botswana, a neighbouring country of South Africa. That means for Botswana for instance, the entire country is devoid of any people and then some.

Considering these millions from Ukraine, fleeing under severe circumstances: extreme weather conditions, no transport, no food or inadequate food supplies, no water or inadequate water supplies. How do you clean your baby? How to you prepare food? You are no longer in the security of your home where you have access to a proper fitted kitchen? Ablutions? A couch or chair to sit on and to read your favourite book? Or your favourite poems?

You are driven from a secure place where you created art? Paintings. Sculpture. Building enormous puzzles.

You are out in the open, fleeing for your dear lives – and maybe you had to leave loved ones behind: they are too old or too frail or to ill to travel and to brave this perilous journey. And yet, you had to go.

My mind drifts towards the children. And it is very easy and very glib for me in the RSA to state that according to our Children’s Act, that when you turn 18 years of age, that you are now considered to be an adult. When I grew up, the threshold was still 21 years. I know of a youngster at her 21^st birthday party, very arrogantly said to an elderly gentleman: “Now I can marry without my father’s permission!” And she was quite chuffed with her say-so. He looked her straight into her eyes and calmly replied: “Would you like to do that?”

I am assisting some refugees and their children who are in South Africa with their legal fights with the Department of Home Affairs, who are, sadly so, not very helpful and the DHA does not even comply with our High Court’s orders. That leaves an extremely bad taste in my mouth. We are busy litigating about South African citizenship and related matters.  These matters are not easy, and that is an understatement of the year.

I have not even touched on the problem of statelessness which is growing by the day.

The profile of refugees, for instance from the Rwandan genocide during April 1994 are changing drastically and rapidly. I am expecting the same to happen with the refugees from Ukraine. Without any in depth study I find that the off spring of these refugees [from Rwanda] present a different profile than their parents. The refugees got married to other refugees from their own country or from other countries; they are meeting others from different countries and they get married to citizens from the host country. And these offspring present difficulties with inter alia citizenship. Citizenship is an easy political ploy to harass foreigners such as refugees. The aspect of citizenship will stay over for another Blog post.

Back to refugee children. I am reading extensively the international laws pertaining to to the refugee children who are very vulnerable; the United Nations High Commissioner for Refugees [the UNHCR] has a lot of things to say about the treatment of children. There is a myriad of International Conventions in place to legally look after them. And then the UNHCR has Guidelines in place to give guidance to law enforcement bodies, government officials and such like people on the implementation of the Conventions. Dealing with South African authorities it seems at times as if these people do not even know that these Conventions and guidelines exist.

Do I have to state it in so many words that children are very easily exploited? Yes, they are.

It is expected that countries should sign these Conventions and become part of an international bulwark against the abuse of refugee children. But having said that, how can you expect countries to protect children, if those very same countries are committing these atrocities? Take Sudan for instance. This evil regime is executing their own citizens, and now the international community expect that same evil regime to treat children humanely? How on earth is it possible? And they are not treating children with dignity and respect. You may read the UNHCR’s report about Sudan by clicking on this link.

How on earth can we expect the Russian government to treat the children humanely when they send in young soldiers to kill and to exploit the vulnerable in Ukraine?

It is remarkable how close these Conventions and Guidelines are to our own Constitution’s the Bill of Rights Chapter 2; at time it is word for word the same as can be found in our Constitution. Section 7 of Chapter 2 reads:

“Rights

(1) 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.

(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.”

I am just quoting the headings of the Human Rights Charter:

1.    Equality;

2.    Human dignity;

3.    Life;

4.    Freedom and security of the person;

5.    Slavery, servitude and forced labour [CJC I thought slavery, servitude and forced labour were “abolished” many, many years ago? These items of human abuse in South Africa were from then on only examined academically and by authors writing stories about it, like André P Brink in his novels: xxxx insert the names here.]

6.    Privacy;

7.    Freedom of religion, belief and opinion;

8.    Freedom of expression;

9.    Assembly, demonstration, picket and petition;

10. Freedom of association;

11. Political rights;

12. Citizenship [I am at this point busy with litigation against the DHA in respect of this aspect. Having said this, it should be kept in mind that the entire Bill of Rights have some bearing on the other rights and should not be read in a vacuum forgetting the other rights];

13. Freedom of movement and residence;

14. Freedom of trade, occupation and profession;

15. Labour relations;

16. Environment;

17. Property;

18. Housing;

19. Health care, food, water and social security;

20. Children [CJC this is an interesting one and the subject of this write up and subject of my litigation referred to above];

21. Education;

22. Language and culture;

23. Cultural, religious and linguistic communities;

24. Access to information;

25. Just administrative action;

26. Access to courts;

27. Arrested, detained and accused persons.

Here are links to some of these international Conventions and the Guidelines for you to read; if you don’t want to read it, please just take a quick look:

Convention relating to the status of stateless persons: click here. 

Convention on the reduction of statelessness: click here. 

Guidelines on Statelessness: click here.

A  quick word from me  about statelessness: I mentioned it to a highly qualified legal academic whose immediate reaction was that it does not exist! Well, sad to say statelessness does exist: click here. There are millions that are stateless. Even at this moment that you are reading this blogpost, there are hundreds of thousands in Ukraine that are stateless: click here.

I do hope that you spare a thought or something else for the refugee children that did not ask to be in that situation.

Write me an e-mail and tell me what you think: neelscoertse@wirelessza.co.za

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