Telkom scandal -- Help needed

Not just that, you should also live in fear of a judge claiming that your defence of freedom of expression, as the Constitution guarentees, is not as valid defence as you are, after all, relying on the Constitution - and I mean, who does THAT?? :D
 
antitrust has come across indications of extremely suspicious happenings in the Pretoria courts concerning a certain Telkom case.

This is a follow on from previous article we posted on the matter.

In January and October 2004, Telkom held two Annual General Meetings in order to pass a Special Resolution, which would enable them to buy its own shares.

Various litigation has been brought before the High Court of Pretoria by The South African Minority Shareholders' Rights Association ("SAMSRA"), which is represented by Advocate Michael Alachouzos (who has also brought matters before the court in his personal capacity), attempted to secure an interdict for the purpose of preventing the Registrar of Companies registering the Special Resolution on the grounds that the AGMs were not legitimate.

The first hearing was held on 18 March 2004 before Judge Preller. The following dialogue was taken off a transcript of the proceedings:

“ Court: Well I was going to tell you that the popular view in South Africa is that if somebody relies on the Constitution it means he doesn't have a case otherwise.

Advocate: Sir, that is part of the record of this case, if somebody relies on the Constitution of this country it means that they don't otherwise have a case, is that what you are telling me sir?

Court: Did you listen to what I was saying...

Advocate: Yes I did.

Court: I was saying that it has been said by many judges, it is a popular answer, that if somebody relies on the Constitution it means he doesn't have a case.

Advocate: Well sir I would beg to differ... ”

We do not have a case if we rely on the Constitution?

Judge Preller's comments on the Constitution, were taken further. A complaint was lodged with the Judicial Service Commission about a range of aspects concerning this Judge's behaviour.

The Judicial Service Commission came back with the following reply:

“The JSC noted that Judge Preller had acknowledged that the language used by him was inappropriate and had apologized for this. It was resolved that a letter be written to the Judge President of the Transvaal Provincial Division requesting him to caution Judge Preller that remarks of the kind made by him are not acceptable and should be avoided.”

So the JSC will be content with only an apology from Judge Preller. In our view, this is not acceptable. ”

On 15 October 2004 the matter was heard again. Mr Alchouzos’ application was struck off the role due to the fact that the matter had been brought before the court at an inopportune moment. The following comment was taken off a transcript of the proceedings:

“In any event, I fail to see why this matter is so urgent that it had to be brought in such a way to this court at this hour. This is just before a weekend.”

In yet a further hearing, which was held on 16 May 2005, the honourable J udge Smit did not hear the matter as one of the affidavits was not double-spaced. . The excerpt below was taken from the order:

“In this matter the applicant seeks the relief set out in the notice of motion. Attached to the notice of motion or in the notice of motion it is indicated that an affidavit of one Matthews Matlakana Nkumane will be used in support thereof. There is a document attached to the notice of motion reading “Affidavit of Matthews Matlakana Nkumane. This document is typed in single spacing. I am not in a position to read this. As far as I am concerned this document does not comply with the clear provisions of Rule 62(2) of the Rules of this court to the effect that all documents shall be clearly and legibly printed or typewritten.

Under those circumstances I am not in a position to read the founding affidavit. I cannot consider the granting of any relief. Consequently my order is that the matter is struck from the role with costs. ”

We find it strange how a Judge can recall Rule 62(2) of the Rules Regulating the Conduct of the Proceedings of The Several Provincial and Local Divisions of the High Court of South Africa right off the top of his head.

We also have transcript of Threatening to make people who supply supporting evidence pay court costs!! (case 23070/04 Pretoria; Judge Mynhardt)

In a hearing on 28 January 2005 Judge Shongwe stated that the issue of the alleged invalidity of the Special Resolution to be one of "considerable interest even to the public".
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A copy and paste from http://www.antitrust.co.za/beta/modules.php?name=News&file=article&sid=20&mode=&order=0&thold=0
 
I would just like to make a few points (as I see it)

While the constitution is the highest law in the land, one has to bear in mind that there are a lot of laws that were written before it was adopted, some have been modified as the need arises and some removed all together.

One thing that has changed however is the need for a Judge or Magistrate to be wholly bond by the law, what would happen in the bad old days is that you were subjectd to the letter of the law, sometimes in Court it was found to be wrong, but there was little to do other than appeal, hence the saying ' The law is an Ass '

Today however there is a lot more latitude, one of the reason for this is to accommodate the constitution. Today a Judge is not wholly bond by the letter of the law, the merits, evidence and arguments of the case can now dynamically influence the judgment. That is not to say that the matter cannot later go the course, through higher courts and so on, but it is a very important step in the right direction

Perhaps some people have not made the full transition yet, who knows what really goes on

A case in point, if something is about to be thrown out because it's not in double spacing (a hang over from a lot of the templates being done on WP51) you could ask if the item is not readable, or that other than that is there anything that would make the document un-acceptable, the Judge could then over rule the fact and submit the document (even if it was the Judge that raised the point) I think that what is been argued is that this was an excuse to stop the motion from being heard. It could well be a classic case of Ignoramus, meaning BOTH parties are ignorant (not as is popularly believed that it refers to a singular)

I would think in a case of Hell or High water, Party A said you are wasting your time, the client was slap happy and got party B to party for them. Fear is the path to the Darkside (or so they say)

Other than that I think that Judges get a little bit miffed every time they see the Constitution card, it tends to get used for all the wrong reasons.

Funny thing the Constitution, it says that you have a right not to be searched, a right to privacy and that you are innocent until proven guilty. But that does not stop you from being searched before going into some banks, and having to hand in your parcels before going into some shops
 
DragonLogos you made a good point. However, Section 2 of the Constitution provides as follows:

"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."

And Section 7(2) provised as follows:

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

Now, in my opinion, Judge Preller has not done that at all.
 
These are the sort of points that should be brought up in court at the time

My personnel opinion is the Judge took one look at the sheet and jumped on the first thing that did not look right, I could be wrong, it's just my opinion

The way the law looks these days is great, only trouble is getting it to work, the average person or business cannot afford it, could make a great song title.... Pillar to Post

As Benjamin Franklin said over 200 years ago " Our Constitution promises many things, but in life there are only two certainty's, Death and Taxes "

And to end on a high note

Never give in, never, never, never, never. In anything great or small, large or petty, never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy - Sir Winston Churchill
 
Thank you CR Buys, for the links provided.

Not to hijack this link, but what do you do when you posted something, and later on realized it's defamatory and insulting, and you cannot remove the posting? Do you contact the Webmaster of said site concerned and ask him to remove it, or do you post a public letter of apology on that site?


Regards

Librarian
 
a fascinating thread.....
a personal thank you to DragonLogos for this quote:

*Never give in, never, never, never, never. In anything great or small, large or petty, never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy - Sir Winston Churchill *

my mantra it is and always will be :D

WretchedToad
 
The_Librarian said:
Thank you CR Buys, for the links provided.

Not to hijack this link, but what do you do when you posted something, and later on realized it's defamatory and insulting, and you cannot remove the posting? Do you contact the Webmaster of said site concerned and ask him to remove it, or do you post a public letter of apology on that site?


Regards

Librarian
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when you login, at the post you wanna change, there should be an edit button. dont worry so much about it. Its a real hard thing, and unless the lawyer has got the judge in their pockets its going not going to be easy.

Sure if you go through your own machine, they will have your IP, but then they have to proove that you were sitting behind your PC at that time typing that message, and there are a lot of ways the IP can be 'changed'.

As I said... I wouldnt worry to much about the situation, its more an idle threat than anything. I personaly have been invovled in several situations where someone has commited an actual crime (let alone defimation), and I have traced down the machine responsible, and I knew who did it, but the case got thrown out because we could not prove that that person was sitting behind that PC at the exact time the crime occured.

How many convictions have you got on defimation cases online Mr Buys?

Anyways, were derealing this post again. I would prefer Mr Buys reactions and opinions on the matter in hand. Re the strange reasons the cases were thrown out.

My Buys... is it common practice for the judge to be promoted by a lawyer? And have you had a lot of cases thrown out because one of the documents were not double spaced? Or because its a Friday.

Heres another little bit of transcrpt for you:

Advocate: The deponent to the affidavit appears merely as somebody who, or deposed the affidavit merely is somebody who was able to give evidence...
(Judge Interupts)
Judge: I can lead you as far as that is concerned. I can alway issue a rule nisi, calling upon the deponent to show cause as to why she should be ordered to pay the costs.
Advocate: Well, M'Lord, the deponent is not an interested party in the matter.

Pretty much what the judge is doing there is threatning to make a witeness pay costs!!!!!!!! wtf?
 
judges are experts in the interpretation and application of the law - they are not above legitimate criticism but if you are going to lay criticism or innuendo at the feet of a judge you had better be damn sure about what you are saying. and saying or implying that a judge is partial or biased can be seen as a pretty damaging allegation to a person who holds their position on the basis of his or her integrity and experience in applying the law without fear or favour. one should moreover take even greater care where you do not like the result which has come from a judge that you are now considering criticising.

this is not to say that in these particular instances there is not substance to what is being stated/implied BUT personally i would not express an opinion on the actions of a judge in the manner being done in this thread at all, even if i had actually been at the hearing and was in full possession of the facts

the right remedial action was taken in reporting the matter upwards - the reaction and the apology/acknowledgement to my mind does indeed show that the matter was taken seriously; it has been stated by imho correctly by crbuys and others above that one should look not at any bias against the applicants but rather to resistance amongst some judges against the all-pervading influence of the Constitution on SA common law and legislation as it has been interpreted and applied by the courts for a very long time...this is hardly unexpected and i think it is disproportionate to take the judge's statements as general evidence of judicial disdain for the Constitution...it is the supreme law of the land and if anything suffers from gross underutilisation as a sword and a shield for people's individual and collective rights

as an aside - law firms represent clients, usually but not always primarily based on their ability to pay; furthermore everyone has a right to representation...on the logic applied by some above if a law firm represents a murderer does that mean they support murder? BS. To criticise a legal firm because they represent a client which you do not like and to attribute to that firm the reputation or actions of the client is not a well thought through action.

further aside - it is all too easy to personify telkom - the de facto corporate monopoly which acts exactly as one would expect a corporate monopoly to work - as the embodiment of evil. all to often this evil attributed to a company makes us one-eyed and unreasonably impartial. we too easily lay all evil at is door and believe that conspiracies abound.
 
Complaints about court / judges

I am a member of SAMSRA, and I know a bit about this.

The complaint about Judge Preller had nothing to do with SAMSRA, really, because it was made by Adv. Alachouzos in his personal capacity and related only to the behaviour of the judge in the case brought by Alachouzos personally. (I think that the judge's comments about the Constitution were pretty disgusting, however, and with rather frightening implications).

The Judicial Service Commission wrote a letter saying that the judge had apologised etc and his behaviour was unacceptable but didn't amount to gross misconduct. I happen to know that Alachouzos has now started review proceedings against the Judicial Service Commission (!!!) on the grounds that they didn't consider the complaint properly. I will try to contact Alachouzos and see if I can get details from him.

The weird court behaviour of the other judges (throwing matters out of court because it was a Friday / because an affidavit was single-spaced / trying to frighten others off the matter by threatening to order costs against a mere witness etc) have not yet so far as I'm aware been complained of to the JSC, but I think they should be.

Also, if the Constitution comes in for rubbishing by the judiciary then I think that members of the public (eg people in this forum) have every right to express their concerns about that. That's not a matter of law (I'm not a lawyer), but a fact of POLITICAL morality. This is an important political issue, and it's not just for the JSC to decide what to do about it without any public feedback. Others may choose to be frightened into silence about it, but I won't and I hope that others here won't either.

I hate to say so, but maybe the ANC have a point when they say that there should be mechanisms put in place to oversee or discipline judges. This issue has been much in the news recently. (I wouldn't want to see the government controlling the judges and destroying their independence a la Mugabe, though).

My apologies that this message isn't double-spaced, but the MyADSL input dialog doesn't seem to cater for double spacing.
 
dominic said:
... resistance amongst some judges against the all-pervading influence of the Constitution on SA common law and legislation as it has been interpreted and applied by the courts for a very long time...this is hardly unexpected
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I must wholeheartedly disagree. I most certainly do not "expect" any judge to "resist" the constitution AT ALL. The absolute minimum I expect is for every single judge to fully respect and uphold the constitution as the highest law of the land - nothing less. Any judge which still "resists" the constitution after - what - nine years, should be chucked out. Our justice system is not something where one can be lax and sit back and say "aaaw it's OK if they still haven't quite cottoned on to the whole constitution thing, just give them some time". I don't expect my surgeon to "resist" learning how to do heart surgery, I don't expect my pilot to "resist" learning how to land a plane, etc. Judges have a lot of power over the lives of people who come before them, and any one of us might land up 'wrongfully accused' about something in front of these judges someday.
 
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Turtle said:
I must wholeheartedly disagree. I most certainly do not "expect" any judge to "resist" the constitution AT ALL. The absolute minimum I expect is for every single judge to fully respect and uphold the constitution as the highest law of the land - nothing less. Any judge which still "resists" the constitution after - what - nine years, should be chucked out. Our justice system is not something where one can be lax and sit back and say "aaaw it's OK if they still haven't quite cottoned on to the whole constitution thing, just give them some time". I don't expect my surgeon to "resist" learning how to do heart surgery, I don't expect my pilot to "resist" learning how to land a plane, etc. Judges have a lot of power over the lives of people who come before them, and any one of us might land up 'wrongfully accused' about something in front of these judges someday.
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fair enough but i would say a little bit on the idealistic side (nothing wrong with that) - and if we are going to draw analogies then i would be happy to say from an idealistic perspective that any person in SA who still "resists" a nonracial and democratic society nine years after the event should be chucked out of the country

its a process - i am sure that the majority of judges have embraced the constitution but i am not surprised, as a lawyer, that there are judges who resist what they may perceive as the vagueness of the constitution as against the more definite nature of a common law developed over more than a thousand years...i do not support this in the slightest - as you rightly point out the highest law of the land must be applied as it was intended...and i believe that we are a long way down the road to this being the reality
 
I said above: "I happen to know that Alachouzos has now started review proceedings against the Judicial Service Commission (!!!) on the grounds that they didn't consider the complaint properly. I will try to contact Alachouzos and see if I can get details from him".

I've just spoken to him, and he says that yes, he has started proceedings against the JSC but he's not going to discuss that here. He gave me the name of the case, which is Alachouzos v The Chief Justice and Judge Preller, and apparently the case is number 05/9938 in the High Court in Pritchard Street (JHB). I asked if people could look at the case file in the courts to get more info, and he said that as it's a publicly available file he can't stop them.

I am amazed that this guy has the spirit to go up against the Chief Justice if necessary. We could do with a few more like him.
 
Got onto this thread late, and i'm somewhat lost. What does Judges and their bias/unbiased decisions have to do with "Telkom Scandal" ? Is this about nailing a few judges or nailing Telkom? Does it mean the judges must first be nailed before anything can be done about Telkom?

What exactly is the scandal? As far as i can read Telkom -WANTS- to do something illegal, but have not yet ?
 
they are not above legitimate criticism but if you are going to lay criticism or innuendo at the feet of a judge you had better be damn sure about what you are saying.
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I call a duck a duck. Simple. If the judge makes such a (in my opinion) stupid statement, I will comment on it. His welcome to take me to court over it as well. He made the statement, i think its stupid. I would tell that to him in court as well (which I suppose is the primary reason why I would make such a bad lawyer) Or are we not allowed to think for ourselves anymore?

The only judge who showed the slightest bit of an inclination that he cared for the people more than himself (or telkom) was Judge Songwe. As a 'new' South African i personally can not wait for all the old pretoria judges to move along.
 
diabolus said:
Got onto this thread late, and i'm somewhat lost. What does Judges and their bias/unbiased decisions have to do with "Telkom Scandal" ? Is this about nailing a few judges or nailing Telkom? Does it mean the judges must first be nailed before anything can be done about Telkom?

What exactly is the scandal? As far as i can read Telkom -WANTS- to do something illegal, but have not yet ?
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Not exactly diabolus, but not exactly not. We simply charge that Telkom is doing something illegal, by reason of not having held valid AGMs. This is obviously a matter for the courts to decide. But we can't even get our case listened to, because an affidavit isn't double-spaced, or because of this or that or some other ridiculous reason. So the cases get chucked out on technicalities, with the judge not having had the chance to hear the merits of our (and Telkom's) arguments.

So yes, it has reached a point now where the judges need to be taken to task for their unusual behaviour (please g0d, may this be unusual behaviour in a court).
 
One wonders why the judges are so protective over Telkom............................................................
 
w1z4rd said:
The only judge who showed the slightest bit of an inclination that he cared for the people more than himself (or telkom) was Judge Songwe. As a 'new' South African i personally can not wait for all the old pretoria judges to move along.
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That's my sentiment exactly. And it's what I was trying to get across in the rather inappropriately worded letter shown in my earlier post (the first in the thread) where I talked about all the other judges having been Afrikaners. I should have said that they were "the old guard" (meaning the executive-minded, apartheid-era-appointed judges), or something like that.

I didn't mean to make a blanket slur against Afrikaners, but I can see how it may have looked like that to some other members of the forum. It was stupid wording on my part, and I apologise fot it.
 
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