An assessment of the speed with which cases are finalised in the lower courts would be beneficial to the justice system, to victims of crime and to those charged with criminal offences. Such an assessment could help the courts to deal with their heavy case load, particularly if it is aimed at identifying the reasons for delays within these court structures (and especially within the criminal justice system). By so doing it could improve the right of citizens to access to the courts and could also reduce the costs of running the judicial system.

The serious backlog of cases – especially in the lower courts – goes back more than a decade. The problem was first acknowledged in 1999 by then Justice Minister Penuell Maduna. In March 2006 then Justice Director-General Menzi Simelane reported an estimated backlog of 36 915 cases in the lower courts. In November 2006 then Justice Minister Brigitte Mabandla acknowledged that up to 60% of Cape Town courts and 76% of courts in Kwazulu-Natal faced huge backlogs: At that stage the Johannesburg maintenance court had over 80 000 outstanding cases. The negative trend continued in 2007 with an estimated 210 000 outstanding cases. These cases included 37 000 dockets in the lower courts that were older than 12 months and 20 000 cases in the regional courts – where most serious and violent crime is dealt with. At that stage -despite appointing 260 new court managers- court sitting hours as well as case finalisation rates had been dropping steadily since 2003.

Since 2009 there has been a steady increase in the number of people awaiting trial for more than two years in South African prisons. Figures indicate there were a total of 46 432 persons being held in detention while awaiting trial in October 2010. Of these, 2 080 had been in prison for more than two years with the vast majority of these (1 516) having been detained for more than three years.

Practitioners within the legal fraternity such as attorneys, advocates and prosecutors have identified the following factors as causes for unacceptable backlogs:

• The SAPS take very long to finish their investigations;
• The poor quality of many SAPS investigations;
• Court rolls (Regional and Disrict Courts) that are supposed to start at 09h00 in the morning but only start as late as 12h00 or thereafter;
• Magistrates arriving for work only at 12h00 or therafter;
• Instances where presiding officers take or are granted inordinate periods of leave of absence during court proceedings or running trials;
• Escalating crime figures;
• Understaffing of courts especially magistrates, prosecutors and interpreters;
• A severe shortage of adequate courtrooms and/or buildings;
• Poor case management and case-flow management ;
• Tampering with, or loss of, case records;
• Mismanagement of the salaries of legal professionals within the department; and
• The failure to fill large numbers of vacant magistrates and judges’ posts – even where suitable candidates are available.

Another complicating factor is backlogs at the forensic science laboratories which play a crucial role in the investigation of crimes. According to the Ministry of Police there were 10 121 outstanding forensics reports in March 2008 – which represented an increase of 66% in less than a year. On average the waiting period for forensic results increased from an average of 54 days in 2007 to 60 days in 2008. Police Minister Nathi Mthetwa reported that the backlog in forensics reports had jumped from 6 068 untested samples during June 2007 to 11 758 as of January in 2009. The number of stolen dockets had also increased from 382 in 2005 to 668 in 2008.

A recent case in the Western Cape illustrates the scope of the problem. In January 2009 ten people were indicted with ten charges of murder and armed robbery. The case was finally concluded only in March 2012. In the meantime the state provided the ten accused with ten counsel (one advocate representing each of the accused), at the State’s expense and via the Legal Aid Board. The cost to the taxpayers of the counsel during the course of the trial was more than R2-million. Add to this the cost of transporting the prisoners between Polsmoor and the court; the court’s time – including the judge, assessors, interpreters and clerks – and the total cost of the trial becomes truly enormous.  Ironically, the costs involved were much greater than the value of money that the criminals had been trying to steal.

The fact that these cases take so long to process is one of the causes of overcrowding in our prisons. Overcrowding, in turn, was one of the factors in President Zuma’s recent decision to approve the early release of almost 15 000 sentenced prisoners. Awaiting trial prisoners are taking up too much prison capacity primarily because its takes too long to finalise their cases. According to the Department of Correctional Services the total prison population at the end of March 2012 stood at 162 162. Of these 112 467 are sentenced prisoners and 49 467 are awaiting trial. The country’s prisons are meant to house 118 154 prisoners.

Justice delayed is justice denied. There is a clear need to examine and overhaul the manner in which South Africa’s lower courts are dealing with their work load. The current situation impacts detrimentally on a whole array of individual constitutional rights including a victim’s right to dignity, everyone’s right to access to the courts and an accused person’s right to a fair trial which must be concluded without undue delay. In order to respect and give effect to these rights government would do well to assess and address the dire backlogs in South Africa’s lower courts.

Adv J du Preez
The FW de Klerk Foundation

Editor’s Notes: Just how did it happen that the High Court request to remove an offending painting of the president could be heard within hours and other matters had to be delayed?

The ANC recently invited interested parties from the Afrikaans language community to a high-level discussion event. The invitation was specific in that minorities in South Africa should be more than only merely a critical voice. They should be a pro-active voice for the promotion of mutual interests and a national consensus. The purpose of the discussion was to prevent alienation within the civil society segment and in the political and economic dispensation. The expectation was that this gathering would have led to meaningful dialogue in the national interest and facilitated cooperation between the ANC and Afrikaans speaking interest groups.

Dr Croucamp facilitated the conversation and expressed himself as follows in the quoted article: “My political instinct has an aversion to Afrikaner politics and I made it clear from the outset that the term Afrikaner is ideologically charged. I think people who describe themselves as Afrikaners do not feel themselves as part of South Africa and their objectives do not correspond with the Constitution of the country. As far as I’m concerned, Afrikaners are virtually by definition – with rare exceptions – intolerant and probably also racists. I am convinced that being Afrikaans is as obsolete as a smoke signal and that South Africa would be better served without Afrikaners, just as the country would be better off without Julius Malema.”

On the other hand, according to Croukamp, the term “Afrikaans speaking” includes diverse identities and presupposes no ideological consensus or even necessarily any political autogenous grouping. Croukamp is also of the opinion that people who identify themselves as “Afrikaans speaking” South Africans, are predominantly loyal to South Africa, trust in the Constitution and don’t really care which colour or race the government or state is, as long as it governs in a good and just manner. Their (Afrikaans speakers’) struggle is therefore about better governance, not about a white, Afrikaner government.

Croukamp also believes that some persons who attended the event, virtually begged to have their skills utilised to govern the country in a better manner. According to Croukamp Afrikaners therefore do not view themselves as part of South Africa, their purpose – whatever it may be – is unconstitutional and they are, without exception, disloyal towards South Africa.

These ill-considered and irresponsible comments are not only unconstitutional, but also racist. The crux of racism and racist utterances such as Croukamp’s, is its harmful treatment of, or the attribution of negative characteristics to people because of their race or cultural grouping.

The statement that Afrikaners are, per definition, intolerant and (probably) racist, is not only extremely insensitive and unfounded, but borders on hate speech. Comments that certain South Africans, irrespective of their race, language or culture are less worthy than others and that South Africa is better off without Afrikaners, erode valuable attempts at nation building by all South Africans and cause bitter polarisation of the races within our communities. Furthermore, any person can be ideological. Our Constitution provides for that. The whole idea of our constitutional democracy – that Afrikaners helped build with so many other South Africans – is not only that we are all equal, but that we all matter in the bigger scheme of things. Our Constitution is very clear in this regard: South Africa belongs to all who live in it – united in our diversity.

Afrikaners played a central role in building South Africa and there are many Afrikaners who openly resisted the racist ideologies of the past. These included Bram Fischer, Beyers Naude, Ingrid Jonker , Andre Brink, Breyten Breytenbach and Frederik van Zyl Slabbert, to mention a few.

The fact that some of the individuals that attended the recent discussion offered their skills and expertise to assist in managing the country more effectively, is a further example of the essential will of the Afrikaner to have a permanent share in, and contribute to, the democratic success story of a new South Africa.

What “Afrikanership” entails or may not entail, is an issue that is open to interpretation. People ought to be judged as individuals and on the basis of their personal character, not according to the colour of their skin or cultural grouping. This holds true for all South Africans, irrespective of whether they are Afrikaners, Zulus, Xhosas or Tswanas, or speak North-Sotho, English or Afrikaans.

Our compassion as a nation – which includes all our communities – is that we rose above our segregated past and came to an agreement in our Constitution on a non-racial democracy where human dignity and equality before the law prevails, and that all South Africans can enjoy fundamental rights.

People should be judged as individuals according to the content of their character – and not the colour of their skins – Martin Luther King Jr.

Adv Jacques du Preez
FW De Klerk Foundation

She admits that, since her husband has been retrenched, they have been in arrears with the rental. The couple had offered to repay the amount in instalments or set up a debit order, but received no response.

The reader would like to know whether they could give their landlord one month’s notice or whether they should wait for him to obtain a court order evicting them.

According to Schalk van der Merwe from Rawson Properties Helderberg, the non-payment of rental means the reader is already in breach of the lease agreement.

“Depending on the terms of the agreement, the landlord would usually give her notice of the breach, affording her an opportunity to rectify it.”

Van der Merwe says if the lease was concluded after April 1 last year and is for a fixed period, the provisions of Section 14 of the Consumer Protection Act will apply.

“This section only allows a landlord to cancel a lease once the tenant has been given 20 working days’ notice to remedy the breach but fails to comply.”

Failure to pay the arrears or make suitable alternative arrangements would in all likelihood result in the landlord cancelling the lease, says Van der Merwe.

“Whether or not these steps have been taken by the landlord is not made clear by the reader. She only mentions the text message ordering them to vacate the premises within 10 days.”

In terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (Pie) Act, Van der Merwe says no one may be evicted from a property without a court order.

“A landlord wishing to evict an unlawful occupier has to institute legal action to initiate the procedure.”

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says a notice authorised by a magistrate must be served on the unlawful occupier as well as the municipality, at least 14 working days before the eviction hearing. “This gives the tenant the chance to oppose the action.”

Geldenhuys says a court hearing will determine whether the landlord is entitled to an eviction, taking into account issues such as the rights and needs of children, the elderly and households headed by women.

“If the court finds that the owner is entitled to an eviction order, it will also assign a date by which the tenant must vacate the premises. The owner may call in the sheriff to remove the occupier, should he or she fail to do so.”

In this instance, says Geldenhuys, it would appear that the landlord might be acting unreasonably by not allowing the reader to pay off the arrear rental in instalments.

“If the reason for the arrears is the retrenchment issue, and if the reader has offered to settle the debt in another manner, then it would seem unlikely that a court will grant an eviction order.”

Geldenhuys says the reader may consider consulting an attorney to advise her on her rights, or she may use the protective measures in the Rental Housing Act should she feel that her rights are being negatively impacted upon.

To ask a property related question, visit www.propertyposer.co.za.

The views I expressed related to the reasons why – as a young lawyer and politician way back in the 60′s and 70′s – I supported separate development. I did so within the context of the times and my wish to retain the historic right of my people to self-determination. I believed then that the problems of South Africa could be justly resolved by recognizing the right of all South Africa’s constituent peoples to self-determination through Nation States situated mainly in the areas of the country that they originally occupied. I have long since abandoned these views as an answer to South Africa’s challenges.

During the 1980s I had come to accept that there was no possibility that separate development could lead to a just and acceptable solution to the problems of South Africa.  My colleagues in the leadership of the National Party and I went through a process of deep introspection.  We concluded that apartheid was morally unjustifiable, that it could not be reformed, that the concept of separate development had led to manifest injustice and had to be abandoned.  We further decided that South Africa’s problems could be resolved only by entering into negotiations between the genuine representatives of all its people. The goal would be to establish a non-racial constitutional democracy in which the rights of all South Africans and all our communities would be protected.

I embraced this new vision and dedicated my presidency to this goal.  On 2 February 1990 I launched the initiatives that opened the way to inclusive constitutional negotiations. I presided over the repeal of the remaining apartheid laws and the reincorporation of the national states. I persuaded my constituency to accept the risks that were involved in accepting a new dispensation. I played a leading role in the negotiations that led ultimately to the adoption of our non-racial constitutional democracy in 1996.

I identify myself completely with the values and aspirations expressed in our Constitution and have dedicated myself, in my retirement, to doing everything I can to uphold the Constitution.

I have no residual belief in, or attachment to, separate development.  Whatever the intentions may have been, I concluded many years ago that it had failed and that it had resulted in manifest injustice. In May 1997, in my address to the Truth and Reconciliation Commission I said that apartheid was wrong and apologised to “the millions of South Africans who had suffered the wrenching disruption of being arbitrarily deprived of their homes, businesses and land because of forced removals; who over the years had suffered the shame of being arrested for pass law offences; who over the decades – and indeed centuries – suffered the indignities and humiliation of racial discrimination; who were prevented from exercising their full democratic rights in the land of their birth;  who were unable to achieve their full potential because of job reservation; and who received inadequate social, medical and education services.”

FW De Klerk

Our Constitution provides that everyone, not only a ruling party or COSATU and its supporters, has a right to association, a right to freedom of expression and, peacefully and unarmed, a right to assemble, to demonstrate, to picket and to present petitions. Irrespective of who the parties to today’s incident might have been, the DA and its supporters in this instance were denied, by COSATU and its supporters in a most violent manner, all of the very rights COSATU fervently defends and relies upon to justify its own activities.

Our constitutional democracy is based on human dignity, the achievement of equality and the advancement of human rights and freedoms for everyone who lives in South Africa – not only for certain individuals and not only in certain circumstances. Effective implementation of the Bill of Rights requires a balancing of rights – not absolute rights to any individual or group of individuals, but a measured balance of how the implementation of rights may impact the rights of others. This cannot be more true than when considering the right to dignity and equality, presupposing tolerance and respect for each other and for different ideas including the right to share those ideas even by means of peaceful demonstration.

Regardless of how far ideology or ideas may be removed, no rhetoric, political argument or ideological high ground can justify the violence allegedly meted out by supporters of COSATU yesterday in opposition to a different viewpoint or idea. This undemocratic and criminal behaviour is unacceptable in our society and should be condemned by all South Africans including COSATU leadership and their alliance partners.

The right to associate with a group or their ideas, the right to express those ideas and the right to, in a peaceful manner, assemble, demonstrate, picket or present petitions in support of those ideas belong to all of us and must be respected by all of us – including COSATU and its supporters.

Adv Johan Kruger

• We agreed that we wanted a non-racial and non-sexist society based on human dignity, the achievement of equality and the advancement of human rights and freedoms;
• We agreed that Constitution – and not the majority of the day – would be sovereign.
• We agreed that we would establish a truly democratic system of government subject to the rule of law.

Most importantly, we all agreed on the need for transformation – on the rapid development of our people toward equality, human dignity and the full enjoyment of rights. At the same time, we also agreed on the need to protect our languages and cultures and to ensure that no-one could be arbitrarily deprived of their property.

Parties representing some 90% of our people – and substantial majorities of all our communities – endorsed the constitutional accord. We reached agreement despite our deeply divided and traumatic history. We succeeded despite all the crises, the walk-outs, the violence and the reality that we all had to make painful concessions.

Our achievement was rightly regarded by the whole world as one of the crowning glories of the latter part of the 20th century. It was seen everywhere as an example to all divided societies of what could be achieved by rational debate, compromise and goodwill.

I believe that whatever party we belonged to, it was our finest hour.

We all felt good, that firm foundations had been laid for building a great South Africa. Everything was in place. It was on this basis that the National Party under my leadership handed over sovereign power – not to another political party – but to the Constitution.

It was also on this basis South Africa has made remarkable progress during the past 18 years on a number of fronts:

After decades of isolation and criticism, the new South Africa has emerged as one of the most respected nations in the world.

• We are regarded as an international model for democracy, constitutionalism, human rights and the rule of law;
• We have set an example for national reconciliation and multiculturalism;
• We have played a commendable role in promoting peace throughout our continent;
• We have become a member of BRICSA – the most dynamic group of global emerging economies;
• We play a leading role in international forums – in the UN Security Council and in the African Union.

We have experienced 18 years of economic growth – interrupted only briefly by the global economic crisis of 2008.

• During this period, South Africa, under the guidance of Trevor Manuel, implemented sound macro-economic policies that helped ensure steady growth rates rising to 5% in 2004 – 05. They also helped to protect us from the worst consequences of the 2008 economic crisis.
• We now have the 24th largest economy in the world. We produce 35% of the GDP of sub-Saharan Africa with only 6.5% of its population.
• Our public debt is less than 36% of GDP – and external debt is only 16% of GDP. Countries like the USA, Japan, Italy and Britain would die to have such low debt ratios;
• Tourism now contributes almost 9% of GDP – more than mining.
• Automobile production – at 7% of GDP – is two and a half times bigger than agriculture. In 2008 we produced 600 000 vehicles.

South Africa has shown that we can compete with the best in the world. According to the World economic Forum’s Global Competitiveness Report:

• South Africa’s auditing and reporting standards; and the regulation of its security exchanges are the best in the world;
• Our banks are regarded as the second most sound in the world – and we have the second most effecacious corporate boards;
• The availability of financial services and our minority shareholder protection are the third best in the world;

We have also made remarkable social progress in many areas:

• The percentage of the population living in absolute poverty has declined from 31% in 1995 to 23% in 2008 – largely because of social grants.
• 94% of households now have access to drinkable water;
• more than 3 million housing units have been built – enough to house almost a quarter of the population – with another million units in the pipeline;
• three quarters of the population now has access to electricity and sanitation compared with only half in 1994;

Most importantly, after 350 years of conflict and division, we have started to build a proud, multicultural nation – that Archbishop Tutu has called the Rainbow Nation of God.

• We witnessed the first stirrings our new nation when President Mandela donned the Number 6 rugby jersey after our fairy tale victory in the 1995 Rugby World Cup.
• We saw it come into full bloom two years ago when South Africa hosted the most successful ever Soccer World Cup. We showed the world what we South Africans can achieve when we work together. And when Bafana Bafana was eliminated – all of us black, white coloured and Asian, shifted our support to another African country – Ghana.
• We see it also in the immense pride that we have developed for our national symbols – for our 6-coloured flag and for our multi-lingual national anthem.

All this progress has been achieved on the firm basis of our new constitution.

Unfortunately this very foundation of the great South Africa we were building and that we all want to continue to build, is under threat. On 5 March, in discussion papers for its upcoming policy conference, the ANC announced that the present Constitution had served its purpose and we should move forward to a “second transition”.

According to the policy discussion papers, “our first transition embodied a framework and a national consensus that may have been appropriate for political emancipation, a political transition, but has proven inadequate and inappropriate for our social and economic transformation phase.”

According to the policy papers, the ANC is thinking about dispensing with some of the cornerstones on which our new society has been established, including the present role and powers of the provinces. In line with the controversial Green Paper on Land Reform property rights would also be at risk.

I disagree strongly that the solemn agreements we reached in our historic negotiations during the 1990s were temporary arrangements that can be discarded or amended at the whim of one of the contracting parties.

After the adoption of the Constitution on 8 May, 1996, former President Nelson Mandela said that its founding principles were “immutable”. He described the constitution as “our national soul, our compact with one another as citizens, underpinned by our highest aspirations and our deepest apprehensions”. He also made a pledge that “Never and never again shall the laws of our land rend our people apart or legalise their oppression and repression.”

Neither is there any validity to the claim that the Constitution “has proven inadequate and inappropriate for our social and economic transformation phase.”

The simple fact is that there is nothing in the Constitution that stands in the way of achieving success with social and economic transformation. On the contrary, the Constitution demands that we should all work for a society based on human dignity, the achievement of equality and the enjoyment of human rights.

It is true that, just as we have succeeded brilliantly in many areas since 1994, we have failed dismally in other key areas. The unhappy reality is that:

• the right to equality has been negated by the fact that after 18 years we are still one of the most unequal societies in the world.
• Our catastophic education performance is denying the great majority of our children of any prospect of decent education;
• Unemployment of more than 35% is depriving millions of South Africans of the right to dignity and to persue the professions of their choice;
• rampant violent crime too often deprives people of their right to life; their right to be free from all forms of violence; and their right to property;

Solutions to the problems that confront us do not require constitutional changes: They need instead the kind of sensible and co-operative approach set out in the government’s own National Development Plan.

We are also concerned about recent developments in the national debate relating to the proper role of our judiciary:

• On 8 July, 2011 President Zuma warned that “the powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections”.
• He added that the government’s political opponents should not be able to subvert the popularly elected government by using the courts to “co-govern the country”.
• He later stated baldly that the government wanted to review the powers of the Constitutional Court.
• It would appear that the power of the courts to review legislation and executive conduct is being questioned. In an article on 16 April Adv Ramathlodi, the Deputy Minister of Correctional Services and member of the Judicial Service Commission, wrote that “judicial incursion into other spheres (of government) should happen only in exceptional and limited cases – if at all.”
• In addition, there are growing concerns that the Judicial Service Commission is more concerned with the political orientation of judicial candidates than with their independence, integrity, experience and knowledge of the law. There are persistent allegations that the political majority on the JSC caucus separately and decide beforehand which candidates they will support and which they will reject.

It is not necessary to limit the powers of the courts to promote transformation. The courts are not standing in the way of transformation. Indeed, their judgments in many cases have been a spur to transformation – particularly with regard to the treatment of AIDS, the provision of housing and the recognition of the right of all citizens to vote.

Nearly all the cases that the government has lost in the courts have dealt with questions of power – and not with questions of transformation. They include decisions by the courts:

• in the Scorpions case to require the establishment of an independent investigating capability;
• to protect the integrity of the national prosecuting authority by setting aside the appointment of adv Simelane; and
• to support the Cape Bar Council’s contention that the JSC did not act correctly in the manner in which it failed to fill vacancies on the Cape bench last year.

To sum up: the problems that government is experiencing with social and economic transformation do not lie with the Constitution or with the courts.

However, the most serious threat to our constitutional democracy at present, arises from developments surrounding Lt-General Richard Mdluli. They point to the possibility that things may be going very, very wrong in our National Prosecuting Authority and in sections of the South African Police Service.

We welcome Minister Nathi Mthethwa’s announcement on Wednesday that General Mdluli has been moved from his post as head of the Crime Intelligence Division. We also welcome the Minister’s decision to investigate allegations and counter-allegations by senior police officers regarding interference by the police in the political process.

We note that the Inspector-General of Intelligence is carrying out an investigation into serious allegations against General Mdluli relating to widespread corruption in the Crime Intelligence Division. They include claims that he appointed no fewer than 23 friends and family members to jobs paid for by the Division and that he has made extensive use of official homes and and cars for his private use.

However, we are still very concerned about the manner in which the NPA has dropped fraud and murder charges against General Mdluli.

• Last September, within days of his appointment as the NPA’s head of specialised commercial crimes, Adv Lawrence Mrwebi ordered the lifting of fraud charges against Gen Mdluli.
• He did so over the objections of Adv Glynis Breytenbach who had been dealing with the prosection and who believes there is a prima facie case against Mdluli.
• Breytenbach has since been suspended by the NPA – and two attempts have reportedly been made to kill her.
• the murder charges against Gen Mdluli were dropped despite claims that the authorities involved were in possession of an independent legal opinion to the effect that the charges have prima facie validity;

Most of these allegations are based on media reports – and I am accordingly not in a position to confirm or refute them. The following, however, is indisputable:

• Few of these revelations would have been made if the Protection of State Information Bill had already been enacted.
• If the reports are accurate they constitute the most serious threat to our democracy and to the rule of law since 1994;
• If politicians can decide who will be, and who will not be prosecuted there will no longer be any possibility of successfully fighting government involvement in corruption or of holding government to account.
• Our democracy will be in serious danger if politicians can use the Police and the National Prosecuting Authority to undermine their opponents and to promote their own political careers and agendas.
• The reports are sufficiently well-sourced and persistent to require their immediate and thorough investigation by a suitable, independent body – and preferably by a properly constituted and mandated Commission of Enquiry.
• In particular, and in addition to the enquiries that have been launched by the Inspector General of Intelligence and Minister Mthethwa, such a Commission of Enquiry should investigate the manner in which the NPA dropped murder and fraud charges against General Mdluli and the reasons for its decision to suspend Adv Breytenbach.

There are undoubtedly many members of the ANC who take pride in the movement’s finest traditions of integrity and propriety. I would urge them to take the lead in calling for a Commission of Enquiry into these shocking allegations.

Finally, there is another threat to our Constitution that is, perhaps, the most insidious of all.

It is our own apathy.

It is our unwillingness to support our Constitution and to claim the rights that it guarantees.

All of us continue with our daily lives:

• we take our kids to school and plan for the future;
• we contribute to the economy and try to achieve success in our careers;
• As any Sharks supporter would know – we exult in the successes – and despair at the failures – of our favourite sports teams;
• we go to parties and entertain our friends; and
• we enjoy our leisure time and look forward to our next holiday.

We seldom stop to think that virtually

• everything that we do;
• everything we own;
• everything to which we aspire;

depends ultimately on the preservation of our Constitution and the values, freedoms and rights that it guarantees.

Somehow we continue to regard the Constitution as something peripheral to our lives; something to which we can turn our thoughts only when the need arises.

We must forget such attitudes.

Our future happiness and prosperity and the future security of our children depends directly on the preservation of our Constitution. It is not something that people can simply delegate to this or that political party or this or that civil society organisation.

For evil to prosper it is sufficient that good men should do nothing.

Once a people has lost its freedom it is very difficult to win it back.

I call on you all to take active steps to support the Constitution:

• know what your rights are;
• claim them and insist that the equally valid rights of all other South Africans are respected;
• support organisations like our own Centre for Constitutional Rights that are upholding the Constitution;
• make the Constitution a central part of your thoughts and of your lives – because, believe me, it really should be.

Support for the Constitution is not simply doing something for yet another good cause:

It is the most appropriate and pressing protection of one’s own core interests of which I can think.

Despite the warnings that I have given of the threats that confront our Constitution I remain an optimist. I am confident that many people in the ANC leadership share many of the concerns that I have expressed this morning. I am confident that great majorities from all our communities support the Constitution and its values.

All of us now need to join hands:

• in celebrating the many good things that we have achieved together since 1990.
• in reaffirming our support for our Constitution; and
• in working together to realise its vision of human dignity; the achievement of equality and the enjoyment of all the human rights that it enshrines.

FW De Klerk

A reader writes that her neighbour planted a hedge on her own side of a shared boundary wall but that, over time, the hedge grew and covered the whole wall, including the reader’s portion.

She says she did not have a problem with this because the original wall was quite low and the hedge actually provided additional privacy.

Unfortunately, the neighbour recently decided to trim it down to wall height on both sides.

The reader is unhappy that her portion has also been cut down and feels that her neighbour infringed on her property rights, as she clearly had to lean over her wall to reach the hedge.

She would like to know what her rights are in this regard.

This situation is slightly different from the usual boundary issues, says Schalk van der Merwe from Rawson Properties Helderberg.

“Most neighbours complain about overhanging branches encroaching on their properties and demand that they be cut down.”

Van der Merwe says, as a landowner, you are entitled to enjoy, use, consume, convert, alter or destroy your property and what the land produces in any way you please within the limits of national and local authority regulations.

“This is provided you do not interfere with the legal rights of others, including your neighbours’ rights to the same enjoyment of their property.”

It is helpful to think of the boundary between properties as the point where your rights end and those of your neighbour begin, says Van der Merwe.

“If branches of a tree growing on an adjoining property overhang your property, you may ask your neighbour to saw them off and remove them from your land.”

If your request is denied, you may saw the branches off to the extent that they overhang, although you may not keep them unless your neighbour refuses to collect them, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“You may then recover from your neighbour the reasonable expense of removing the branches.”

Alternatively, says Geldenhuys, you may force your neighbour to remove the offending branches by obtaining an interdict, compelling him or her to do so.

“On the basis of the above principles, it would appear that, in this instance, the neighbour may have had the right to remove branches and foliage comprising the hedge, insofar as these originated on her side of the wall and encroached on the reader’s property.”

However, by doing so, the neighbour appears to have infringed on the reader’s property rights by trespassing in order to do so, says Geldenhuys.

“Our reader’s remedy may be tricky as, from a civil law perspective, the damages must be proved and quantifying them could be difficult.”

A criminal charge of trespassing may be possible but, says Geldenhuys, the reader should consider whether pursuing this approach would benefit the already difficult relationship between them.

To ask a property related question, visit www.propertyposer.co.za.

She explains that she pays her rental in advance and her utilities in arrears and settles them jointly around the 27th, even though her lease stipulates that they are only due at the end of the month.

Recently, her landlady obtained an up-to-date municipal account and insisted that the amount was payable by the 7th even though, in the normal course of events, the reader would have paid it at month-end.

The landlady even went as far as disconnecting the electricity as a result of non-payment. The reader would therefore like to know what her rights are.

In the absence of further information, one must assume that the rental agreement stipulates that the utilities are payable with the rental on or before the end of the month, says Schalk van der Merwe from Rawson Properties Helderberg.

“The landlady is therefore acting in breach of the agreement between the parties.”

Furthermore, says Van der Merwe, the provisions of the Rental Housing Act state that it is an unfair practice for a landlord to unlawfully shut off the utilities to a rented property.

“The regulations provide that a tenant may lodge an urgent complaint with the Rental Housing Tribunal for spoliation or an interdict.”

Van der Merwe says the landlord may not interrupt the supply of services to the tenant’s dwelling without a court order and a landlord who fails to comply may be liable for the payment of a fine or even imprisonment.

The courts do not want people to take the law into their own hands, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“When a person owns or is using something like municipal services that is then taken away from them, he or she can apply for a spoliation order for its restoration.”

Geldenhuys says the investigation does not take into account whether the previous user or owner had lawful rights to the item or services, simply whether the current user (tenant) was in peaceful possession thereof and that it was taken away.

“The merits of the matter will be investigated at a later stage should the parties take it further.”

The appropriate remedy for the reader is therefore to approach the tribunal for urgent relief, says Geldenhuys.

“If our reader requires quicker assistance, she might seek the assistance of an attorney who could warn the landlady of the consequences of her actions should she continue to take the law into her own hands.”

To ask a property related question, visit www.propertyposer.co.za.

This week a buyer tells us that the transfer of his property is still in progress but substantial leaks in the roof have been discovered.

When the reader reported it, the estate agent obtained quotations for the repairs and a claim was instituted with the relevant insurer. It has subsequently transpired that the insurer will not cover the claim and it also appears that the seller will not accept the quotations.

As we have mentioned before, in order to find a solution, one has to distinguish between latent and patent defects, says Schalk van der Merwe from Rawson Properties Helderberg.

“A patent defect is something that is, or should be, identifiable upon inspection of the property in a reasonable manner. Examples include wall cracks, broken windows, missing tiles and so on.”

A latent defect on the other hand is not apparent during an ordinary inspection by a reasonable buyer, says Van der Merwe. “It includes faults that are not immediately obvious and are hidden from view, such as dampness behind a piece of furniture.”

Van der Merwe says it is important to remember that the test is objective – it takes into account what could have been seen during the original inspection of the property, not only what the buyer did, in fact, see.

“A leaking roof is not something that would necessarily be visible upon inspection, unless there is evidence of watermarks on the ceilings.”

The reader has not indicated whether he had noticed any problems or asked any pertinent questions during the initial inspection, says Van der Merwe.

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says the question of whether or not the seller was aware of the leak also needs to be considered.

“Had be been aware and not disclosed it, the purchaser may have a claim varying from a reduction in the purchase price to claiming for repairs. He could possibly even seek to cancel the contract, if he can show that he would not have bought the property had he known about the defect.”

Geldenhuys says the Consumer Protection Act is only helpful in such a situation if the transaction falls within the provisions of the Act. “The Act is applicable to transactions that are concluded in the ordinary course of the seller’s business.”

For example, a developer who builds and sells properties and enters into sale agreements as part of his daily business dealings would be subject to the Act, says Geldenhuys.

“Whereas property speculators fall under the same classification, once-off transactions, such as when individuals sell their homes, are not subject to the Act.”

However, says Geldenhuys, the estate agent’s service is regulated by the Act even if the transaction is not, therefore the agent must ensure that he or she markets a property responsibly by obtaining as much information as possible from the owner.

To ask a property related question, visit www.propertyposer.co.za.

A reader writes that, a few years ago, her son and his wife suggested that their double garage be converted into a flatlet for her and her partner. Part of this arrangement included that a new double garage be constructed on the property.

The financing for these alterations was provided by the reader who raised a bond on another erf she owns. She also agreed to pay the monthly electricity charges in respect of the whole property, not only the flat, while her son and daughter-in-law would take care of the rates and garden services.

Unfortunately, four years later, the reader’s son and his wife got divorced. He moved out and his ex-wife remains on the property with his mother.

Our reader’s concerns relate to whether her son’s ex-wife can evict her from the property without refunding her for the improvements made at her own expense.

Her former daughter-in-law refuses to reduce the agreement between them to writing and the reader is concerned what the effect will be on her rights, particularly when she reaches retirement age.

There are two aspects that need to be considered says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch. “Firstly, the right to live on the said property and, secondly, the improvements on someone else’s property paid for by the reader.”

In the absence of the right to live on the property being registered against the title deed, which it does not appear was the case here, it simply remains a personal right, says Geldenhuys.

Should the owner of the property commence with eviction proceedings, Geldenhuys says the terms of the agreement may be used as a defence.

“The oral nature of the agreement doesn’t make it any less binding, it is simply more difficult to prove its terms.”

According to Schalk van der Merwe from Rawson Properties Helderberg, there are a few important aspects to highlight as far as improvements to the property are concerned.

“In this instance, it is clear that the owner of the property consented to the improvements that were made and these almost certainly increased the value of the property.”

In the event of the reader being successfully evicted, for whatever reason, Van der Merwe says she certainly has grounds for compensation.

“It is clear that there is a basis for a claim against the owner, whoever that may be, founded on the improvements made to the property.”

To ask a property related question, visit www.propertyposer.co.za.

Mr Nzimande is very critical of the media, opposition parties, the courts and NGOs ‘like the F W de Klerk Foundation’ which he believes are trying to subvert the right of the majority to govern. In support of his views in this regard he cites the declaration in the Freedom Charter that “the people will govern!” He says that the Freedom Charter “constitutes the fundamental basis of our democracy.”

Well, of course, it doesn’t. The Freedom Charter is the mobilisation document of the ANC – and as such has played an important and generally respected role in our recent history. However, the foundation of our democracy is our Constitution which was negotiated and adopted by parties representing a large majority of all South Africans and of all our communities. It belongs to all of us.

Our Constitution makes full provision for government by the elected representatives of the majority of our voters. It endows the government that they elect with all the powers that it needs to carry out the mandate it receives from the electorate. The people do, indeed, govern. However, because our new society is based on the supremacy of the Constitution and the rule of law, the Constitution requires that all laws and executive conduct must be compliant with the Constitution and the Bill of Rights. Mr Nzimande cannot be opposed to this because, as a Minister, he has taken an oath to uphold the Constitution which places reasonable restraints on the ability of the majority to do as it pleases.

In this manner, the Constitution protects the rights of individuals and minorities however defined. Mr Nzimande should understand that in multicultural societies like our own, such safeguards are particularly important in assuring that the reasonable rights of minorities – whether they are political, economic, cultural, language, or sexual – are not violated by an unrestrained majority. International conventions to which South Africa is a party also require respect for the reasonable protection of the cultural, language and education rights of minorities.

Such protections are clearly necessary when a senior minister feels free to express the racially hostile sentiment that “the overwhelming majority of the white minority were deadly opposed to majority rule.” In fact, at the urging of President De Klerk, almost 70% of whites voted in the 1992 referendum in favour of the continuation of negotiations which everyone knew would culminate in majority rule.

Mr Nzimande’s understanding of the role of the courts in our democracy also appears to be less informed. In a recent judgement of the Supreme Court of Appeals in Democratic Alliance v President of the Republic of South Africa & others 2012 (1) SA 417 (SCA), the court held: “Section 1(c) of the Constitution proclaims the supremacy of the Constitution and the concomitant of the rule of law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy”. Simply stated, our courts have an imperative role to play in keeping the legislature and executive true to the Constitution.

Of course, the Constitution can be amended, subject to the constitutionality of such amendments. In this regard, our courts have an important role to play in reviewing the amendments effected by the legislature so as to control public power premised on the Constitution and the rule of law. Ordinary provisions can be amended with a two-thirds majority but the founding values – which encompass the essence of our non-racial democracy – can be amended only with a 75% majority. All constitutions must evolve with time – but it is generally accepted that such amendments should be considered only in special circumstances and after the broadest possible consultation.

There is one section of the Constitution that we believe should be changed if we really want the people to govern. Perhaps, Mr Nzimande will join us in a campaign to do so? It is section 47 (3) (c) which provides that a person loses membership of the National Assembly if that person … ceases to be a member of the party that nominated that person as a member of the Assembly…”  In other words, the people, through their representatives do not govern. The party bosses govern. There is virtually no accountability of members of parliament to the electorate between elections. How, then, can they govern?

Mr Nzimande expresses amazement at what he terms “a huge outcry, manufactured in the media and the ranks of the opposition that there is a threat to our constitution.” Yet , it was the ANC itself – and not these “anti-majoritarian”  formations – that  stated only last month that the constitutional compromises in “our first transition” have “proven inadequate and inappropriate for our social and economic transformation phase.” It was the ANC’s own constitutional guru, Adv Ngoako Ramathlodi, who last September launched a comprehensive assault on the Constitution.

Let us make it perfectly clear: We fully accept the right of the elected representatives of the majority to rule within the framework of the Constitution.

However, while we are considering this critically important right, we would like Mr Nzimande to inform us how it could have happened that a President was dismissed and national policies were changed after the Polokwane conference in 2007 with no mandate whatsoever from the electorate?

We would also like to know how it happens that his party has some 80 members in parliament – who were not elected under the banner of their own party – but who nevertheless give their prime loyalty to that party? If he is so enthusiastic about the right of genuine representatives of the majority to govern, why doesn’t the SACP stand as a separate party in elections? Also, how does Mr Nzimande reconcile the view of SACP/COSATU that “the dictatorship of the proletariat is the only guarantee that there will be a transition from NDR to socialism.” How would the will of the majority be ascertained under a communist dictatorship – and how would the people then be able to govern?

F W DE KLERK FOUNDATION

Congestion is expected as a record entry of 8 312 participants from a record 153 Western Cape schools converges on upper campus on Monday evening, 16 April, for the annual UCT Mathematics Competition.

After registration, the young maths boffins will gather in 63 different venues across the campus to write the contest papers. Over 200 maths teachers from local schools will assist.

Engineering group Aurecon has donated R20 000 towards transport for 283 participants from 13 schools in Khayelitsha.

Separate papers for each of grades 8 to 12 have been set by a committee of maths teachers and UCT lecturers. The problems are designed to test insight and creative thinking, unlike school exams that consist of standard exercises requiring stereotyped solutions.

“Full marks in the UCT Mathematics Competition is a rare event,” said Emeritus Professor John Webb of the UCT Mathematics Department. “The UCT Maths Competition has proved to be an excellent way of uncovering mathematical potential in our high schools.”

While the best pupils will vie against each other for top honours as individuals, those who feel that two heads are better than one may compete as pairs. Pairs and individuals write the same paper, but are ranked separately.

The results will announced at a prize giving on 7 June 2012 in the Baxter Concert Hall.

The UCT Mathematics Competition is sponsored by Aurecon and Capitec Bank, with prizes donated by Casio and Oxford University Press.

Read More on University of Cape Town / Daily News: Congestion expected when young math boffins arrive

In this instance, the driveways of the complex had to be resurfaced with tar and a special levy was raised to cover the cost. The reader reports that the first section was very poorly done and it was not long before the tar started lifting and sticking to car tyres.

In the end, only a small number of the driveways were completely retarred, with the rest of the surfaces simply being patched, leaving unsightly areas of tar.

Despite complaints from the residents, the trustees have not held the contractor accountable for his poor workmanship.

He has already been paid in full and the reader would like to know what recourse residents have against the trustees for being remiss in their duty to ensure that the work was done properly.

The trustees are in a fiduciary relationship to the body corporate, says Schalk van der Merwe from Rawson Properties Helderberg.

“This implies that every trustee must act honestly, in good faith, and in the best interests of the owners and the body corporate at all times.”

Van der Merwe says trustees must understand the consequences of their control and management of the sectional title scheme. “If a trustee is found guilty of gross negligence, he or she can be held personally liable for the financial damages.”

If one considers the trustees’ fiduciary responsibility to the body corporate, it becomes apparent from the common law that they have a duty of trust, as well as a duty of care and skill, says Van der Merwe.

“Our reader and the other residents may therefore rightly ask whether the trustees have properly exercised the duty of care and skill in accepting the workmanship of the contractor.”

As elected officials, the body corporate may demand that the trustees remedy the current situation, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

“Of course, if they’re not satisfied with the manner in which the trustees deal with it, the body corporate may choose not to re-elect them or even to remove them at a special general meeting.”

Only where it appears that the trustees had acted with mala fides (bad faith) or gross negligence can they be held personally liable for their actions, says Geldenhuys.

“In the absence of further evidence it is very difficult to determine whether that was indeed the case in this instance.”

Geldenhuys says the trustees’ documentary evidence in the appointment of the contractor and their endeavours to enforce the warranty should provide some assistance in this regard.

To ask a property related question, visit www.propertyposer.co.za.

Sighs of relief all round. The Green Mile will host FNB Varsity Cup rugby again next year.

A disappointing season could have become a disastrous one had UCT’s Ikeys not recovered from an early scare against the Central University of Technology (CUT) in the Varsity Cup promotion/relegation playoff on 9 April. After conceding a shock early try, the Ikeys cranked up the pace to thrash Varsity Shield runners-up CUT by 60-21.

Lock Levi Odendaal opened the scoring for UCT in typical forward fashion, bashing over near the poles. Havoc was duly cried, and eight more tries followed for an emphatic end to a season that previously contained just one Ikey victory (the obliteration of the Tshwane University of Technology’s Vikings).

For the defending champions, contesting a promotion/relegation match was not on the agenda when Varsity Cup 2012 kicked off. But, unable to shake early underwhelming form, the Ikey Tigers were forced to fight for their lives in a curtain-raiser to the final.

Before the match, UCT captain Ntsolo Setlaba had mentioned how eager the squad was to build a solid foundation for the future. “We’re all looking forward to putting the Varsity Cup behind us and building towards next year,” said Setlaba.

And, with UCT assured of a place in next year’s Varsity Cup, all eyes could turn to the final, in which the University of Pretoria’s Tukkies gave the Maties of Stellenbosch a 29-21 rugby lesson to clinch the crown.

The win marked the first time in the competition’s five years that the Cup silverware has left Cape Town.

Read More on University of Cape Town / Daily News: Ikeys live to fight another year

Khoza made the remarkable claim that because Mr Mandela is black, “F W de Klerk couldn’t acknowledge him.”

In fact, F W de Klerk – in his speech to the River Club – singled Mr Mandela out as one of the great leaders of the age. Mr Mandela was one of six leaders cited by Mr De Klerk “who in their own ways have changed the histories of their countries or even of the world”. Mr De Klerk described Mr Mandela as “a principled man and a great communicator. Through his natural charm and consideration he played an indispensible role in promoting reconciliation and in laying the foundations of our new non-racial nation.”

At the same time, Mr De Klerk said that “he did not subscribe to the general hagiography surrounding Mr Mandela. He was by no means the avuncular and saint-like figure so widely depicted today. As a political opponent he could be brutal and quite unfair. During the negotiations and while I served as Deputy President in the Government of National Unity we often had bruising clashes. But such is the nature of politics.”

“However, whenever the situation required it, he was able to rise above the political passions of the moment and join me in hammering out reasonable compromises that enabled the process to continue. He also had the stature and the strength to hold his fractious alliance together – even at the most difficult junctures.”

Anyone who has studied our recent history will understand the reasons for Mr De Klerk’s views in this regard.

Mr Khoza added that “it was not a surprise that such statement comes from De Klerk because he is one of the people who made lives of South Africans difficult during struggle times.” In fact, as Mr Khoza should know and acknowledge, it was F W de Klerk who initiated the transformation process that led to the release of Nelson Mandela, constitutional negotiations, the establishment of our non-racial constitutional democracy – and to a substantial improvement in “the lives of South Africans”.

If the ANC is sincere in its often repeated calls for a national dialogue, it will simply have to do better than this. Mr Khoza’s statement bears little or no relation to what F W de Klerk actually said. The disturbing possibility is that it is a new brand of communication – recently witnessed in the brouhaha over Premier Zille’s ‘refugee’ remark – in which personal attack and mindless sloganeering are substituted for rational analysis and debate.

FW De Klerk Foundation

Editor’s Notes: Young (?) Keith Khoza must have not read the verbatim report of De Klerk’s speech at the River Club – FYI Keith, the entire speech is available here: Politicians and Statesmen I have Known.

Obz Square has been a project of many milestones, each celebrated with due pomp and ceremony.

The latest celebration, on 3 April, was to mark the residence’s official opening, which of course happened earlier this year. Now settled in, the students and staff are reaping the rewards of this labour of love, and they love it.

“The people who designed this building had the chief aim in mind to make students’ lives easier,” says resident and arts student Nina Lewis. “This allows us to focus on our priorities, such as academics.”

And with grand beginnings comes great responsibility.

“While the amazing technology and engineering are the bones and flesh that make up the residence, the spirit that animates its life come from its students and leaders,” Lewis added.

Speaking on the night, both the chair of Council, Archbishop Njongonkulu Ndungane, and acting vice-chancellor, Professor Thandabantu Nhlapo, agreed that providing accommodation for all UCT students who need it remains an on-going challenge. The opening of Obz Square is, however, a step in the right direction. “The answer, in part, is in this residence,” said Nhlapo.

The evening also marked the unveiling of the much-anticipated sculpture Layers of Mind by sculptor Angus Taylor, which now stands in front of the residence.

Read More on University of Cape Town / Daily News: Hail to Obz Square