AfriForum asks Court of Appeal judge to recuse herself from the “Kill the Boer” case
10 September 2023
AfriForum’s legal team this past Friday sent a letter to the Registrar of the Supreme Court of Appeal in which it is officially requested that acting Judge of Appeal Raylene Keightley recuse herself from further participation in the panel of judges who must rule on AfriForum’s appeal application against Julius Malema and the EFF’s use of the chant “Kill the Boer”.
This request follows after it came to light this past week that Keightley lashed out against AfriForum in court in 2018 by arguing that this civil rights organisation is unwilling to move beyond its “anachronistic positions”. At the time, she also stated that AfriForum might wish to consider to apply for her recusal should she preside again in a case in which AfriForum is involved.
In this lawyer’s letter AfriForum asks that Keightley should follow her conscience and recuse herself, but indicates that, should she not do so, AfriForum will bring an official court application for her recusal from the panel. According to AfriForum Judge Keightley’s actions during the hearing in Bloemfontein this past Monday, as well as the previous statements by this judge about AfriForum, gave rise to the reasonable suspicion that Judge Keightley is biased against AfriForum.
Kallie Kriel, CEO of AfriForum, says that he and AfriForum’s legal team in the “Kill the Boer” case were only informed after Monday’s hearing – in which he experienced Keightley to be openly biased – of Keightley’s tirade against AfriForum in the High Court in Pretoria on 15 June 2018. According to Kriel, Keithley ruled against AfriForum at the time in the court case regarding Unisa’s decision to scrap Afrikaans as a language of instruction. Keightley granted leave to AfriForum to appeal against her ruling and then, according to Kriel, said that given that she had already decided to grant leave, she could say “these things” about AfriForum. Kriel pointed out that both the Court of Appeal and the Constitutional Court subsequently ruled in AfriForum’s favour against Keightley’s initial judgement.
According to Kriel, Keightley’s partial actions put the spotlight anew on the danger that the current political composition of the Judicial Service Commission poses for the credibility of the judiciary. “If Keightley, who is currently acting as Judge of Appeal, wanted a permanent appointment in the said court, she would have to appear before the Judicial Service Commission, of which Julius Malema is a member, and be recommended for the position by Malema and other members. AfriForum has always had high regard for the Supreme Court of Appeal and its judges, but this kind of conflict of interest and Keightley’s actions pose the danger that ordinary people may lose confidence in the courts,” concludes Kriel.
Kallie Kriel
CEO
AfriForum
Text of letter and extract from transcript:
***
LETTER TO THE SCA
Pretoria-offices:
Second Floor, Block A, Loftus Park 416 Kirkness street, Arcadia Pretoria, 0007
Centurion-offices:
54 Union Avenue (c/o Union Avenue & Kort street) Kloofsig, Centurion, 0158
Hurter Spies Incorporated
Reg. no. 2008/009761/21
Attorneys/Notaries/Conveyancers
Our ref. MAT3574
Your ref. SCA Case 1105/22
THE REGISTRAR
THE SUPREME COURT OF APPEAL
C/O Elizabeth- & President Brand Streets Bloemfontein
9301
Dear Ms. Vermeulen,
08 September 2023
RE: AFRIFORUM v ECONOMIC FREEDOM FIGHTERS AND TWO OTHERS (1105/22) - 4 SEPTEMBER 2023
1. We refer to the above matter.
2. We are instructed to record the following.
3. On 8 September 2023 – thus subsequent to the hearing conducted in the above matter on Monday 4 September 2023 – our attention was drawn to a transcription of remarks concerning our client made in a previous hearing in which our client was a party. The remarks were made by Justice Keightley, sitting as a High Court judge. We attach the transcription, marked “A”.
4. In granting our client leave to appeal in that matter (the matter successfully proceeded on appeal to this Court, which reversed the judgment of Keightley J), Keightley J referred to what she described as a need “to move beyond anachronistic positions which your client seems to be unwilling to do” (annexure ‘A’, p13 l5). She continued that she believed she could “say these things now…because it does not matter[,]I am granting you leave”.
5. As the transcript then reflects, counsel acting for our client immediately expressed concern: “[b]ut the remarks, the remarks are very pertinent”. However, he was cut short, with a further intervention from the Bench expressing that “as South Africans who have less melanin than our fellow South Africans we could learn to move more forward than more back” (ibid, ll16-20).
6. Counsel for our client endeavored again to address the Court. Again it intervened (as the transcript itself notes). When he was nevertheless able to make the submission, it was that “that is a very unfortunate perception about the applicant and I must, I must say that” (ibid, ll 21-24). The Court thereupon intervened again, twice, and stated: “And next time you [are] in front of me you might wish to apply for my recusal” (p14 l 2). Further remarks regarding our client (ll12-20) ensued.
7. It is apparent from the above that Keightley J considered herself free to express these views about our client, contemplating that they were such as might well found her recusal in future.
8. Our client has, in the circumstances, instructed us respectfully to request Justice Keightley (recusal being in the first instance a matter for the conscience of the individual judge) to recuse herself, failing which our client would be constrained to apply to this Court for her recusation from further engagement in it.
9. The comments made by Justice Keightley during the earlier case involving our client came to the attention of members of this firm acting in the present matter only after the conclusion of the hearing on 4 September 2023. The attorney representing our firm in the earlier matter, Werner Human, has since left the employ of our firm. No official or staff member of our client engaged in the earlier matter, over five years ago now, was involved in the present matter at any time. The official engaged in the UNISA matter, Ms. Alana Bailey, was not involved in the present matter at any stage. Thus, it was only post-hearing that, by chance remark to the
writer of a former candidate attorney now a director of this firm, we or our client became aware of Justice Keightley's earlier remark that AfriForum might consider applying for her recusal in future cases involving it. Had those members of our firm engaged in this matter, or those officials of AfriForum instructing us, been aware of what had transpired, quoted above, our client – it has instructed us – would without doubt have asked prior to the hearing in this Court for Justice Keightley’s recusal, she having anticipated by her statement cited above that recusal might well follow upon her remarks.
10. Our client has been advised that following the hearing no approach by counsel to the judge concerned in chambers (in compliance with the established convention) would be proper. It accordingly asks that this respectful request for recusal be conveyed to Justice Keightley (and of course notified to other members of the Court sitting on the matter). It is the unfortunate but unavoidable conclusion of our client, in the circumstances, that Justice Keightley has demonstrated bias against our client, or at least has expressed herself in terms directed at our client such as to found a reasonable apprehension of bias.
11. In the event that you determine that this request not be forwarded to Justice Keightley (copied to other members of the Court), or that Justice Keightley declines the request, our client has instructed that we lodge an application with President, in terms of SCA Rule 11(1)(b). We accordingly would be grateful for your response, which we await.
12. The attorneys for the respondent are copied.
Yours faithfully,
HURTER SPIES INC.
Per. Daniël Eloff
CC: IAN LEVITT ATTORNEYS
ATTORNEYS FOR THE RESPONDENTS
The Leonardo Office Level 12
75 Maude Street Sandton
Ref. A Charalambous / MAT3273
CC: KRIEK WASSENAAR & VENTER INC. ATTORNEY FOR THE AMICUS CURIAE
3rd Floor, HB Forum Building
13 Stamvrug Street, Val de Grace Pretoria
Tel: 012 803 4719
Fax: 086 596 8516
Ref: P WASSENAAR/nn/QB1085
***
TRANSCRIPT
IN THE HIGH COURT FOR THE DISTRICT OF
GAUTENG, HELD AT JOHANNESBURG
CASE NO: 54450/2016 DATE: 2018-06-15
In the matter of
AFRIFORUM Applicant
and
UNISA Respondent
BEFORE THE HONOURABLE MADAM JUSTICE KEIGHTLEY
ON BEHALF OF THE APPLICANT : NO ANNOTATION
ON BEHALF OF THE RESPONDENT : NO ANNOTATION
INTERPRETER : NOT REQUIRED
TRANSCRIBERS CERTIFICATE
This is to certify that, insofar as it is audible, the aforegoing is a true and correct transcript of the proceedings recorded by means of a mechanical recorder in the matter of:
AFRIFORUM // UNISA
CASE NUMBER : 54450-2016
RECORDED AT : PRETORIA HIGH COURT
DATE HELD : 2018-06-15
TRANSCRIBER : BELINDA DU PLOOY NUMBER OF CD/AUDIO FILES : USB
NUMBER OF PAGES : 19+1
COURT RESUMES ON 15 JUNE 2018 [09:30]
COURT: Appeal in Afriforum versus Chairman of Counsel of the University of South Africa.
ADV FOR APPLICANT: As the court pleases. I appear on behalf of the applicant.
COURT: Thank you.
ADV FOR RESPONDENT: As the court pleases M'Lady, I am for the respondent.
COURT: Thank you.
10 ADV FOR APPLICANT ADDRESSES COURT: M'Lady, in the application for leave to appeal we have dealt with I submit by two separate and ...[intervenes].
COURT: Let me just get it first sorry. There we go. Ja?
ADV FOR APPLICANT: As I read and understand section 17 of the Superior Courts Act the two grounds which we have... which we are advancing compelling reason as well as reasonable prospect of success.
COURT: Ja.
ADV FOR APPLICANT: Are two separate and distinct grounds on which the court may grant leave to appeal. First and foremost is then the grant compelling reason and I submit irrespective of consideration of reasonable prospects of success ...[intervenes].
COURT: What is your case law for that?
ADV FOR APPLICANT: May I refer to... to uhm... I am going to refer to two sources. The one is ...[intervenes].
COURT: I am assuming they are in your... are in your grounds or not?
ADV FOR APPLICANT: No, no they are not ...[intervenes].
COURT: Not, no they would not ...[intervenes].
ADV FOR APPLICANT: They are not mentioned there.
COURT: No they would not be sorry. Yes?
ADV FOR APPLICANT: First of all in the University of the Free State case Afriforum Constitutional Court case.
COURT: Ja?
ADV FOR APPLICANT: Justice Froneman said the following ...[intervenes].
COURT: Yes but she was the minority.
ADV FOR APPLICANT: Yes but that does not mean that what he said was not valid law at that stage.
COURT: All right.
ADV FOR APPLICANT: There are separate aspects that comes from the minority judgment which I submit is it does not contradict the validity ...[intervenes].
COURT: Okay what did he say?
ADV FOR APPLICANT: On page 220 of the judgment he says
...[intervenes].
COURT: Page or paragraph?
ADV FOR APPLICANT: Page 220.
COURT: Paragraph?
ADV FOR APPLICANT: Paragraph B.
COURT: Have you got a paragraph of his judgment?
ADV FOR APPLICANT: Yes I am referring to ...[intervenes].
COURT: No I am saying is his ...[intervenes].
ADV FOR APPLICANT: Oh.
COURT: Is his judgment does it have numbered paragraphs?
ADV FOR APPLICANT: Yes, yes.
COURT: Because ...[intervenes].
ADV FOR APPLICANT: It is part of ...[intervenes].
COURT: You may or may not know but we still do not have full access to the law reports.
ADV FOR APPLICANT: Oh.
COURT: So despite reports to the contrary.
ADV FOR APPLICANT: Yes.
COURT: So just if you do not mind also giving me the paragraph number.
ADV FOR APPLICANT: Yes as the court pleases. It is part of paragraph 119.
COURT: 119, but it looks to me as if it is quite a long way in from what you say.
ADV FOR APPLICANT: Ja. It starts on page... paragraph 119 starts on page 219.
COURT: All right.
ADV FOR APPLICANT: At the foot and it goes over to 220.
COURT: Yes.
ADV FOR APPLICANT: And the relevant portion is on 220.
COURT: Yes.
ADV FOR APPLICANT: Judge Froneman referred to the Albert case that... that Your Lady has also referred to in your judgment.
COURT: Ja?
ADV FOR APPLICANT: Where Nyobo CJ stated the following:
"This is not a case where the prospects of success are necessarily determinative of the interest of justice. The issue raised in the application for leave to appeal is of considerable constitutional importance, it is an issue which goes to the unfinished business of nation building and national reconciliation. It is an issue which calls for an early and definitive decision of this court."
Now before I refer to the other... and I want to refer to Erasmus, what Erasmus is also saying.
COURT: Just... Ja just take me... just tell me what Erasmus says.
ADV FOR APPLICANT: Ja but I just want to ...[intervenes].
COURT: Is it really necessary in this case? I mean of you say that your reasonable pros... If you say you have got reasonable prospects you have got reasonable prospects. You know ...[intervenes].
ADV FOR APPLICANT: Yes but we... we ...[intervenes]
COURT: And... and then ...[intervenes].
ADV FOR APPLICANT: Application is grounded ...[intervenes].
COURT: I would consider the two anyway and it may well be granted.
But let us just think practically here, just... just let us think practically. You know if you... You know this is clearly a constitutional issue I understand that. We understand the importance of that, we understand all of that.
ADV FOR APPLICANT: Yes.
COURT: If you have got a shot at reasonable prospects well you should be granted leave.
ADV FOR APPLICANT: My submission is we submit that we do have indeed reasonable prospects ...[intervenes].
COURT: Ja well ...[intervenes].
ADV FOR APPLICANT: Of success and I will elaborate on that in argument. The only point I wish to make, if Your Ladyship, finds that there is no reasonable prospect of success that is not decisive of this application.
COURT: All right I take your point.
ADV FOR APPLICANT: Yes.
COURT: But just carry on.
ADV FOR APPLICANT: Yes. The... I am not going to then elaborate on ...[intervenes].
COURT: No do not elaborate.
ADV FOR APPLICANT: On compelling reasons ...[intervenes].
COURT: I mean if I find you have got a shot on reasonable prospects it is clearly obviously a constitutional issue you know and that carries with it various... there are various factors that go along with that.
ADV FOR APPLICANT: Yes.
COURT: So yes what else, what on your prospects? Where... where did uhm... ja so carry on.
ADV FOR APPLICANT: These second aspect which I need to draw Your Ladyship's attention to is that unlike in the University if the Free State case the Constitutional Court has since with regards to the application for leave to appeal ...[intervenes].
COURT: In the Stellenbosch matter?
ADV FOR APPLICANT: And the ...[intervenes].
COURT: No I saw that yesterday.
ADV FOR APPLICANT: Has decided to hear the matter.
COURT: Or the day before. So tell me what the issues are there.
ADV FOR APPLICANT: In that... in that case the judgment and we have not dealt with this before Your Lady in argument, but I have got the judgment here. If I may just [indistinct] summarise it?
COURT: Ja please.
ADV FOR APPLICANT: The... to use the words of Judge Froneman in the Free State case ...[intervenes].
COURT: No, no, no rather just tell me about the University of Stellenbosch ...[intervenes].
ADV FOR APPLICANT: No, no I just want to use his chronology. It is about diminution of Afrikaans, not taking away as Froneman J has stated ...[intervenes].
COURT: Yes okay.
ADV FOR APPLICANT: In the Free State case. So there on the interpretation of that policy the court parted ways with the... with the applicant as far as eroding Afrikaans at Stellenbosch, which the court says it is primarily parallel medium.
But there is a lot of other principles that the court, the full bench in the Cape actually endorsed as far as again what was stated in the Gauteng Bill case by Justice Sachs. The importance of Afrikaans, the importance of its retention it actually also referred to its national covenant [?] where there is actually an [indistinct] where you remove and take away the rights on the... the party that does that.
So the point is that it would appear that the Free State judgment of the Constitutional Court is not... although there are obviously important guidelines and principles there is still a context application
...[intervenes].
COURT: Well I have to tell you if the Con Court has granted leave to appeal in another university language case and not just refused that like it did in the Free State, it would seem to me it would be... it would be not reasonable of me to not let the matter go on appeal. There is a prospect of ...[intervenes].
ADV FOR APPLICANT: I subm ...[intervenes].
COURT: Of further principles being laid down but that is my prima facie view.
ADV FOR APPLICANT: Yes.
COURT: Let me hear what your learned friend has to say, he will no doubt try and persuade me otherwise. You know if we were still in the position of the University of the Free State case and nothing further ever happened. But surely if the Con Court has granted leave in the Stellenbosch case, I mean surely I must leave the door open in this case.
ADV FOR RESPONDENT ADDRESSES COURT: M'Lady, we would submit first for [indistinct] please finally that I can speak or sing for my supper for the first time in this entire matter. I have had never had a word in, I have always sit quietly at the back. M'Lady ...[intervenes].
COURT: That is what juniors do.
ADV FOR RESPONDENT: That is what we do. M'Lady, ...[intervenes].
ADV FOR APPLICANT: I would say he had his bite at the cherry in the interdict application I think.
COURT: Oh there you go.
10 ADV FOR RESPONDENT: M'Lady ...[intervenes].
COURT: Obviously it was a... a successful bite.
ADV FOR APPLICANT: It was so I am very cautious.
COURT: When he stand up. You know I have given you a prima facie view, it has got nothing to do with whether you know I am not jealous of my judgment at all.
ADV FOR RESPONDENT: No M'Lady and that is appreciated. But M'Lady, we would submit that accepting that the Constitutional Court has given an indication in the Stellenbosch matter it wants to hear argument, there are arguments we made to the contrary.
COURT: Ja.
ADV FOR RESPONDENT: And I am going to keep them very short.
COURT: Ja.
ADV FOR RESPONDENT: The Constitutional Court in the Free State
judgment that was actually about leave to appeal and one of the issues that it raised there it is stated and it was in paragraph 39.
That where one has a case which is so devoid of merits the grant of leave to appeal would be an injudicious deployment of scarce and already over [indistinct] judicial resources.
So despite the fact that there is an indication from the Constitutional Court in the Stellenbosch case it wants to hear argument, we would submit that in this case here there are no prospects of success that would justify the grant...
Well the prospects of success are not good enough for this court to grant leave to appeal and if M'Lady was to do that ...[intervenes].
COURT: I would be wasting judicial resources?
ADV FOR RESPONDENT: Indeed, M'Lady. What M'Lady, did in the judgment was apply the law which is by now almost triad... I am not going to say it is triad but it is almost. The Constitutional Court was fairly in its judgment in the Free State case, University of the Free State.
About what the factors were one had to apply, the law that had to be applied, policy, [indistinct], all of the grounds that were raised by my learned friends. Such that we cannot see a mistake with respect that would require the Constitutional Court to relook at your judgment and consider it. In our submission it would be a waste of judicial resources ...[intervenes]
COURT: Look that is all very flattering.
ADV FOR RESPONDENT: And... and I do not meant to flatter.
COURT: No, no you do not.
ADV FOR RESPONDENT: We went at it critically.
COURT: And I did not for one... I mean my tongue was very firmly in my cheek.
ADV FOR RESPONDENT: Yes. We have looked at it critically
...[intervenes]. COURT: Ja.
ADV FOR RESPONDENT: And we really cannot see a mistake.
COURT: You know I... I... Let me... my... my gut sense is that if I have... I have got to err on the side of if there is a chink of a door open, if there is going to be a possibility of refinement by the Con Court of the principles that I used, or if... if they say something that in a different scenario like ours would have a different outcome.
I have got to leave that door open, it would be injudicious of me to refuse. Even you have got to err on the side of ...[intervenes]
ADV FOR RESPONDENT: Of caution.
COURT: Of caution and keeping that door open.
ADV FOR RESPONDENT: Yes.
COURT: And my... my sense says that that is what... You know if it had not been for that we would have been far more in this ballpark, but I just really I think it would be injudicious of me to refuse. When is the hearing?
20 ADV FOR APPLICANT: September.
COURT: Okay so that is fairly soon.
ADV FOR APPLICANT: We are seeking... we are seeking leave to the
Supreme Court of Appeal. COURT: Yes no sure.
ADV FOR APPLICANT: And therefore that judgment... when the matter is heard by the Supreme Court of Appeal that judgment is likely to be also available from the Constitutional Court that would be also of further assistance.
COURT: Well it would be available before this one is heard before the SCA.
ADV FOR APPLICANT: Yes, yes that is what the point that I am saying ...[intervenes].
COURT: And you know and I might well get a roasting, the SCA hates us sending things to them you know to clog their roll. But I really think I have no option in this case, I think I have to grant leave to appeal. I am afraid I just... I just have to with that door still open in a language case, I just have to allow it. I am sorry to say.
ADV FOR APPLICANT: As the court pleases. If Your Lady do not want to hear me further then I would ...[intervenes].
COURT: No. I mean for me the... the change is the fact that there has been... that the Con Court has granted leave.
ADV FOR APPLICANT: May I just ...[intervenes].
COURT: It is a university language case, there may well be... I do not know if there are differences there but you know I just think that for so long as that door is open I actually have to... I have to keep this door open.
ADV FOR APPLICANT: As the court pleases.
COURT: I do not think I can do any different.
ADV FOR RESPONDENT: M'Lady, I just want to perhaps and I do not want to jump on your back [indistinct]. You know you just... seriously is that even it was suggested by in the minority judgment that if one reads also the minority judgment which in the Free State case, which one has to consider also as far as the validity of aspects have been raised although that is the minority judgment.
And... and three judges including Judge Froneman and Cameron and acting justice, they had a different context interpretation. And what I am saying is, is when we deal with rationality and... and policy there is a very context sensitive ...[intervenes].
COURT: Sure. Look I ...[intervenes].
10 ADV FOR RESPONDENT: And therefore... and therefore another court or the Supreme Court of Appeal ...[intervenes].
COURT: Ja no sure. I have to tell you I think... I think your client is barking up a tree that it should you know perhaps there are other ways to use its resources. But... but that is not for me to say. I mean I
...[intervenes].
ADV FOR APPLICANT: M'Lady, may I ...[intervenes].
COURT: You know when you are dealing with such a small... such a small segment ...[intervenes].
ADV FOR RESPONDENT: M'Lady ...[intervenes].
COURT: But that is not for me to ...[intervenes].
ADV FOR APPLICANT: No, M'Lady ...[intervenes].
COURT: That is not ...[intervenes].
ADV FOR APPLICANT: M'Lady, but what Your Lady is raising is
...[intervenes].
COURT: You do not have to convince me, I am going to grant you leave you can go and bat it out for as long as you like in the other courts. Counsel is never sorry about that because you know, your learned friend may have the chance now to say something in the SCA or not as the case may be.
You do not have to convince me, maybe I just do not get it. But I think one has to move beyond anachronistic positions which your client seems to be unwilling to do. But I can say these things now
...[intervenes].
ADV FOR APPLICANT: But M'Lady ...[intervenes].
COURT: Because it does not matter I am granting you leave.
ADV FOR APPLICANT: But M'Lady ...[intervenes].
COURT: You do not have to convince me.
ADV FOR APPLICANT: No I do not want to convince you, I do not want to convince you but M'Lady ...[intervenes].
COURT: I could be wrong.
ADV FOR APPLICANT: But the remarks, the remarks are very pertinent and... and ...[intervenes].
COURT: That may well be, that may well be. I wish as South Africans and as South Africans who have less melanin than our fellow South Africans we could learn to move more forward than more back.
ADV FOR APPLICANT: But M'Lady, I want to say ...[intervenes].
COURT: And ...[intervenes].
ADV FOR APPLICANT: The following, I think that is a very unfortunate perception about the applicant and I must, I must say that.
COURT: Well you can and ...[intervenes].
ADV FOR APPLICANT: Because I think... I think ...[intervenes].
COURT: And next time you in front of me with them you might to wish to apply for my recusal.
ADV FOR APPLICANT: No, no.
COURT: I mean that is not where I am going. I just ...[intervenes].
ADV FOR APPLICANT: It is just matter of that.
COURT: We need to move ahead, we need to move on.
ADV FOR APPLICANT: But M'Lady, in this case in this case the applicant endorsed the advancement of African languages.
COURT: yes.
ADV FOR APPLICANT: It is not... Let us just say ...[intervenes].
COURT: Yes but why keep a privilege status for a language that serves what you wanting to do is to preserve for the sake of principle
...[intervenes].
ADV FOR APPLICANT: M'Lady ...[intervenes].
COURT: And not practicality, a language for a tiny minority on the back of we cannot lose this and you know that is why I say it as a white South African. Because I do think... this is my personal view it has nothing to do with this case, it has nothing to do with I decided this case on the facts and the principles.
But I truly believe as white South Africans we need to let go of those innate feelings you know that things are changing and that we are losing ground. Because the truth is we have to lose ground if this country is to move forward.
I am saying it in the broadest of principles, I am not saying it particularly with your client but we do need to move forward and it is unfortunate when... when we are unable to in any circumstances.
I mean I am not even talking about this case, there was a legal case here, there were facts, I can assure you, you know I did not... that was not the way in which I started this case at all. I say it afterwards, but you know we need to move ahead, this country needs to move ahead.
Part of that will be testing this, test... I am all for it to be tested and... and if your client has a valid... has a valid reason to hold on to its previously...
You know to hold on to things and the Con Court finds that those are worth holding on to for purposes of nation building we will learn something from that. And then we learn what we can hold on to for purposes of nation building and what we cannot.
ADV FOR APPLICANT: Yes indeed.
COURT: But I do think that we need to move forward, there we have it. Be that as it may.
ORDER SENT TO JUDGE FOR REVISION (PAGE 16)
ADV FOR APPLICANT: As the court pleases.
COURT: Are you happy? I know you are not happy ...[intervenes].
ADV FOR APPLICANT: Am not happy ...[intervenes].
COURT: I have had my say as ...[intervenes].
ADV FOR APPLICANT: I am happy about the order, I am not so happy about the other remarks, M'Lady.
COURT: You know what it means nothing, I could have said it to you over a dinner table.
ADV FOR APPLICANT: But that is what I am aiming for.
10 COURT: You could have said it over a dinner table, I now have no longer any involvement in this matter which is why I can say these things and can I just stress because it is all on record. They are extremely general points that I made simply as a responsible South African and I am not at all commenting on you know on this particular case at all. I as a white South African feel very strongly ...[intervenes].
ADV FOR APPLICANT: But it is a debate ...[intervenes].
COURT: That we have a responsibility to really question our previous privilege and how it continues to infect us and what we need to do to get over it. But you know those are difficult questions and... and the law and the courts have part of you know are there to guide us. So I am happy for it to go on appeal, we will get further guidance from the courts about... about that difficult situation that that we find ourselves in. That is really what I am talking about.
ADV FOR APPLICANT: As the court pleases.
COURT: And I can assure you I have absolutely no bite against your client.
ADV FOR APPLICANT: As the court pleases.
COURT: And I mean but they may well take it a different view and I am not doing it to [indistinct] any... any you know.
ADV FOR APPLICANT: As the court pleases.
COURT: It was an interesting case and it raised interesting issues. So I am not showing a bias, I am not trying to get out of hearing anymore matters at all by your client. I am white, the counsel is white and I just had a bit of a say about our responsibilities as concerned white citizens of this country.
ADV FOR APPLICANT: As the court pleases.
COURT: I am concerned about nation building and you have a point, your argument is that that is still part of nation building and that is why I am happy for you to go ahead.
ADV FOR APPLICANT: As the court pleases.
COURT: Okay good thank you.
ADV FOR RESPONDENT: Case of a dissatisfied winner M'Lady, it seems.
COURT: No he is not, he is not and it is fine. You know why, you are not satisfied because I granted leave ...[intervenes].
ADV FOR RESPONDENT: I am the loser.
COURT: You are not satisfied about my extemporary remarks and therefore I have probably done the right thing. So I can rule the 43 you know when you know when both sides are unhappy you can say it is alright. But honestly I mean I am more than happy for this to be tested and let us see where we go. In fact the more cases we have you know we will get further clarity, so [indistinct] let it go forth and provide clarity.
ADV FOR RESPONDENT: As the court pleases.
COURT: Thank you both of you.
ADV FOR APPLICANT: As it pleases, M'Lady.
COURT: The court is then adjourned.
COURT ADJOURNS [09:54]
ENDS
Issued by AfriForum, 10 September 2023
