IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No. CCT 23/10
In the Matter Between: THE CITIZEN 1978 (PTY) LIMITED First Applicant (First Respondent in leave to cross-appeal)
KEVIN KEOGH
Second Applicant (Second Respondent in leave to cross-appeal)
MARTIN WILLIAMS
Third Applicant (Third Respondent in leave to cross-appeal)
ANDREW KENNEY
Fourth Applicant
And
ROBERT JOHN MCBRIDE
First Respondent (Applicant in leave to cross-appeal)
And
LARA JOHNSTONE
First Amicus Curiae
THE FREEDOM OF EXPRESSION INSTITUTE
Second Amicus Curiae
THE S.A. NATIONAL EDITORS FORUM
Third Amicus Curiae
FIRST AMICUS CURIAE’S NOTE: RE: PETITION FOR DECLARATORY ORDER
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1.
Nature of the Proceedings: a.
The Applicants and Respondent are appealing and cross-appealing a judgement of the Supreme Court of Appeal (“SCA”), Case: 277/2008, regarding, among others, the interpretation of the meaning of ‘amnesty’ in the Promotion of National Unity and Reconciliation Act, 34 of 1995 (“TRC Act”), whose ‘amnesty’ mandate was provided for in The Constitution of the Republic of South Africa Act, 200 of 1993 (“Interim Constitution”), both which collectively set the ‘social contract’ foundation for the Constitution of the Republic of South Africa, Act 108 of 1996 (“SA Constitution”); all collectively herein after referred to as ‘TRC Social Contract’.
b.
First Amici Applied to the Chief Justice to proceed as an In Forma Pauperis Amicus, member of the Radical Honesty Culture and Religion, arguing that the ‘TRC was a fraudulent PR publicity stunt negligently conducted by SA’s political, academic, media and legal elite’, which was – in the First Amici’s interpretation, at the time – unopposed by Applicants or Respondent.1 Amici was approved to proceed as an Amicus, and denied In Forma Pauperis council.
c.
On 08 June (16:10) Amici Emailed Respondent, Applicants and other Amici’s with ‘Ubuntu Amicus Brief, subject to Declaratory Order’, updated on 09 June (03:00).
d.
On 09 June (04:10, 04:21 & 04:23) Amici Emailed Registrar Clerk Mr. Delano Louw with Word files, including the TrueType Font files (Old English2, and Bodoni3).
1 Lara Johnstone, Member Radical Honesty Culture and Religion: Application to Chief Justice to proceed as an In Forma Pauperis Amicus Curiae, ITO Rule 10 (4):, at Para 17 – 33: The Interest of the Applicant in the Main Application 2 450–1100: Old English (Anglo-Saxon) – is the first vernacular written form of English, the language of Beowulf and Alfred the Great, and assigned gender to all nouns, including those that describe inanimate objects: for example, sēo sunne (the Sun) was feminine, while se mōna (the Moon) was masculine. Beowulf is the conventional title of an Old English heroic epic poem consisting of 3182 alliterative long lines, set in Scandinavia, commonly cited as one of the most important works of Anglo-Saxon literature. It survives in a single manuscript known as the Nowell Codex., composed by an anonymous Anglo-Saxon poet between the 8th and early 11th century. Alfred the Great (“elf counsel"; 849 – 899), was King of Wessex from 871 to 899, who encouraged education and improved his kingdom's legal system and military structure. In the late 880s or early 890s, Alfred issued a long domboc (Doom book) or law code, consisting of his "own" laws, to simplify the law for his subjects.
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e.
On 09 June (07:35) Mr. Louw (i) instructed Amici to clarify First Amici’s argument, (ii) which could not be more than 50 pages, (iii) provided Amici with practice directions, and (iv) instructed Amici to file a practice note.
f.
On 09 June (15:01) Amici apologised, stated that: (i) the Introduction, Overview, Summary and Petition for Declaratory Order are less than 30 pages; (ii) she would attempt to make the Petition for Declaratory Order more clear.
g.
This Note is hence a ‘Clarification of Petition for Declaratory Order’, which hopefully explains more simply to Respondent, Applicant, and the court, First Amici’s Petition for Declaratory Order. I have been up all night and I hope the message is clear enough for Applicant and Respondent to provide their response.
2.
Clarification of Petition for Declaratory Order: a.
First Amicus submits the following in simple justice language, to explain the reasons for First Amici’s ‘Petition for a Declaratory Order’ to Applicant and/or Respondent, to ascertain whether they object to being provided with a Radical Honesty Interpretation of the TRC Social Contract.
b.
Put very simply: Another way to describe the ‘TRC social contract’ was a ‘Rainbow group marriage’. Now everyone in the world knows that a marriage between two people from the same tribe (racial, cultural, socio-economic) is hard, hard, hard work; monogamous marriages between people of different tribes are much, much harder work. I know, I was married to an African American man, for 13 years (am now separated, filed for divorce); and we did have different
3 Giambattista Bodoni (February 26, 1740 in Saluzzo – November 29, 1813 in Parma) was an Italian engraver, publisher, printer and typographer of high repute remembered for designing a family of different typefaces called Bodoni. He created a visual revolution in the typographical design community Bodoni's most famous prints were "Horace(1971) , Vergil(1793), The Divine Comedy(1795). His printing reflected an aesthetic of plain, unadorned style, combined with purity of materials.
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cultural habits, which caused lots of misunderstandings. He got very mad with me quite a few times, screaming in my face in a rage, but he never hit me, it was just words, same with my words to him when I was angry, and we always stuck through our anger till we got to forgiveness. I also respect him cause when he was mad he told me to my face, he didn’t call a lawyer, or file a bogus ‘insult to my dignity’ charge with the police. But all people are different, and some prefer to call the police, or a lawyer to resolve their misunderstandings or disagreements, and sometimes if they have explored all other options, they have no other non-violent choice. c.
Now Pres. Zuma is married to five wives, imagine if one was Afrikaner AWB, one Zulu PAC, one Xhosa ANC, one Coloured DA, one Indian SACP. I don’t think anyone would disagree that someone who went into such a marriage was either on LSD, abominably stupid or incredibly brave (some say bravery can be a result of naivety, but nevertheless). Now imagine the founding marriage contract for their group marriage did not define the important word ‘forgiveness’ of their marriage vows, but each wife had different practices for ‘forgiveness’; and then he applied the wrong laws to the wrong wives. They would be furious, they would want their tribes ‘forgiveness’ skills and competencies applied to determine the level of their sincere forgiveness?
d.
Now instead of the emotional ‘sincere’ vs. ‘fake’ racial and political party tribes, Amici will substitute olive, green, yellow and blue tribe, all of whom have their own skills and competencies for practicing their colour tribes forgiveness, which could mean different forms of, and/or meanings for ‘amnesty’, ‘reconciliation’, ‘closure’ and even ‘ubuntu’, for each individual tribe. If or where any ‘forgiveness’ matter becomes a legal dispute, between red and blue tribes, and blue Page 4
says he was acting in accordance with blue tribe’s forgiveness skills and competencies, the law should enquire from fellow blue tribe practitioners, and blue tribe cultural experts, if he was in fact applying blue tribe skills and competencies, in the particular circumstance. The law should not simply apply yellow and pink, because the judge was pink and the prosecutor yellow. e.
The relevance to this matter is that for eight years the Amici has been legally prosecuted and persecuted for practicing Red Tribe Freedom of Speech, by Yellow and Pink Tribes, and the Justice system, and most of the political, academic, and media elite, couldn’t care less about Red Tribe’s dignity and freedom of speech, etc skills and competencies. The ‘rainbow group marriage’ (TRC social contract) has refused to make any impartial enquiry into the veracity of red tribes skills and competencies, done in accordance with Red Tribe cultural codes, for if they did, it would mean that First Amici had an absence of ‘Mens Rea’ ‘to insult’ anyone’s ‘dignity’; and found her innocent. Instead the court applied blue and yellow tribes definitions for dignity and freedom of speech, and First Amici is sitting with a prison sentence hanging over her head, for the next three years, not to mention previous illegal arrests and prison sentences, because magistrates applied their pink and yellow tribes dignity and freedom of speech rules, to Amici (red tribe).
f.
If we only have certain colours of the rainbow whose skills and competencies are relevant, then the rainbow group marriage is not a rainbow, but a pretend rainbow? Are some tribes more equal than others? If so, say so! Apartheid was then at least honest, they did not pretend to be a rainbow democracy.
g.
In applying Yellow and Pink laws to the Red Tribe’s free speech skills and competencies, the justice system is ignoring the skills and Page 5
competencies aspect of the common law reasonableness test, as enunciated in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118, which found that generally, the standard of care/foresight a person is expected to attain is an objective standard derived from what a reasonable person would do under the same circumstances, except: i. 'Where you get a situation which involves the use of some special skill or competence, then the test…is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.' h.
‘The man on the Clapham omnibus’, is in legal speak, 'the reasonable person'. This is a phrase that was first used by Sir Charles Bowen, QC (later Lord Bowen). (Brewer's Dictionary of Phrase & Fable, 16th Edition, 1995) The man on the Clapham omnibus/the man in the street means the average ordinary English person (Oxford Guide to British & American Culture, 1999).
i.
When the Judge decided that it was reasonable for young green tribe men to attain cultural manhood by slowly torturing a bull to death, they did not ask someone from the red tribe, to whom this cultural practice is abhorrently unspeakably savage, about the reasonability of this cultural practice. Similarly a green tribe may consider a red tribes forgiveness practices abhorrently savage.
j.
Now perhaps we return to whether the rainbow group marriage legislated by lawyers and politicians was naïve, an LSD binge, or a fraudulent PR publicity stunt.
k.
If the Rainbow Group Marriage (TRC Social Contract) is really a rainbow one, then why are some of Pres. Zuma’s tribal wives, being treated like Dalit untouchables, and others like Queens? Page 6
l.
In a group marriage where the partners are sincere, and the marriage involves children, the parents realize they have a communication and misunderstanding problem, and get some counselling from someone impartial who can provide them with guidance in confronting the blind spots of their decision making and communication skills. Such guidance helps them to clarify the root causes of their problems, and if they can be fixed, to do so, and if not, to fix them as well as able, and enable an amicable divorce.
m.
Now to avoid emotive language, I shall remain with the rainbow tribes analogies.
n.
As a result of how the Justice system (excluding the Concourt) has treated the red tribe’s free speech practices, refusing to apply red tribe reasonableness test skills and competencies laws when relevant, the red tribe says the rainbow group marriage was a fraud, and wants a divorce. However the Applicants and Respondent may belong to tribes who have been treated as queens, hence the rainbow group marriage is still working for them.
o.
The Amici being for arguments sake from the red tribe, simply wants the following made clear. She does not want to force her red tribe ‘free speech’ skills and competencies, perspective down the other parties throats, she recognizes that other tribes have different skills and competencies. The skills and competences that should be applied, if so desired by the applicant or respondent, are the skills and competencies of their tribe.
p.
The applicants are asserting that they followed the corporate media (orange) tribe’s free speech skills and competencies, and the Respondent is standing on his (indigo) tribes definition of ‘dignity’.
q.
Indigo may consider red tribes dignity juvenile, in the same manner red considers indigo’s psychologically infantile. Page 7
r.
Once again, for eight years the courts have negligently or deliberately ignored the red tribes definition and psychological evidence for their red tribe ‘dignity’ skills and competencies dignity meaning.
s.
The red tribe have no problem whatsoever that indigo dignity rules be applied to indigo’s and orange rules to orange tribe members, but she wants it made clear, that indigo and orange, are NOT to be made binding on the red tribe laws, whose definitions differ!
t.
The red tribe’s perspective to the state of the rainbow group marriage, is not directly relevant, unless either party or the Justice thinks it may provide perspective.
u.
The red tribe is not saying red tribe ‘free speech’ laws should be asserted on orange and indigo tribes; only that any rainbow group marriage (concourt) judgement on a dispute between indigo and orange, should state that it is not binding on other tribes with different definitions, particularly in a matter where the red tribe has fundamentally huge skills and competencies differences to red and indigo on these matters.
v.
The Petition for a Declaratory Order, is another way of saying: Indigo and Orange, want free speech rights for orange, and dignity rights for indigo, while pretending the entire rainbows shares indigo’s dignity definition and oranges free speech definition! That is negligently inaccurate! Red tribe’s skills and competencies, definition and meaning for ‘free speech’ and ‘dignity’ are not the same as indigo’s and orange’s.
w.
Red tribe wants the court to be clear that in a dispute between between indigo and orange, indigo and orange definitions should be applied, and the final judgement should reflect that such judgement is not binding on other tribes with different definitions.
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3.
Written Relief Requested to the Court: a.
The Amici does not want to waste the court or any parties time by forcing down their throats the doctrines and skills and competencies of the red tribe
b.
She will give the Indigo (Respondent) and Orange (Applicants) the red tribe perspective, IF they are sincerely interested in hearing it, to provide perspective to their dignity and free speech issues; but only if they sincerely so desire.
c.
If not, she is not offended at all; and if so; she simply requests the Court to take Official Notice: i. Indigo (Respondents) Dignity skills and Competencies definition is very different to Red (First Amici’s); ii. Orange (Applicants) Free Speech skills and Competencies definition is very different to Red (First Amici’s); iii. Red (First Amici) will happily provide a Red Dignity and Free Speech perspective, if either Indigo or Orange, or the court may find it useful; but does not in any way demand that Red Dignity and Red Free Speech be applied to their cases, unless where the court decides relevant; iv. Does Indigo (Respondent) and Orange (Applicants) want a red dignity and free speech perspective to their indigo and orange dispute? v. If so, accept the RSVP and approve the declaratory order for a red perspective; vi. If not, Please take notice that red (First Amici) requests that the final court judgement in the matter reflect that the Indigo definition for Dignity and Orange Definition for free Speech should be binding only on indigos and orange tribe members, or any other tribes with the same skills, competencies and Page 9
definitions as indigo and orange, and not on other tribes who have different definitions, skills and competencies; vii. Red also strongly suggests that considering that dignity, ubuntu, forgiveness, reconciliation, truth are foundational concepts, naively left undefined in an alleged rainbow group marriage, that each racial and/or cultural etc tribe be invited to provide the court with their tribes definitions; not necessarily as part of these proceedings, and the court can make recommendations as to how such a procedure can occur; so that such definitions can provide more clear and succinct guidance for lower courts in terms of which tribes skills and competencies to apply to these terms, when the issue of reasonableness of any tribe members actions is considered. viii. Hence the Final Court Judgement should reflect that the Dignity and Free Speech Judgement in this matter is NOT BINDING on individuals of the Radical Honesty (Red) tribe, who have different skills, competencies, definitions and meanings for the legal principles argued by Indigo for Dignity and Orange for Free Speech; and Red also has different skills and competencies for forgiveness, closure and ubuntu. Perhaps others too, but those definitely. ix. Other issues First Amici has not dealt with herein, for lack of time naturally would be the balance struck between any tribe’s cultural practices within the context of the system, in relation to other tribes, in accordance with the law of limited competition. 4.
Portions of record necessary for determination of matter: a.
None as far as the Amici is aware, although if any such record is made available, First Amici will read it to inform herself of the Page 10
details, should any details be relevant to her argument. Amici cannot afford to pay for records to be transcribed. 5.
Estimate of duration of oral argument: a.
First Amici apologises but requests that the (Orange) Applicant and (Indigo) Respondent please clarify either by RSVP, or in whichever other manner they wish: i. Do they object, or support the principle that dignity, ubuntu, forgiveness, reconciliation, truth are foundational rainbow group marriage concepts, naively left undefined in an alleged rainbow group marriage, that each racial and/or cultural etc tribe be invited to provide the court with their tribes definitions; not necessarily as part of these proceedings, and if not, for the court to include such instructions and recommendations in such judgement for such a procedure; so that all rainbow definitions can provide more clear and succinct guidance for lower courts in terms of which tribes skills and competencies to apply to these terms, in matters that come before them. ii. Do they want to hear a Red (Radical Honesty) Dignity and Free Speech perspective to dignity, free speech, and state of the rainbow group marriage’s social contract, in this dispute matter between indigo and orange, who don’t appear to have any fundamental problem with the state of the group marriage contract? iii. If not, do they object if the Final Court Judgement reflects that the Dignity and Free Speech Judgement is NOT BINDING on individuals of the Radical Honesty (Red) tribe, who have different skills, competencies, definitions and meanings for the legal principles argued by Indigo of Dignity and Orange of Page 11
Free Speech; and Red also has different skills and competencies for forgiveness, closure and ubuntu. Perhaps other important words too, but those definitely. iv. I hope this Note sufficiently clarifies the issues stated in Petition for Declaratory Order, Invitation to Radical Ubuntu and RSVP; if not, I can try to be more clear. 6.
List of authorities: Attached follows a brief list of authorities, some referred to above and others relevant, but not referred to, for lack of time to complete this note, to return to Mr. Louw asap, for Applicants and Respondents Response, and/or any further instructions.
Respectfully Submitted,
LARA JOHNSTONE
I, i, we, us, me & being-self; i.e. I am not sure of my existence, but I am sure of my intentions
4
NDR-113 BRAIDFUTE
4 5
ANDREA MUHRRTEYN5
PDF File of CCT:23-10 1st Amici Doc’s: http://www.scribd.com/my_document_collections/2303313 See: Petition for Declaratory Order: lysistrata Tsedeq Invitation to Radical ubuntu
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BRIEF LIST OF AUTHORITIES a.
Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118.
b.
R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER 233)
c.
S v Hoho (493/05) [2008] ZASCA 98; [2009] 1 All SA 103 (SCA) ; 2009 (1) SACR 276 (SCA) (17 September 2008) : [29]
d.
Roberts v. Louisiana, 431 U.S. 633 (1977)
e.
United States v. Carolene Products Co. , 304 U.S. 144 (1938)
f.
Legal Equity Maxim: Equity will not allow a statute to be used as a cloak for fraud
g.
Security Council Resolution 1244 (1999), which granted Kosovo the right of Secession and Self Determination, by the “recognition of a human community within a sovereign state enjoying a right to selfdetermination.” (www.nato.int/kosovo/docu/u990610a.htm)
h.
International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI), of 16 December 1966 entry into force 3 January 1976, in accordance with article 27
i.
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976
j.
Written Statement by Consent of Brad Blanton, Ph.D, to testify as expert witness to: Practicing Radical Honesty and Futilitarianism; i.e. Radical Honesty about Anger and Forgiveness; and Paradigms and Contexts: The Revolution of Consciousness
k.
Affidavit of Brad Blanton, Ph.D, evidencing the legal, psychological, and socio-political ‘citizens privilege’, Nuremberg Principles skills Page 13
and competencies of Individual Responsibility, required for acts of civil disobedience to perceived illegitimate authority; and their application to the common law ‘reasonableness test; in terms of Criminal Procedure Act 51, of 1977: § 213: Proof of Written Statement by Consent; & § 171 & 172: Evidence on Commission
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