Franny Rabkin
@franstaar
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Legal reporter at Sunday Times. Editor of Advocate.
South Africa
Joined May 2010
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Team South Africa after arguing its case against Israel at the ICJ
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SA’s legal team for its case to the International Court of Justice against Israel: John Dugard SC, Max du Plessis SC, Tembeka Ngcukaitobi SC
Adila Hassim SC
Juniors: Sarah Pudifin-Jones, Lerato Zikalala, Tshidiso Ramogale
External: Vaughan Lowe KC
Blinne Ní Ghrálaigh KC
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Just arrived in the Hague and will be covering South Africa v Israel from the International Court of Justice tomorrow.
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Link for hearing, SA v Israel at the ICJ tomorrow 10am Dutch time (I think that’s 11am SA time):
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“I was also informed by Mr Ndou that Adv Mkhwebane had instructed him not to make any findings in the report against any politician. We were accordingly forced to remove any adverse finding [against] Mr Ace Magashule … and Mr Mosebenzi Zwane” - Tebogo Kekana, PP Snr investigator
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Good morning from the Hague. I’m on my way to court now. There are planned gatherings / protests outside the court as well as supporters of South Africa and Palestine.
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Just in: Nomgcobo Jiba has lost her application to be reinstated as deputy national prosecutions head
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Just for interest’s sake, Judge Selby Baqwa - one of the judges who handed down today’s judgment setting aside the Public Protector’s “rogue unit” report - was SA’s first public protector.
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JUST IN: Judgment about public access to the CR17 bank records to be handed down at 10 am.
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JUST IN: Suspended PP Mkhwebane has lost her application for leave to appeal in the WCHC - about going back to work. She has been ordered to pay costs personally - jointly and severally with the 10th, 11th and 16th respondents. (I THINK those respondents are the UDM, ATM and PAC)
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I don’t know the external counsel. But the SA team is 🔥, from the most senior to every one of the juniors.
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One of my first stories as a journalist (2008 I think) was about the amadiba crisis committee fighting to protect Xolobeni. This community has BEEN fighting, for years, against multinationals. Today it is taking on Shell in the Eastern Cape High Court. Such an important case.
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The growing tendency to question the integrity of judges and senior counsel for representing people we don’t like or when they come to conclusions we don’t like is disturbing. Can we critique the decision and not the person please?
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Just in: Former President Jacob Zuma has lost his appeal against the personal costs order against him by the Pretoria High Court when he challenged the State of Capture Report. And SCA has also given a punitive costs order for appeal - attorney and client scale.
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Members of the SA team who will be in the Hague to note ICJ’s order on Friday (in the SA v Israel case):
John Dugard SC
Blinne Ni Ghrálaigh KC
Sarah Pudifin-Jones
Ambassador Madonsela
Minister Pandor
Nokukhanya Jele
DG Dangor
Cornelius Scholtz
Clayson Monyela
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The Minister of Electricity has been ordered by the Pretoria High Court to take “all reasonable steps” to ensure that public hospitals, clinics schools and police stations have uninterrupted electricity by 31 January.
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A thread on cross examination, George Bizos and Geoff Budlender
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It doesn’t matter how many sock puppets come on here and shout about
@karynmaughan
being “in the dock”, and how many bots retweet it, it won’t take away from the fact that that the charge is spurious. Maybe it’s political theatre but in law it’s going nowhere.
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My first encounter with Justice Mokgoro was in the first few weeks when I clerked at the ConCourt. We were, all the clerks, instructed to meet her in the library.
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As I sit here anxiously waiting for the judgment, I’m thinking about these words from Justice Khampepe: “It is the lofty and lonely work of the judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the law at any and all cost.”
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JUST IN: The Constitutional Court has dismissed the public protector's rescission application
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I’m at court now. There are supporters of both Palestine and Israel outside the court.
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Just in: The Constitutional Court has dismissed second rescission application by suspended PP Busisiwe Mkhwebane and ordered her to pay costs in her personal capacity.
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Khampepe ADCJ: “No one is above the law ... If with impunity litigants are allowed to decide which orders they wish to obey and which they wish to ignore, then our constitution is not worth the paper on which it is written.”
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I’m curious: what does 580,000 US dollars in cash look like? Is it a briefcase of money? A suitcase? (Let’s say it’s all 100 dollar notes)
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Just in: the Constitutional Court has dismissed the public protector’s application to rescind its judgment on her CR17 report, saying “no case has been made out for rescission”.
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Statement by PABASA on the JSC interviews for CJ and the article by Adriaan Basson on Mpofu SC
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Statement by Advocates For Transformation on commentary on whether Mahlape Sello SC should have accepted appointment to s89 panel. “Advocates are independent and cannot be associated with the causes of their clients.
It was perfectly legitimate for Sello SC to accept the brief”
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JUST IN: President Ramaphosa has urgently filed court papers against public protector Busisiwe Mkhwebane. Story will be on
@mailandguardian
soon.
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Tjo, this judgment: “The clear inference I draw from the evidence is that once the Minister had declared a national state of disaster ... little or in fact no regard was given to the extent of the impact of individual regulations on the constitutional rights of people...”
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So pleased about the truly kick-ass women on the Johannesburg Bar’s silk list: Carol Steinberg, Adila Hassim, Kate Hofmeyr, and Michelle Le Roux. And my law school bestie, Richard Moultrie, also recommended. Mazeltov guys, so well deserved!
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Rest in peace George Bizos. A legend, a moral force, and a mensch. Go well.
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Today, from 3pm to 5pm, the International Court of Justice will hear oral argument by South Africa for an urgent request for the indication of new provisional measures in its genocide case against Israel
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Statement from General Council of the Bar on statement by JG Zuma Foundation
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State Capture report says after Fraser was appointed at SSA “budgetary allocations increased from about R42m in the 2016/17 financial year to about R303m in the 2017/18 financial year”. Approx 74% of which “was used for covert operations from his office”.
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Just in: Sesi Baloyi SC to be appointed to the Judicial Service Commission as one of president’s nominees. President Ramaphosa has decided to replace Madonsela SC. He has, in line with Constitution, written to leaders of political parties in Parliament and asked for their views.
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National Association of Democratic Lawyers (Nadel) statement on JG Zuma Foundation’s media statement - “statement is an affront to our constitutional order”
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All my thoughts and love are with Karyn tonight. Please get better my friend.
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Yesterday I read the State Capture Commission’s heads of argument in its ConCourt application to compel former Pres JG Zuma to abide by summonses and come testify. One section of the heads lists “highlights” of the allegations Mr Zuma has been called on to answer to. Check them:
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Ouch. The Applicant’s submissions were “long on sophistry but short on legal authority”.
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Judgment opens with Nelson Mandela’s words when he inaugurated the ConCourt: “We expect you to stand on guard not only against direct assault on the principles of the constitution, but against insidious corrosion.”
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Just in: the Western Cape High Court has declared invalid the suspension of Public Protector Busisiwe Mkhwebani. However, in terms of s172 (2) of the Constitution a HC order on the constitutional validity of conduct of the President, has no force unless it is confirmed by the CC.
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Here is the order from the ConCourt today. Unanimous decision.
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Theron J wants us to be very clear: "Mindful of the intense public interest in this case, let me be absolutely clear: both this judgment and the main judgment would impose a period of imprisonment on Mr Zuma because he is in contempt of this Court’s order."
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This tweet didn’t age well
Years ago when everyone was excited about this new kid on the block..I questioned what was under that hair
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Not an expert on Popia but was it not meant to stop all these calls from companies trying to sell you stuff?
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Sub judice has got to be the most abused / wrongly used legal term in SA. MOST of the time, when someone says something is sub judice, it really isn’t.
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Just in: Constitutional Court will hand down judgment tomorrow in application by Zondo Commission to order former President Zuma to appear at commission as per summons.
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My favourite part of Fabricius J’s judgment (so far, still reading) is para 89 where he says there is no legal or moral equivalence between civilians disobeying lockdown rules and soldiers violating constitutional, international and statutory principles on excessive use of force.
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Unterhalter J: listing all the cases he did pro bono reminds commissioner Malema that he acted pro bono for the EFF and the only compensation he asked for was a red beret, which he never got.
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Family meetings are now even referred to as such in court papers. Affidavit of Cogta minister Nkosazana Dlamini-Zuma 😍😍😍
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It’s not a perfect text at all but I really love our Constitution. Happy Constitution Day everyone.
The
#Constitution
was first adopted by the Constitutional Assembly on 8 May 1996
Former Pres Mbeki delivered his ''I Am an African'' speech on this occasion
#28years
Speech Text:
Video:
Constitution:
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JUST IN: Former President Jacob Zuma has filed an affidavit in the court battle between SARS and the Public Protector over his tax records - being heard in court tomorrow
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Justice O’Regan has been appointed to monitor the state’s use of our data for Covid-19 tracing. The Health DG must report to her weekly
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My kid studying for Geography test: “Pretoria is the executive capital, Cape Town is the thingy, where Parliament is” Me: “Legislative.” Her: Yes. And Bloemfontein is the judicial capital. I remember because all I’ve heard since the day I was born is “Judical Service Commission”
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Dear newsmakers of South Africa, It is only January. Can we pace ourselves please? Sincerely, a journalist.
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Just in: Chief justice Zondo has just announced that practitioners and academics (and not only judges) can be appointed directly to the constitutional court. He has invited two practitioners and one academic to act before JSC’s April interviews.
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Sometimes it’s good when the silks don’t make it to court. If Trengove SC or Ngcukaitobi SC had been here, I might not have seen their junior, Ndumiso Luthuli on his feet, killing it in court.
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Now up Lowe KC on the provisional measures sought. Explaining why SA not seeking an order against Hamas: Hamas is not a state and cannot be a party to the Genocide Convention and SA cannot seek an order from this court against Hamas
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Those who wanted to know more about our two newest justices of the Constitutional Court, I wrote this about Justice Tshiqi
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Maya P says South Africa has always been ready for a woman CJ and that question (whether SA is ready for a woman CJ) annoys many women. 😂🤣🤣
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#PublicProtector
: Out of all these donations, there were three single largest donations of R30m, R39m and over R51m, which came from the same donor.
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Public Protector loses her appeal at the ConCourt. She must pay personal and punitive costs. ConCourt says she acted in faith, fell “egregiously short” of what was expected of her and was not honest.
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Roets and AfriForum win in contempt of
#ApartheidFlag
case. Lamont J says there is no contempt of court because for contempt, there must be a court order instructing someone to do something. Mojapelo’s order was a declaratory order and intended to be so.
#ApartheidFlag
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This year Mother’s Day involved being woken up at five because help was needed to prepare the special Mother’s Day breakfast that was being brought to me in bed and pretending this had never happened. And now I’ve just seen the state of the kitchen 🙈😓
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Just taking a moment to thank
@WhyJudgesMatter
for its very important work in keeping records and archives of JSC interviews and other information about the judiciary- all available for free to the public. Such an important resource. Thank you.
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Statement of the Black Lawyers Association on the JSC interviews
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A thread on Justice Jody Kollapen, the burdens of judicial office and the rule of law. Last night I had the privilege to attend an event in Laudium to honour Justice Kollapen, recently appointed to the Constitutional Court.
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Chrispin Phiri on that article by Minister Lindiwe Sisulu: “Perhaps the author's attack on the Constitution and the judiciary is really an attack on power being held to account. And here, it might be worthwhile to do some introspection on motives.”
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To everyone who passed their pupillage exams, congratulations!!
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Guys, the judgment of Sardiwalla J about the CR17 bank statements dealt with a completely different legal process to Davis J’s judgment yesterday.
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Just in: the High Court has dismissed Hlophe JPs application to review the JSC’s gross misconduct decision. (I’m still to read the judgment but here is the order)
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Nugent JA unimpressed with Bain paying back R217 million to SARS yet not coming clean with the commisson. “Payment of money without prior disclosure of the truth, is not reparation but is marketing instead”.
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Freedom Under Law spitting fire in court papers in DA v IEC case. Says the IEC acted lawfully in amending the election timetable and it’s not for the DA (or any party) to tell the IEC what is “reasonably necessary”. One by one, gives all the political parties hell.
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Now up Max du Plessis SC - addressing the rights sought to be protected: "Palestinians in Gaza simply, but profoundly, are entitled to exist."
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Today is the 25th anniversary of the Constitution. What’s your favourite section and why?
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Just in: the formal hand over of state capture report to president Ramaphosa will proceed as planned. The application to block it was struck from the roll because of self-created urgency. Also, a punitive costs order against Democracy In Action.
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The PP won’t be opposing Ramaphosa’s urgent interim interdict in Bosasa case. This follows a letter from NDPP saying the PP may only “notify” the NDPP of her opinion. (Meanwhile PP had instructed her to investigate “prima facie money laundering”)
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Genuine question: I'm reading through transcripts of the ICJ hearing, can anyone help with why Israel said SA relied on Hamas stats for number of killings of Palestinians (because the transcript referred to UN report)?
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A historic moment: the National Assembly has passed a resolution, by 305 votes to 27, for the removal of Judge President Hlophe. The first impeachment of a judge in the history of South Africa since the dawn of democracy.
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Lamola says if it wasn’t for a fiercely independent judiciary, our fiscus would have been looted to a total collapse. He thanks the judiciary for its role.
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Just in: Judicial Conduct Appeal Committee has, by majority, upheld the JCCC decision that former CJ breached the judicial code with his comments about SA’s policy towards Israel and must apologise.
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JUST IN: The Constitutional Court has dismissed an application for leave to appeal against the decision of the SCA on former President Jacob Zuma’s medical parole, saying it bears “no reasonable prospects of success”.
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Just in: the Democratic Alliance has urgently applied to the Constitutional Court to declare the decision by the Electoral Court to reopen the candidate nomination process unconstitutional and invalid; and to set it aside
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Just in: New Justice of the Constitutional Court: Western Cape HC Judge Owen Rogers.
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Government has been ordered to ensure uninterrupted electricity supply to government hospitals, clinics, schools and police stations.
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JUST IN: The ConCourt has dismissed the direct access application from the Khosa family over SANDF and police brutality saying there were “insufficient grounds raised for direct access”.
@mailandguardian
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Chief Justice Pius Langa. Missed and remembered every single day.
“1994 was no idle transition; it was the result of a conscious choice and commitment that we would henceforth live a new life and be governed in a new way...” - Former Justice Pius Langa
#FreedomMonth
#ocj_rsa
📷:
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Thank you to healthcare workers at Charlotte Maxeke hospital. My mama got her vaccine, I’m so relieved and grateful.
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The General Council of the Bar’s statement on Walus judgment. The judgment “was a unanimous one. Gratuitous attacks on the judiciary, and singling out individual Justices for gratuitous attack, only serve to undermine the rule of law”.
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In a unanimous judgment penned by Theron J - the ConCourt has decided that former president Jacob Zuma is disqualified from standing for parliament. It also rejected his claim that the IECs decision was tainted by bias. I’m still to read the judgment.
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Just thinking, after Steven Budlender’s 🔥 address today, how big a contribution he has made to jurisprudence in areas of law close to my heart: freedom of expression and the rights of refugees and migrants, often on a pro bono basis. His departure from the Bar really is a loss.
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A helpful thread on South Africa’s case before the ICJ - explaining the difference between the International Criminal Court process, and some jurisdictional and evidential hurdles SA may have to traverse. Also, the significance of the ICJ’s power to order “provisional measures”
Some thoughts on the South Africa-Israel case before the ICJ, as I am unhappy with some comments. I’ll try to keep this untechnical. /1
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Smiling at all you young ones getting vaxxed 😊😊😊. The youth always leads us in SA.
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JUST IN: Retired Judges Seriti and Musi have gone the HC to challenge the constitutionality of the JSC Act in so far as it allows the JSC and JCC to hold retired judges accountable for misconduct.
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President Ramaphosa wants the ConCourt to hear Public Protector’s withdrawn appeal against the interim interdict granted by Potterill J. President says it is in the national interest for highest court to end “vituperative” public debate.
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Very important judgment from the ConCourt today on the powers of the courts to interdict remedial action of the public protector. Here’s my write-up of the argument
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