[YCLSA Discussion] Re: Civil Society Debates

[Dominic Tweedie]

Here, below, is Heinrich Bohmke’s latest reply to Stuart Wilson. Wilson’s short previous reply to Bohmke is also given, below Bohmke’s message.   Bohmke has made his points and Wilson is exposed.   The French phrase maitres-a-penser used by Bohmke means, literally, “thinking-masters”.   Bohmke is saying, among other things, that the “grassroots” “social movements” have been dominated and used by academics, lawyers and NGO-people to further their careers, and in the process the grassroots organisations these intellectuals patronised have had their power and meaning “hollowed out”.   In effect, the masses in these community-based organisations have been betrayed by the intellectuals who were supposed to serve them, says Bohmke.   Bohmke is also saying that the Constitutional Court is a sham court which blusters around its judgements so as to produce an impression of legalism, while in fact making law in an arbitrary, expedient, or venal way. In saying this, Bohmke uses Wilson’s own arguments as evidence.   Bohmke is saying that the sham Con Court, and the ambitious, exploitative social-movement lawyers, are all conniving together to present an image of “progressive” legalism, at the expense of, and to the destruction of, popular power and democracy.   Power to the People!   VC       [Here is Bohmke’s message. Stuart Wilson's previous one is immediately below Bohmke's]:   Hi Stuart   I sense that we are very near the end of our little debate.   I notice that you have not rebutted my detailed arguments against the politics of progressive incrementalism or disputed its deleterious effects on movements.  You simply say that you disagree with me.  We’ll have to leave that there then.   You have confined yourself to the corner of the law where, needless to say, you are as confident as any lawyer with a recent victory in the Constitutional Court should be.   However, even if what you say about the advances in “last resort” and “prior engagement” are one hundred percent correct, the way you have argued your point has fundamentally undermined the original proposition that the law is a safe repository for progressive advances that are ratcheted up on a case-by-case basis.    It seems judges play silly buggers with precedent when it suits them, on key issues they do not mean what they say, they make their findings “LOOK LIKE” they flow from existing law when this is not true, and they are extremely sensitive to political and social factors in terms of which their judgments must always be read.  Even down to the semantic level, they incorrectly and misleadingly use words like “and” when they actually mean “read together with”.   I do not dispute a word of this.  Which is why the law is not a safe repository at all for progressive advances, especially the arguable ones you propose.  Indeed, this has been the fate of the much vaunted Grootboom in the hands of subsequent judges.  If the law is as susceptible as this to the political machinations of Con Court judges, then how is anyone to feel safe with any precedent?   The real seat of law is actually then a point in some corridor half way between the Judicial Services Commission and the President’s office.   This brings me back to an earlier point about how “last resort” and the duty of “prior engagement” are likely to be interpreted in future cases.  The greater the governmental and middle-class interest in the outcome of a case, the more likely we are to find judges 'maneuvering' to hollow out these advances, leaving lawyers to bemoan the intricacies of the progressive vase that has fallen apart.   This no doubt makes for fascinating gossip among judges clerks, academics and human rights practitioners.  Who knows, maybe even a book along the lines of Woodward’s The Brethren is in the offing.  But if anyone ever naively says lets go to court to make law because we have a good case again, Stuart Wilson is going to be required reading for them.   As for my wayward sense of what the law provided previously, you must excuse me.  I was just reading Moseneke’s judgment.  You say he said one thing when he meant another.  You also say his rendition of the legal position before Abahlali “was not completely accurate”.  What is a potential litigant seeking progressive increments to do?  I suppose the answer is to get someone like you on the case who understands what the deputy judge president actually means, who can correct his inaccurate rendition of the law and who understands his wily political maneuvers.   Your claim really is worth repeating in full:   “Moseneke's words are meant to make this manoeuvre LOOK LIKE he's simply applying a pre-existing legal principle unproblematically to the facts of this case. What he is in fact doing is making new law. Judges do that all the time. That is why you should not take Moseneke at his word.”   Don't you think it's time we let the public know what's going on on the Hill?   You say that my:   “point that a prior legal norm for engagement and the last resort principle existed is trivial. What matters is how those norms are arranged and applied. Before, the last resort principle did not have much application. Now it has almost universal application. That is new law”.    Aside from concerns about whether new law can be banked upon at all, and aside from the fact that this is what Moseneke made things “LOOK LIKE”, and aside from your concession that there’s a real danger that “last resort” could become a procedural as opposed to a substantive advance, and aside from the fact that these principles were already being bandied about in other court cases although not quite applied so widely – you have made new law.    You say :   “Your argument, taken to its logical conclusion, would have us believe that a case which expanded the application of the death penalty from cases of treason to cases of rape and murder is of no significance because "a prior legal norm" for the death penalty existed. That is plainly absurd.”     I did not say your work is of “no significance”.  That’s a maneuver.  You’ve been hanging out with Moseneke too long. I said its significance is more modest and the advance more limited than is being made out. I question whether it is a true landmark as is being widely claimed or just one of Grootboom’s progenitors.  There’s a landmark for you.  Or Plessey v Ferguson or S v Makwanyane.  These are cases of first impression.    The sense of my statement is not as absurd as you try, by analogy, to suggest it is.  Think about it.  One would hardly be as shocked by the extension of the death penalty from treason to include murder as one would be if capital punishment were suddenly introduced anew solely for the crime of treason from a position where it was absent in our law.   Why would one not be so surprised in the former instance?  Because the underlying legal and philosophical notion that it was sometimes necessary to kill citizens for very serious crimes had already been introduced and was able to be drawn - and expanded - upon by jurists.  The lawyer who succeeds in convincing a court to start sanctioning killing has made landmark law, the lawyer who succeeds in convincing a court to kill a larger category of people has extended a legal principle.  Both are precedents.  Only one is a landmark.   You could have picked a better analogy.   What would have been pleasantly and laudibly shocking is if, in interpreting “just and equitable”, in the absence of the National Housing Code, Joe Slovo, etc, a court was persuaded to create duties of “last resort” and “prior engagement”.     Ironically, that is what the “conservative” Yacoob nearly got away with in inventing a duty for municipalities to first discount “in situ upgrading” before an eviction.  That would have been a significant new legal principal or concept not substantially entailed elsewhere and awaiting more or less logical extension.   The lawyer who drafted the release on which the M&G article was based himself makes a distinction between the advances made for “prior engagement” and “last resort” on the one hand and the true “new ground” broken for “in situ upgrading”.  Perhaps, like Moseneke, he is also in the habit of inaccurately setting out the legal position.   A reader may wonder why I quibble about whether the case was a landmark or not.  It’s not the law that is at stake, it’s a politics.  There is a documented tendency among Huchzermeyer’s  “sympathetic network” of progressive incrementalists clustering around movements to aggrandize their own efforts, vicariously, through the “victories” of these movements.  Hence my heading for this debate : KZN Slums Act ‘Victory’.     I’m questioning the meaning and cost of the ‘victory’, legally and politically.    Somehow we have lost sight of what ‘victory’ would actually mean for a radical social movement as opposed to a liberal lobby-group, for example.  And on what facts do we base such an assessment?  This too is very difficult.  There is a well-established tendency, going back years, to fabricate facts about movements, especially regarding their nature, strength and the success of the tactics they employ.  Creating spin and flattery for landmark movements has short-term value but over time cannot be sustained.   So here we have a claim that a landmark judgment has been achieved, not the plucking of low hanging fruit at the Constitutional Court.  This exaggerated achievement is, as we speak, being presented as vindication for a particular liberal and ‘optimistic’ politics within movements.     This is a problem.  Indeed, the way some social movements are being represented by their maitres-a-penser reveals the first case of liberal ideological hegemony within an avowedly grassroots-based, anti-governmental movement.  It’s an amazing development if you come to think of it, one that must be properly questioned.    I’d like to turn in closing to the subject of “in situ upgrading”.  This is the part of the judgment for which the most jurisprudential significance is being claimed.  If such a principle has been found to apply in our law, it is such a significant addition and new impression of eviction law.  But do Yacoob's statements about in situ upgrading, contained in his "implausible" minority judgment, qualify as binding precedent at all?   You do not dispute my suggestion that no binding or other precedent was established in this case on this issue.  You mention new "principle" when there is none.  You remain silent and then indicate you wish to close this debate.   I note that you “have seen no cause to differ with me on this”.   That, according to the legal spin of this case, must be whole-hearted agreement with me then, we have no landmark?     Regards     HB      On Mon, Oct 19, 2009 at 7:48 AM, Stuart Wilson <stuart.wil...@wits.ac.za> wrote:   Hi Heinriche,   Thank you for your message. Although there is much we will still disagree on, I think I'll leave the broader debate there. I am not sure that I have made the "wise concessions" you think I have, or that the way that you set out those "concessions" is particularly "wise". What I said must speak for itself.   There is one outstanding issue I want to deal with. It is encapsulated in the section of your e-mail reproduced at the end of this message.   It is so that the Housing Act says nothing about evictions. What Moseneke meant was "the national housing act read with the code requires evictions to be a last resort". Even that, before Abahlali, was not completely accurate. Chapter 13 of the national housing code does allude to the last resort principle, but only in the context of the implementation of an upgrading project, at a certain stage and to achieve certain defined ends. So, before Abahlali, for the last resort principle to apply, there needed to be a prior decision to implement Chapter 13 of the national housing code. What Abahlali did was to "lift" that principle out of the housing code and give it direct and binding legal application to all unlawful occupiers. It is disingenuous to suggest that all the court has done is to "choose existing norms in the Housing Act and PIE over s 16". It has done a lot more than that. Moseneke's words are meant to make this manoeuvre LOOK LIKE he's simply applying a pre-existing legal principle unproblematically to the facts of this case. What he is in fact doing is making new law. Judges do that all the time. That is why you should not take Moseneke at his word. Judicial pronouncements, like all laws, need to be read in their textual, statutory and social and political context. That is how we decide what they mean. Even quite innocuous legal statements can represent great advances, made in the right context. Conversely, what might seem like massive new departures in legal theory can be minimised by the context in which they are announced.   Your point that a prior legal norm for engagement and the last resort principle existed is trivial. What matters is how those norms are arranged and applied. Before, the last resort principle did not have much application. Now it has almost universal application. That is new law. Your argument, taken to its logical conclusion, would have us believe that a case which expanded the application of the death penalty from cases of treason to cases of rape and murder is of no significance because "a prior legal norm" for the death penalty existed. That is plainly absurd.   On engagement, as I keep saying (and as you keep failing to acknowledge), it was not even clear that engagement was required prior to a decision to evict before Abahlali. Many eminent lawyers read Olivia Road to say that it only required engagement on how an eviction would take place. This seemed to be half-heartedly confirmed in Joe Slovo. The court has now confirmed that it is required before a decision to evict is taken. It is not an answer to this to say "well, the idea of engagement existed before Abahlali, so nothing has really changed".   One last point: it was never a "prior legal norm" that the first order of engagement had to be an examination of the possibility of in situ upgrading. Let's leave it there. Stuart   Dominic Tweedie wrote: Dear Comrades, Below is the latest in an exchange between Heinrich Bohmke (who wrote the message), and on the other side Stuart Wilson, Marie Huchzermeyer, Martin Legassick and others, all posting to the CCS (Centre for Civil Society) e-mail debating forum. Bohmke addresses himself to Wilson in particular.   The debate started a few days ago when the Constitutional Court made a ruling on an application by Abahlali baseMjondolo that affected “Slum Clearance” legislation that the KZN Provincial Government had passed. The significance of the Con Court’s ruling is disputed, but Bohmke is also going further, to criticise in a general way the influence of those like Wilson who see the courts as a principal site of struggle. Wilson and the others reacted sharply and quite insultingly to Bohmke, but Bohmke has stood up to them all and defended himself well.   For the YCLSA Discussion Forum, this is an example of the kind of debate that goes on among people who sometimes like to call themselves the “social movements” or even the “left left”. As you can see, they are in an existential crisis. They don’t want to be “Leninist revolutionaries” but they also cannot help but see that their constitutionalist, reformist campaigns are not affecting the overall situation at all. VC         Hi Stuart   I appreciate the time you have taken to respond.   If there is ever opportunity and cause to discuss matters in person, we might chat about how progressive judges use conservative dicta to achieve progressive ends and so forth.  And whether Grootboom is as useful as it is made out to be.   I fear this will bore our readers.  Some are already baying against ‘theory’.   So, I will deal with those counter-points of yours that seem of more general interest.   This debate seems to have evolved two separate limbs. The first is on the jurisprudence.  I have questioned the prospects of achieving significant socio-economic advances through the law.  You have replied to this by mooting the value of progressive incrementalism, which you have neatly defined.  You have also noted the absence of an alternative mechanism to deliver change:  both at a general level where Revolution is a nasty fantasy and at a particular level where your client has no other options.  On this legal leg, I have specifically questioned the extent of the Slums Act victory which is being held out as an exemplary incrementalist advance; specifically of the principles of ‘engagement’, ‘last resort’ and ‘in situ upgrading’.   The second leg is political.  I have spoken against the effects on movements of the ‘juridification of politics’ whether they win or lose a court case.  It is an argument against the way the law becomes subjectified, particularly the way in which movements come to cast their sense of right within the boundaries of the law.  Becoming primarily a national, rights-bearing subject also affects the tactics they adopt, their organizational form, the discourses they elaborate and, as Huchzemeyer puts it, the “sympathetic networks” they form, (especially with progressive incrementalists).  I believe that movements whose recourse to law is sincere lose the quality that makes them radical and, in my view, the quality that provides them with the best prospect to achieve fundamental social change in the first place.  This is the quality of social antagonism.   You have not really developed your political reply, except to say that not only does the law develop but developments in the law provide “positive, incremental progressions upon which a range of progressive actors can capitalize”.  The law provides limited assistance to people with broader agendas for progressive change.   Interestingly, you repeatedly counterpose “progressive change” with out-and-out revolution.  The latter you feel will bring “untold suffering and great bloodshed” without achieving real change.  In this sense you set up progressive incrementalism as an alternative and counter-weight to revolutionary impulses.    I’ve stuck to the original order of argument although this does mean we go back and forth across these two registers, legal and political, a bit.   To keep things tight, I’ll leave out my original point, keep your response and then my answer.   1… STUART:   This is simplistic. Of course, if social movements make the mistake of seeing law as something as more than a mere instrument among many others in order to achieve their agendas, then the risks you speak of are real. It is not a turn to the law that is bad, it is DEPENDENCE ON IT and an inabaility to develop a prior, strategic and moral critique of it that is dangerous.   HEINRICH:   You have, perhaps inadvertently, left out other sections of my post that explicitly credit the ‘turn to law’ as having value, defensively.   I was myself part of a committee liaising with the LRC in Durban who represented a community of ‘land-invaders’ in 2006.  The object was to prevent their eviction in court. The cops largely ignored the interdicts obtained but these did help slow the raids and gave people in Crossmoor a chance to rebuild and regroup.  It was however physical persistence, at the price of some blood, that won the day.  Without this counter-force, a victory in court would have been useless.   If I do not dwell at length on the value of exploiting the incremental gains on offer, it is as a corrective to the over-reliance – not only on law – but on legal normativity – that has come to define the sense of right and the tactics employed in civil society.  The people in the Crossmoor settlement (now Emfuleni) were very lucky to receive legal breathing space.  They were occupiers for less than six months (two weeks actually).  You know what this means in terms of PIE.  If their politics had been cast in terms of law, they would never have invaded the land at all and law would not have kept them on it.    There is indeed a case to be made that many civil society groups have become dependent on law – not only going to court but casting themselves primarily as victims of human rights abuses and developing the kind of clientelist relationships, with persons and organizations, that service this sense.  They have not developed ‘a prior strategic and moral critique’ of these discourses.   This is not an academic danger.  It is a very real and pressing problem.  These clientelist relationships spill over into abuses in the way movements are represented and used in the academic and NGO world and is part of the reason why I write.   Thus, at a level of generality we agree.  The law may be used as any other instrument in a struggle.  But one has to maintain, essentially, an attitude of utter insincerity towards the law and this is where the trouble starts.  The law tends to become normative over struggles and even starts to produce struggles which are calibrated with it.  These struggles only ask for what the law can plausibly deliver and do so in ways submissive to the law.      2… Stuart   Sorry, this is exactly what I am saying. I have no grand strategy. I simply say that litigation can, under the right circumstances, when used as an instrument of a broader social struggle, achieve limited, strategic advances. I am not so much an incrementalist (although I can think of precious little that has been achieved by revolutionary politics without untold suffering and great loss of life). I am rather someone who can offer limited assistance to people with a broader agenda for progressive social change.   Heinrich:   I do not accuse you of having a grand strategy.  This does not mean that the avowed progressive incrementalism of those clustering around social movements does not function as a strategy over time.  They urge certain concrete actions over others.  They resource and celebrate certain concrete actions over others. Naturally the movement / client also has its own say but when one counts up all these little interventions, a line of march is discerned.   You set up a false dichotomy between legal incrementalism and out-and-out Revolution.  There are a range of non-incrementalist and extra-legal actions that have achieved social change.  The choice is not between incrementalism through the courts and Leninist fantasies.   In the 1980’s communities made townships “ungovernable”.  There were other cultural and symbolic acts that played a tremendous role in bringing change.  I doubt you are opposed to these revolts.  They brought significant change that no court could provide given the nature of the apartheid legal order.  The Nats buckled, legal change came later.   Our present legal order has substantive constraints too when it comes to property relations.  These must be acknowledged.  Those who purport to be radical on the question of property relations have to realize that the constitution does not share their radicalism. Not everyone who points out that extra-legal tactics are called-for can be dismissed as a blood-thirsty revolutionist.  Edmund Burke would see this point.  A logician would too.   While I may seem unduly hesitant to place my trust in legal progress, you seem unduly averse to the exercise of power which you pejoratively lump into one scary, molar category of bloody revolution.   … Stuart   Has there been a revolution? No. Has there been a wholesale transformation in property relations? No. Has the law changed sufficiently to have prevented thousands of people from being evicted? Yes. Has this changed property relations just a little bit? I think so. Has this lead to the state and private property owners, in many cases, to upgrade informal settlements and, failing that, to provide people with property rights at alternative locations? Yes. Detailed studies of the Grootboom and the Olivia Road cases will show that the impact of both cases has been to (modestly and indirectly) increase the pace of housing delivery (at least in the localities from which those cases were prosecuted). It is often blithely remarked that Grootboom died without a house. This misses two key points. The first is that she never asked the court for one. The second is that, but for Grootboom, many other people in the Oostenberg area would not have received one. Does these modest gains represent some potential in litigation which can be harnessed for social, even structural, change? I think so.     Heinrich:   Your concession that law cannot effect fundamental change and has but tampered with property relations “a little bit” is well made.   If you want to do a human(ist) tally of the effects of the constitutional order, it is disingenuous to focus on these three cases.  Inequity is frozen and underwritten by the law and its workings, under the constitution, to a far greater extent than it is undone or ameliorated by it.  For every Grootboom (such as it is) there are dozens of lawful, judicial outrages.   I only mention this to provide context to your listing of those thousands speculatively saved by a ‘turn to law’ under the constitution.   I say again that my focus is on the constitutional order as a whole and not on a court case here or there.  If we were to ask whether the bulk of legal engagements in the sphere of property relations go the way of substantive equality and redress, the answer is no.  Nor will this change barring massive constitutional amendment, which I do not hear many progressive incrementalists calling for.   It is weird how of the “biggest and most radical” social movements in South Africa still resolutely cast housing demands within both the commodity form and the liberal constitution.  As I said earlier, we may examine what has happened to social movement politics in general at a more appropriate time.  However, judging from the intemperate reactions to these legitimate questions, there must be a mounting sense of internal dissonance about the portrayal of the politics of established social movements and an attempt to deflect the intellectual reckoning that is coming.   It is often the kind of support given to social movements that is the kryptonite of their initial, foundational politics. I am not sure how anyone who puts such faith in the law to reclaim rights against the intrusions of power can understand that the very rights he claims, and the subjects demanding them, are precisely an effect of power.   In this regard I dispute the argument that incremental gains are always better than nothing at all and can indicate progress.  While they may help individual social movements and their leaders build themselves as valid interlocutors with the state, for social antagonism the rhetoric of progress – linear, predictable, compatible – can be more damaging than the rhetoric of reaction (section 16).    This is not to sniff at even one person’s life being made easier by a court case.  These individual palliatives have a moral value.  Many lawyers help clients every day to stay an eviction or overturn a dismissal.  To celebrate these victories and the law that provides them as part of a radical project is not accurate, however.   Curiously, the eminent Marxist historian, Professor Martin Legassick has, in his latest book, Towards Socilialist Democracy, weighed in against a form of progressive incrementalism mooted by various reformist social and economic theorists.  In attacking these reformists, Legassick approvingly notes Lawrence Harris’s critique of incrementalism (which he names ‘constructed determinism’).  The claim for reform strategies is that they   “can be structured in such a way that they necessarily carry the movement forward to further reforms and they build on popular initiatives in such a way that they ‘leave a residue of further empowerment’ which automatically strengthens further struggles. The principle suffers from the weakness of all forms of determinism, for we know that there is no such thing as a set of changes that necessarily flow from changes already achieved.”   I say curiously because he is keen that you prevail in this debate.   It is sad that after 15 years of debating movements, antagonism, power and autonomy, we are still dealing with the nephews and nieces of Etienne Mureinik on the one hand and white, left champions of black victims on the other hand.   I believe we are coming to the end of an era where the constitution is still a plausible guarantor of change and social justice. Their politics has limitations for sure but one thing the latest generation of protesters seem to have realized is that the constitution is a dead-letter for those wanting a better life any time soon.      3… Stuart   You simply don't understand the jurisprudence or the law here. The National Housing Act says nothing about evictions, and consequently nothing about pre-eviction engagement or the last resort principle. Chapter 13 gives no legally enforceable rights to people in the absence of a decision by the state to apply it to them. Even then, the question of whether Chapter 13 creates enforceable rights for individual shack dwellers is a complex and vexed one. The progression in Abahlali was that it now MUST be applied as an alternative to eviction. Consequently its strictures on evictions as a last resort and exploration of upgrading are extended to all unlawful occupiers - potentiall even those on private land. That, while not a revolution, is progress.   Heinrich:   What does the National Housing Act and Code provide in relation to eviction? I don’t know whom to believe here, you or Moseneke.  In his judgment he sets out the Applicants’ argument that the “National Housing Act and National Housing Code stipulate that unlawful occupiers must be ejected from their homes only as a matter of last resort”.   He agrees with this submission and finds that section 16 is, among other things, “clearly” in conflict with the National Housing Act and Code because the requirement for instituting eviction in section 16 is no more than the say-so of the MEC and does not involve engagement and considerations of last resort [para 113]   You now tell me that the National Housing Act says nothing at all about evictions and thus could not have been a prior source of legal norms around engagement and last resort.   I must be more careful in future taking Moseneke at his word.   You further state that it was by no means clear before whether enforceable rights for shackdwellers were created by the National Housing Code.  That’s not really my point.  A prior legal norm for engagement and last resort existed, according to Moseneke and your own submissions to Court.  These norms conflicted with section 16.   Moseneke notes that Provincial legislation may well survive a conflict with National housing law and policy.  Both, though, must give proper _expression_ to constitutional values by being “just and equitable”   Moseneke accepts that the existing National Housing Act and Code as well as PIE embrace these values and, as we have known before, pass the just and equitable test.  Section 16, by not explicitly requiring the MEC to engage and consider last resort, is not “just and equitable” and thus fails the test.   If you are saying that you have now got the court to choose the existing norms in the housing code (and PIE) above section 16, then well done!     4… Stuart   The dangers you point out here are real. I take your point about the possibly the last resort principle merely becoming a procedural one. But it would be shortsighted not to acknowledge that the time and expense involved obtaining an eviction is directly related to whether or not it will happen. Shortly: if you make it harder to get an eviction, there will be fewer of them.   Heinrich:   Your concession is wise.   I acknowledge the value of raising procedural hurdles and you make a good point that this may demoralize legal owners from seeking evictions, especially those without infrastructure and legal resources.  This is unlikely to deter big landowners, as we discovered during the Crossmore engagement.   5… Stuart   You're wrong on Kennedy Road. There is active consideration of whether to upgrade it or not. The option has not been discounted. While the in situ principle may not seem new to you, take it from me: it is for the reasons I set out above.   Heinrich:   I stand corrected on the geo-technical issues.  I must be out of date.  A few months ago, eThekwini were pushing this point as their trump against upgrading in situ.  I am glad they have abandoned this argument, especially if they can also be encouraged to move the dump away from right next door to the upgraded settlement.   You talk about the in situ principle.  I read a piece in the M&G were the journalist reported a line about the development of this principle being the real value and import of the case.  I assume this assessment originates from the ABM legal team or that you are in accord with it.   You may call it complex, to me it is a strained argument in which the silence of the majority on a finding made by Yacoob in the minority portion of his judgment all interact (excuse the journalist’s own pun) in breaking new ground in housing.   The journalist narrates what protections previous judgments have provided the poor (engagement) and then goes on: “In the ABM case, Yacoob went further. ‘If it appears as a result of the process of engagement, for example, that the property concerned can be upgraded without eviction of the unlawful occupiers, the municipality cannot institute eviction proceedings.  This is because it would not be acting reasonably in the engagement process”   The journalist ends with a quaint turn of phrase: “The majority did not find cause to differ on this.”   Does this mean that Yacoob is the actual source of the new “in situ” principle which is the celebrated breakthrough in housing law?  If so, I have a few questions, theoretical, I must confess?   Is this new ground part of the ratio decidendi of the case?  Is it binding precedent?  It flowed from that section of Yacoob’s judgment that was the minority part, right?  This was the part that was found by the majority to be wrong?  And their silence in not countering every part of a judgment that they have found to be wrong overall means that the uncountered part of the minority judgment becomes law, becomes a legal principle?   And what do we make of Moseneke’s statement at para 115 in evaluating Yacoob’s attempts to interpret section 16 in a manner that would include, among other things, in situ upgrading? Moseneke says that “this interpretation is not reasonably plausible”.  Does this implausibility relate only to Yacoob’s logic while Moseneke still confirms, through his silence, the legal principle that in situ upgrading must occur; a principle that Yacoob survives even though he snuck it in using “an implausible interpretation” of section 16?   I do hope claims for legal precedent and principle on the question of in situ upgrading rests on more than what was reported in the M&G.   If you take refuge in “persuasiveness”, which in these circumstances my Willes suggests may not even apply, I can only repeat that some modesty in reporting the import of your case is called for.  I would remind you of your earlier chastisement: you either have a precedent or you don’t.      6… Stuart:   I aplogise if I upset you. You have more than given as good as you got in your reply. I think it is a "pathology" if people are not prepared to review their opinions in light of new developments. The problem with so much of your argument is that it sermonises. It does not specify the conditions under which it would be proven wrong. It is self-confirming.   Heinrich :   I’m not upset by insults.  I credit you as a correspondent and merely note how your argument could be made stronger; a courtesy you have also extended to me.   I agree it is pathological when people refuse to or cannot change their ideation in response to new developments.  I think we might just be looking for – and not seeing – these new development in different registers.  You see real jurisprudential advances on a case-by-case basis.  I see real political regression on a struggle-by-struggle basis.   Once again thank you for the opportunity and the patience you display in discussing these issues not only with me but a much wider audience.   REGARDS   HB         On Sat, Oct 17, 2009 at 9:32 PM, Martin Legassick <mlega...@iafrica.com> wrote: Bravo Stuart Wilson. Put this armchair theorist Bohmke in his place. He has absolutely nothing to say, save pessimism. Martin Legassick Attention listserve subscribers. The postings to this listserve do not reflect the position of the Centre for Civil Society; the service is made available as a public bulletin board, in the interests of information dissemination and debate. The listserve moderator will not forward materials to the list that include ad hominem personal insults or racist/sexist/homophobic/classist langauge To subscribe or unsubscribe from this list please go to http://lists.nu.ac.za/mailman/listinfo/ccs-l  If you are having problems with the automated system contact John Devenish on deveni...@ukzn.ac.za for personal assistance. Please do not send technical queries or requests to all 800 list subscribers.   --~--~---------~--~----~------------~-------~--~----~ You are subscribed. This footer can help you. Please POST your comments to yclsa-eom-forum@googlegroups.com or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email yclsa-eom-forum-unsubscr...@googlegroups.com . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): yclsa-eom-forum-unsubscr...@googlegroups.com . -~----------~----~----~----~------~----~------~--~---