Brian Kazungu, 17/02/2021
Businesses in South Africa are crying foul over what they termed as non-bearable basic Eskom tariffs which they consider to be extortionary when taking into account the reduced actual consumption which resulted from the Covid-19 induced lockdowns.
Some business owners who said they had engaged Eskom over the matter expressed concern on the fact that the power supplier has continued to bill them as normal and yet the lockdown has prevented them from utilising their properties since people are being made to work from home.
One of the landlords who signed an Integrated Electricity Supply Contract with Eskom said that because of the lockdown and its impact on their operations, their actual consumption has reduced by 70% but the power company is not cooperative in having the tariff adjusted.
They also revealed that attempts to discuss the issues with Eskom proved to be non-effective as the company indicated that the process to apply for the alteration of a supply contract to reflect the reduced consumption to current level takes about 12 months to process and approve.
“Just imagine spending 12 months paying 70% more on something when you really know you must be paying only 30% of that amount.
For example, on an integrated supply contract of 315 KVA, you have to pay about R12 000 ceteris paribus but our current consumption is only 90 KVA. Why should we then pay for the absurd 200 KVA that we are not using?” The businessman fumed.
Business owners who were organizing themselves into a group of aggrieved parties that share a common problem said they were planning to take Eskom to the courts in order to invoke the Force Majeure principle which they said was provided for in the contracts.
A lawyer who commented on the issue said “rather than leave their fate to the common law doctrine of Supervening Impossibility, in modern times, parties, in a bid to manage risk, have sought to regulate Supervening Impossibility by specifically making provision for it in written contracts.
These clauses can either broaden or narrow down the scope of the doctrine depending on what the parties agree. Such contractual clauses have popularly come to be known as “Force Majeure” clauses.
Thus in the event of supervening impossibility, the Court will look to the “Force Majeure Clause” to determine the dispute. In the absence of such a clause the court will apply the common law.
Secondly, it is important to understand that the actual legal principle is that of “Supervening Impossibility”. Normally, a party who fails to deliver his part of the bargain is guilty of “breach of contract” and the offended party can sue for specific performance or cancellation and damages.
However, if performance has been rendered impossible by an occurrence beyond their control such as “force majeure” in the form of, e.g. an earthquake, volcano, tsunami or a plague, they are absolved from liability.
Therefore in this case, force majeure (e.g. a Tsunami), is the supervening event that has made performance impossible.” He explained.
Umkhonto We Sizwe (MK) Gauteng Tells Zuma To Respect The Constitution And Face The Zondo Commission
Brian Kazungu, 14/02/2021
In its national press statement dated 12 February 2021, the MK National Council in Gauteng reminded former president Jacob Zuma that “LEADERS HAVE AN OBLIGATION TO LEAD BY EXAMPLE AND DEFEND THE CONSTITUTIONAL ORDER”.
It highlighted that even though the disclosures at the Zondo Commission can be uncomfortable and painful, the MK sees no reason to second-guess its leaders and take a hostile posture towards the Commission on Allegations of State Capture.
Describing the Commission as a necessary bitter medicine which South Africa needs in curing itself from the corruption virus, MK National Council in Gauteng said that it cannot remain silent when law and order is under threat.
It further made a plea to former President Zuma to desist from listening to the advice of those who are seeking to manipulate him into violating the law for their selfish interests.
“As our ex-Commander, we feel we have an obligation to ask you Cde President to ignore the advice of those who encourage you to turn your back on our constitutional order.
…..There are many who encourage you to defy the courts not for your wellbeing but theirs. They are fugitives from justice, who see you as their Moses who must show them the way to standing up against legality as a way of escaping responsibility and accountability for their choices.
Please Comrade President, deny these would-be bandits the example and the motivation they so desire to claim you as their idol and choose the people you struggled for”. Read the statement.
Gauteng MK also called for the investigation of misconduct among some comrades on allegations of defiance against the constitutional order and pleaded with the ANC NEC to look into the welfare of war veterans in an attempt to save them from being used as cannon fodder in factional fights because of their desperation.
It also expressed its interest to reach out to the ANC, SACP and COSATU in Gauteng in order to strengthen a progressive front in defense of the values of the movement as well as for national interest and to safeguard the future of children.
The reminder for President Zuma to respect the constitution, according to Gauteng MK comes as a solidarity gesture with the ANC Veterans League, Eastern Cape MK LWVs, and other progressive organizations and individuals who have already stood for the defense of the constitutional order.
Attached below is the full press statement by Gauteng MK:
Is Zuma A Victim Or A Villain?
Brian Kazungu, 06/02/2021
The controversy regarding the conception of a Commission of Inquiry, its establishment, and facts and circumstances of the appointment of Justice Zondo as its chair continues to divide South Africans.
On the one hand, a conclusion was made by the former Public Protector, Ms. Thuli Madonsela, that former President Zuma was complicit in the blatant abuse of the rule of law.
On the other hand, a view was held that he was a victim of a deliberate illegal and unconstitutional scheme to remove him and make him a poster boy of a narrative that he was one of the most corrupt person ever to occupy the office of President.
The debate as to whether Zuma is a villain or victim has been reignited by his refusal to attend the Zondo Commission hearings alleging that Zondo is a product of a corrupt scheme initiated by Madonsela and executed by the Chief Justice.
Yesterday, Malema who has distinguished himself hitherto as one of Zuma’s most potent nemesis, met with Zuma for tea at a time when calls are getting louder that Zuma must comply with the Constitutional Court order to attend the Zondo Commission.
Could Malema be playing a devil’s advocate? Only time will tell.
All the drama surrounding Zuma and the Zondo Commission has generated much public interest on civic issues among the citizenry.
This therefore raises the question: What is Civics Literacy?
This publication, iniAfricaNews, is a member of the C2C Civics Literacy Campaign aimed at raising awareness on the urgency and need for citizens to assume their rightful place in their own affairs based on shared understanding on citizenship and what duties it imposes on citizens.
The Zuma case study exposes the fact that there exists no shared understanding necessary to answer the question of whether Zuma is a villain, a view that is commonly held, or he is a victim of a vicious elite-driven scheme to take him to hell under the guise of constitutionalism.
In this raging debate, it is unmistakable that the knowledge and skills to participate effectively in civic life through knowing how to stay informed and understanding governmental processes as well as knowledge on the rights and obligations of citizenship across the board is not shared.
This case exposes illiteracy in the public sphere to allow for any meaningful consensus to be reached regarding the true nature of what has been dubbed ‘nine wasted and corrupt years’.
Zuma’s legacy is in tatters and his adversaries are not done with him.
He knows what is at stake and clearly he has arrived at the point where he believes that he would rather go down standing up for what he believes in rather than on his knees begging for favors from his comrades.
The question of whether Zuma’s decision to defy the ruling by the highest court in the land is alive and well in the public domain and even in the C2C WhatsApp groups, this question is being heavily contested.
The thread below is a typical conversation in these groups.
In this thread, Mr Frederick Kyle, a trained lawyer, who is member of C2C Legal Literacy Campaign, exchanges insights with Mr. Mawere, who is also a member of C2C on whether Zuma is misguided or not.
Please follow the thread and judge for yourself:
[2/3, 5:37 PM] mdmawere1: What is your reading of Zuma’s position.
[2/3, 5:48 PM] Rikki: Think he should spill the beans on some of the current guys, put them all in a spin. Tell the Commission to fuck off. The ConCourt was wrong and biased as his faith was sealed a long time ago. Don’t think he has a proper team representing him.
[2/3, 5:49 PM] Rikki: What do you think of the contents of the article below?
[2/3, 5:54 PM] mdmawere1: https://iniafrica.com/index.php/2021/02/01/as-zuma-takes-a-jab-at-justice-zondo-and-the-south-african-judiciary-the-c2c-community-analyses-the-meaning-and-impact-of-the-former-presidents-statements-in-his-press-release/
[2/3, 6:17 PM] Rikki: What is your personal take?
[2/3, 7:40 PM] Rikki: Well written. Bit hard to read, but good points all around. The last statement by Zuma: “In the circumstances, I am left with no other alternative but to be defiant against injustice as I did against the apartheid government.” should scare every single South African. The Judiciary is serving the same purpose it did during the apartheid era but now, just for a new master.
[2/3, 7:42 PM] mdmawere1: Do the points make sense or you think the newspaper should take another bite on what Zuma is saying?
[2/3, 8:30 PM] Rikki: It is not whether or not I understood, as I am a knowledgeable reader.
This is a pivotal moment in South African history that is deliberately being silenced and might very well go unnoticed.
The effect of what Zuma is saying is that we are no longer living in a democratic society based on the principles and values entrenched in a Constitution for which they thought so hard.
There is need to make sure that this is not only brought to the attention of but also understood by the common man (the masses).
[2/3, 9:27 PM] mdmawere1: I hear you. The difficulty lies in the media actors communicating in a language that can be understood by the masses. So far, I think that Zuma like Mandela in 1963, has attempted in his own words to simplify what is a complex matter into a provocative public policy matter with significant ramifications for the future of the ANC and the country.
[2/4, 7:34 AM] Rikki: He is trying but the legal system is super complicated for no real reason other than to enrich the players. An impression has rightly or wrongly been created that the judiciary is clean and corruption only occurs outside the four corners of the court which is not the case. Is it not ironic that the focus of the Zondo Commission has been on the conduct of the executive and legislative branches of the government and nothing on the judiciary?
[2/4, 7:36 AM] Rikki: Maybe the newspaper should focus on the last point in the article in a follow up that they can try and get to the mainstream as part of this important civic literacy campaign. They should explain and compare how the old Government used the Judiciary to prosecute the Rivonia trialists and put people like Mandela in jail for 27 years so they can continue their agenda and now, the ANC is doing the same perhaps with its members not fully grasping what is at play. This whole enterprise was orchestrated by Madonsela who openly stripped Zuma of his reserved powers and handed them to the Chief Justice. The power to appoint a Commission of Inquiry is reserved for the President yet the reality in this absurd matter is that the judiciary played a decisive role in divesting Zuma of this right. Do you think absent Madonsela and the judiciary, Zuma would have appointed this Commission?
[2/4, 7:36 AM] Rikki: They should try and use stories the masses know and understand to explain what is happening. You are also a victim of this justice system. I am surprised that you are silent. Your matters will and should help in exposing the inconvenient truth that the judiciary is rotten to the core. People think that Zuma is the only victim in town when the victims are many. Some do not have the guts like Zuma to stand up to these bullies who are not accountable to anyone yet expect the rest of us to be accountable.
As Zuma Takes A Jab At Justice Zondo and The South African Judiciary, the C2C Community Analyses the Meaning and Impact of the Former President’s Statements in His Press Release
Brian Kazungu, 01/02/2021
In his Press Statement dated 1 February 2021 and titled Statement On Constitutional Court Decision Compelling Me To Appear Before The Commission Of Inquiry Into Allegations Of State Capture, President Zuma took a jab at Justice Zondo and The South African Judiciary.
He accused the Commission, its Chairperson and the legal system in South Africa for being politicized and being partisan at the expense of justice and expressed his unwillingness to further corporate with commission its compromised state.
iniAfrica news extracted four critical points from President Zuma’s Statement for analysis with the Connections2Communities (C2C) initiative which is a member based group that incorporates shared knowledge, insights and experiences of its members in solving community problems.
Below are the four points (statements) raised by President Zuma and the comments (responses) of the C2C Legal Literacy Group.
President Zuma: “He (Zondo) literally created a dispute of fact in an application about him and continued to adjudicate the matter where his version was being contested by me.”
C2C Legal Literacy Group: Zuma is saying that the constitutional dictates that a fair trial calls for an independent and impartial tribunal. An application was made by Zuma for the recusal of Zondo to preside on a dispute that involves Zondo’s own version as to whether the allegation that Zondo and Zuma were known personally to each other was valid or not.
Zuma has his own version that they knew other very well to disqualify Zondo from presiding over a matter that Zuma believes was conceived and prosecuted as an anti-Zuma project.
Zuma takes issue with the way Zondo was appointed and the idea of the Commission was born.
He argues that once a dispute of fact is thrown into the mix, the dispute can only be fairly dealt with by way of a trial and not by motion proceedings.
Zuma argues that the existence and establishment of the Commission is also in dispute especially having regard to the fact that he was unconstitutionally put in an invidious position of outsourcing the power that the Constitution reserves for a President to establish a Commission solely aimed at attacking his dignity and reputation.
It is alleged that the Zondo railroaded the recusal application with the knowledge that no court of law would challenge his finding.
Zuma who acquiesced to what he describes as judicial capture of the President believes that he has a just cause to expose the way the judiciary was complicit in undermining the rule of law and constitutionalism.
Zuma says he is a friend of Zondo and Zondo says that he is not a friend of Zuma. How best can the truth be established when one is a referee and player of a game?
President Zuma: It is clear that the laws of this country are politicised even at the highest court in the land.
C2C Legal Literacy Group: What is Zuma saying when he alleges that is CLEAR that the laws of the country are politicized?
He was a former President of the ruling party and the Republic of South Africa. For a person like him to make this politically charged allegation, means that he has lost all political gravitas in the ANC to have his perspective accepted and understood.
The role of the judiciary in inducing or coercing Zuma to accept his demise and the consequence of a spear aimed principally at him is a subject matter for another day suffice to say that the promise of liberty in the Constitution that is entitled to all SA citizens was taken away from Zuma leaving him with no room to manoeuvre.
Zuma is making the point that the doctrine of separation of powers precludes any judicial encroachment into the arena of the exercise of public power reserved for the executive.
There can be no doubt that Zuma’s version of facts confirm that he did not make the suicidal choice to establish a commission to investigate himself but his comrades in the ANC abandoned him to what he terms judicial vultures to skin him alive.
He makes the poignant point that even the Chief Justice, a man who took an oath to promote and protect the constitution had a hand in it.
Does Zuma trust anyone with public power? Clearly after his personal experience, he may not have any reason to do so.
If public trust and confidence in the judiciary as a guardian of the rule of law, the existence and operation of the Zondo Commission must worry any constitutionalist.
It is now law that the powers reserved for the President can be altered and taken away without any common sense, reason and logic being offended.
What is a coup? Zuma alleges that a coup was wilfully and intentionally authored outside the four corners of legality and to have a Deputy Chief Justice presiding over the Commission is an indictment of the promise of justice inherent in any constitutional dispensation.
Zuma argues that if the people to whom justice and fairness must find best expression are the very people who undermine both, then what good is it to be a free man?
President Zuma: It is also patently clear to me that I am being singled out for different and special treatment by the judiciary and the legal system as a whole.
C2C Legal Literacy Group: When this group was created and started operating, the hope was that minds would be provoked to speak truth to power without favour or prejudice.
In this dispute, it would appear on the face of the facts presented that Zuma willingly established a commission of inquiry to among other ancillary matters, investigate and find him as the most corrupt person to ever have occupied the highest office in the land.
However, Zuma says that it is PATENTLY clear to him as must be to anyone who possesses common sense, logic, and reason that the idea and ideal of the Commission disguised as a judicial enterprise was to single him out as an exceptional corrupt person.
The Constitution provides for the office of the President who must work with a cabinet that serves at his pleasure.
The administration of departments of government is assigned to Ministers. With respect to state-owned enterprises, it is trite that they are creatures of law and the control and direction of such organs is vested and ought to be vested in the board of directors.
Zuma argues that no evidence has been led that the corporate veils of such institutions have been pierced in a transparent and open process that is consistent with the limitations imposed in terms of the Constitution and the laws of the country.
By asking the former President to personally speak on behalf of institutions whose control and direction fell outside his mandate, he argues that this confirms that the promise cannot be an outcome that is in the interests of justice and fairness.
He believes rightly or wrongly that he is being singled by the very people who are supposed to protect his constitutional rights.
The onus on the parties that allege that he did what he is alleged to have done in undermining the rule of law would appear to Zuma that it has been shifted to allow a legal absurdity to exist that the presumption of innocence is no longer a promise.
If the Zuma standard can be the law, who would be safe, he asks? It means that Ministers can escape scrutiny and directors who presided over the alleged malfeasance and corruption can simply point a finger to the President as the Chief Culprit.
Who are the cheerleaders to this travesty of justice? Zuma alleges that the whole legal system seems to be active in giving life to an untenable precedent.
What time is it? It is self-evident that if Zuma had any confidence in the promise of the protection of the law to any accused especially to him, that confidence has been drained and downloaded completely.
President Zuma: In the circumstances, I am left with no other alternative but to be defiant against injustice as I did against the apartheid government.
C2C Legal Literacy Group: Zuma is in a legal corner. He has been placed in this corner by his own comrades who constructively played a part in creating a precedent that will haunt many President to come.
He knew that his fate was precooked and predetermined. He naively trusted the constitutional promise of an independent and impartial justice system.
He appointed some of the actors he now blames for setting a trap for him. His relationship with the Guptas or rather his alleged relationship with this family created the fodder to create a public perception that his conduct or alleged conduct was unconscionable.
What is fact or fiction? It is not easy to establish and distinguish between fact and fiction when the people who are by law vested with the discretionary powers to test evidence appear in the mind of Zuma and many others to have made up their mind?
What is the state? Does a shared understanding exist on what the state is and is not let alone whether this innovation in the dictionary of mankind speaks to reality and the legality of the construction inherent in the importation of this term?
In what form does the state exist? What does state capture means? Can a living, mortal and fallible human being be capable of being an alter ego of this human construct?
After capture, what would the state look like? Can a human being with two ears, two legs and two eyes be capable of substituting other human beings to even pretend to be exceptional and give rise to the reality implied in the term state capture?
When does the promise of justice transform itself into the reality of injustice? Where is wisdom and understanding to be found when allegations are boldly made that the judiciary is part of a scheme to prove a point using Zuma as the case study?
Zuma has arrived at the inescapable conclusion that he cannot be expected to volunteer or be forced into a lion’s den and expect to come out alive.
He knows what the outcome is and that there is little that he can do to mitigate it. If he was bullied to establish a commission to nail him, what more can he do when his dignity has been sufficiently undermined to give him no legal refuge?
Today it is Zuma, but who will be next?
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