Arbeit macht frei: - Fredrick Töben

contended, your Honour, is that not even the existence of that status can
give validity to something which was essentially invalid, because it was
unconstitutional; that’s the way it’s put.
HIS HONOUR: Well, with respect, I don’t think it can be put that way or
any other way, with respect. First, if in fact Dr Toben now contends that
the inquiry and the determination of the Human Right and Equal
Opportunity Commission, which preceded the orders made by Branson J
on 22 September 2002, was unconstitutional and invalid. That is a matter,
if it could be raised, which ought to have been raised before her Honour
at that time. If in fact it could be raised at any other time, it had to have
been raised at the time – or before I made my determinations as to
whether or not Dr Toben had been guilty of contempt.
The starting point in the inquiry as of today is that Dr Toben has been
guilty of contempt in that he has failed to comply with and to – he has,
sorry, he has disobeyed orders of Branson J made on 22 September 2002
and he’s failed to honour his undertaking to Moore J on 27 November
2007. That is the starting point. There is no earlier point in terms of an
inquiry as to the facts.
MR PERKINS: If your Honour pleases.
HIS HONOUR: Thank you. Then I would admit paragraph 21. I don’t
need to hear you on that, Mr Perkins, but I will not admit paragraphs 31
to …
MR PERKINS: 73, if your Honour pleases.
HIS HONOUR: 71. Because paragraph 72 and paragraph 73 go to Dr
Toben’s personal circumstances.
MR PERKINS: If the court pleases.
HIS HONOUR: And I’ll not admit paragraphs 4 to 26 of the second
affidavit.
MR PERKINS: Could your Honour please also rule on everything in
paragraph 2 after the first sentence?
HIS HONOUR: I’ll admit paragraph 2 following that, because it goes to
his personal circumstances.
MR PERKINS: Except it’s referring now to material that’s not been
allowed in the other affidavit.
HIS HONOUR: What’s that?
MR PERKINS: It refers to paragraph 31 of the previous affidavit that your
Honour has just not accepted.
HIS HONOUR: Paragraph 2 of the second affidavit?
MR PERKINS: Paragraph 2 of the second affidavit and it starts with: I
refer to my previous affidavit –
HIS HONOUR: Very well, I will not admit the fourth and fifth sentences
of paragraph 2 of the second affidavit. Now, Mr Margo, do you wish to
cross-examine Dr Toben on his affidavits?
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