There's been a lot happening in the South African justice systems this year. Most of it was pretty depressing, but not everything.
The first big court date of 2009 was to do with Jacob Zuma. It saw the Nicolson Judgment being reversed. The last big development in the justice sector was the appointment of Menzi Simelane as the new national director of public prosecutions. Again, that revolved around (now) President Jacob Zuma, as it was his choice. In between, was Judge John Hlophe. Although he’s still going strong as Western Cape Judge President, it seems unlikely he’ll get promoted higher, at least for now.
January 12 was a big day for those who follow politics. It followed an even bigger weekend, with the ANC going down to East London to launch its election manifesto. Zuma had been the star of the show in a rally that filled two stadiums (you don’t have to believe the spin if you don’t want to, but he really did fill two stadiums). There was a very different attitude in Court A up in Bloemfontein. There, Judge Louis Harmse, who was briefly the acting deputy chief justice, handed down that court’s revocation of the Nicolson Judgment. And it slammed everyone involved pretty much. Nicolson was wrong, anyone who’d made a political decision based on that decision was wrong and, by the way, no one had yet made a decision about Zuma’s guilt or innocence.
But Zuma and the ANC, it seemed, had other ideas. There must be another way, another link that will be much easier to break they reckoned. Then they found a weak link in the chain and pressed hard. Eventually Moketedi Mpshe gave in. At the same time, surely not coincidentally, a set of tapes was given to him that could “prove” there had been “interference” in the timing of the prosecution of Zuma. It was probably the worst moment for Lady Justice this year.
It was proof that in this republic, political power can trump the law. It showed again that there was no real respect from the politicians for the independent institutions. As more and more people went into Mpshe’s rationale, it became clear that he was legally wrong, as the judgment he’d found as a precedent had itself been overruled on appeal (the Seagroat Judgment). The next day Zuma waltzed into Court A of the Durban High Court, and KZN Judge President Vuka Tshabalala himself wished “the accused good luck” as the charges against him were formally withdrawn. Prosecutor Anton Steynberg must have wept. He’d been a part of the Shaik prosecution team and was easily the loneliest person in court.
But before you join him and his tears, there is a silver lining. No judges were interfered with. The court system held. It was the NPA that was put under pressure. And a weak man in an intolerable position had buckled. But all of this did leave the judges themselves untouched. No matter how temporary it may have been, it was still good news.
The country celebrated. And for pretty good reason. In the eyes of many, this showed it had taken one wrong to fix another wrong. Zuma had been the victim of Mbeki. He had polluted the entire NPA in the first place, and the prosecution of Zuma had been a political one. The claim of a political conspiracy was true.
And now, looking back over the long history of the Zuma case, it seems that was correct. Mbeki had suspended Vusi Pikoli because he was going to charge someone he liked, and it seems, a decision had been made to charge Zuma, whom Mbeki didn’t like. Then there were the intelligence tapes. Their contents haven’t been denied by the people on them, Bulelani Ngcuka and Leonard McCarthy. It was actually McCarthy who was acting NDPP the day Zuma was formally charged, just days after his victory at Polokwane. And it was he who had discussed that with a man with whom he had no business doing so. Ngcuka, it now seems, had been up to no good all along, during and after his time as NDPP.
By the way, there were other decisions that showed there were problems in the prosecutorial system. A corruption investigation into Ngoako Ramathlodi took forever, only for a decision not to prosecute to be made. Other Zuma allies were subjected to similar treatment. That kind of thing shows that there have been huge problems in the prosecution service for ages.
While we’re here, this shows us it’s way too late to panic over Simelane’s appointment. The fact is there were compromised people in charge of the NPA all along. Ngcuka, who spent half his time involved in the Hefer Commission (to be fair, he was accused by the Zuma crowd, so he did have to protect himself and then, perhaps, decided to continue that fight by other means). Pikoli, who was appointed by Mbeki, charged Zuma, and was suspended himself when he went after Selebi. And then there was Mpshe, who was clearly a little weak for the job. So we’re actually pretty used to having a less-than-perfect person in the job. Whether that means it’s now too late for us to get out of the boiling water is another debate.
Adding to the temperature, was the appointment of Jeff Radebe as justice minister. One of the longest serving cabinet ministers, he’s now in charge of the only ministry that can actually affect Zuma personally. He can have a silly habit of saying the wrong thing, but doing the right thing in the end. He, and sometimes the ANC, seemed to tilt Hlophe’s way. He certainly appeared to have voted for Hlophe on the disciplinary inquiry, but against him at the Constitutional Court interviews. He showed huge respect for judges, speaking their language at a judicial conference and at the formal farewell for the judges who retired this year. There is a question mark, however, over whether he really believes the executive should leave judges and prosecutors completely alone. In the near future his position will be crucial.
In the meantime, Hlophe was just beginning to get rolling. The damage he and some of the other people involved in his saga did to our judiciary is incalculable. He rent it asunder along racial lines, which was the last thing our legal fraternity needed. Having said that, it does seem as if there was an old white boys club attitude by “die visdorp” bar and things needed a bit of a jolt. But he ended up polluting the Judicial Service Commission. And some of its members simply allowed themselves to be used in a way that will be damaging for years to come. The resulting finding of its disciplinary committee – that it would just “finalise” the Constitutional Court’s complaint against him – appears to be legal nonsense: A document that is extremely difficult to follow, it seems to be based on the premise that cross-examination is a bad thing. This from people who spend their lives doing precisely that.
The JSC is a hugely important organ in our society in that it literally judges the judges. It failed us this year. It also set itself up to fail again, should it be placed under any kind of pressure.
Its reputation was not enhanced by its three days of Constitutional Court hearings. Some people emerged better than others. Pius Langa was one who kept his dignity and control of things, while advocate Marumo Moreane did not, asking every candidate whether they’d discussed their candidacy with Judge Johann Kriegler. He also gave advocate Geoff Budlender hell about his comments regarding the Nevirapine case, conveniently managing to mention that he was the opposing counsel in that matter. Part of his questioning seemed based on bolstering the JSC’s decision on Hlophe.
But in the end, the JSC, in what was a suspiciously short time, emerged with seven names on its short list, winning back a fair amount of respect with its decision to exclude Hlophe. Reports from inside the meeting showed he simply hadn’t been a serious contender. In a breath, everything had changed, and the ball game was suddenly different.
Almost immediately people were asking if too much had been made of the Hlophe affair. The answer is simply, no. It’s impossible to predict what would have happened had there not been such an outcry. Also, if the Constitutional Court hadn’t gone public with its complaint against him, we may never have known that any attempts at interference had happened (You might want to be careful here, Stephen. The JSC says maybe they didn’t happen, although we do think they probably did – Ed). That could have seen someone that appears completely unsuitable ending up on the highest court of the land. The JSC also proved that politics doesn’t always win. And Zuma and the ANC dropped him like a sack of potatoes. (However, the real question here is: dropped forever, or only for now, until circumstances change? – Ed)
The four judges who were appointed, who seemed to have been missed in the Hlophe furore, are good, experienced jurists. Moegeng Moegeng, Sisi Khampepe, Chris Jafta and Johann Froneman are independent in thought, careful in deed and have amazing life stories. They will serve the country well in the years to come.
The year 2010 could be the first in many, where that man Zuma doesn’t dominate the legal headlines. At the moment, there are no charges against him and that’s probably good for the stability of the country. Simply put, most people have decided to move on and judge him on other things, such as how he performs as president. Sure, there is the little matter of the DA’s court case asking for a review of the decision to withdraw the charges against him, but the chances of that actually being heard next year are, how should we put it, as good as a snowflake in hell?
The people who are likely to be in the firing line are Simelane and Radebe. They actually have to do things. And people simply don’t trust Simelane. There are good reasons for that, and, as a result, every high profile decision he takes will be scrutinised through the political lens first. And there’s probably going to be an exodus of skills from the NPA, which will lead to more mistakes. From his side, Radebe will also have to try to show a sceptical public that court rolls are getting shorter. He has to make access to justice cheaper; a seemingly impossible task at the moment. South Africa will probably remain a country where cheque-book justice dominates.
At the same time, after what happened at this year’s JSC hearings, some of the best legal minds in the country may decide not to apply for judge-ships any more. Why put yourself through that? Even one or two of the best legal minds in the country were overlooked for the Constitutional Court this time around. The best legal minds aren’t getting the most important and challenging jobs. And the most independent people aren’t getting the jobs where independence matters most.
That’s what’s really most disheartening about our legal system at the moment. We do hope things change for better.
By Stephen Grootes
(Grootes is an Eyewitness News reporter)
Photo of President Zuma: Reuters
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