Analysis

Leak of private letter suggests Western Cape High Court judges’ private comms are being monitored

By Marianne Thamm 15 April 2020

The Western Cape High Court. (Photo: Leila Dougan)

Are the communications of Western Cape High Court judges being monitored? The ‘leak’ of a private letter to a judge which is currently being used on Twitter in a propaganda campaign supporting Judge President John Hlophe, his legal representative Barnabas Xulu and others suggests an illegal interception.

Readers of Daily  Maverick might be familiar with “Africanist/Writer/Speaker” Modibe Modiba as the Unisa student describes himself in his twitter biog.

Modiba made his entrance as an amateur agent provocateur in March 2020 when he accused the Daily Maverick on Twitter of having orchestrated a paid propaganda campaign against select individuals.

Modiba began writing for Independent newspapers after Daily Maverick opted not to publish below-standard opinion pieces he submitted to the publication.

In March, Modiba claimed that Daily Maverick had paid him, and others, to “spy on the EFF and write negatively about them, create false stories and mobilise students and social media influencers to comment and respond negatively about anything to do with certain ANC, EFF and people like Iqbal Survé, Dan Matjila, Duduzane Zuma, and Panyaza Lesufi”.

Colleague Rebecca Davis sought to investigate Modiba’s single-source sensational claim that Daily Maverick had driven around Joburg in specifically Toyota Corollas dishing out cash from the boot to the legions of students who had been recruited to “write negatively”.

That we have scores of better-known Opinionistas who are willing to offer the same criticism often free of charge seems to have escaped Modiba’s crafted legend.

When Daily Maverick sought to serve a summons on Modiba for his lies and false claims he did a duck, first switching off his phone and then later claiming to have been mugged, his laptop and phone forcibly taken. Over on Twitter he accused Daily Maverick of idle threats. He would see us in court, he said. In this case we agreed. (The matter will be reported to court as soon as the lockdown ends – Ed)

Modiba blipped onto the radar on 12 April 2020 when he posted an email I had written to Judge Eduard Wille privately on 12 February 2020.

Here it is in full:

“Dear Judge Wille

I am making this personal appeal off the record and in private in the interests of protecting the integrity of the judiciary of the Republic of South Africa. You are more than aware of the current situation at the WC High Court.

We take it as a given that those selected to serve on the bench display the qualities of integrity and honesty that is demanded of this extraordinarily powerful position.

If the arc of the universe bends towards justice then those of us who are able to defend this should do so when the moment appears.

As part of the team who unravelled the Gupta leaks it is my experience that what is hidden is always made light eventually.

If you are in possession of anything or know of anything that will bring to an end the suspicion, the obvious climate of fear and of untruth in the division, the moment is now.”

Judge Wille is one of several, 12 to be precise, judges who have been caught up in an unseemly apparent unravelling of the division, with Judge President John Hlophe acting as a centrifugal protagonist.

But first, a recap.

***

In January 2020, Deputy Judge President Patricia Goliath, lodged a 14-page complaint against her boss Hlophe with the Judicial Service Committee (JSC). Her main complaint was that Hlophe had attempted to rig the bench and that he had allegedly assaulted a fellow judge, Musktak Parker, in chambers in February 2019.

This very soon spiralled into a tit-for-tat complaint lodged by Hlophe against Goliath which resulted ultimately in the 12 judges coming out to support her, specifically with regard to the assault on Parker.

Where Judge Wille fits into the puzzle is that it was he who had been given for apparent safekeeping an affidavit Parker had sworn to with regard to the alleged assault. Two fellow judges, Taswell Papier and Mokgoatji Dolamo, had apparently persuaded Parker not to lodge the criminal complaint against Hlophe.

Parker later “recanted” and stated that what he had thought might have been an assault had not in fact been one, that he had “misinterpreted events”. My communication with Wille in February was an attempt to investigate the truth of the claim.

He did not respond to my mail.

In fact, Wille has remained silent and neutral throughout the matter apart from providing a sworn affidavit along with other judges in a complaint that has been lodged against Parker with the JSC.

Parker’s troubles in 2020 did not end with his entanglement in the alleged assault saga with Hlophe.

It soon emerged that the Legal Practice Council, in January 2020, had applied for the strike-off of two attorneys, former partners of Judge Parker, after the alleged misappropriation of R8-million from the firm’s trust account.

Meanwhile, also in January 2020, Judge Owen Rogers handed down a significant judgement involving Hlophe’s personal lawyer, Barnabas Xulu.

Xulu was ordered to repay around R20-million in legal fees he had obtained, with the apparent blessing of former Minister of Agriculture, Forestry and Fisheries, Senzeni Zokwana. The department could have obtained the legal advice for free from the Office of the State Attorney.

Xulu and Hlophe were to find themselves back in the crossfire on 31 March. Minister of Environmental Affairs, Forestry and Fisheries, Barbara Creecy, approached the Western Cape High Court to have an order that Hlophe issued “in chambers” in September 2018 appointing Xulu as an “implementing agent” in a R100-million US repatriation settlement rescinded.

***

On 12 April Modiba popped up on Twitter posting a thread with began with:

“when me and @ThaboMakwakwa came out exposing @dailymaverick many thought we’re chance takers and all that. When we provided screenshots and proof of the biased publishing on articles, @MarianneThamm and her cabal tried silencing us. After continuously telling them to go to court.”

If you have any time to spare this lockdown, head on over and scroll through the thread, it speaks for itself.

Of my letter to Wille, Modiba wrote:

“Heres one email below. Now this email proves the superiority complex that journalists like @MarianneThamm portray If judges can be sent such emails, threatening them & telling them what to do, what does it mean for us who look towards the judges and the law for protection?”

Wille, his support staff or his lawyer did not leak the private email to Modiba, Daily Maverick has since confirmed.

Besides, what purpose would the leak serve with regard to Wille in particular? Wille has, throughout the unseemly saga, remained neutral. It is a matter that he, like the other judges, has been caught up in. These are not circumstances of their making.

That the Western Cape judiciary features negatively in the media is a self-inflicted wound.

Daily Maverick’s reporting has been based on public documents including complaints to the JSC, court judgements and other sworn affidavits to the court.

Which begs the question, how did Modiba come by this email?

And secondly, what is his purpose in publishing it on Twitter in what has since morphed into a clear campaign supporting Xulu and Zokwana, and denouncing judges Rogers and Goliath as well as Minister Barbara Creecy?

Xulu, Zokwana and others would have ample time to challenge Creecy’s application and set out for the court their version of events.

From Modiba’s published tweet of my letter to Wille, it is evident that Wille mailed it on to his registrar to print it out. This he did using the judiciary’s email system. My email to Wille was to his private account.

Also the content of the letter is hardly “incriminating”. It is an appeal by a journalist to a judge who might have vital evidence in clearing up an unseemly matter that has already tainted the judiciary in the entire region.

There is no doubt that this is a matter of supreme public interest.

Modiba’s making public of the letter, however, does not qualify as such.

Apart from publishing the letter and waging a propaganda campaign on his Twitter timeline, Modiba has also used the social media platform to attack judges in the Western Cape division.

The question now that must be asked is, how did the breach in the Western Cape judiciary occur?

How did rather harmless private communication which does not form part of any public court document, find its way to Modiba in order to be weaponised?

That the emails and private correspondence of judges might be the subject of illegal interception and monitoring should sound serious alarm bells, particularly in a division where the judge president himself is being investigated by the JSC.

This is also a division where 40% of the judges have publicly stated that they are not prepared to sit with Judge Parker at this stage and where there appears to have been an attempt to cover up an alleged assault.

There are only two ways the letter could have found its way to Modiba.

Either the judge’s private email account was hacked, or an individual or individuals gained access to Wille’s private chambers before lockdown in order to steal the copy.

Either way, this constitutes a criminal act, should be reported to the Office of the Chief Justice and an investigation be instituted.

***

Modiba, who to the best of our knowledge is not a journalist, also tweeted that he had emailed Judge Owen Rogers, who handed down the judgment in the R20-million Xulu case.

“Do you and the other 10 judges who wrote a letter to the Chief Justice rather have a problem sitting with Judge Parker? As stated by the Daily Maverick? And if yes what are your thoughts regarding Hlophe JP’s criticisms of judges refusing to work together?”

To while Rogers replied:

“this is not a matter on which I have any inclination to engage with you.”

Modiba also tweeted:

“We’ve over the years seen the deliberate attacking of @dailymaverick and it’s cabal on black leaders and black professionals. What hurts is that many white judges respond beautifully and openly to white writers but become arrogant when asked by blacks.”

No judge has “responded beautifully and openly” to “white writers”, in fact. Daily Maverick has reported on documents that are public and that have been lodged with the JSC.

Modiba added:

“the ethical behaviour of some of these so called journalists and Judges, needs to be looked into deeply. Our problems are many here. These things are much more complex than what meets the eye.”

Modiba then alleges that the Daily Maverick has embarked on a “smear campaign” to discredit a former gov DDG of fisheries”. He failed, however, to provide any such evidence of a story that could amount to a smear campaign.

That there appear to be orchestrated manoeuvres in the dark should seriously concern Chief Justice Mogoeng Mogoeng.

His own offices were the target of a mysterious break-in in March 2017 during which 15 computers were stolen.

Since then there have been no arrests or convictions for the break-in.

A few days after the break-in at the CJ’s offices, several computers were stolen from the offices of the Helen Suzman Foundation in Johannesburg. The foundation had been at the forefront of challenging many illegal decisions made by government ministers and officials during the Zuma years.

At the time, HSF director Francis Antonie said that he believed the break-in had been an attempt to find out more about the NGO’s networks.

Surprisingly similar break-ins also occurred at the offices of the Hawks and the NPA in Pretoria in July 2017.

If the private communications of judges are indeed being monitored then this is a clear and present threat to the independence of the judiciary, particularly in a division as troubled as the Western Cape with a judge president who is facing several inquiries by the Judicial Conduct Committee.

Judges need to be assured and guaranteed absolute privacy with regard to their private communications. Daily Maverick has reliably learned that the illegal possession and publication of judges’ private correspondence will be taken up with the Office of the Chief Justice. DM

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