OP-ED

CR17 campaign: Openness and transparency will counter spurious judicial bribery claims

By Pierre de Vos 25 February 2021

EFF leader Julius Malema. (Photo: Gallo Images / Papi Morake) | Cyril Ramaphosa, South Africa's president. (Photo: Waldo Swiegers / Bloomberg via Getty Images) | Former president Jacob Zuma. (Photo: Waldo Swiegers / Bloomberg via Getty Images)

It is not surprising that both Jacob Zuma and Julius Malema recently launched scathing attacks on the South African judiciary, claiming — without providing any proof or even credible circumstantial evidence — that some judges may be corrupt and may have been bribed. Exploiting valid concerns about the attempt by the CR17 campaign to keep its bank statements secret, Zuma and Malema are promoting a conspiracy theory that may be believed despite the fact that it is not backed up by any evidence. It is therefore important — for both pragmatic political and principled legal reasons — that the court unseal these documents forthwith.

Pierre de Vos

Once in a while, I receive a barrage of emails from somebody who claims that a judge ruled against them in a matter because the judge was bribed, criminally negligent or conflicted in some other way. These emails often contain thousands of pages of attachments purporting to prove the fantastical claims made by the complainant. So far, they never have. But, to be honest, I do not always read through all the attachments because the emails tend to be incoherent, and the sender not sufficiently in touch with reality, to warrant any investment of time.

This does not mean there is no reason to worry that individual judges may have been corrupted or may have acted in a dishonest manner. Most notably, the Zondo Commission heard a few weeks ago that there is very strong circumstantial evidence that the State Security Agency (SSA) had arranged for cash to be handed to an unnamed judge to advance the factional interest of those aligned to former president Jacob Zuma.

It is pivotal that these allegations are properly and speedily investigated and that the judge be removed from office if the allegation is true. (The relevant parties should also be prosecuted if sufficient evidence exists to secure a conviction.)

But over the years, the Judicial Service Commission (JSC) has also been required to deal with serious (but specific) allegations levelled at a handful of other judges allegedly involved in dishonest or corrupt practices.

In 2006, Judge Ismail Hussain resigned from office after the JSC decided that the charge of gross misconduct must be preferred against him. The charge related to a complaint that while acting as an arbitrator after his judicial appointment, he received and misused monies intended to be dealt with in the arbitration award.

At present, Judge Tintswalo Makhubele is facing a Judicial Conduct Tribunal, in part because of her alleged attempt to disrupt litigation to advance the interest of a private company that allegedly won dodgy tenders from the Passenger Rail Agency of South Africa (Prasa). At the time, Makhubele was the Chairperson of the Interim Board of Control of Prasa. Western Cape Judge President John Hlophe is similarly awaiting the outcome of a Judicial Conduct Tribunal about his alleged attempt to influence the justices of the Constitutional Court to rule in favour of Jacob Zuma in a matter relating to his prosecution.

Because the JSC can only act if a complaint is lodged against a particular judge and if sufficient evidence exists to take action against that judge, it is not in a position to investigate any of the vague and unsubstantiated claims recently made about the judiciary. But members of the public who are not well versed in law, who are inherently suspicious of judicial authority, or who are blindly loyal to those accusing judges of taking bribes, may not accept that the JSC can only act if it is provided with credible evidence.

They may also believe (or claim to believe) that the mere fact that the judge ordered the sealing of the CR17 campaign documents provides sufficient “proof” that the documents contain information proving the conspiracy.

It is of little use to explain to those advancing or embracing this conspiracy theory that the accusations against the judiciary are not based on evidence and are therefore not credible. It is like bringing boxing gloves to a gun battle. This is because such accusations are levelled for political (not legal) reasons and are aimed at achieving political (not legal) ends. For such accusations to be believed or promoted, all that is required is to make people feel that there is something politically wrong with a court judgment.

I suspect this is why Jacob Zuma and Julius Malema both recently claimed that some judges were bribed by the CR17 campaign. In the political (unlike the legal) arena, the attempt by the CR17 campaign to keep the documents secret may provide enough “proof” of a conspiracy to those who will benefit politically from promoting this claim.

The conspiracy theory that the Ramaphosa campaign bribed judges is further fuelled by the fact that it is far from clear that the decision to seal the CR17 bank statements was legally correct as it may not have taken sufficient account of the principle of open justice.

Whenever a politician tries to hide information from the public, it immediately raises suspicions about his or her motives, making many of us wonder: what is he or she hiding? (It is for the same reason that I am wary of a politician who invokes national security to justify the classification of documents, and why this raises suspicions about whether the politician is trying to hide wrongdoing.)

The conspiracy theory that the Ramaphosa campaign bribed judges is further fuelled by the fact that it is far from clear that the decision to seal the CR17 bank statements was legally correct as it may not have taken sufficient account of the principle of open justice. In City of Cape Town v South African National Roads Authority Limited the Supreme Court of Appeal (SCA) emphasised the importance of open justice, noting that open justice “serves democracy as much as it serves justice” as it “allows voters to review the outcomes of current laws and to advocate, if needs be, for law reform”.

The court added: “This is an essential feature of a flourishing democracy, because, and this cannot be emphasised enough, more openness and visibility about government activities helps to build citizens’ trust in their government. Even where national security is concerned and there are frequent restrictions on public access to evidence or information… limiting public access to evidence on national security grounds is invariably controversial because the decision to impose restrictions will often be based on information which is itself secret and cannot be publicly tested.”

Accountability, responsiveness and openness are founding values of the South African Constitution. As the SCA pointed out, this openness is pivotal for the proper functioning of democracy, as it ensures that voters have access to the kinds of information they need to make informed political judgments. Openness also enhances political and legal accountability.

Openness limits distrust, promotes accountability and curbs the abuse of power by both public and private parties. Openness is also the enemy of demagogues and conspiracy theorists — as the CR17 case illustrates. If the CR17 bank statements had not been sealed and had been published in full, any false claims about the content of these documents would have been less credible.

In City of Cape Town v South African National Roads Authority the SCA, rightly in my view, held that any person who is personally interested in a matter should normally have access to court documents. To hold that only a person with a direct legal interest should have access to court documents would severely limit “the basic principle of open justice, and the rights to public hearings, freedom of expression and access to information for the reasons described earlier”.

The decision to seal the CR17 documents seems to have been based on the fact that they are confidential records obtained from the Financial Intelligence Centre (FIC) and should thus remain confidential. This is because section 40 (read with section 41) of the Financial Intelligence Centre Act prohibits any person from disclosing information held by or obtained from the centre. However, section 41 contains important exceptions that allow disclosure of information obtained from the FIC “for the purpose of legal proceedings, including any proceedings before a judge in chambers; or in terms of an order of court”.

As I read this provision, it allows a judge a discretion on whether to seal or not to seal documents obtained from the FIC. I believe the discretion should have been exercised differently to take full account of the demands of open justice. This is even more the case now that the documents have been leaked and extensively reported on by at least two media houses as the horse has bolted as the documents remain secret in name only.

Court judgments are not above criticism. Our law journals are filled with academic articles criticising court judgments or criticising the criticism of court judgments by other academics. This is normal. What is not normal is to assume — without any proof — that a specific judgment one disagrees with resulted from the judge being bribed or otherwise compromised.

The crackpots who email me with their complaints and the politicians who make unsubstantiated claims about the judiciary may jump on any criticism of a judgment to try to convince the public that this provides proof that the judge is corrupt. The way to refute such claims is more, not less openness and transparency.

As far as the CR17 bank statements are concerned, formally ordering their unsealing, thus allowing the public to scrutinise these documents themselves, will help to delegitimise the claim that judges who ruled against Jacob Zuma or in favour of the CR17 campaign have been bribed. It will also shine a light on the funding of Ramaphosa’s campaign and provide the public with vital information it needs to make an informed decision about the president and the party he leads.

Of course, this is true for all politicians — including Nkosazana Dlamini Zuma — who receive funding to finance their internal political party election campaigns. This is why we should demand openness and transparency about the funding of all party-political campaigns, including of the politicians of opposition parties. DM

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled ‘Constitutionally Speaking’, in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to democracy.

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  • The trouble with much of what is published by DM is that very little of it reaches the audience most in need of it. Demagogues and (self-)interested groups and individuals only ever seize on something when it offends their delicate sensibilities and / or nefarious ends. The exposés, investigative articles, and informative critiques, including many opinion pieces, rarely get to readers who could really benefit from being exposed to such material. And so it is with this write-up, as brilliantly clear and profoundly informative as it is.

    With that in mind, saying “Openness and transparency” is only meaningful to those who know what those terms mean and who already subscribe to the principles that underpin them. As for the rest, you may as well be speaking Klingon or Psychlo.

    • Therefor our duty to explain this in sensible English to such. There’s work to do. You’d be happily surprised at the level of intelligence and acuity of reason under “common folk”. Found that again today at a state hospital. Marvellously beautiful people! Besides, we are all common folk. Academic qualifications simply mean you can do a different job. No direct connection to ethics, ability, morals or compassion.

  • Donations to political parties will become more transparent but CR17 was an intraparty campaign. Malema and Zuma clearly will use any tactic to try to undermine the public’s confidence in the judiciary to weaken the chances of them(Zuma and Malema) being jailed. It is unreasonable to expect just one candidate in an intraparty contest to publish the list of their donors.

  • I have no problem with the unsealing of the CR17 financial records, PROVIDED the same is done with NDZ’s funding – because without a doubt, if I had to only pick one side that I suspected had significant corruption and dodgy funding within their campaign, it would be the latter, not the former.

    • That is not how you take the lead in the fight. All things being equal on your own side, publish and be damned if needs be. The other party then has the onus of proving HE is above Board. Taking the initiative is the only way to keep the whipstick in hand. This kind of provision turns you into the beggar, being dependent on what the other decides. Any bets on his transparency?

  • As usual, Professor De Vos writes an article that a common man like me can understand, not the high quality English than so many contributing editors and journalists do, as well as many readers writing comments to articles posted. I do not have a MA degree in English, so often find it difficult to understand what people are actually trying to say, without keeping a dictionary close by. And in my experience, so many spend so much time trying to proof their literacy level in English, that they fail to grasp that there are actually 9 official languages in this country, and many more that are not official. Hence the poor readership to DM by 95% plus of NEWS followers in this country. That being said Professor, I fully agree with your article. But I actually take your comments as a given. Since DM has ignored my requests, and also my direct letters to them, I really would like to know why a court case like Magashule’s corruption case is postponed for 6 months for a pre-trial in the High Court. whilst it takes a mere 22 days for a murder case to move forward, like happened just today, albeit in a different province. My second question will be, how is it possible that Judge Hlophe could allocate the Bongo corruption/bribery case to himself, when it is a known fact that he is a vicious Zuma defender, and all those ANC cadres supporting him. Surely this makes a mockery of the justice system. Most knew before his judgement that Bongo will be found innocent. In my opinion, this case alone makes a mockery of the justice system, where some are indeed more equal than others. And that is caused by judges, not the people..

  • If someone with the standing and credibility of Prof De Vos states the obvious it appears to carry more weight than if the same statement would have been made by a layman. What is concerning is that he regards it as necessary to do just that. Clearly some people in powerful positions do not hold the same view, otherwise we would not have had this article to ponder about.
    Naturally, there is a lot to hide when it comes to the funding of politicians. There is another equally simple equation to keep in mind: you help me to get in power and I will return the favour when I get there, monetary or otherwise.
    The victim of a lack of openness in this case is the credibility of the justice system. In S.A. the other two legs already have no credibility left. The justice system is our only way out to stop us from being drawn down into the same boat as a number of Africa countries are already in. Zimbabwe, Mozambique and Somalia come to mind. And all indications are that we are getting there. Am I sounding pessimistic? You bet. But please give me facts that show that I am wrong. I would truly love that.

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