A few days ago, the Star and Cape Times newspapers published
false and misleading articles about how company directors Brian de Lacy and
Barry Beadon had laid numerous complaints against Justice Moseneke at the
Constitutional Court and the Judicial Service Commission alleging conflict of
interest. The journalist involved has simply regurgitated the false statements
by disgruntled litigants to create a story. This continues the trend where journalists and even members
of the Bar have made a habit of unfairly launching personal attacks especially
on black judges and other black civil servants using totally unfounded and
pseudo-legal arguments. In Moseneke’s case there is a paradox –
he has been unfairly criticized where such criticism was clearly
undeserved. But he has also been
supported by white anti-transformation elements even in circumstances where he
should have been condemned. The
determining factor seems to be the defence of white privilege and agenda as I
demonstrate here. For a rendition of the background facts I have borrowed heavily from the language of the Concourt in the De Lacy judgment.
A. Background.
The genesis of the controversy surrounding Moseneke’s
alleged conflict of interest goes back to a seemingly prudent and fiscally
responsible 2001 decision by Zola Skweyiya, then minister of social development
to task the post office with distributing grants to recipients. In his view, making the Post Office the
preferred organisation for the disbursement of government grants was a win-win
proposition for the government departments involved. For the post office this could be a life-line which could
return healthy profits, given the average rate of R20 a transaction paid by the
government for grants. Through the introduction of an efficient system, the
Post Office intended to substantially improve service to grant recipients by
using its countrywide distribution network that would enable recipients to
withdraw grants in a safe environment at any time and at any post office.
It is true that in 2001, the South African Post Office
("SAPO") invited tenders for the provision of a biometric payment
system to facilitate the payment of social assistance grants in the North West
province. It is also true that a company named Cornastone was one of three
bidders shortlisted. On 2
September 2002, the tender was awarded to one of the other bidders, a
consortium known as Kumo. Suggestions
that Tiego Moseneke was involved in the latter as director at the time the post
office awarded the tender appear to be false. The Cornastone raised its most stentorian objection to the entire process and
complained that the award of the tender was riddled with irregularities. The Post Office, citing
operational considerations”, simply cancelled
the award to Kumo. For all practical purposes,
Kumo’s association with the tender or the case ended in 2002.
Cornastone persisted in trying to obtain the
tender, but failed. The Post Office
chose not to invite fresh tenders but miraculously announced that it would
develop its own system. That of
course raised suspicion that the post office’s newfound technological
self-sufficiency was built on stolen information provided during the tender
process. Cornastone thereafter
ceded its rights to Messrs De Lacy and Beadon (the driving force behind the
bid) who turned to the High Court in a lawsuit claiming damages.
In the High Court De Lacy and his partner met with success -
the Court ruled that Kumo should have been disqualified at the outset of the
tender process because it did not comply with the Request for Proposals
(RFP). Kumo provided no
fixed consortium agreements, financial statements or tax certificates. Embedded in the finding that Kumo had
no fixed consortium agreements is the fact that its tender documents never
disclosed that Labat Africa Ltd (Labat), a black empowerment company led by Mr
Van Rooyen, was part of its bidding consortium. Even so, on 18 April 2002 at a presentation ordered by
the Tender Board, Mr Van Rooyen presented the tender as if Labat was the main
tenderer in place of Kumo. The
applicants persuaded the High Court that this late introduction of Labat by
Kumo had been a major irregularity that was fatal to the award to Kumo. Significantly, the High Court found
that one of the members of the Evaluation Committee “was
manipulating things to get the tender awarded
to Kumo at all cost.” In addition to negligence and
incompetence, the High Court found that
there was also “dishonest
manipulation and corruption”
in the tender process. The High Court singled out Mr.
Topper, at the time an employee
of the Post Office,
as the person who had been “touting for
a bribe and a job” and who “fraudulently . . . supported the Kumo tender.” It
concluded that, but for the fraudulent conduct of Post Office employees, Mr.
Topper and others unnamed, Cornastone would have been awarded the tender. It ruled that the Post Office was
vicariously liable and ordered it to pay the applicants R60 million being
approximately 50% of their claim for lost profits. In relation to the other claims, the High Court observed
that by not inviting fresh tenders, the Post Office exposed itself to justified
suspicion that it had used information obtained in the tender process to
develop its own system. The High
Court, on its own, granted the applicants and the Post Office leave to appeal
its decision to the Supreme Court of Appeal.
In the SCA, De Lacy and partner sought to consolidate and
hold on to their R60 million damages award and vigorously defended their rights
to the money damages awarded by the High Court. But they got an unpleasant surprise. The SCA held that irregularities in a
tender process falling short of dishonesty, or that merely amount to
incompetence or negligence on the part of those awarding a tender, will not
found a claim for damages by an unsuccessful tenderer. A claim will lie only if it were
established that the award of the contract to the rival was brought about by
dishonest or fraudulent conduct on the part of one or more of the officials for
whose conduct the Post Office was vicariously liable and but for which the
contract would have been awarded to Cornastone. The onus rested upon De Lacy to
establish, as a matter of probability, that the award of the contract was
brought about by conduct of that kind and, if that onus were not discharged,
the claim would have to fail. De
Lacy was unable to demonstrate evidence of manipulation or dishonesty on the part
of any of the members of the review panels involved in the tender process. The
evidence also did not disclose dishonest manipulation in the course of the
deliberations of a reporting by the evaluation committee, nor on the part of
the tender board. The Court
considered that there might well have been irregularities, incompetence and
negligence and Cornastone might even have been the more worthy bidder, but none
of that was enough. De Lacy bore the onus of establishing that the contract was
awarded to Kumo in consequence of dishonesty on the part of one or more of the
officials concerned and they had failed to discharge that onus.
Unimpressed with Cornastone’s importunings, the Supreme
Court of Appeal unanimously found that the evidence offered no basis for the High Court’s
finding that Post Office
employees committed fraud during the tender process. Despite various sweeping allegations of dishonesty, the applicants were
unable to provide any direct evidence of any act of fraud committed by any individual. In addition, no allegations of fraud or
dishonesty were put in cross-examination to the witnesses the Post Office
called to testify. The factual findings of the High Court, it found, rested on
inference. Applying the test for
inferential findings in civil contests, the Court found that the conclusion
that there was a conspiracy to deprive Cornastone of the contract was not the
most natural or plausible inference from the evidence seen as a whole. In the final instance, the Supreme
Court of Appeal found no evidence of manipulation or dishonesty on the part of
the members of the Review Panels, or in the course of the deliberations of and
the reporting by the Evaluation Committee, or on the part of the Tender Board. For this conclusion, it found fortification
in the fact that the Evaluation Committee recommended to the Tender Board the
joint appointment of
Cornastone and Kumo to provide the biometric payment system
under tender. That, the
Court reasoned, “is altogether at odds with an intention on its part
to dishonestly prefer Kumo above Cornastone.”
The Court found that the applicants had failed to discharge the onus that the
contract was awarded to Kumo as a consequence of dishonesty on the part of one or
more of the officials concerned. Accordingly it found that Cornastone’s claim
should be dismissed. What that
means is that the R60 million damages award that made De Lacy and partner so
buoyant evaporated into thin air and vanished.
B. Unprincipled Attack - De Lacy’s
Smouldering Rage and Self-Defeating Litigation Strategy
While reeling from the crushing defeat at the SCA which saw
R60 million verdict disappear, the applicants embarked on a series of bizarre
and incomprehensible legal tactics.
On 3 June 2009, the applicants submitted their first application for
leave to appeal to the Constitutional Court. It was based on what they called
“a technical constitutional aspect of dolus directus/dolus
eventualis.” Their papers
framed the constitutional issue as follows:
“Is an organ of State vicariously liable in delict for the conduct of its employees,
only in the event where they acted with Dolus Directus [direct intent], or, is
it also vicariously liable, where they acted with Dolus Eventualis
[indirect intent]?” What they essentially argued was that the SCA should have held that indirect
intent was sufficient to render an organ of state vicariously liable for the
wrongs of its employees and that on the evidence they had established that the
Post Office’s employees had acted with indirect intent to defraud. Despite having chosen
self-imposed limits on their constitutional focus, the applicants devoted the
bulk of their papers to an exhaustive critique of the factual findings of the
Supreme Court of Appeal. Their
grievance had all the hallmarks of a mere dissatisfaction with factual
findings. The Post Office opposed
the application. On 9 July 2009,
this Court dismissed it for lack of prospects of success. Needless to point out that the
applicants who were fully aware of Tiego Moseneke’s alleged involvement in the
tender never raised their complaint about Dikgang Moseneke’s alleged conflict
of interest. Nor did they make an
application for the recusal of the DCJ Moseneke.
In the wake of the Concourt’s dismissal of their first application,
during July of 2009, the applicants lodged a complaint with the Judicial
Service Commission (JSC) against the judges of the Supreme Court of Appeal who
dismissed their appeal. They
alleged gross incompetence and gross misconduct on the part of Nugent JA. The JSC requested Nugent JA who heard
the appeal to respond to their allegations, but in a letter dated 9 September
2009 Nugent JA declined to respond to accusations prompted merely by the
dissatisfaction of litigants over their decision. Eventually, on 21 May 2010 the JSC advised the applicants
that it had dismissed their complaint.
It gratuitously offered them an advice and informed them that any remedy
they might enjoy is to be found at the Constitutional
Court by way of “leave to appeal the judgment to it,
not merely on a technical point, but on the
rounds as set out in your [JSC] complaint.”
Two months before, and over nine months after their first
application, on 24
March 2010, the applicants approached the Concourt
again. Their papers attributed the
prolonged delay to the complaint process they initiated before the JSC. The relief they sought was
twofold. In the first instance,
they sought direct access in terms of rule 18 on the ground that the SCA
judgment was tainted by judicial bias.
In the alternative, they asked for leave to appeal in terms of rule 19
against the same decision and on the same ground.
On 3 May 2010, the Concourt dismissed the second application
for leave to appeal for lack of prospects of success. This was for two reasons. First, the grounds for appeal were in substance the same as
those in the previous application: namely, that the Supreme Court of Appeal’s
findings of fact were inconsistent with the evidence. Second, having already given a final order on the application
for leave on substantially the same grounds, the Court had discharged its
function, and its authority over the matter had ceased (functus officio). It therefore had no further
jurisdiction over it. Needless to
state one again that even in their second trip to the Concourt, the applicants
failed to allege the conflict of interest on Moseneke’s part or to seek his
recusal.
On the same day, 3 May 2010, the Concourt issued directions
in terms of rule 18 calling on the Post Office to file a written response
dealing solely with the question whether the application for direct access
should be granted. Having
considered the written submission, further directions setting the application
for direct access down for hearing were issued. Thereafter the applicants
embarked on a bizarre litigation strategy explained in the Concourt’s judgment
later. The Concourt observed
that:
“ … over nearly two years, the same applicants laid bare
their smouldering grievance over the Court decision that overturned their handsome
award of damages. Before the JSC
they complained that, by holding against them, the judges had made themselves
guilty of gross misconduct and gross incompetence – a charge which if proven
may have led to their removal from office. Under oath before this Court they made acerbic and
unremitting accusations of deliberate distortions of evidence and premeditated
and actual bias against a panel of five appellate judges. “
The Concourt further observed that the on most occasions
“they singled out Nugent JA who wrote for the Court and heaped the scorn of
dishonest factual findings and deliberate bias on him. On other occasions they heaped the
scorn of dishonest factual findings and deliberate bias on the entire
panel. The applicants did not even
bother to proffer either a motive or purpose that may have collectively moved
an entire bench of senior judges towards the egregious
judicial impropriety attributed to them.”
The applicants’ case took an unexpected turn – with only two
clear court days
before the hearing, on 3 February 2011, counsel for the
applicants wrote a letter to the Registrar in which he stated:
“it would appear that the Applicants’ Heads of Argument may be viewed as attributing a deliberate distortion of the
facts as contained in the Record and actual bias by the Supreme Court of Appeal
and by Nugent JA in particular. “
Counsel further stated:
“the Applicants’ do not seek to attribute either
actual distortion or actual bias, beyond such perception of a
reasonable apprehension of bias.”
Counsel concluded by stating the following:
“4. The language used in asserting a
deliberate distortion of the facts and actual bias, without emphasising
that these are in fact a reflection of the perceptions of the Applicants, is
regretted and any such assertions are unqualifiedly withdrawn.
5. An unconditional apology is
accordingly tendered to all parties concerned and particularly to the Supreme
Court of Appeal.
On the morning of the hearing, Counsel repeated that his
clients no longer attributed deliberate distortion or actual bias to the
appellate court. They “regretted any like previous assertions,
which were unqualifiedly
withdrawn.
Counsel restated his clients’ unconditional apology and particularly
to the judges concerned. He
undertook to convey the apology to the Supreme Court of Appeal promptly.” Despite the bizarre turn of
events, the Concourt considered itself obliged to consider whether an adequate
case has been made out for the grant of direct access. It considered whether the applicants
have established a reasonable apprehension of bias for the reason that the
factual findings of the appeal court are so unreasonable, or so out of kilter
with the evidence that they are explicable only on the grounds of bias. After a thorough analysis of the
evidence, the court denied the applicants direct access. Ther Court stated: “It must also be
said that nothing in the findings of the Supreme Court of Appeal could ever
justify the baseless and scurrilous accusations of a deliberate distortion of
facts and actual bias on the part of the panel of five judges of an appellate
court. I therefore conclude that
the bias claim advanced by the applicants bears no prospects of success
whatsoever.” Regarding the conduct
of the applicants’ legal representatives, the court stated the following:
[120] An officer of the court may not without more convey to a court
allegations or claims by a client when there is reason to believe that the
allegations are untruthful or without a factual basis. This duty is heightened in
circumstances where imputations of dishonesty and bias are directed at a
judicial officer who ordinarily enjoys a presumption of impartiality. It behoves the legal representative
concerned to examine carefully the complaints of judicial bias and dishonesty
and the facts, if any, upon which the accusations rest. Here it is doubtful whether these legal
representatives did so. That, in
my view, is a matter which calls for an enquiry by their respective
professional bodies to which the applicants’ attorneys
and advocates belong. An appropriate order drawing
the attention of these professional bodies to this judgment will be made.
..
[122]
The conduct of the applicants’ legal representatives may have to be
dealt with by their respective professional bodies. They should be requested to consider
whether their conduct amounts to a breach of any ethical rule. To this extent, the Registrar will be
directed to furnish a copy of this judgment to the Society of Advocates,
Johannesburg, and to the Law Society of the Northern Provinces.
The Concourt dismissed the application for direct access and
ordered that Mr Brian Patrick De Lacy, the first applicant, and Mr Barry Jack
Beadon, the second applicant, pay the costs of the application on an
attorney and own client scale, which costs include the employment of two
counsel.
In regard to
the alleged conflict of interest in the Post Office litigation, it appears that
a bunch of disgruntled litigants have embarked on a course of conduct to
besmirch Moseneke’s name and have done to him what is routinely done to black
judges targeted by white anti-transformation elements. In an ironic sense he
has been given a taste of what powerful propagandists can do to a judge or any
official (a la Simelane) who is the object of a vicious propaganda onslaught. While the tender was initially awareded
to Kumo, the Post Office subsequently cancelled the tender and chose not to not
to invite fresh tenders. There was
no tender awarded by the Post Office to Tiego Moseneke and most importantly,
the applicants never joined Kumor and/or Tiego Mosneke as litigants in the High
Court, SCA or the Concourt.
The litigants have gone to the Concourt numerous times but they never at
any stage raised the matter of Justice Moseneke’s participation in their
appeals. Nor did they seek his
recusal. Their complaint must be viewed against
this background and their proven record as incompetent litigants. As if to underscore their incompetence
once again, the litigants have resorted to filing a frivolous JSC complaint and
have launched a campaign to vilify Moseneke in the newspapers. But that leads us to another question.
What is the correct procedure for a litigant who has
evidence that a judge who sat on a panel had a conflict and should have been
automatically disqualified? The
answer is provided in the unprecedented case of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet
Ugarte (No. 2) (1999). In an
appeal to the House of Lords, the Crown Prosecution Service sought to overturn
a quashing order made by the Divisional Court regarding extradition warrants
made against the ex-Chilean dictator, Senator Augusto Pinochet. Amnesty
International (AI) was given leave to intervene in the proceedings. However,
one of the judges of the case, Lord Hoffmann, was a director and chairperson of
Amnesty International Charity Ltd. (AICL), a company under the control of AI.
He was eventually disqualified from the case and the outcome of the proceedings
set aside. The House of Lords held that the close connection between AICL and
AI presented Lord Hoffmann with an interest in the outcome of the litigation.
What is abundantly clear is that any potential links that a judge has with
either of the parties, or indeed any other party, which may suggest that the
judge is not impartial, should be disclosed. If it is not, the decision in which the affected judge
participated may be null and void and falls to be set aside. De Lacy and company should have
petitioned the Concourt to set aside or vacate the judgment in which Moseneke participated. They failed to do so and are now using
newspapers and incompetent reporters to cast aspersions on Moseneke.
In a typical South African fashion, the
matters of the alleged conflict of
interest has been dealt with in a propagandistic fashion and the facts and the
law have been distorted by the reporters who are hell-bent on championing the
cause of disgruntled litigants. I
have previously written on how conflict of interest matters involving judges
are typically handled in other countries. See, Paul Ngobeni “Why Hlophe should remain as judge president”, Cape Times,
17 October 2007; http://www.iol.co.za/index.php?set_id=1&click_id=6&art_id=vn20071017062416953C504222. This was at the time when
white racist professors and senior Cape Bar advocates organized themselves into a chorus calling for JP Hlophe’s
ouster because of alleged conflict involving Oasis. Interestingly, it took the JSC another five(5) years after
the Hlophe saga to acknowledge that "…a judge's failure, firstly, to
disclose an interest and recuse himself does not qualify as a misconduct."
See, JSC rejects reports of ignoring complaint against Moseneke; Mail &
Guardian; 10 Oct 2013; Niren Tolsi http://mg.co.za/article/2013-10-10-jsc-rejects-reports-of-ignoring-complaint-against-moseneke
. JSC spokesman Advocate Ntsebeza
SC, added that “the mere fact that a
judge doesn't declare a conflict of interest also did not constitute
misconduct.” Id. If that is
the case, how does one explain the sustained public attack by the likes of De Vos, Hoffman
and other racists on Judge President Hlophe regarding the Oasis matter? One hopes that black judges will learn
from the Hlophe and Moseneke experience that white anti-transformation elements
do not care about legal principles when the object is to attack and bring down a black jurist.
C. Unprincipled White Liberal Support for
Moseneke in Case of Real Conflict of Interest?
Moseneke is no stranger to legal controversy as evidenced by
his exuberant utterances at his 60th birthday specifically referring
to the ANC and outcome of Polokwane election. But on principle even that can be defended on grounds that a
judge has the freedom of speech like any citizen. However, there have been other disturbing actions taken by
Moseneke which raise challenging questions about the nature and scope of the
support we as progressives must give to our black judges especially in cases
where they are clearly serving the reactionary agenda, whether wittingly or
unwittingly. I want to exclude
from these matters the stance he adopted in regard to the JP Hlophe matter for
now.
In 2011 several NGO’s including the Justice Alliance of SA, Freedom
Under Law NPC, the Centre for Applied Legal Studies (Cals) at the University of
the Witwatersrand and the Council for the Advancement of the South African
Constitution challenged the extension of Chief Justice Ngcobo’s term of
office. The Constitutional Court
found unconstitutional Section Eight (a) of the Judges Remuneration and
Conditions of Employment Act, under which Zuma extended Ngcobo's term.
It is noteworthy that Moseneke committed a far more
egregious transgression involving a conflict of interest when he adjudicated
the constitutional challenge to Zuma’s extension of Chief Justice Ngcobo’s term
of office. Moseneke is a chancellor of Wits University, one of the main
plaintiffs in the case. In terms
lf Section 26 of the Higher Education Act 101 of 1997 dealing with
“institutional governance structures”, every “public higher education
institution may appoint a chancellor as its titular head.” In terms of the
Statute of the University of the Witwatersrand,the Chancellor of the university
is the ceremonial head of the University who, in the name of the university,
confers all degrees. In the Ngcobo
litigation, neither Moseneke nor Wits University’s CALS disclosed their
relationship and Moseneke did not recuse himself from the case even though the
rule of automatic disqualification squarely applied to him. The end result was
the most scandalous judgment which will for ever live in judicial infamy. No other judiciary in the world would
have countenanced this gross disregard of the law. Predictably, none of the NGOs and legal commentators cared
about the fact that presided over a case in which he had a palpable conflict of
interest. This proves another
disturbing reality of liberal dishonesty in our public discourse – cases are
not criticized on the basis of articulated principles. Rather, they are typically the product
of partisan self-serving agendas where judges perceived to be serving said
agendas or those suffering from approval addiction are praised and shielded
from criticism.
As shown in the R. v.
Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte
(No. 2) (1999) even non-pecuniary interest may give rise to automatic
disqualification. The Law Lords took the view that the interest was sufficient
to warrant Lord Hoffmann's automatic disqualification from hearing the case. The
ruling extended the automatic disqualification of a decision maker to
individuals who are involved in the “promotion of a cause”. In that case,
the distinguished Judge, Lord Hoffman, who was connected with the group Amnesty
International, did not declare his connection before the House of Lords heard
the Pinochet case, which led to the decision being set aside. What is abundantly clear is that any
potential links that a judge has with either of the parties, or indeed any
other party, which may suggest that the judge is not impartial, should be
disclosed. If it is not, the
decision in which the affected judge participated may be null and void and
falls to be set aside. In
Moseneke’s case, he has raised funds for Wits University in his capacity as
Chancellor. See, “Message from the
Chancellor - Give to Wits” http://www.witsfoundation.co.za/message.asp. These same funds obviously assisted CALS in its
litigation against President Zuma and Chief Justice Ngcobo. And yet, none of
the lawyers appearing before the Concourt, including President Zuma’s own
lawyers, raised the issue of Moseneke’s conflict of interest. What is even more disturbing is
that some of the NGOs with a holier-than-thou attitude would have been quick to
savage a judge like Mogoeng or Hlophe if they had their opportunity. One could write a Doctoral dissertation
about the corruption and misuse of the judicial system by the NGOs, the DA and
other opposition forces which is unfortunately aided by the ANC’s own incompetence
or lack of robust legal strategy when it comes to obvious winnable court
cases.
Moseneke also displayed his mean-spirited and unprincipled side
during the hearings on Mogoeng’s nomination for the position of Chief
Justice. During the nomination and JSC interviews, Moseneke a Concourt
judge deliberately misread and withheld case-law from the Concourt itself and
then proceeded to publicly question Mogoeng’s bona fides and suitability for
appointment as Chief Justice on the basis of a deliberately distorted premise. Moseneke implied there was a rule prohibiting family members
from appearing as lawyers before their relatives. As you may recall, there was clear precedent to the contrary at the time he
made the suggestion. In President of the Republic of South Africa and Others v South
African Rugby Football Union and Others (Judgment on recusal application) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4
June 1999), Louis Luyt made a recusal application on the
basis that some of the judges of the Constitutional Court had a history of
links with the ANC and would, therefore, not be able to give him a fair hearing
in his case against then president Nelson Mandela. The additional allegations
made by the Luyt collectively with regard to Chaskalson P, Langa DP, Sachs J
and Yacoob J were the following:
“17.1 Four judges have “had
extremely close ties with the ANC ”, and a finding against the appellants would
be adverse to the interests of the ANC and the President;
17.2 An adverse
credibility finding against the President would have serious political
implications for the government, and the ANC as a political party, especially
as the appeal was being heard on the eve of the national elections.”
In dismissing the
application, the Constitutional Court referred to “… a presumption that
judicial officers are impartial in adjudicating disputes.” This is based on the
recognition that legal training and experience prepare judges for the often
difficult task of fairly determining where the truth may lie in a welter of
contradictory evidence. Social
relationships, collegiality, entreaties from relatives and friends or political
connections are never supposed to enter into the decisional calculus when a
judge adjudicates a case.
Individuals having conversations or mere social banter with judges are
entitled to rely on this legal presumption and trust that no judge will easily
succumb to any influences. The
Concourt went on to state the following principle regarding whether family
members who are legal practitioners can appear before their relatives who are
presiding in cases as judges:
[84] The final allegation relating
to a personal relationship concerned the addition of Mr Matthew Chaskalson, the
elder son of Chaskalson P, to the legal team representing the appellants in
this appeal. Mr Chaskalson has built a
successful practice as a constitutional law expert at the Johannesburg Bar and
is the co-author of one of the leading works on the subject. He has appeared as
counsel in numerous cases in this Court.
We would also mention that it has been accepted practice in our courts for many
decades that close family members appear before each other and it has never
before been suggested that it was inappropriate.” The Court itself gave examples in
support of this statement and stated, “[i]n this Court, apart from the case of Mr
Chaskalson, Trengove AJ sat in cases in which his son, Mr W Trengove SC
appeared, and Kentridge AJ sat in cases in which his daughter-in-law, Mrs J
Kentridge appeared. “
The fact that the Concourt stated authoritatively on the
matter of the “accepted practice in our courts for many decades that close family
members appear before each other and it has never before been suggested that it
was inappropriate” did not dissuade the DA and organizations like National Democratic Lawyers Association
(NADEL) from launching a well-orchestrated campaign to prevent Zuma’s
appointment of Mogoeng Mogoeng as the Chief Justice of the Republic. Incredibly, they claimed that Mogoeng was
disqualified because he allowed a close family member (his wife) to appear
before him when he was serving as a High Court judge. The DA and NADEL unabashedly endorsed a racist approach and
perverse logic to the Mogoeng issue – it was acceptable for close family
members of white judges to have appeared before their relatives but it was
considered a disqualifying misconduct
for Mogoeng, a black judge, to have done the same. It appears that this
settled practice was followed and applied liberally only when it came to
whites. The Concourt definitively spoke about and issued a ruling
about the “accepted practice in our courts for many decades that close family
members appear before each other.”
That was over more than ten years before the Mogoeng nomination came up
for consideration before the JSC. In an alarming display of political bias and
lack of scholarship, a current Concourt judge and a former deputy president of
the PAC, Dikgang Moseneke completely ignored the Concourt’s controlling SARFU precedent and insisted that
Mogoeng had a case to answer about the “accepted practice.” In a misleading statement Moseneke went
further and implied that this “accepted practice” revolved around the question
of whether a person was the sexual partner (“shared a bed”) of the judge in
question. To this day, no
one has ever pointed out Moseneke’s political grandstanding and fallacious
statement of law in this regard.
In fact, Moseneke’s act of deliberately misusing
or ignoring the Concourt’s own dispositive precedent did not prevent the DA and
other forces from loudly protesting that President Zuma had “overlooked”
Moseneke in nominating a chief justice. The point is that even some South African judges have made
a habit of unfairly launching personal attacks especially on other black judges and
other black civil servants using totally unfounded and pseudo-legal
arguments. No one raises any objection to that so long as it serves the white agenda.
Having stated the above things about Moseneke, it does not
follow that we must countenance unwarranted attacks on him simply to give him a
taste of his own medicine. It is true that as progressives, we may sometimes find ourselves defending individual judges not because
they have earned or are deserving of our support on their individual
merits. Part of the fight for
transformation in the judiciary involves
exposing and challenging those seeking to undermine the standing of
these judges or those impugning their integrity. It is in this context that I approach the alleged conflict
of scandal involving Moseneke and his brother Tiego.
D. CONCLUSION
The article appearing in the Star[1]
of today, 8 October 2013 is emblematic of yellow journalism practiced by
half-educated South African journalists who typically resort to character
assassination. As shown below, it
is shabby journalism that presents little or no legitimate well-researched news. When there is nothing scandalous to report these journalists resort
to recycling false stories or downright exaggerations of news events,
scandal-mongering, or sensationalism simply to sell newspapers. Predictably, ETV which claims to be the paragon of objective reporting,
integrity and honesty, has joined in the chorus of those now vilifying Moseneke. The article is a typical example of journalists being used
in campaigns to attack and undermine the integrity of black judges in
particular and to undermine transformation in general. The journalist has simply recycled and
regurgitated old and discredited propagandist statements by disgruntled
litigants about the Deputy Chief Justice.
In the process, the journalist has resorted to blatant falsehoods and
misrepresented both the DCJ position and the underlying facts in the matter.
The article starts off by stating that a “company has laid
numerous complaints against the Deputy Chief Justice of the Constitutional
Court, Dikgang Moseneke, for failing to recuse himself from a case in which his
brother was involved.” Clear
evidence of sloppy journalism in that had the journalist bothered to do minimal
internet research,, she would have discovered that the matter was pursued by
two individuals, Brian De Lacy and Barry Beadon who took cession of a claim by
an unsuccessful tenderer, Cornastone, in respect of a contract with the Post
Office. They instituted action in the High Court for recovery of the profit
they alleged Cornastone would have made had it been awarded the contract
consequence upon the alleged dishonest award of the contract by the tender
board to a third party (Kumo). What is deliberately omitted from the article is
that neither Moseneke’s brother nor his company were ever involved in the
alleged case as litigants – not in the High Court, not in the SCA and not in
the Constitutional Court.
As pointed out here, the heart of the
complaint is that Justice Moseneke "did not recuse himself or declare a conflict
of interest in the case. Justice
Moseneke presided over the case and wrote the judgment, while his brother
Tiego, who has also been his business partner, was the director of the company,
Kumo Consortium, that was awarded the disputed tender.” The journalist assiduously avoids
mentioning that the post office cancelled Kumo’s tender in 2002 and that was some four years before
litigation was even commenced in the matter. In recognition of Kumo’s attenuated or even non-existent
interest in the matter, the applicants made no effort to join Kumo in the
proceedings as a party. By the
time the case wound its way through the system and landed before Moseneke
almost ten years later, Kumo had no conceivable interest in the matter. A rejection
of De Lacy’s challenge to the SCA's decision yielded no conceivable benefits to
Kumo. It is simply mind-boggling
why De Lacy and his partner persist in the propagandist claim that Moseneke
should have recused himself or that he had any “conflict of interest” to
declare. Having made a tactical
error during their litigation, the disgruntled litigants now seek to make Moseneke
the ultimate scapegoat. It
is despicable that journalists can uncritically accept and publish slanderous
accusations against a sitting Deputy Chief Justice without checking the
facts. The journalist resorted to a despicable tactic in the form
of selective quotation and misuse of legal authorities. She states: “In terms of the Bangalore
Judicial Code of Principles (sic), to which the JSC Act refers, “a
judge shall not participate in the determination of a case in which any member
of the judge’s family represents a litigant or is associated in any manner with
the case.” Of course she consciously avoids mentioning President of the Republic of South Africa and Others v South
African Rugby Football Union and Others (Judgment on recusal application) [1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4
June 1999), a Concourt decision which cuts against her assertions.
[1] Top judge
Moseneke in a tight spot; October 8 2013 By ANGELIQUE SERRAO; http://www.iol.co.za/news/crime-courts/top-judge-moseneke-in-a-tight-spot-1.1588533#.UlQMXoWE44C
