IF THE probe of 5 Kwazulu-Natal judges fingered in a UK investigation of a $2 trillion-a-year (R28 trillion) money-laundering ring isn’t enough to grab your attention, or the revelations of judicial impropriety, influence-peddling and nepotism levelled against Western Cape High Court Judge President, John Hlophe by Deputy President Patricia Goliath, doesn’t get your goat. Then surely, the revelations before the Aggett Inquest by Advocate Howard Varney of state capture of the justice system is certain to raise your ire?
The problem is a lot more widespread than reported, (see my comments below). In his opening remarks before the court, counsel for the Aggett family, Howard Varney, said the Aggett inquest has “been plagued with ongoing delays”.
“We now know that post the winding up of the TRC [Truth and Reconciliation Commission], decisions were taken at the highest political level to close down the investigations into the cases referred by the TRC to the NPA … including the Aggett case.”
“Such interference” he says “amounted to state capture of the criminal justice system in relation to this class of cases. It allowed powerful forces in society to impose their will on institutions meant to uphold the rule of law. In doing so they guaranteed total impunity for some of the most serious crimes ever committed in South Africa.”
As a post-TRC litigant I can confirm the extant of the capture of the judiciary by nefarious forces associated with the past regime.
Not only has pressure been brought to bear, to influence the appointment of judges, as in the allegations against John Hlophe, while criminal syndicates are allowed to operate out of courts as alleged by civil rights group Constitution Accountability, Sedition, Independent, State, Access (CASISA), but both the NPA and judiciary have actively suppressed the TRC transitional justice mechanism, acting as if the judicial instruments of the apartheid state are somehow concurrent with the constitutional dispensation.
What appear to be a series of boardroom deals brokered by apartheid financier Johann Rupert and members of the Sisulu family during the CODESA negotiations have directly lead to the situation — one in which Rupert Bellegings Pty Ltd, the ultimate controller of a vast media cartel involving businessmen Koos Bekker, Ton Vosloo and Terry Moolman and invested inter alia, in Remgro, Kagiso, Caxton and Naspers, was able to suppress a TRC-complaint before the Labour Court and by implication, the Equality Court.
The direct capture of the Labour Court was most certainly effected via a company known as the Resolve Group, whose director at the time Michael Halton Cheadle also held a directorship at Cheadle Thompson, Haysom (CTH). The respondent, Media24, a company which had previously attempted a gagging order, for my blowing the whistle on newsroom racism at WP Koerante, the owners of the People’s Post. Media24 were at the time clients of CTH at the same time that both Kagiso and Remgro were providing media content to MIH, a subsidiary of Media24.
In papers before the Cape Law Society, Cheadle acknowledged Media24 was a client of his law firm, but failed to explain why he had not revealed this fact on record before the court. He further attempted to justify his relationship on the basis of a decision in Bernert vs Absa Bank in which a judicial officer’s holding of over-the-counter (OTC) shares of the bank, during the proceeding, had been found to be de minimus, in other words not significant enough to effect the outcome.
Far from being insignificant, Cheadle’s shareholding flouted the ‘nemo rule’ (nemo judex in causa sua), one of the pillars of our justice system.
Kagiso then owned a 25.9% stake in Resolve, alongside former speaker for the House of Assembly Max Sisulu (5.7%). In 2005 Remgro (formerly Rembrandt Group) bought a 37% stake in Kagiso (reduced to 36.3% when Kagiso-Tiso was formed). Significantly this meant that a company with strong ties to apartheid, bought into a group associated with the former democratic struggle, in the process making good on a business relationship which had bloomed during the CODESA process.
Several partners at Resolve had ties to Media24 and/or CTH and/or the ANC, including Peter Harris, Nicola Galombik, and Murphy Morobe.
Galombik at the time was the executive director of Yellowoods, then majority owned by TBWA Hunt Lascaris who listed Media24 as a client. (“TBWA Media24 showcase”)
The NPA have declined to prosecute a complaint, after a docket was handed to the authority. The JSC appears to be toothless according to William Saunderson-Meyer.
Further allegations against Hlophe have surfaced in a piece by the Daily Maverick.
In March of last year, AJ Martin handed down a racist decision trashing the TRC report, “as too long to read”, in the process crushing hopes of legal representation in a collateral matter before the Equality Court brought to defend the TRC from vicious attacks emanating from Naspers and Media24 counsel. (please see my open letter to the TRC Commissioners). The unlawful, irregular and repugnant Labour Court finding most certainly played a part in the outcome of Lewis v Legal Aid SA.
Records from the trial of General Magnus Malan, a Pretoria secureaucrat implicated in apartheid death squads appear to be missing from the South African legal information institute database.
This week, the official opposition party, DA called for John Hlophe to be immediately suspended, as did National Association of Democratic Lawyers (NADEL) and Freedom Under Law (FUL). John Steenhuisen said the allegations faced by Hlophe were a threat to the credibility and independence of the judiciary at large, and said they had to be taken seriously. Constitutional law scholar Pierre de Vos is also talking about a “credibility crisis” as is Legalbrief, an online law professions site.
“The current head of the Western Cape High Court is compromised. Until such time as a proper investigation is completed and all consequential processes – which may include impeachment – are completed, Judge President Hlophe cannot be allowed to exercise the powers of a judge,” said Nicole Fritz, Executive Director FUL, in a statement, supported Nadel’s call for the suspension of Hlophe.
The same principles should apply to allegations emerging from the Aggett inquest, in particular the latest revelations that it was a piece of paper provided by Barbara Hogen, which lead to the arrest of Aggett.
Ethical norms, not political compromises, should also apply to those behind the campaign against the TRC being waged with the full support of a captured judiciary.
As former solicitor-general under Reagan and Harvard Law Professor Charles Fried said of Trump: “You lie down with dogs, you get up with fleas.”
LAST week the Competition Commission announced that it was investigating 28 media companies, including Media24 for collusion on advertising pricing, and that Caxton and Independent Media had already pleaded guilty and/or had paid fines. The investigation avoids the troubling impact of cartel behaviour already demonstrated and reported here and here.
While some may accuse the CompCom of casting its net too wide, it is most certainly picking low-lying fruit and scratching the surface. One can only hope that its next port of call is to investigate the over-concentration and cross-ownership which is stifling journalists and readers alike.
Cartels and monopolies are not simply bad for business and competition but create the situation where news itself is overly centralised and where public opinion is subject to newsroom censorship. The result is bad for democracy and the outcome, the manufacture and manipulation of public opinion, unacceptable in a constitutional state.
Compare to Pre-Tiso Blackstar era chart here
IN several articles published in the print media over the last 18 months referring to my dispute with the Independent Group and Media24 and the ongoing attempt to gain a fair hearing, media hypocrisy has been taken to new heights. Not only do these articles contain inaccuracies, half-truths and outright lies, but they deceive the public and go far beyond what may be considered fair comment, or reasonable criticism.
For example, Karen Breytenbach, a person who can hardly be called a struggle journalist, has succeeded in penning an outright lie, framing my spat with Media24 within the context of an unresolved dispute with the Independent Group, who one dare say, still has the power to call the shots, but is rapidly diminishing in stature as its pro-business, pro-war boardroom populated by petrochemical industry cronies and Irish capitalists dilly daddles with an embarrassing relationship created by Clear Channel Independent – a company which has contaminated the press with sponsor representatives from industry, stifling criticism and the watchdog function of the media in the process.
Oil and property tycoon Sam Montsi for example, is listed by Forbes.com as sitting on the board of Sasol and Independent as well as a local property investment group Gensec – a conflict of interest if ever there was one, while O’Reilly continues to forget “his company” is, for all intents and purposes, in hock to the Bank of Ireland, and has a controversial partnership with Bush crony, Lowy Mays, whose Clear Channel corporation has been implicated in deals with Halliburton and a range of advertising and public relations firms which have blurred the borders between what one might consider to be mass media and big business.
Breytenbach writing in the Cape Times and referring to my CCMA case in which an in limine or elimination hearing found nothing more than that I was an independent contractor and fell outside the boundaries of the Act – came to the startling conclusion that I had somehow lost a legal battle and deserved what I got from Media24 (a company which still refuses to acknowledge its complicity in the Apartheid regime and has yet to apologise for its participation in crimes against humanity).
To put the matter straight, as I have been trying for the past 18 months, Breytenbach’s conclusion should be considered ultra vires or beyond the powers of the particular commission – a farce of a hearing which was held without access to legal representation, and merely to assess the position of workers such as myself who fell into a flannel grey area caused as a result of the newspaper industries casualisation of its workforce. MWASA the Media Workers Association in a similar case brought to prevent a rationalization process that began in 2001, may have thrown in the towel, but my blue-collar battle with white-collar criminals who deny our labour rights continues.
I still maintain (however hard this may seem) that since I was a de facto employee at Independent, and prevented from conducting my own business in the normal way – as a freelancer able to invoice for services rendered and able to sell my labour to the highest bidder – I should have had some recourse to the labour courts. Instead Independent chose to fulminate on not having to pay, since, to my astonishment, and despite actually receiving an invitation by the outspoken social commentator, Sandile Dikeni to write for the Cape Times, I was now simply a correspondent “doing this for a hobby” and “if we paid you we would have to pay letter writers”.
I was aghast at the sheer vitupurativeness of senior staff, like the late Stephen Wrottesley, since having been forced onto the company payroll despite my protestations and after three years of regular appearance in the paper, I was now being told that this fact meant nothing in terms of the Basic Conditions of Employment Act, and Independent could not be held liable for such an oversight.
A fraud by any other name
Regardless of the Oxbridge outlook and Constantia carpeted legal implications, I successfully sued Independent in the Small Claims court and was awarded a smidgeon of the monies owing to me as an “independent contractor” this after the dismissal of struggle stalwart Gael Reagon, for questioning Independent’s coverage of the Iraq War. This fact, like many others about my case, was never published, nor were any questions raised after several former Independent employees complained about the Group’s one-sided war coverage.
Nevertheless Breytenbach chose to perpetrate a lie, referring to me as an “unsuccessful serial litigator”. Having sued the Cape Times and won, and after a protracted struggle in which Anthea Garmen of Rhodes University Journalism department weighed in on the merits, I would have thought that the matter would have been laid to rest, but instead, the paper decided to champion the cause of racism, both within the citadel of Anglo-American largesse as well as at Media24.
While all of the broughaugh over the collapse of the shortlived, Nigerian-funded Thisday and the potential demise of the lords of the new capital was going on, I had quietly snuck off and gained employment elsewhere only to be brought down to earth with an almighty thud. Despite issues such as freedom of speech — I was now threatened with a gagging order after a Media24 boss fired me for challenging an editor, without so much as a hearing, (a story I had written about a black jazz musician had been rejected out of hand) — I found to my horror that the press were no longer interested in press freedom, but rather freedom for those who, to use George Orwell’s words, “owned the press”.
While the labour/discrimination case drags on, the South African press continue to muzzle me in order to prevent criticism of my dismissal without a fair hearing, along with my complaint about racist editorial policy, the continued use of racial profiling, anti-Semitism and de facto racial segregation in the newsroom, amongst other things. As I write this, it appears I am going to be denied access to a fair hearing in a legal wrangle that has gone into its third year.
I am flabbergasted and stymied by the lack of interest shown by my associates, in either case, despite having to fend off legal attacks by billion rand corporations, and being forced to watch the Sean Johnson’s of this world living it up in Llandudno, and seemingly oblivious to the conceits which had created empires and petty fiefdoms, one of which has now gone so far as to purchase the commercial use of the numeral 24 outright and continues to make claims as to its final ownership – this despite mathematicians pointing out the absurdity of such a position in the face of quantum mechanics and chaos theory — I keep hope alive — the strange belief that press freedom means freedom for the press, not simply freedom for those who bankroll the presses.
While Breytenbach manipulated the facts to make it seem as if I had lost my claim against Independent group, and the press ignored press releases from the Freedom of Expression Institute and the Alternative Media Forum, I approached then Press Ombud, Ed Linington, who insisted that if I wanted a review of the offending articles, I would have to sign away my civil rights. I proposed an amendment that would reference the Bill of Rights, only to be told: “It’s either our way, or the highway.” Needless to say I chose the highway.
The Alternative Media Forum, an ad hoc group of media activists then brought an Access to Information request to determine what records, in such cases such as mine and the MWASA case, Independent were hanging onto without bothering to inform the public. The application was denied, in Tony Howard’s words: “There is no such thing as the right to be informed.” Directly contradicting the Press Code it would seem is a daily occurrence.
Cast adrift into an ocean of antipathy for my position, I encountered Zulpha Khan, a news anchor at Heart 104.9 who refused to believe such a thing as press corruption was possible. Blinded by slavish obedience to authority and a servant mentality that could see no wrong with her master, she promptly had me arrested for doing the devils bidding – simply raising my voice – apparently in a paroxysm of outrage at the ineptitude of cram-collage journalism, I had threatened blue murder. My criticism won the day. Under cross-questioning in court by my attorney Michael Jennings, Khan eventually broke down and blurted out the following: “He never threatened me”. Well then, asked the judge, who did he threaten?”
Having been charged for literally challenging authority and asking uncomfortable questions, my raised voice was now being exaggerated to appear as if I was about to blow up or attack the press bosses with machine guns and anti-personnel bombs. That we should be so lucky. Media hacks fail to see that I have been vindicated, and my allegations are real. As we speak another episode of this saga is about to play itself out as fraud charges continue to be leveled against the perpetrators of falsehood.
Earlier allegations of fraud, placed before the Cape Town Fraud Unit during 2007 have, not surprisingly, considering the DA-lead coalition in the city, been unilaterally withdrawn by the senior state prosecutor. No reasons have been given. Instead, I have been forced on the defensive, defending myself against gagging orders, interdicts and attempts to have me put away for petty offences – my experience would surely not raise eyebrows in the former Soviet Union.
Not everything is so bleak. Not only have I been acquitted by the travesty which played out in the Magistrates court 13, but the law is perfectly clear. Although a regrettable incident, it is not an offence to verbally menace a building when in fact, there was no immediate danger, nor any threat was implied at the time. Strange though it may seem, the law does protect its citizens from supernatural beliefs, future dangers, spurious signals and in a sense Khan was accusing me of having shouted: “Theatre” in a Fire Station, or worse, promoting regime change at Newspaper House.
World Wide Weather Report
All the news reports emanating from a single journalist from SAPA had a common theme, at first they played up the nature of the alleged threat. Then they attempted to provide reasons for my acquittal. At no time was there any examination of the evidence given. Khan’s testimony was carried verbatim. Her cross-examination and subsequent dismissal as an unreliable witness who made up a Daily Voice version of the “truth” as she went along, oblivious to the real world, was not carried at all.
Despite the testimony of another Heart 104.9 witness who could not verify anything that Khan said was true, and the inadmissibility of a third witness’ testimony, the station manager no less, who was busy doing her hair I imagine, and not at the scene at the time, the news reports carried the authority and stamp of approval of the South African Press Association (SAPA) and the plethora of news titles in which they appeared.
The story multiplied itself online, until it had made its way around the globe. One Irish radio station went so far as to publish the story as a strange but true factoid on their website, neglecting to correct the obvious error that contaminated each and every report, I had complained about the spiking of a story about a black jazz musician, not a black magician. A Dutch blogger corresponding from Cape Town labeled me a weirdo. If I was a crackpot, there was no threat and if there was, it was unintelligible gibberish. To date the Mail and Guardian Online is the only news service to have corrected this serious error of fact. I am still waiting upon the lying Irishmen – O’Reilly and Associates to correct their mistakes, and the D F Malan Organisation – Lobotomedia24, and its many incarnations to do the same.
Although vilified by the establishment media which has sort to stamp out dissent and to impose its colonial worldview on its employees, as well as unsuspecting readers, I have no doubt that a third-wave of anti-establishment, alternative media will spring up in the vacuum created by the destruction of the titles such as New Age which was created in the wake of 1976, and The Vrye Weekblad, which was birthed during the eighties student revolt. This third wave media, I predict is already in the offing. It’s emergence can be seen in individual blogs that criticize monopolies and cartels, it can be found in microzines that carry the reality of life in the streets, and it can be heard in podcasts that actually broadcast content superior to that found on SABC or any of the officially sanctioned outlets.
The gulf between the reality of the new media and the old, I predict, is going to be so huge, that when it eventually grows up, we will jettison the old media entirely. The press bosses who brainwash the public will disappear. The puppet-masters who control the news will be cut-loose. We will witness a renaissance, an enlightenment in which all opinions, voices and ideas are heard. There will be no story too controversial, or too hot to handle. We will have press freedom, not simply freedom for those who own the presses.