South Africa’s judiciary, too many gone to the dogs?

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.”

 

Remgro Organogram showing 36.3% Kagiso-Tiso holding
Kagiso Asset Management Organogram, showing Remgro 32.6% holding of KTH

 

 

 

 

 

 

 

 

MORE READING:

https://ewn.co.za/2020/01/22/spat-between-deputy-judge-president-goliath-and-judge-hlope-plays-out-in-public

https://www.news24.com/SouthAfrica/News/goliath-vs-hlophe-deputy-claims-cape-judge-president-wanted-judges-favourably-disposed-to-zuma-on-nuclear-deal-case-20200121

https://www.politicsweb.co.za/opinion/the-problem-isnt-hlophe-its-the-jsc

 

 

 

 

 

God, Mogoeng & the Secularism debate uncensored

RECENT pronouncements by the Judge President Mogoeng Mogoeng to the effect that South Africa’s constitution needs a Christian makeover, unleashed a storm of commentary from online media. The Christian Democratic Party who don’t even have a seat in parliament were quick to thank him for his kind words in their favour.

That the country has problems giving effect to constitutional guarantees of the separation of powers and religious freedom is clear. Having experienced an 8-year-long legal battle in which my rights to a secular Jewish identity as a journalist have been denied by the Labour Court, I can certainly testify to the many problems faced by South Africans in the aftermath of apartheid theocracy. Secularism is not, as many people commonly hold, the absence of religion, but rather the “principle of the separation of government institutions and persons mandated to represent the state from religious institutions and religious dignitaries.”

“One manifestation of secularism is asserting the right to be free from religious rule and teachings, or, in a state declared to be neutral on matters of belief, from the imposition by government of religion or religious practices upon its people.” One may quote the coiner of the term, George Holyoake in this regard. “Secularism is a series of principles intended for the guidance of those who find Theology indefinite, or inadequate, or deem it unreliable.”(1)

Will constitutionalism prevail now that the bases are loaded in favour of Christianity?

Although the far right appears to have lost support during the past election, with some notable exits from parliament amongst Islamic-orientated parties, and a decrease in support for the ACDP, the problematic conflation of Church and State remains.

Interestingly enough, our Judge President starts by quoting Thomas Jefferson, no problems there, (Holyoake who is also the coiner of the term “jingoism” would most certainly have agreed with Jefferson) but then he proceeds to quote Lord Denning on the impossibility of there being “morality without religion”, and it is sadly all downhill, surely it is enough to believe in the golden rule of reciprocity that is common to all religions and philosophies? One need not even possess a religion in order to possess ethics. Science itself is not based upon any religious creed. The no-harm principle common to medical practitioners is worth raising in this regard.

Aside from the obvious inferences one may draw from current debates on legal positivism and the scientific method and its effects on the development of law, (or lack thereof) and the post-positivist assumptions of Karl Popper, the judge president appears totally lost in obscurantist Roman Scripture and the Christian conception of the State as some kind of evocation of God’s Will as per St Augustus (aka Augustine of Hippo).

One juicy piece from his address: “”Our safety and well-being as nations equally depends on the realisation and acceptance of the fact, that just as God the Father, God the Son and God the Holy Spirit are co-equal Personalities of the Trinity, so should the Executive, Legislative and Judicial Arms of the State be co-equal partners in the governance of any democratic country. ”

Dangerous stuff for secularists, it would have been better if Mogoeng had simple remained silent and inert, or rather if he had plucked up some courage and embarked upon the clear-headed path of delineating exactly what pluralism and secularism means for the nation’s founders, this in the run-up to the 20th anniversary of the 1995-1996 constitutional assembly, the one which was tasked with drafting our nation’s Bill of Rights and which delivered an emancipatory civil rights-based document sans the need to possess religion or religious rule. Instead we end up with a moral canard against everyone who is not a Christian, or at least, not a co-religionist, this despite the rather glib and feeble attempt in his introduction to distance himself from the invariable ruminations of his own liturgy-filled address — one would hazard to pronounce on the problematic introduction of Medieval logic, but there it goes, see the bench’s recent attempts to rebut criticism and the ensuing fall-out.

The Stellenbosch address is thus a sad and sorry peon to cater to current legal dilemmas faced by the judiciary — instead of pronouncing on pluralism within the concept of a Holy Trinity and presumably, the Christian Normative legal system, Mogoeng throws away a sterling opportunity to engage in more appropriate and less divisive discussion on normative pluralism and the common law.

Read Richard Poplak’s piece God Help Us as Mogoeng Moegeng takes the constitution to Church

and a follow-up piece Mogoeng Mogoeng wants God to govern. This time, he’s serious.

Chris Roper’s Christianity is the enemy of Christianity

Ryan Peter’s Thought Leader post Are Today’s Secularists really Secular?

George Devenish, professor emeritus at UKZN who “helped draft the interim constitution in 1993”, I repeat, interim, decries Mogoeng lack of independence, ‘failed to maintain impartiality, independence

Vinayak Bhardwaj  Religious sentiments can’t be allowed to override our Constitution

Zama Ndlovu Mogoeng’s point is best left to others to debate

Pierre de Vos The law vs. religion: Let’s try that again

 
(1) Principles of Secularism, George Holyoake

Here is another choice quote from Holyoake: “”A Secularist guides himself by maxims of Positivism, seeking to discern what is in Nature — what ought to be in morals — selecting the affirmative in exposition, concerning himself with the real, the right, and the constructive. Positive principles are principles which are provable.”

South Africa’s Labour Czar

cheadle

THE principal author of South Africa’s Labour Relations Act, Michael Halton Cheadle is more than simply a professor at law.

Cheadle, who began his career defending workers from the machinations of the apartheid system, metastasized from being a practitioner of labour law to a global economic player and international labour broker, with a directorship and shareholding in a human resources empire and financial services firm that literally sold workers rights down the river.

From a notable career which began with support for workers unions such as the African Textile Workers Industrial Union (A-TWIU) and National Union of Textile Workers (NUTW) where he held an executive position, to labour fund management, and the establishment of the General Factory Workers Benefit Fund (GFWBF), Cheadle effectively ended up redefining human labour in purely monetary terms, first as a rands and cents equation, then as a simple cost to company, as labour was finally repackaged as a new form of capital.

Between 1992 and 1994 Cheadle was an “Independent Legal Expert with National Manpower Communications” positioning himself at the centre of political intrigue with his appointment to “various commissions of enquiry and government delegations such as the ad hoc committee on the Bill of Rights”.

Because of his close ties to the ruling African National Congress (ANC) party, Cheadle, who signs his legal opinions H Cheadle, was appointed as the special advisor to the Minister of Labour and soon found himself the “principal architect of the 1995 Labour Relations Act” according to an online biography.

In March 1999 Cheadle was involved in establishing the Resolve Group, which until 2012 provided ”a suite of human resources and labour relations services.” In the process he created a total solution in workforce management. The Resolve Group included Resolve Workplace Solutions, Resolve Encounter Consulting, Tokiso Dispute Management, Converse Consulting, Mediaworks, Resolve Career Transition, CCI Growthcon and Resolution Logic, all involved in the employment, placement and management of workers and professionals.

Services offered by the Resolve group included: Labour performance management, training programmes and services, private dispute resolution, recruitment and outsourcing, adult education and training, career transition and outplacement, psychometric testing and operational performance improvement.

The CCI Growthcon website proudly proclaims, without a hint of irony: “By performance improvement we mean revenue growth, service delivery, cost reduction/ deferral and/or capital reduction/deferral.”

Resolution Logic on the other hand, perversely offers its clients “dynamic financial modelling and people strategies for your employee segmentation, human capital and workforce planning needs.”

Directors of the company included ANC heavyweight Max Sisulu, the current speaker of the House of Assembly, who is nearing retirement, and CEO David Storey, a man with strong ties to the Discovery Group and other financial services companies.

Cheadle remained an executive director at the company alongside David Storey and juggled his time spent seeing to the affairs at Resolve with a professorship and lecturing position at the ivy league University of Cape Town. Cheadle was thus a Professor of Labour Law at the University of Cape Town’s Law Faculty at the same time that he was a major shareholder in a number of business ventures and financial operations including law firm Cheadle Haysom and the Resolve Group.

In 2012 the Resolve Group appears to have been bought out by Ernst & Young Advisory Financial Services. A press release issued by the company states: “We are pleased to announce that Ernst & Young has acquired the consulting interests of The Resolve Group, a Johannesburg-based Human Capital advisory firm.” It is unclear as to the resulting share structure, but the move came amidst controversy. 

The shift followed extensive criticism of Cheadle because of his failure to disclose information pertinent to the proceedings in a labour matter under his direct supervision, in which both his firms held a material interest in the outcome of events.* His flagrant disregard for fairness and impartiality in not recusing himself resulted in correspondence with the disciplinary committee of the Cape Law Society. He is now listed as Professor of Public Law at UCT.

Cheadle’s political career might have easily seen his entering politics as an activist and his ascendency to parliament as a party representative of the ruling ANC, instead his chose to become an extra-parliamentary backbencher. His appearance on the bench as acting judge of the Labour Court was thus bound to raise eyebrows, the least of which is the conflict of interest that goes with having been the principal author of the document which would have needed to be interpreted during proceedings at the court.

Instead of focusing on his professional duties, Cheadle sought out a more lucrative, but nevertheless parallel career path, one which would invariably present itself with all the difficulties and contradictions encountered by his possessing a directorship in a firm engaged in free enterprise at the same time that he held the directorship of a well-known law firm.

Not satisfied with simply being an academic, or a party activist representing labour at the International Labour Organisation (ILO), Cheadle is now also listed on the website of the World Economic Forum, begging the question: Who is Michael Halton Cheadle?

What is clear is that South Africa’s Labour Czar has leveraged his privileged position, one in which he declaims on such pressing and urgent topics as the need to change labour legislation, with the uncanny ability to also broker the negotiation and sale of the surplus output of labour and capital by government and corporate enterprise, both locally and internationally.

Is it any surprise that following the events of Marikana, Cheadle also represents the interests of the state union federation COSATU as well as the World Economic Forum?

Cheadle’s position at the World Economic Forum and the International Labour Organisation, including one committee tasked with making recommendations on the application of international conventions has seriously compromised his ability to serve either the Labour Court of South Africa or the Eastern Cape Division of the High Court. The business of drafting legislation should not be confused with the interpretation of statute, and both represent problems when it comes to the nitty gritty of business**. That Cheadle was involved in the outsourcing and management of workers at the same time that he was tasked with protecting workers interests at the Labour Court of South Africa, strikes one as beneath contempt.

* NOTE: The author of this article has laid a complaint of judicial misconduct with the Judicial Services Commission. A complaint regarding the adjudication of a matter before the Labour Court of South Africa has been referred to the South African Human Rights Commission and the Public Protector. Proceedings for the impeachment of Michael Halton Cheadle are underway.

** In 1919 Jewish businessman Arnold Rothstein was accused of fixing the Baseball World Cup Series. He appeared before a grand jury. Although the state failed to a secure a conviction, the players involved were banned from the sport for life. Similarly, South African cricket captain Hansie Cronje was accused of match-fixing in 2000. He received a life-time ban but was not convicted of any crime.

UPDATE: A corruption and forging of documents docket has been opened at the SAPS commercial fraud unit. The National Prosecution Authority is also in receipt of documentation and has opened a case for investigation. The case has also been forwarded to the Public Protector.