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.”