In late February, when justice John Hlophe threw out a judgement in favour of a Zuma ally, eyebrows were raised. When the former president starts slinging mud against the judiciary, the status of this bastion of due process is under threat.
Two years ago, an American billionaire made South Africa’s chief justice Mogoeng Mogoeng an attractive offer of R600m ($40m) to modernise the country’s creaking analogue court system.
“I know that person and the institution and I rejected it with the necessary contempt, because that’s how capture happens,” Mogoeng said, without revealing any names.
But Mogoeng might be compromised on other fronts. On Thursday 4 March he suffered a drawback when the Judicial Conduct Committee asked him to apologise for making pro-Israel comments – supported by passages from the Bible – at a webinar in June last year. Mogoeng has in the past expressed controversial views based on his fundamentalist Christian beliefs, but this is the first time that he has officially been called to order.
In an unusually swift investigation, the committee found in favour of the NGO Africa 4 Palestine’s complaints that Mogoeng had breached the Code of Judicial Conduct by becoming involved in political controversy.
Last line of defence
The country’s judiciary has long been held in high regard as a strong and independent institution guarding the fledgling constitutional democracy even when the executive and the legislature caved to grand-scale corruption – known as “state capture” – during the presidency of Jacob Zuma.
In 2016 the Constitutional Court, in a judgement delivered by Mogoeng, took Zuma on directly when it found Zuma had failed to uphold the Constitution. It also found a resolution by parliament – that he didn’t have to comply with a report ordering him to repay state money used for home improvements – as inconsistent with the Constitution and invalid.
But the unfavourable judgement has put Zuma on a warpath with the courts and the judiciary has found itself at the centre of a mud-slinging contes; more so since Zuma is now facing possible arrest for his refusal to obey an order to appear in front of the commission probing state capture.
Zuma has recently repeated claims that judges are being bribed to favour President Cyril Ramaphosa while his detractors have resorted to the courts to get him to reveal details of those who had funded his presidential campaign – even as these details had been leaked to the media already.
“We sit with some judges who have assisted the incumbent President, Mr. Ramaphosa, to hide from society what on the face of it seem to be bribes obtained in order to win an internal ANC election,” Zuma said in a statement last month on his refusal to appear before the state capture inquiry.
Zuma has thus far produced no evidence for these claims, which have been megaphoned by his populist ally-turned-foe-turned-ally, Economic Freedom Fighters leader Julius Malema.
Was Zuma bribing judges?
Instead, the state capture inquiry has heard concrete claims that, in fact, Zuma’s administration had set aside money for such bribes. An official report into the state of the country’s intelligence agencies under Zuma claimed that millions of rands were funnelled to sources in the judiciary “in order to influence the outcome of cases against President Zuma”.
It also noted that this could have been a ruse by Zuma’s allies to access government money. This week State Security [intelligence] Minister Ayanda Dlodlo promised in parliament that a forensic investigation would be done to prove that there were no judicial bribes.
If perceptions of shady dealings are damaging to the judiciary, a more than decade-long failure by the responsible oversight body to deal with an errant judge has perhaps caused more damage.
It came to a head on Friday 26 February when Western Cape Judge President John Hlophe threw out a corruption case against a Zuma ally – former State Security Minister Bongani Bongo – who in 2017 allegedly offered to sabotage a probe into troubled energy utility Eskom for a price.
The weaknesses in Hlophe’s judgement might not have been as stark had he – as the head of his division in the Western Cape – not been responsible for allocating the case to himself, and had Hlophe not been accused back in 2008 of trying to influence other judges to decide a case in favour of Zuma. This was the year before Zuma’s nine-year tenure as president started and a few months before his corruption charges were irregularly dropped.
Hlophe – a controversial figure – has faced at least 10 scandals in his 21-year tenure as judge president, some involving alleged racial slurs on his part, others alleged kickbacks, even alleged assault; yet the Judicial Service Commission’s (JSC) Judicial Conduct Committee has thus far failed to impeach him.
Even though Hlophe’s recent judgement is likely to be appealed, Zuma’s corruption-accused allies have been buoyed, and it has led retired Constitutional Court Justice Johann Kriegler to take the unprecedented step of calling for Hlophe’s suspension.
Investors ask questions about justice system
Justice Kriegler says he’s concerned about the implication this judgement could have for the administration of justice. “This particular decision is clearly wrong and shows what harm one dishonest judge can do.”
University of Cape Town constitutional law expert Pierre de Vos, however, says the problem is bigger than just one person. “The JSC’s tardiness to act firmly against judges, not just in the Hlophe case, has been doing the judiciary a lot of damage.”
It also means that, for the first time since the country’s democratic transition 25 years ago, foreign investors are asking questions about the strength of South Africa’s institutions. Opposition Democratic Alliance MP Werner Horn, who sits on parliament’s portfolio committee for justice and on the Magistrate’s Commission, says: “Our judiciary has for long been held in high esteem as a bastion of how things should be done”.
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He says prospective investors from time to time consult MPs on the state of South Africa’s democracy and its likely future stability. “Now for the first time they are asking if our judiciary is in a good place,” he adds.
For now, Horn says he answers in the affirmative. Even though recent events have the potential to erode confidence in judges, “by and large there is still reason to have confidence in the judiciary as an institution”.
The fact that there has thus far not been actual proof that judges have taken bribes is a positive, says opposition IFP MP Narend Singh, who also serves on the JSC.
The Covid-19 lockdown has prevented the commission from having its twice-a-year meeting last year, but Singh says the next meeting was scheduled for April, where he expects concerns will be raised about the alleged bribery as well as about Hlophe.
Government leaders have defended the judiciary’s independence. Justice Minister Ronald Lamola told parliament in February: “Attacks, allegations and conspiracies against the judiciary can erode the confidence of society in the judiciary if not followed up with facts and conclusive investigations.”
It now remains to be seen if these facts will be established, but the recent finding against the country’s highest judge shows that there is still power in process.
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