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Lest we forget: Some in the judiciary and the media also aided State Capture

Opinionista • Paul Hoffman • 21 October 2020

The media and the judiciary have played key roles in exposing the State Capture project of the Jacob Zuma years. But let’s not forget that both institutions had their dark sides; accountability demands that both be scrutinised.

https://spkt.io/a/1167858

The space, the skill and the willingness to speak truth to power are essential in a functional constitutional democracy. These qualities enhance accountability, openness and responsiveness in governance. In their different ways the judiciary, via judgments and orders, and the media, through news coverage and commentary, do speak truth to power in South Africa.

It is often suggested by various analysts that the judiciary and the media are our saving graces. In broad terms, the proposition is true. The independence of the judiciary has, in general, been maintained as has its sworn fealty to upholding the Constitution impartially. The willingness of investigative journalists to ply their trade fearlessly has been critical in the exposure of the phenomenon now generally known as State Capture. These generalisations do not, however, reveal the dark side of either institution; accountability demands that both be scrutinised.

The first judge to be implicated in the State Capture Project of the Zuma era is, despite recent media reports to the contrary, Western Cape High Court Judge President John Hlophe. His attempts to influence the decision in a pending appeal in the Constitutional Court in favour of an outcome that would suit the political ambitions of then private citizen Jacob Zuma not only failed, they turned out to be unnecessary. Zuma was swept to power despite losing the case. Hlophe’s alleged dramatic entreaty to Justice Chris Jafta in Zulu to the effect that “You are our last hope” was superfluous; the “Zuma tsunami” was in full flood. Had Zuma’s hands not reached the levers of power in the state, his project to capture it would have been stillborn.

The fact that Hlophe has yet to face the music for his interference in Braamfontein by his attempt to defeat the ends of justice has been adversely commented on recently by Justice Johann Kriegler, a veteran of the first Constitutional Court Bench in the new South Africa. It is lamentable after 12 years that the matter still festers in a tangle of red tape. A much-postponed hearing is scheduled for December. No holding of breath is indicated. Indeed, that hearing may be overtaken by more recent shenanigans in the Cape High Court involving an alleged assault by Hlophe on a junior judge in his own division and a spat with his deputy which has overtones of gender-based violence, racism and sexism on his part. That spat has taken a new turn with Hlophe resorting to dubious social media to fight his corner, rubbish his accusers and trash the Chief Justice with accusations of perjury and conspiracy, just for good measure.

The next judges to be implicated in the State Capture Project, albeit passively so, were hand-picked by Zuma to preside over whitewashing the outcome of the Arms Procurement Commission of Inquiry he was forced to appoint. This unwanted step became necessary after pacifist/activist Terry Crawford-Browne sued to compel the appointment. The exculpatory findings of Judges Seriti and Musi suited Zuma and his cronies. However, they were set aside on judicial review because, so the court found, they were irrational and irregular. In short: a whitewash.

Now, complaints to the Judicial Service Commission against both judges are pending. The somewhat myopic approach they adopted to the inquiry is regarded by the complainants as participation in a cover-up of the alleged wrongdoing the inquiry was meant to investigate. The commissioners chose to turn blind eyes and deaf ears to manifest malfeasance and misfeasance in the arms deals, deals that arguably mark the start of State Capture in SA. They now risk losing their pensions if found guilty of gross misconduct.

Judge Nana Makhubele has become the latest judicial officer to face impeachment over allegations she was intimately involved in State Capture corruption. The gross misconduct complaints levelled against Makhubele in December 2018 by social justice coalition Unite Behind will be referred to a Judicial Conduct Tribunal for investigation. The Judicial Service Commission has also advised President Cyril Ramaphosa to suspend her pending the finalisation of the complaint. Makhubele served as chair of the interim board of Prasa after accepting her appointment to the Bench.

Makhubele is a Gauteng High Court judge who was appointed to the bench by then president Jacob Zuma in late 2017, shortly before things went wrong for him at Nasrec. She testified at the Zondo Inquiry into State Capture that she saw no conflict with her dual roles, as she did not believe her position as chair could be called “a huge responsibility”.

This proposition is surely astonishingly risible coming from a judge. She was implicated in serious wrongdoing during her time at Prasa — which was the subject of multi-billion rand looting — by the utility’s head of legal, risk and compliance Martha Ngoye, advocate Francois Botes, Prasa legal head Fani Dingiswayo and Zackie Achmat of Unite Behind. The judge faces damning claims that she tried unlawfully to interfere in and stymie litigation between the rail agency and Siyaya Rail Solutions, a goods and rail services provider that allegedly received millions in contracts from Prasa without valid contracts being in place.

Makhubele’s conduct in that saga saw Judge Neil Tuchten ruling in November 2018 that she ought not to undertake any judicial duties until she clears her name of the allegations against her. She responded by lodging a gross misconduct complaint with the JSC against Judge Tuchten, in which she accused him of racism and sexism. Her complaint was dismissed.

The willingness of Independent Newspapers to run with a fake news story about the imminent arrest of Ace Magashule is but a small manifestation of a stance and editorial policy that would suggest that the organisation and its titles are neither independent nor newspapers. The dalliance of the Guptas in a television news channel and a newspaper are of the same ilk.

Some sensitive observers may detect a whiff of capture in decisions of variously constituted courts, and in the judiciary’s somewhat languid case management procedures. For example: the DA rushed to court urgently in April 2009 to challenge the decision not to prosecute Zuma for corruption. (The corruption trial in which Schabir Shaik was found guilty of corrupting Zuma ended in 2005; the evidence in the trial of Zuma on the same facts has yet to begin and won’t in 2020.) The DA’s “urgent” review was finalised in October 2017.

Some discern decisions that tend to give preference to the executive in matters concerning affirmative action, language rights and in the renaming of streets. Others interpret court findings in ways that may show affection for the tenets of the national democratic revolution instead of fealty to constitutionalism. Critics regard procedural delays in court management systems as devices designed to shield miscreants ranging from Zuma himself to self-confessed crooked silk Seth Nthai, ironically a former member of the JSC.

The hyper-sensitive may even look suspiciously upon the refusal of a majority of Constitutional Court Justices to have regard to sworn expert reports revealing the systemic corruption in the police, the Hawks and the executive as circumstances, so it was argued, justified keeping anti-corruption work away from the police. Had the Hawks been replaced, back in 2014, by a more independent, effective and efficient anti-corruption body, a great deal of State Capture activity could have been prevented.

These blemishes on the generally good track record of the judiciary should serve as a warning that the price of freedom is eternal vigilance.

Regarding the media, and leaving the obvious challenges of the SABC aside, there is also not an unblemished record to look back on as regards State Capture. Who can forget the craven role played by the Sunday Times in the “death squad” claims against General Johan Booysen and his staff as well as those damning the “rogue unit” in SARS – all fake news and disinformation. The Sunday Times’ managers have never revealed the identity of those who planted the false stories with their journalists.

To the credit of the editor, there have been apologies and prizes won have been returned. However, to this day, no criminal complaint has been laid against the pedlars of false information that was planted in order to expedite and enhance the State Capture project. Hopefully, the Satchwell Inquiry will rectify this glaring omission. Anton Harber, who should know, considers it wrong of the Sunday Times not to have complained about being duped. Put in simple terms, it is fundamentally misguided to protect sources who have defrauded a newspaper or indeed any member of the media.

The willingness of Independent Newspapers to run with a fake news story about the imminent arrest of Ace Magashule is but a small manifestation of a stance and editorial policy that would suggest that the organisation and its titles are neither independent nor newspapers. The dalliance of the Guptas in a television news channel and a newspaper are of the same ilk.

These examples are illustrations of the dangers of blithely accepting the rosy generalisations about the role of the media in State Capture. It is true that investigative journalists in many media organisations have done brilliant and sterling work at great personal risk in order to expose State Capture. Certainly, the work done on the #GuptaLeaks has enhanced the prospects of successfully holding the guilty to account in the whole State Capture saga. Not everyone in the media has been a part of the solution; some are and remain part of the problem of State Capture.

Once again, eternal vigilance is required. DM

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