What does the rand have to do with our courts?

Posted 04 June 2013 Written by Paul Hoffmann
Category Transparency

AVID followers of TV news will recall the dramatic pictures of Helen Zille marching into the high court in Pretoria in April 2009 to launch an urgent review of the decision not to prosecute then private citizen Jacob Zuma on 783 charges of corruption, fraud and money laundering, writes Paul Hoffman, director of the Institute for Accountability in Southern Africa in Business Day.

The case has yet to be heard on its merits. At present, there is a slow-motion wrestling match between the Democratic Alliance (DA) and the National Prosecuting Authority over whether the "spy tapes" that form a small part of the record of decision should be disclosed by the latter to the former. Reports indicate this may reach the same high court later this year; one may reasonably expect appeal proceedings, first in Bloemfontein and then in Braamfontein. When these are all done, the case may go back to the high court in Pretoria for some unfortunate judge to consider the merits of the review and then the whole rigmarole of appeals will start again. Judging by the lack of progress in the past four years, it is reasonable to expect that another four years will go by before the case reaches finality.

Last month, the parliamentary leader of the DA, Lindiwe Mazibuko, informed the Cape Town Press Club that her party does not want two terms of a Zuma presidency and that it is working hard to get the review finalised. Cynics observe that two terms of Zuma may well work to the advantage of opposition political parties as his ineptitude and mismanagement combine to drive voters into their arms.

The slow progress of the review of the decision not to prosecute Zuma is at least in part attributable to the tactics he regularly employs in litigation. Only when he ran out of delaying stratagems and was faced with applications to compel him to make discovery of documents did he eventually abandon all civil claims for damages that he had pending against various members of the press and newspapers. With the panache reserved for the truly morally bankrupt, spin was put on this long-overdue decision to make it look as if something noble and wise was being done to promote national reconciliation, free speech and the right to a critical opinion.

It is not as though the DA review is an isolated case. Western Cape Judge President John Hlophe has yet to be brought to book for telling a couple of junior members of the Constitutional Court that "You are our last hope", in an alleged effort to influence the outcome of proceedings involving none other than Zuma. This intervention occurred early in 2008, when Zuma was a presidential candidate and in a faction fight with Thabo Mbeki. The merits of the complaint by the members of the court, who took umbrage at this interference, have yet to be determined properly by an independent tribunal.

How this has come to pass is best summed up by the judgment of the Supreme Court of Appeal on the matter: "Any attempt by an outsider to improperly influence a pending judgment of a court constitutes a threat to the independence, impartiality, dignity and effectiveness of that court. In the present case, the allegation is that Hlophe attempted to improperly influence the Constitutional Court’s pending judgment in one or more cases. The Judicial Service Commission (JSC) had already, when it decided to conduct the interviews with the judges, decided that, if Hlophe had indeed attempted to do so, he would have made himself guilty of gross misconduct which, prima facie, may justify his removal from office. Moreover, it based its decision dismissing the complaint on an acceptance that Hlophe probably said what he is alleged to have said. In these circumstances the decision by the JSC to dismiss the complaint, on the basis of a procedure inappropriate for the final determination of the complaint, and on the basis that cross-examination would not take the matter any further, constituted an abdication of its constitutional duty to investigate the complaint properly. The dismissal of the complaint was therefore unlawful."

Since 2008, Hlophe has featured in the law reports more prominently as a losing litigant than as a judge. While there is hope that a proper hearing will be held, the usual rounds of appeals and reviews make finality a distant prospect.

The oft-quoted words of Judge Louis Harms, uttered in an appeal concerning a review in which Hlophe simply avoided giving judgment in an application for leave to appeal his dismissal of an application to review medicine-pricing regulations, are apposite: "Firstly, parties are entitled to inquire about the progress of their cases and, if they do not receive an answer or if the answer is unsatisfactory, they are entitled to complain. The judicial cloak is not an impregnable shield providing immunity against criticism or reproach. Delays are frustrating and disillusioning and create the impression that judges are imperious.

Secondly, it is judicial delay rather than complaints about it that is a threat to judicial independence because delays destroy the public confidence in the judiciary. There rests an ethical duty on judges to give judgment or any ruling in a case promptly and without undue delay and litigants are entitled to judgment as soon as reasonably possible. Otherwise that most quoted legal aphorism, namely that ‘justice delayed is justice denied’, will become a mere platitude. Lord Carswell recently said: ‘The law’s delays have been the subject of complaint from litigants for many centuries, and it behoves all courts to make proper efforts to ensure the quality of justice is not adversely affected by delay in dealing with the cases which are brought before them, whether in bringing them on for hearing or in issuing decisions when they have been heard.’

"‘In Goose v Wilson Sandford and Co, the Court of Appeal (for England and Wales) censured a judge for his delay in delivering a reserved judgment and said: ‘Compelling parties to await judgment for an indefinitely extended period … weakened public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of law.’"

The subversion of the rule of law due to delays in "bringing on" and dealing with "hot potato" cases is endemic: Richard Mdluli, chief of crime intelligence and a Zuma supporter, arrested on charges of fraud in October 2011, is yet to face trial; Bheki Cele, Zuma’s former chief of police, prospers despite a recommendation that he be criminally investigated for his role in leasing South African Police Service premises at more than three times the going rate; Judge Nkola Motata, of tea-drinking fame, still graces the bench; even as simple a process as a disciplinary inquiry was allowed to drag on for more than a year in the case of prosecutor Glynnis Breytenbach. Her workload, including the Mdluli case and the Imperial Crown Trading fraud matter, which involves the Zuma family, remains on ice.
Continues at source.

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