The Mail & Guardian continues its “expose” of the alleged dubious business dealings of Deputy Chief Justice Dikgang Moseneke in their paper this week. It claims that “the Moseneke family” has Congolese Oil Rights which were facilitated by “an alleged fraudster extraordinaire”, stating that:
Nozi Mwamba, the facilitator who helped pave the way for the Moseneke family’s Encha Group to obtain Congolese oil concessions, is wanted in France on charges that he was key to a multibillion-rand currency swindle. Mwamba, who lives in South Africa and his native Democratic Republic of the Congo (DRC), denies the charges, but has not returned to attend a trial under way in Paris.
After implicitly questioning the ethics of the Mail & Guardian for publishing the story last week and suggesting that there is far less of a scandal here than the sensational headlines suggest (at least a scandal involving the Deputy Chief Justice), I was taken to task by some who suggested that I am merely defending Moseneke because I am a fan of the Deputy Chief Justice.
After the most recent “revelations”, I am even more convinced that the way in which the newspaper has attempted to link Moseneke to unsavoury characters because his family trust owns shares in a company in which Moseneke’s brother is involved and who has done deals with questionable characters, really does not make much sense. I would expect better from my favourite newspaper.
In order for the story to make sense and to have any impact, Moseneke has to be linked to the unsavoury characters and the shenanigans of the people who do business with a company in which his family trust owns 18% of the shares. This is why the story has to fudge the issue by talking about the Moseneke family being involved with an alleged crook - as if the company in which Moseneke’s trust has an 18% stake is a family business in which Moseneke is an active participant – as a prominent member of the family.
But a few paragraphs into the story one finds the following extraordinary statement which really nullifies the attempts of the newspaper to link Moseneke to the shady Mwamba: “There is no suggestion that he [Moseneke] was personally aware of Mwamba’s role.” I also searched in vain for any reference in the story to evidence that Moseneke plays an active role in the company in which his family trust owns 18% (so where is the family business?) or any suggestions that Moseneke as an 18% shareholder in the company, knew that the company were involved with shady characters.
Maybe I am missing something, but I find this rather naughty on the part of the newspaper. The Mail & Guardian has no evidence to link Moseneke in ANY way with the shady people it reports on in the latest story, but it nevertheless proceeds by using deliberately vague phrases like “the Moseneke family” to suggest that Moseneke is involved with a “fraudster extraordinaire”.
Based on the fact that Moseneke’s family trust owns shares in a company that has done business with these shady characters, the paper suggests that Moseneke - as a member of the family – has links with a “fraudster extraordinaire”. However, it states itself that there is actually no evidence that Moseneke is in any way linked to these people. There is no evidence that Moseneke knows these people (despite the suggestions of the newspaper that there is a link), nor that he knows that the company in which his trust owns 18% was linked to these people.
I find this extremely unfair towards Moseneke. Let us use another example to demonstrate how the newspaper makes use of innuendo and hints to link Moseneke to wrongdoing without even a shred of evidence. We all recently learnt that Old Mutual owns a large stake in Zimbabwe Newspapers Ltd., a government controlled newspaper in Zimbabwe that daily prints hateful propaganda to help prop up Robert Mugabe. The company also has some business investments in Chiadzwa, the source of Zimbabwe’s blood diamonds and this means the company is contributing to the exploitation of local labour and the oppression of local communities.
If one follows the logic of the Mail & Guardian in these stories, any judge who owns shares in Old Mutual or (any judge who – like me - have an Old Mutual insurance policy) could therefore be smeared by associating that person with Robert Mugabe and his murderous cronies. I better get rid of my Old Mutual insurance policy because who knows when the Mail & Guardian will report that I own such a policy before trying to link me to the human rights abuses of the Mugabe regime.
One might argue that the two scenarios are different because in the Moseneke case he owns 18% (through a trust) in a company run by his brother. But in the absence of hard evidence that Moseneke is involved in the day to day running of the company in which his family trust holds an 18% share, there is absolutely no scandal here. Just as there is no scandal in me holding shares in Old Mutual because there is no evidence that I was part of an Old Mutual decision to prop up the tyrrant to our North, there is similarly no scandal about Moseneke in the absence of evidence that he was involved in the day to day running of this company.
It seems to me the story would have had some merit if it had shown that: (i) Moseneke was actively involved in some executive capacity in the business in which his trust held a stake; or (ii) Moseneke had used his position or name as a judge (or his brother had used it with Mosenek’s knowledge) to gain some unfair advantage for the company in which his trust held a stake; or (iii) the company in which his trust held a stake had landed the government business or the DRC contracts in a corrupt manner and Moseneke knew about this; or (iv) that Moseneke had decided one or more cases in favour of the government to try and gain a specific advantage for the company in which his trust had a stake.
As the Mail & Guardian does not provide such proof, it remains a story that associates Moseneke with wrongdoing because his family trust invested in a company who might have had shady dealings. If that was the standard applicable to judges, no judge should ever be allowed to own any shares because, lets face it, many companies have been involved in shady deals or have been associated with shady characters or with the government. No Absa shares (as the government banks with them); no mining shares (who knows whether Brett Kebble might be involved or what the safety record is of the mines operated by the company); no Telkom shares; no Sasol shares; no shares in the retail sector (because who knows whether they buy clothes from sweat shops in China). Is Moseneke then not held to a higher standard than other judges?
Maybe it would be better for all South African judges to be forced to place all their shares in a blind trust (as is apparently the case in Canada), but that is not currently the situation. So, in the absence of any evidence that Moseneke did more than invest in a company through a family trust, really, there is no justification for reporting on this as if the Deputy Chief Justice has acted in contravention of the Code of Judicial Ethics.
@ Pierre.
According to the M&G story “Nozi Mwamba, the facilitator who helped pave the way for the Moseneke family’s Encha Group to obtain Congolese oil concessions, is wanted in France on charges that he was key to a multibillion-rand currency swindle.”
Seems to me (I might be wrong) that all Mwamba did was introduce Encha Group.
It hardly qualifies that “his family trust invested in a company who might have had shady dealings.”
This thing, like Alice said, is getting “curiouser and curiouser”.
“Waar daar ‘n rokie is, is daar ‘n vuurtjie”.
Just give the free press a chance. They will chip away on the cracks, and in no time come up with the real stuff. If they investigate like that, they probably heard something, somewhere, somehow from a source which they cannot reveal – they must investigate to expose on their own info uncovered…. – without blowing the source….
Henri, I agree a free press must do its job and must investigate any wrongdoing. So far I am just a bit perplexed because the wrongdoing here (at least on the part of the DCJ) remains illusive.
Some third force is behind this. Someone somewhere trying his sebt to link Moseneke with dirty things. I am not surprised because the man has shown himself to be an independent and astute judge and has all along being guided by the rule of law not a political resolution.
Pierre, I doubt you own 18% of Old Mutual….
so I am not sure your example is relevant.
PdV, a better illustration would have been to link (hypothetically) the M&G article to a business deal (past or present) with the owner(s) and/or top management of the M&G and/or their family/friends. One never knows, maybe they have been or would be a competitor for a specific tender or stake in a business venture.
http://www.sundayindependent.co.za/?fArticleId=5255487
“Moseneke’s links to oil man a ‘moral call’
November 22, 2009 Edition 1
Fiona Forde
AN ALLEGED former oil sanctions- buster is in business with a company in which Deputy Chief Justice Dikgang Moseneke’s family trust holds a minority stake.
Francois Kritzinger of Cape Town, who was allegedly involved with apartheid’s Strategic Fuel Fund and who acted as an oil broker during the sanction years, was recruited by the Encha Group earlier this year to help kickstart its new oil trading firm.”
Professor
I share your sentiments. I want to fully agree with you, as we all admire the character and aptitude of the judge. But there are some issues which need clarity in this saga before we can boldly defend the judge. Of particular importance is the question: is Judge Moseneke a trustee or not in his family trust?
I am also perturbed by the comparison you have drawn in order to exonerate the judge. If the comparison was at least reasonable I would have agreed with you. The reason I raise this, is because it may not be convincing to the next person as it is not to me- thus dragging down the name of the judge we so admire.
Your investment in Old Mutual in the form of an insurance policy and Moseneke family trust’s investments are totally different scenarios in my view. Yours is passive investment whereas Moseneke’s one is investment in private companies where corporate governance is not applicable- which means it is possible for him to be a shadow director. For the sake of Moseneke’s reputation it will be better to find a another better argument to defend Moseneke’s integrity. I would have come to your rescue if I had information to this end.
To elaborate a little bit about these private companies. According to the reports these private companies are seeking business projects as opposed to carrying out a normal continuous business operation of manufacturing or providing goods and services. The former requires contacts or connections in order to clinch business deals whereas the latter does not as the nature of the business itself normally has an established market. What compounds the matter is that corporate governance is not mandatory in these private companies. It is therefore a cause for concern that the judge’s family trust has invested in such private companies where political or functionary influence is a necessity or cannot be ruled out.
Mind you, the perceptions now exist that there is impropriety around the companies in which the family trust of the judge has invested and legally speaking the judge and the trust are connected person. In terms of common law, a person and a connected person are deemed to be the same person. To cut the argument shot, it has indeed become a national question whether Moseneke’s income from his investments is income compatible with the judicial office.
The other thing that you university intellectuals do not seem to understand is that the ethics are more concerned with addressing perceptions than facts. By requesting the detractors to present evidence, you professor are lowering the bar for ethical conduct. Once you understand that the purpose of ethics, you should agree that Moseneke, based on media reports, is an ambitious business and the perceptions have stacked against him.
Having said that, I hope that I am proven wrong because we as a country cannot afford to lose such one of the best legal minds in the country.
I think M&G is preparing for the hearing of its matter against Hlophe JP, they want to “show” that they are not just after the JP, but are prepared to follow up a story involving his “adversaries” (as Nic Dawes said on MetroFM Talk last week).
This is doing nothing to convince me that our media is really playing the role they should be playing.
Months ago, I suggested in this blog that Pikoli cannot hold us in ransom and force the employer to take him back. I said he must name his price and move aside. It looks like he has just done that.
King Zwakala, I am with you on this one. It is interesting how the rules are changed when our favourites are involved. He is my brother “finish and klaar” that sounds familiar.
Last week the M&G had posted on its website a copy of Moseneke’s reply to the M&G. I seem to recall a categorical statement from the DCJ that since becoming a judge he has never received any remuneration from any source other than his employment as a judge.
If that is true can any talk of “whether Moseneke’s income from his investments is income compatible with the judicial office” really be sustained? Or is the suggestion that the judge lied? (Obviously evidence becomes crucial here.)
With all due respect, if ethics are primarily concerned with addressing perceptions rather than facts, then in my view those ethics are not worth the time of day.
Gwebecimele says:
November 23, 2009 at 10:03 am
Months ago, I suggested in this blog that Pikoli cannot hold us in ransom and force the employer to take him back. I said he must name his price and move aside. It looks like he has just done that.
———————————————————————————————————
I had the impression that he was offered R10 million some months back and he rejected that on the grounds of “principle”.
If that is true then government got a 25% discount!
Maybe not – it sure seems like there’s an interesting deal behind the deal.
Even as interesting as :
“Cilliers asked Pikoli whether he ever enquired over the ‘material value’ of his wife’s shares, to which Pikoli said no.
“‘These shares were paying material value – I mean millions and millions of rands,’ Cilliers said. Pikoli told the court that his wife told him about the shares, which she received from Gibson Njenje (a close friend of hers and newly appointed National Intelligence Agency director-general), in 2005.
“Cilliers pointed out that on the day Pikoli’s wife received her 2% shares in Vulisango, he became the Director of Public Prosecutions, on February, 1, 2005.”
http://www.timeslive.co.za/news/article197881.ece
These damn glass houses are all made of glass and the stones are all made of stones!
Maggs
Yeah right! Reject R10 million on principle just to accept R7.5 mill.
Without hijacking this debate with the Pikoli matter I want to challenge PDV to bring back his arguments on the Pikoli matter since he was one of the cheer leaders.
Again laws and courts were never the right instruments to resolve the Pikoli matter.
Maggs, I agree with u there is a lot behind this deal and the Selebi trial might point us in the right direction.
Some people are disappointed with Pikoli’s backtracking. But what can you do when your employer does not want you anymore. You have no choice but do the honourable thing and resign without causing chaos.
Sivakashi
What an interesting revelation: “I seem to recall a categorical statement from the DCJ that since becoming a judge he has never received any remuneration from any source other than his employment as a judge.” This revelation has brought a little bit of hope but there are some few issues that need to be clarified which are as follows:
• It is not clear whether the honourable judge is referring only to himself as a natural person or to the family trust as well.
• Judge Moseneke (as per your ‘quote’) refers to remuneration as opposed to income
• Let us say Judge Moseneke was also referring to income – income can be divided into two folds i.e. capital income and revenue income. Clarity would be required of which of the two Moseneke was referring to.
Be it as it may, the statement does not kill away the perceptions that permeate his business dealings in the form of the trust. He has not contested the allegations raised by M&G, based on what you have stated.
Sivakashi, without getting to detail on the theory of perceptions- once they emerge, perceptions are very difficult to contain and as a result the image and reputation of an entity becomes tainted in the eyes of the public. Laws and regulations on their own are not enough to curb perceptions. It is for this reason that many institutions and professions in addition to applicable legislation have developed their own code of conduct to govern the behaviour of their members.
Clarification of the debate between “facts” and “perceptions” is best done by drawing the following distinction:
• Evidence in relation to crux of the matter
• Evidence in relation to perceptions
Example
If I am an executive director in a company and the board is considering a contract between the company and company B (my family business), I need to bring this situation to the attention of the board before deliberations commence and recuse myself from the meeting at which the matter is considered- ethics. If however shareholders of the company have given explicit approval that I may sit on such a board meeting and execute my duties in good faith in relation to the contract and company B gets awarded the contract. In such a scenario there is evidence that warrants the creation of the perception that I had an influence in getting the contract for company B. But there is no evidence that in the deliberation I was actually bias in favour of company B. There may be no evidence but the image of the company has been tainted in the eyes of the public and it would be much worse if what we are dealing with here was a parastatal.
In summary, my view is that ethics are designed to deal with perceptions whereas laws and regulations are designed to handle facts and evidence. For example, it is common cause that a person cannot be prosecuted based on ethics but on statutory law (and/or combination with common law). With reference to the scenario above, in a situation where ethics are strong, shareholders will be prohibited from allowing directors to partake in meetings in which they have conflict of interests. Luckily in South Africa we have Companies Act and Code of Corporate Practices (Corporate Governance) which address some of the issues raised in the scenario above- a culprit can be dismissed in terms of ethics and prosecuted in terms of the law. Some of the premises I have stated in this debate are conclusions which came from a litany of debates that have taken place in the past (if you contest them- then we will have to re-invent the wheel and debate issues that were settled long time ago and cite cases).
Therefore in the case of Moseneke, JSC need not prove that Moseneke has benefited personally from business interests of the family trust but if it can be proven that Moseneke’s family trust has shares in private companies which are seeking business opportunities, then the nature of business opportunities and allegations attendant thereto will have to be analysed (as it would be unfair to judge him based solely on M&G allegations) to determine whether the family trust’s income (capital or revenue in nature) will not be perceived to be tainted by the public and thus be income that is incompatible with the judicial office in relation of Judge Moseneke (judicial ethics).
From the M&G many people have gotten a sense that Judge Moseneke is a very ambitious businessman. But Sivakashi I must thank you for providing mitigating information. I just hope that you can still bring forth more information that will make me think otherwise or swing the pendulum in Judge Moseneke’s favour, because seriously we as a country cannot afford to lose him. He is on record for having affirmed his judicial independence at his birthday party and for that I, amongst you all, salute him for his courage. But objectivity remains sacrosanct.
I cant fathom why people are falling for the M&G trap of sullying DCJ’s reputation without putting anything worthwhile on the table. Until such time as the M&G stops beating around the bush and tells us exactly what is in its possession or gives us a worthy bone to chew, I will be inclined to infer that the sole basis of the “story” and/or “revelations” was to discredit the Honourable Deputy Chief Justice in the public eyes.
On the Pikoli matter, I do not know which emotion I feel the most between feeling betrayed by his acceptance of the “deal” and being glad that as a taxpayer, I have saved up to 2.5 million rand.
I have just had another look, Moseneke’s reply is still posted on the M&G website (although now including the M&G’s supposed counterarguments).The honourable DCJ astutely denies ever receiving any “remuneration, director’s fees or financial benefit” from any other source…
As far as the ethics topic goes, I’ll say only that in my view ethics are concerned primarily with conduct. Perceptions are primarily the domain of politics, not law. Perhaps a good political argument can be made based on perceptions but I am yet to hear a good legal one.
With regard to Trusts I wonder if the key question is not whether the DCJ is a BENEFICIARY of the Trust, as opposed to mere trustee. Maybe it doesn’t matter, but I think it does.
On another note, prof, if possible please post regarding the Pikoli issue. In the past you have been so quick to rely on his version on practically everything that maybe its time for a truly objective analysis given where we are now.
Prof, I do follow your logic on demanding evidence that links Moseneke DCJ directly to the dubious characters that do business with his family Trust. I also support you in your argument and conclusion that, in the absence of such evidence, it is therefore unfair for the M&G to insist on manufacturing misconduct on the part of Moseneke DCJ that puts him in contravention of code of judicial ethics. However, what I do not agree with you on is your strong confidence and therefore conclusion that the fact that Moseneke DCJ is not involved in the day-to-day running of the family trust’s businesses then it means (i) he does not know about its activities or (ii) he may not know about who is doing business with his family Trust and their characters, and (iii) by implication that, since he is not involved in day-to-day running of the business, there is no way out in which he could possible have known about it. There are many people who are holding full-time jobs that take them far away from their families and businesses but some still manage to know some details about what’s happening in their families and businesses on daily basis, and most importantly key issues and decisions taken in their absence because they are often consulted and briefed often for their inputs, authorization and for information purposes. Not unless this is so because they are not judges. If the honorable is, for instance as it is possible, living far away from home surely he should be keeping in touch with the family through telephone to check how they are as well as for him to update them on his life. I would like to believe that during such conversations family members do share with him their successes (which include the clinching of the 18% lucrative deal) and the persons involved in the deal. I do not believe that simple because Moseneke DCJ is a judge, if his family can only say they are doing well in business he will not inquisitively ask for details as to how did it come about and who might have helped in the process. I also do not think his family will say you are a judge so we cannot tell you detail in order to avoid any contravention of ant code of judicial ethics on your part if you can know the details. Moseneke DCJ is a caring human being who just like any other person will want to know the details either to celebrate with them, advice them and also to play his protective role of ensuring that they do not do anything that will be harmful to their persons, business or family name. And his family will certainly give it to me in full. And whichever way this information gets to him other than through his day-to-day involvement in the running of the business still amount to knowledge in him which is not different from the one he could have gained had he been actively involved in the business. And based on this he still could have easily advised them against such if he considered it harmful. And one could argue that this has been the case and the fact that he did not consider this harmful he did not advised them against it but rather celebrated with them. My argument therefore is, Moseneke DCJ possible knew and the fact that he did not get this information in the course of his day-to-day running of the business does not equal to lack of knowledge about the happenings in his family business and therefore that prima facie exists that he may possible have contravened some of the code of judicial ethics. The issue is, that is if you believe that he does check his family from time to time and that the fact that his family is not bound by any codes of judicial ethics not to share their sufferings and happiness (including this and other successful deals), the honorable judge, in my view, is somehow fully aware of the activities of his family Trust, the big deals it has clinched and its partners as well, including the individuals who form the value chain in such a success.
By the way I am also an admirer of Moseneke for his legal pedigree and independence of his mind in discharging his judicial duties. But this does not fail me to campaign for his punishment when circumstance demand as such; just like I did and still do with regards to Mbeki, JZ and Hlophe by singing their praises when they do good and work hard in digging their graves when they do wrong. This is just my opinion Prof.
@ Mayimele
Thanks for such a well written post. It was worth the time I took to read it.
However, your post does not go a step further than the original and subsequent posts by the M&G. It does not do enough to show that the DCJ is indeed in breach of ethics.
Even on a preponderance of probabilities, it would not be possible to find in your favour as your post and the piece by M&G will not even result in a finding against the DCJ even through circumstantial evidence. The example about keeping in touch with family and knowing the other members’ business could be countered by saying simply that the DCJ did not keep it a secret that he was giving up all his executive positions in order to secure his judicial position and therefore, the relevant parties who may be involved actively in the day to day running of the Moseneke Family Trust would know that he cannot get involved and should not be involved. Moreover, his brother is also barred (I think) from being a Trustee by a court of law and therefore any “advice” that could be given to him would not contribute to the day to day running of the Trust to make the DCJ an active party therein…
Once again, I am still waiting for a bone with meat to chew on other than these baseless allegations and speculations about private conversations between brothers. (NB: Note the absence of ‘lies’ and the presence of ‘baseless’ in the sentence above)
@ mayimele/sne.
On reading your comments it seems that JZ had a dud for a financial advisor.
If he had advised Zuma to set up a trust (from which he kept an arms length), which trust could have done all kinds of deals with all kinds of people, the our dearly beloved President would not have been “relieved of his duties” as Deputy President.
Would it be ok for leaders and judges to set up trusts that do transactions indirectly with entities that are involved in human or drug trafficking, child porn, selling arms to Somali pirates and the like, provided that they are not directly or indirectly involved in the day-to-day management of the trusts?
I am not suggesting that the DCJ has even remotely done something close to unacceptable, just trying to understand where lines are drawn if indeed there are lines to draw.
King Zwakala wrote: some good argument… including ..
“…in private companies where corporate governance is not applicable…”.
So perhaps he also knows that in family held PTYs the “quasi partnership” principle
applies, which protects minority/s from being screwed by the “majority rules”
principle. Which was confirmed in [SCA] HULETT 1992 (4) SA 291, but apparently the
victim’s attorney in BEN TOVIM [CPD] 2001 (3) SA 1047, didn’t know about it.
Although I haven’t got a black-gown and shiny shoes, I’ve done all the research, and
seek competent counsel to launch an application in Gauteng, in this connection.
Law-person/s who ALREADY know this exception to Foss v Harbottle are invited to
contact me at: lab.eas AT gmail.com
Thank you Sne for the legally correct analysis to which I agree. I must make some of the points clear here that (a) I am not declaring the allegations against the DCJ in the M&G correct or incorrect, (b) I am also not joining the chorus that say the DCJ is innocent or guilty as charged. My post is challenging PdV’s assertion, in my understanding, that the only way in which the DCJ could have possible known about the happenings in his family business is if he was involved in the day-to-day running of the business. And my argument is there are other possible ways in which the DCJ could have known about the happenings in his family business other than being involved in the day-to-day running of the business. The question I had to contend with in this regard therefore was for the DCJ to be held accountable should it be based on him having known about what his family business was doing in whichever way OR that must only have been through him having been involved in the day to day running of the business. And my understanding of Prof’s defense here is that he seems to be concluding that only if the DCJ could have known about the happenings in his family business in the course of him performing his day-to-day duties can we hold him accountable. My argument therefore is, how the DCJ came to know about it is not an issue, the issue is whether he knew or not and in this case I am demonstrating another way other than being involved in day-to-day running of the business through which the DCJ could have possible come to know about the happenings in his family business. If there is something that the DCJ could have done to avoid this controversy and negative perception created by these revelations (correctly or incorrectly /rightfully or wrongfully) had he known about it through his involvement in the day-to-day running of the family business, surely he could have done the same even if he could have got these information through briefing and greetings with his family. Furthermore, I argue that the possibility of the DCJ having known, whichever way, is there, but the fact that this was not harmful either to his family or business he chose to do nothing to stop it. But surely had it been harmful he could have told them to stop it.
But largely I agree with both of you Sne and PdV that the M&G stories do not make the DCJ wrong. What I am arguing for is that in defending him we must turn a blind eye on some of the issues that could possible make us questions his actions. Just like I used to argue in JZ’s case, while we may not like the way he behaved during his trials and the dropping of his case, we must not blemish even the good things that he does. I hope I have tried to make my point clear.
Oops, my apolgy Mzo and colleaugues. The post above is Mayimele’s response to Sne and not Mzo’s. Your details Mzo happened to appear on my comment box. As you will remember I have computer problems which I have not managed to fix. So there are many strange things happening which include the email addresses of many of you appearing on my comment box. So I have to edit everything before sending which I have not done now as I am rushing to court.
@ Mayimele
Thanks for your response bro. Yes your post has clarified the post I was replying to.
While I agree that the scenario you advocated through which the learned DCJ could have known about the ins and outs of the Moseneke Family Trust, it is nonetheless too remote to be admitted for purposes of confidently stating, or even obliquely suggesting, that the DCJ has breached any ethics.
This all goes back to my call for more cogent basis or circumstances upon which a probable finding could be made that he has indeed breached any ethics. I concur that the basis you have provided is quite feasible but I add that it is equally quite remote for any finding of a breach of ethics. (I am not unmindful of your stance that you are not saying that the DCJ has not breached any ethics but that you want us to keep an open mind or eye) Well, I am keeping an open eye whilst waiting for something material to come up. So far none has been brought forward.
Just out of interest, (a) do you think the DCJ would have a duty to interfere if it were to be intimated to him by his brother in a family dinner during the festive season that one of the Trustees has suggested to the Board of Trustees that the Trust should do business with an oil company in Saudi Arabia which the United States (and not RSA) suspects to be connected to Osama Bin Laden and Al-Qaida?
(b) Would his interfering not bring him right into the day to day running of the Trust and therefore in breach of the ethics which are binding on him as a judge?
(c) Where is the line of demarcation between him not being involved in the day to day running of the Trust due to him observing the judicial ethics and him having a “duty” to avoid controversy attaching to the Trust? Are these two not a little antagonistic?
My post was not suggesting that there is no possibility that the DCJ erred or that he might have acted in breach of the Judicial Code of ethics. If we have more info it might appear that he did. My point is, the story as it stands does not seem to provide a sufficiently close link between Moseneke’s actions and what he knew, and the alleged wrongdoing of the company.
Thanks Sne and Prof for the responses. Prof I get the point. Sne, from where I stand I think:
(a) the DCJ would have had brotherly and parental duty to advise them against proceeding with the deal but leave the final decision to them; and that is if, for whatever reasons, he strongly disapproves of the Osama Bin Laden link
(b) that would not translates into the day-to-day running of the Trust him and would therefore not amount to an unethical conduct with regards to his position as a senior judicial officer and in line with one code of ethics cited by PdV in his initial post in this subject last week. But in the event they take his advise and it works well for them not only in this case, then his input becomes more valuable to the Trust more than that of the people involved with it on daily basis as it contributes to its sustainability
(c) the line of demarcation is there Sne but is thin. Thin in the sense that in terms of the code of ethics as cited by PdV, it seems if the DCJ can afford to run his family business through telephone and emails by giving instructions to foot soldiers in the office and also persuade other corporate giants in the same way to do business with his family trust, as long as, according to the ethics, he is not doing so in the manner defined as active day-today running of the business and no one mentions that the DCJ did in fact discuss with them to do business with his family trust, then the DCJ is not wrong and therefore cannot be held accountable.
Still I am not saying this is ethical or unethical, good or wrong. I am just trying to highlight the weakness that might be there in the regime regulating the conduct and behaviour of the judicial officers as it stand, particularly now that we are faced with the M&G story.
Pierre De Vos says:
November 24, 2009 at 9:54 am
My post was not suggesting that there is no possibility that the DCJ erred or that he might have acted in breach of the Judicial Code of ethics. If we have more info it might appear that he did. My point is, the story as it stands does not seem to provide a sufficiently close link between Moseneke’s actions and what he knew, and the alleged wrongdoing of the company.
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Dear Judge Moseneke
STEFAANS BRUMMER: COMMENT – Nov 27 2009 13:43
“Encha Group’s investments are far-reaching. This reach and Encha’s investment choices has exposed it to controversy and, we have shown, to a man wanted on charges that he had helped mastermind one of the greatest currency frauds ever.
“Your choice to put your trust’s money into Encha, and to keep it there, has exposed you and the judiciary to all of this too, regardless of whether you personally participated in decisions.”
http://www.mg.co.za/article/2009-11-27-dear-judge-moseneke
And for all the legal fraternity here – here’s some juicy gossip!
Now I know why Dworky wants pilots with 15 years experience to serve on the judiciary.
“THE Pretoria Bar Council (PBC) has ordered a probe of the Road Accident Fund (RAF) accounts of 13 advocates following the recent disclosure that lawyers and advocates pocketed the bulk of the R11,1 billion RAF payout to road accident victims last year.”
http://www.citypress.co.za/Content/SouthAfrica/News/2168/48e941fdccd34f7199c071f3338600b8/29-11-2009-02-00/Lawyers_pocket_R7bn_from_RAF
@ Maggs
Did you see the article in one of the Sunday Papers about Suresh Roberts vs Encha Group(Moseneke)?
http://www.timeslive.co.za/sundaytimes/article428968.ece/Untruthful–Roberts–in-oil-deal-spat
Gwebecimele says:
May 3, 2010 at 13:30 pm
Yeah – saw that. Eish!
The judge is personed by the company he keeps.