The Mail & Guardian published an article and editorial on Friday in which it exposed the fact that Deputy Chief Justice Dikgang Moseneke owned 18% of a company (via a family trust) that rents buildings to various government departments and is hoping to do big business in the Democratic Republic of the Congo. As someone who has railed against Judge President John Hlophe because of his dishonesty and clear conflicts of interests (taking R500 000 from a shady investment company, doing favours for that company and lying about the extent of the payments to him) one would think that I would be outraged by these revelations.
But in the past I have expressed a deep admiration for the Deputy Chief Justice, so my very human first reaction was typically South African: who leaked this information to the newspaper, I wondered? What is the political agenda behind it? Why do they want to destroy the reputation of this good man? Is it because he is black or perhaps because he is seen by some as anti President Zuma? (And suddenly I sounded to myself like only a slightly nicer, less hate-filled and more rational version of Paul Ngobeni!)
But one has to try and be consistent and principled, so its important to look at the allegations and evaluate them honestly. I have to consider the possibility that one of my judicial heroes has feet of clay. So let us look at the facts.
While most of the article is no more than an unfortunate attempt to smear Moseneke because of his association with his brother, it does pose questions about the wisdom of the Deputy Chief Justice’s business dealings through his family trust. If the article is to be believed, the family trust is being used as a legal vehicle to help keep Moseneke at arms length from the day to day operations of certain companies that do business with the state. He has apparently given advice to his brother about the business dealings of the company and through his family trust has significantly benefited financially from these dealings.
This seems to me to have been unwise, but the Deputy Chief Justice has not done anything illegal. It is also difficult to determine from the newspaper story whether Moseneke had acted in a way that contravenes the code of judicial ethics.
On the one hand it seems that the Deputy Chief Justice has acted in an exemplarily fashion by resigning all his directorships and by creating a family trust through which his business interests are now conducted. This seems to comply very diligently with the provision in the new code of judicial ethics which states that ”[u]pon appointment, a judge severs all professional links and recovers speedily all fees and other amounts outstanding and organises his or her personal and business affairs to minimize the potential for conflict of interest”.
But the Code of judicial ethics also contains other provisions which continues as follows:
A judge is not involved in any undertaking, business, fundraising or other activity that may affect the status, independence or impartiality of the judge or is incompatible with the judicial office.
A judge may be a director of a private family company or member of a close corporation but if the company or close corporation conducts business the judge may not perform an executive function.
A judge does not receive any income or compensation that is incompatible with judicial office.
A judge is not engaged in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position or are incompatible with the judicial office.
The Mail & Guardian story does not suggest that Deputy Chief Justice Moseneke has been involved directly in any business dealings and he has clearly not performed “an executive function” in any company. It also does not link his financial interests of the family trust to any action that might even remotely be perceived to have been biased or influenced by his financial interests. Moseneke has always acted without fear, favour or prejudice and there is not even one jot of evidence that he has not always acted in a fair and honest manner when hearing cases before him.
Unlike Hlophe who did favours for a company on whose pay role he was, Mosenekle has always fearlessly interpreted and applied the law and has often found against the state. To some degree I therefore find the Mail & Guardian story something of a sensationalistic character assassination.
But the story does suggest that through the involvement of the family trust with a company doing business with the state he has received some income and benefits and that he has been quite closely involved with this by giving advice to his brother. Although this interest is all at arms length, stories like that appearing in the Mail & Guardian might create an apprehension among some (no matter how wrong it may be) that the Deputy Chief Justice might not always act in an independent and impartial manner.
My personal view – for what it is worth – is therefore that the Mail & Guardian story does not really expose any corrupt, illegal or judicially problematic action on the part of the Deputy Chief Justice. However, I nevertheless wonder whether Moseneke was wise to create a family trust with such close business links with the state. Why could he not have invested his money in publicly traded shares on the stock market to prevent even the slightest whiff of a scandal?
In the current climate of distrust, backstabbing, revenge and allegations of the involvement of national intelligence in political score settling, we all have to be extra careful, lest our actions are used to smear us. Justice Moseneke’s actions were therefore at best naive and at worse, unwise. Or am I just saying that because I am a great admirer of the man?
Prof,
“Or am I just saying that because I am a great admirer of the man?”
…………………………………………………….
In my view, PRECISELY. I cannot, for one moment, imagine that you would have been so creative with your analysis if the Judge involved was a certain Judge President.
However, I always take stories from the M&G with a pinch of salt. For now, I will therefore assume that the DCJ has indeed nothing wrong….:):)
I have always admired Judge Moseneke. Such admiration does not come from his struggle credentials but from the progressiveness of his judgments. In fact even if the close to being scandalous allegations were to be through, such would not render his judgments bad, reviewable etc so I suppose I would still respect him for them Until someone comes with something of wrongful conduct on his part I will continue to do respect and admire him for the same reasons provided herein above.
The irony is that we are surely not about to see a “Justice for Moseneke Alliance” for he just does not need it. The ethical rules are clear and he has transgressed none so far. Again, PLEASE PLEASE PLEASE this has nothing to do with his pigmentation, please. It is just a matter of people questioning the correctness of personal and family decisions that a sitting constitutional court judge has taken. We would be allowed to ask the same questions had it been retired Judge Chaskalson. So please people should me the race card I have heard enough of it.
Good analysis Prof. But as Mzo says, knowing how firm you have been to the importance of judicial officers observing Code of Judicial Ethics, particularly when we dealt with the John Hlophe case, there is fair ground to conclude you have softened your analysis in this case. And may be because (a) it is not Hlophe JP who is involved as Mzo suggests, or (b) as you remarked earlier, your analysis might have potentially been compromised by the fact that you are Moseneke DCJ’s admirer.
Be that as it may, there are two (or even more) issues that are possible here in my view:
(a) that given the animosity between the ruling party and the Judge, someone within the party could have been assigned to work on the judge as a `project’ by digging whatever damaging dirt he might have, past or present, as a punishment for his alleged utterances against the ANC. This could be supported by his being undermined recently for the CJ position, which was another form of punishment for having tangled with the superpowers in the animal farm.
(b) If indeed there is an existence of the said Trust in the name of Moseneke family into which he is a member and beneficiary, despite him seemingly passing the test of having or not having performed “executive function” in any of the Trust’s dealings and the few other Codes selected above, there is a thin line between him having violated or not having violated the same codes and more.
In the final analysis, a fair and transparent investigation in this regard is likely to find against the DCJ. This is irrespective of the fact that from his promotion to the CC he may not have demonstrated partiality in his performance of judicial duties since this does not necessarily means we can therefore say, with or without his membership to the said Trust that does business with the state constituting a violation of judicial code of ethic, he may continue as nothing happened.
And I must mention that if scenario A is correct, then the JSC is already prepared to take him head on with a brief to discredit him in favour of one party and one man within the party at the expense of the multitude of law abiding but politically powerless South Africa citizens. The same applies if scenario B is the case, the JSC and its master will certainly jump to the opportunity to achieve the same results as in scenario A.
“Justice Moseneke’s actions were therefore at best naive and at worse, unwise”.
Naive?
Unwise?
This is the DCJ of the highest court in the land that we’re talking about (and all the ramifications of that office to go), not Juju.
Prof: I agree with mayimele. Where do we draw the line? It is such a problem, even in countries with advanced democracies like the US and Canada, this conflict of interest is a challenge. Even putting all one’s investments in the stock market is not in itself sufficient to prevent conflict or questions. The canadian approach is that all interests must go in a blind trust. As difficult as it may be to give over complete authority on ones investments and business interests while in office, blind trusts, nevertheless, work. They protect the individual and the public.
A blind trust is handled by a financial services company so that you don’t know what stocks, bonds, etc are being held. As for family trusts, etc., there still must be complete separation. When it comes to family, its exceedlingly difficult for one to remain true to principles in financial matters.
No games, just sincerity and integrity. That is what is required from public servants.
As much as I respect Chief Justice Dikgang Moseneke, and wish him success, this still borders on questionable and secretive self interested behaviour
I find it amazing that people like Pierre, Mzo and Maggs are so willing to make allowances for judges like Hlophe JP and Moseneke DCJ – yet are so unrelentingly harsh when it comes to Motata J. (May I point out that Motata J has proven himself perhaps the most utterly transformed jurist on the bench?)
I can only ascribe the double standard to one thing: arrant RACISM!
Hey Dworky – that tea served at the F-O-M meeting is having its influence.
Bench?
Seemed like the most transformed jurist on the wall.
Maybe the jurist on the most transformed wall.
Maybe it’s true that nobody makes better tea than you and F-O-M!
Is anyone squeaky clean?
I don’t make too much of it.
Everyone knew that he was coming to the bench from the business world. He has resigned his various directorships and divested himself of direct control of his various entities and trusts. I don’t have a problem with his family trust investments, given that neither he – nor any other Judge – is expected or required to ditch their wealth in order to serve their country.
I also reckon that having a Judge who is independently wealthy is a good thing as they are less likely to be offerred a bribe.
I sat in the Constitutional Court on 8 March 2005 when t-shirt company Laugh it Off appealled the SCA decision in favour of SABMiller. I thought to myself then that his silence the entire day when the issues were vigourously debated with the various Judges was because he looked kindly upon the corporates.
I was wrong.
He authoured the majority judgment in favour of Laugh it Off: http://www.constitutionalcourt.org.za/Archimages/3549.PDF
My apologies Judge Moseneke.
Now we all know that judges are entitled to seat in board meeting of trusts to proferr solid legal advise or boardroom judgement so long as they do not occupy the position of director or are direct shareholdership or receive remuneration or a retainer for such formidable legal advisory work to exact profit to be channelled through the trust.
The benefit will flow through the indirect contours of the trust. There is not any single law that would be trasgressed or judicial code of conduct breached. certainly not any ethics offended.
Does the exposure and attitude of Mail and guardian illegal or disegenous. Well it serves democracy. That all it does. The aspersions cast upon Justice Moseneke reputation will never hold but simply wither away in the wind of objective thought process. We always need such media vigilance. no insults were traded in the observationas of the newspaper.
Professor is quite correct on the strict legalities yet taking direct interest as to even seat in board meetings and give legal opinion for indirect trust benefits will certainty tough one heart and mind particularly when the money flows into the trust owing to judicial wisdom! Ethics are not absolute rules but a question of public perception and possibility of erosion of independence and impartiality. By the way, profit accumulation does not naturally pulverise one’s sophisticated intellect. Moseneke’s historic judgments have nothing to do with personal ethicality.
I believe that his boardroom antics if true smack of unethicality. I may be tottaly wronng because I so much admire his business shrewedness and legal solidity. Moseneke a man I deeply admire for his remarks that there was not any constitutional expert prior and during the ferment of our nascent constitutional order.
He had not stolen anybody’s money we must remember! Soldier on Moseneke keep advising your brother and those of us close to you. We are deracialising the economy. Only white judges were doing this in the past.
Divestment of direct control and relinquishing of directorship is enough comrades. Indirect involvement in the new approach. A novel quasi-fronting antic.
APLA, do we need his help or decision to form one. I quess not. Anybody touch Moseneke, u will see us in action. I do not think that an investigation is necessary in this matter.
He must just act cautiously in his advisory work and allow lawyers to make a client of his brother and son and concentrate on writing judicial jurisprudence.
ISHMAEL MALALE says:
November 17, 2009 at 7:59 am
I may be entirely wrong, but this sound to me like doublespeak perfected!
One rather smart oke said to me on something bordering on illegality “It’s only illegal if I get caught”.
Maggs Naido 9:14
You are dead wrong. You must realise my point that I think there is something judicially wrong about a judge actively squashing oygen in a boardrooom to proffer legal wisdom to advance private profit accumulation for a trust which directly or indirectly benefits him, his family or even a friend.
The other elements are my own scornful indiscretions. I will gleefully accept the honourary doctoral certificate for exceptional double speak though!
Para 3 of my main cast and first sentence of para 4 reflect my proposition.
ISHMAEL MALALE says:
November 17, 2009 at 9:30 am
Doctor Malale indeed.
Out of the shovel, the spade slowly emerges!
Maggs Naido, Exactly now I am going to attend a Committee meeting to enforce accoutability for state entities! It was a good debate
Yes Judge Moseneke is one of those judges regarded in certain quarters as one of the best legal minds South Africa has ever had since the dawn of a democratic state in South Africa. The expose by the MG of Moseneke’s dealings has made me worried. It is like- I felt betrayed. It was a like a situation whereby you defend someone’s integrity but only to be let down by evidence in the end.
I think Professor was too quick to exonerate Judge Moseneke from any possible flouting of judicial ethics but chose to be a little bit disingenuous. Instead of admitting that Moseneke may have flouted some of the said judicial ethics Professor opted to reduce the possible flouting to Moseneke having made unwise decisions.
As a point of departure in this debate we need to note that Moseneke and his family trust are connected persons. Some of the components of the standard definition of a connected person in relation to a natural person are as follows:
i) any relative; and
ii) any trust of which such natural person or such relative is a beneficiary;
In this case Moseneke or his children or family is said to be the beneficiary or beneficiaries. Whatever the case may be, the scenario points it out that Moseneke and his family trust are connected persons. And it would have been worse if Moseneke is also a trustee of the family trust because in that way he would, in my view, be occupying an executive position.
According to the reports, the family trust is active and is currently pursuing business opportunities. Clearly, the family trust is enriching or seeking to enrich itself and by implication Judge Moseneke. Therefore the first question that has not been answered is: on the basis that they are connected persons, has Judge Moseneke disclosed the family trust and its activities to the employer?
Secondly it is well accepted in many quarters that doing business comes along with an inherent characteristic of allegations of impropriety. As the family trust, according to reports, is active and is seeking business opportunities, it is clear therefore that allegations will emerge, as they have emerged according to MG, which will smear the family trust and Judge Moseneke for being a connected person to the trust. The consequence of this is that the income that the family trust generates for the benefit of Moseneke or his relatives will be tainted in the eyes of the public and thus be income that is incompatible with the judicial office.
In my view thus professor should not have said Moseneke was simply unwise in creating the family trust pursuing business but should have been bold enough to say Moseneke may have actually flouted the judicial ethics.
What the MG missed out in its analysis is the concept of a connected person. The reported denials by the judge during the interviews are a cause for concern, given that he should have disclosed the family trust as it is a connected person.
I think Professor in this particular case has been the victim of prejudice for his admiration of Judge Moseneke. We all like the judge but objectivity should remain paramount. My conclusion is that a lot more of an investigation needs to be done before one can form a proper opinion about Judge Moseneke and his business dealings. Having said, that I see a firm possibility of impeachment here, if I may use Professor’s approach to legal issues. The JSC will have tough time. I rest my case.
@ Ishmael
“There is something judicially wrong about a judge actively squashing oygen in a boardrooom.”
On this point I agree 100%.
@ King Zwakala
“It is like- I felt betrayed. It was a like a situation whereby you defend someone’s integrity but only to be let down by evidence in the end.”
King, I know exactly how you feel. For me, the Hlophe JP affair was a little like this. Fortunately, I ultimately came to understand that the so-called evidence against the JP was the invention of RACISTS! Hence, my faith in him was restored.
WTF is going on?
http://www.timeslive.co.za/news/article197881.ece
“‘These shares were paying material value – I mean millions and millions of rands,’”
“Pikoli told the court that his wife told him about the shares, which she received from Gibson Njenje”
“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.”
“‘I can’t say when I got to know – at the time I never made any connection between JCI and Simmer & Jack, as I had no reason to,’”
Good grief – what have we turned into?
Mzo says:
November 16, 2009 at 13:06 pm
However, I always take stories from the M&G with a pinch of salt.
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Try this from the Sowetan – http://www.sowetan.co.za/News/Article.aspx?id=1089199
“Holding Law In ‘Contempt’
18 November 2009
Anna Majavu
“Deputy Chief Justice Dikgang Moseneke’s brother appears to be breaking the law by continuing to manage the Moseneke family business even after being struck off the roll of attorneys.”
“The amended Companies Act bars anyone who is struck off the roll from ever working as a company director, or from managing a company”.
“The time has come, ‘the Walrus said’, to speak of many things. Of ships and shoes and sealing wax, of cabbages and kings. Of why the sea is boiling hot, and whether pigs have wings.”
http://www.mg.co.za/article/2009-11-20-dubious-liaisons