An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Should a Judge President take BEE shares from a company run by a businessman with political ambitions? I am asking this question because allegations appeared in the weekend press that Tokyo Sexwale had given more than R6 million Rand worth of Batho Bonke shares to the Judge President of
Judge Tshabalala did not deny that he ahd received shares when approached by a journalist but, instead, declined to comment.
Batho Bonke shares – valued at R69 each – was also allegedly given to, among others, director-general of the National Intelligence Agency, Manala Manzini (41803 shares), former Mpumalanga premier Mathews Phosa (217500), former Northern Cape premier Manne Dipico (200000) and SABC political editor Sophie Mokoena (45800). This morning Xolela Mangcu, someone I greatly admire, defended the fact that he too received Batho Bonke shares from Sexwale.
I am sure there is nothing illegal about the awarding of the shares to all these influential people. Sexwale’s spokesperson says questioning the share issue “cast judgment on the consortium and every single one of Batho Bonke’s shareholders and its more than one-million beneficiaries, who form part of one of the most significant broad-based black empowerment initiatives in our history.”
But the case of Judge President Vuka Tshabalala must be judged differently. If the allegations are true, it seems to me that the JP may have acted in an extremely unwise and even unethical manner. A judge – especially a Judge President – must be beyond reproach. This means he or she cannot act in any way that would cast doubt on his or her independence and impartiality.
By taking shares from Mr Sexwale – a larger than life figure who has thrown his hat into the ring for the Presidency of the ANC – he may inadvertently have created the suspicion that he is beholden to Sexwale and that his decisions in politically charged cases may be influenced by non-judicial considerations.
This will create an apprehension of bias on his part in the minds of many – and not only the most suspicious among us. Justice Tshabalala is the person who decides which judge hears a specific case. He decided who would hear Shaik’s case and if Jacob Zuma is charged, he will also decide which judge would hear Zuma’s case. But Mr Zuma and Mr Sexwale could be viewed as competitors for the top job in the country.
Given the fact that conspiracy talk is thick in the air, many people would form the impression that the Judge President may not be independent and impartial when it comes to Mr Zuma. This would be a highly unfortunate turn of events and would damage the credibility of both the JP and the judiciary.
So, if Judge President Tshabalala did take the shares, he was at best deeply unwise and at worst unethical.
If he did receive shares the best thing to do would be to give away the shares. Maybe he can give the shares to the Widows and Orphans fund that was ripped off by Fidentia. That way he would restore his credibility and, more importantly, prevent a further erosion of public trust in the judiciary.
Well he [Sexwale] decided to choose certain people, and he chose me.