Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
20 November 2009

Moseneke story still no scandal

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.

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