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.
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?BACK TO TOP