Is it a Case of Judicial Capture? – South Africa Judiciary under the Spotlight

Brian Kazungu, 01/02/2021

During the same period that President Jacob Zuma has expressed concern on the integrity of the judiciary, Ms. Janice Greaver, a fellow South African says that she has also lost the little confidence that she had on the same institution as a gatekeeper for justice and equity.

This follows a letter that she wrote to the Judge President of the High Court of South Africa, the South Gauteng Local Division, Honourable Justice Mojapelo which was then responded to by the Acting Judge President, Justice Sutherland.

At the core of the matter is a dispute involving the export of a law or decree created or invented in neighboring Zimbabwe to obtain assets using public power and use the South African forum as another platform to continue the plunder.

In response to Janice, Judge Sutherland said “Your letter dated 12, 2021 has been received and the contents noted. No action from this office is necessary and parties are at liberty to act as they deem fit. Correspondence on this topic is now closed”.

Janice was disgusted with the response that she felt that no justice would be served by her silence and she also believes that no independent and impartial judiciary would act in the manner in which this and other related matters have been handled.

“This smacks of judicial capture and no resistance at all to foreign laws that offend the South Africa Constitution.” She said

While commenting on the idea of judicial capture on a different occasion, Chief Justice Mogoeng Mogoeng, during the 17th Nelson Mandela Annual Lecture held on 23 November 2019 said: “A captured judiciary will never use the Constitution as an instrument for transformation because any captured member of judiciary will simply be told or will know in advance [that] when so and so are involved, I better know my place.”

He also stated that: “You must be worried when you read a judgment and you are struggling to make sense of it.”

Against the backdrop of the Zondo Commission on state capture, calls have been made as correctly observed by the Chief Justice that to the extent that judges are responsible for administering oaths to presidents and members of Parliament, it cannot be unreasonable for judges to be loyal to their oaths of office.

In explaining her displeasure, Janice highlighted the following: “Prior to my joining the C2C initiative, I naively thought that a company is owned by shareholders and that directors are accountable to shareholders, but now I know better.

A company is a separate and independent legal entity, not owned by shareholders as is commonly believed – a shareholder can be compared to a sperm donor – once the child is born, the parent does not own the child, but the child is a separate entity.

Another common misconception is that directors are accountable to shareholders but they are in-fact accountable to the company.

She further states that “Only directors have the authority to act on behalf of a company, or to give power of attorney to any other parties to act on behalf of the company. A company therefore cannot cause a litigation without the instrumentality of directors.

Any judge would know that in order to institute legal proceedings ina court of law, a company requires a resolution of directors of the company and in the case of SMM vs. Mawere and Mariemuthu, the authority to litigate was given by an Administrator pursuant to the existence and operation of a Zimbabwean law that was applied in South Africa.

This law is patently penal and confiscatory

I also expected that the call by the Chief Justice that judges must not be “hypocritical” to their duties as contemplated in the Constitution by my experience so far in relation to a dispute that relates to the manner in which a civil matter instituted by the government of Zimbabwe dressed as a company before Judge Mojapelo in the South Gauteng Local Division of the High Court of South Africa was adjudicated by Judge Willis as he was known then”.

On the same note, she further gave a lengthy narration saying “On 6 September 2004, the government of Zimbabwe unilaterally and through a decree permitted the then Minister of Justice, Mr. Patrick Chinamasa, a close confidante of President Mnangagwa, to substitute the judiciary by issuing an order in relation to SMM Holdings Private Limited (SMM).

SMM’ shareholders and directors were divested of the control and management of the company and through the same Act of a foreign state, SMM’s directors were dismissed by the Administrator who was extra judicially appointed by Chinamasa.

Pursuant to the operation of this decree, a prosecution of a matter in the name of this dismembered company was successfully done in the name of justice.

As a member of the C2C initiative and an active South African citizen in my right, I thought that it was in the interests of justice to bring this matter that poses so grave a risk to public confidence and trust in relation to the proper administration of justice, to the administrative head of the court that dealt with this matter expecting that he would rise above the parochial interests of protecting injustice, I was surprised at the tone and language used by the Acting Judge President, Mr. Justice Arthur Sutherland, who contemptuously dismissed the matter.

It cannot be disputed from the sentiments expressed by the Chief Justice that: “We wield extensive power as the South African judiciary. There is almost nothing we cannot do through the instrumentality of the Constitution,”

Janice further stated that “It turns out that this dispute that provoked her to be outraged could have been avoided had the JSC led by Mogoeng performed its constitutional duty to show zero tolerance to the precedent set by the Mojapelo led court where a conflict of law exists.

This is worthy noting especially in this case of the draconian Reconstruction of State Indebted Insolvent Companies Act, a law that was aptly described by exiled former Minister of Higher Education, Professor Jonathan Moyo as barbaric and satanic and which also conflicts with the South African Companies Act.

Under the South African Companies Act, the control and direction of a company is vested in its board while in Zimbabwe’s Reconstruction Act, the said control and direction is vested in a state-appointed Administrator.

The question that I needed clarity on and which remains unanswered is whether the South African judiciary has discretion to recognize and enforce a law that offends public policy and is inconsistent with the South African Constitution.

A precedent was set by Judge Willis who proceeded to recognize and enforce the thuggish manner in which the rights of SMM were confiscated and expropriated without compensation only to have the South Africa judiciary play an active role in giving life to this nonsensical law in this jurisdiction with impunity.

The cavalier and condescending response by Judge Sutherland has fortified my position that not all is well in the SA judiciary.” Janice said.

The Chief Justice asked the question – What is wrong with society? – to inform his submissions at the lecture without knowing that under his watch the justice system is rotten to the core.

The JSC was alive to the implications of the South African judiciary being Mugabe’s partner in undermining the rule of law yet the Chief Justice dismissed the complaint whose facts and circumstances have not changed since 2004.

In this case, it is critically important that if the courts are independent and impartial tribunals, how is it that a company without directors appointed by shareholders could be recognized as a legitimate and legal litigant.

The fact that this matter was prosecuted with the active participation of South Africa lawyers and senior advocates like Kirsty Simpson of ENS Africa and Advocate Christo Bothma is baffling.

What would give confidence to lawyers, as officers of court, to prosecute a matter on behalf of a foreign state disguised as a company without the resistance of the court unless the practice of defeating the ends of justice is deep seated and widespread?

It is our duty as citizens to take notice of this conduct which reduces public trust and confidence in the judiciary as a guardian of justice and fairness.

Judge Sutherland closed the doors of justice on me and I should like to believe that he is not the only judge in taking the position that he is not accountable to persons of no significance to him like me.

Who needs the Zondo Commission when its principal actors act as if they are the law?” said Ms. Janice Greaver, a management consultant by profession.