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Legal Literacy

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

Brian Kazungu

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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.

Brian Kazungu is an Author, Poet, Journalist, and Technology Enthusiast whose writing covers issues to do with Business, Travelling, Motivation and Inspiration, Religion, Politics, and Communication among others. https://www.amazon.com/author/briankazungu https://muckrack.com/brian-kazungu http://www.modernghana.com/author/BrianKazungu kazungu.brian@gmail.com @BKazungu-Twitter He has written and published several books covering various aspects of human life including leadership, entrepreneurship, politics, personal development as well as poetry and travel. These books are found on Amazon https://www.amazon.com/author/briankazungu

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Legal Literacy

State Capture in South Africa – Zuma versus the Judiciary – Where Do You Go When You Have a Dispute with the Courts/Judiciary?

Brian Kazungu

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President Zuma (Left) and Justice Zondo (Right) - Picture Credit: timeslive.co.za

Brian Kazungu, 08/02/2021

In the twist and turns of the state capture drama which is continuously unfolding in South Africa, members of the public are suddenly being drawn into the discourse of civics matters on a daily basis as they are getting more informed on important issues of life in their communities.

The internet and social media has suddenly availed so much information to the common folk so much that they can now quickly check and trace what is happening with government resources even in the corridors of power.

One such issue at the moment is the issue of President Zuma’s refusal to appear before the Zondo Commission citing some irregularities in the Commission’s modus operandi and in even the basis and legality of its formation.

It has been argued in some circles that the formation of the Commission itself violated some provisions of the Constitution and as subtly hinted in the conversation below, Zuma’s appointment of Justice Zondo has been likened to putting a signature on a document when a gun is pointed on your head.

This conversation between a former lawyer Fredrick Kyle (Rikki) and a businessman (Mutumwa Mawere) is part of the legal literacy initiative of the Connections2Communities (C2C) community in search of a shared understanding on matters of interest to the community.

[2/6, 11:13 AM] Rikki: If your signature is on a document, but it was placed there with a gun to your head, it is indeed your signature. However, can one simply ignore the gun to your head because the first statement is true? In the absence of the real context, one can only make assumptions. No good comes from arguing on assumptions.

The scariest part is that despite us living in the age of information, we have never been so in the dark about this and even the Coronavirus.

 [2/7, 8:47 AM] Rikki: The doctrine of separation of powers is a fundamental cornerstone in the provision of the South African Constitution.

If one has a dispute with another, including the state, one goes to the Courts who are supposed to be independent and impartial to resolve such dispute based on the law’s prescripts.

Where does one go when you have a dispute with the Courts/Judiciary? In a constitutional system based upon checks and balances surely there must be a check for this? Who supervises the Courts/Judiciary to make sure they are doing their job correctly?

[2/7, 8:53 AM] mdmawere1: In this case, is it true and fact that the Public Protector issued an extra-judicial order whose effect was to divest and deprive the President of the power to independently appoint a Commission of Inquiry?

If so, did the Chief Justice act in terms of the limitations imposed on him and the judiciary by proceeding to nominate Zondo and for Zuma to be limited in choice to the names given?

Zuma tried to challenge the judicial overreach but the judiciary closed the doors on him and proceeded to give orders that were ultra vires the Constitution.

In this case the equality promise of the 3 branches of the government was undermined by the judiciary. Indeed given these facts, what are the lessons, if any?

[2/7, 9:03 AM] Rikki: This could never have happened if the three-sphere of government acted independently and in terms of their constitutional mandate.

The cunningness of these extra-judicial orders are that the Judiciary washes their hands in the process and then claims authority to continue to adjudicate matters in respect thereof as they are independent.

They did not issue the order.

Just look at what happened in SMM. When Willis allowed such conduct in a South African Court, it should have been a big red flag to the South African citizens about what the powers think of their Constitutional mandates and the citizens’ rights entrenched therein.

[2/7, 9:06 AM] Rikki: South Africa is no longer and in fact, has not been a Constitutional State for many many years.  So why does one try and resolve a dispute within a democratic framework, if it does not exist?

If the South African people do not step up to the plate and take control back, they will continue their demise.

[2/7, 10:27 AM] mdmawere1: Thanks for your insights. It is fact that the knowledge on constitutional matters is not commonly shared.

It could very well be the case that Madonsela could have been provoked by the evidence she had gathered that the relationship between Zuma and the Guptas was corrupt and as such in her considered opinion,  he was no longer fit to be President.

Having concluded in this question, she may have reckoned further was left for the judiciary except to convict him.

It is this arbitrariness and unilateralism that has characterised the real enterprise of justice delivery in many countries.

[2/7, 10:53 AM] Rikki: Irrespective of Madonsela’s views or consideration, the power to remove a President is not hers to exercise nor that of the Judiciary.

If either was moved to act because they believed that Zuma was not fit to hold the president’s office, they were not impartial and everything they have done subsequently flawed. The power to remove a President lies with the Parliament.

The real problem is as you correctly identified the arbitrariness and unilateralism.

I believe that the Judiciary, like all other spheres of government, should be independent of each other, act strictly following the constitution but most importantly, be transparent and accountable to the people of South Africa.

[2/7, 11:58 AM] mdmawere1: Thanks again for your useful insights. It appears that the ears to listen are few and far between.

What is the correct interpretation of the cause that says the President has the right to appoint a Commission of Inquiry? Is it a discretionary or qualified right?

Did Madonsela possess the power and authority to order that a commission be established fully cognizant of the reserved nature of the authority?

What should have been the attitude of an independent and impartial judiciary?

[2/7, 12:02 PM] Rikki: It is a discretionary power bestowed specifically by legislation on the President, and as such, it can’t be delegated. An independent and impartial judiciary would have struck down her recommendations as being ultra-virus and unconstitutional.

[2/7, 12:06 PM] mdmawere1: Does the recognition and enforcement of an illegality taint the integrity of the courts?

If this is not cured, what are the implications on the rule of law?

[2/7, 12:12 PM] Rikki: A very difficult but important question. Considering that a Court is supposed to determine lawfulness or not, it would seem that it won’t taint the integrity as a Court found it to be lawful. It goes back to my previous question, where do you go if you are not satisfied with the Court?

[2/7, 12:13 PM] mdmawere1: Then you are f****d or you need to start from the bush.

[2/7, 12:14 PM] Rikki: Then the check and balances contained in the Constitution is not working or merely a smoke screen?

[2/7, 12:14 PM] mdmawere1: This is scary

[2/7, 12:33 PM] Rikki: Indeed very scary. If any one of the spheres of government like in this instance becomes unchecked, democracy failed and one is no longer in a democracy state

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Legal Literacy

An analysis of Mr Mawere’s Commentary on Separation of Powers: A case of alleged State Capture under President Zuma

Dr. Kernan Mzelikahle, PhD

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Dr. Kernan Mzelikahle, PhD

Dr. Kernan Mzelikahle, PhD, 07/02/2021

The doctrine of separation of powers is a libertarian doctrine based on the need to seek a tripod balance among competing arms of government.

It is assumed that due to complementation, a system of checks and balances would allow power not to be concentrated in one arm of the government.

However, in many States, particularly in those that leapfrogged from non-democratic systems to democracy, the different arms begin to compete against each other rendering the exercise of checks and balancing difficult.

In the case of Jacob Zuma and the state capture allegations, it is without doubt that the judiciary encroached into the powers vested in the Executive arm.  The question of why the judiciary would do such a thing lies not in the merit of the allegations, but in the possible vested interests within the judiciary.

In many cases, members of the judiciary have made public comments against corruption in South Africa. These comments have bordered closely to being political statements. It may, thus, be concluded that the South African judiciary is not devoid of political interest.

A statement by Chief Justice Mogoeng (March, 2013) titled “Corruption: A threat to our constitutional democracy” speaks strongly against corruption as a cancer that would betray the South African democracy.

However, this statement does not sound entirely a judicial assessment based on constitutionality alone but also based in opinion.

In that speech, Chief Justice Mogoeng said “when corruption becomes endemic in a country, the lifespan of a true constitutional democracy could not be guaranteed”.

The Chief Justice buttressed his assessment by highlighting that “the far-reaching implications of corruption tend to drive its victims to a boiling point and moves them to the level of desperation that renders even their resort to life-threatening measures or responses to corruption look like they are worth the sacrifice”.

Once judges wield opinions, it may be interpreted to say that they would have digressed from their primary position of impartiality. It is a fact of history that opinionation breeds political entrenchment.

This implies that the South African judiciary has a political perspective that it seeks to uphold. It therefore comes without surprise that Ms. Madonsela acted to satisfy her suspicions, without sufficient ground in the case against President Jacob Zuma.

Consequently, her possible political opinion weighed heavily, likely more than her judicial assessment, to the effect that she acted on possible political conviction rather than judicial procedure.

This implies that the South African judiciary, in a sense, undermined the Executive arm during President Zuma’s tenure.

Mr Mawere is correct in his assessment that President Jacob Zuma was left with nowhere to turn to, in order to seek redress of the situation.

In as much as corruption is a cancer that has the potential to undermine South African democracy, the undue interference of the South African judiciary may equally be a threat to the democracy.

Without doubt, South Africa, like many other leapfrogged democracies in Africa, need to find a sweet-spot of stability that balances out the role of checks and balances, as well as allowing sufficient space for the Executive to function in confidence.

To add to Mr Mawere’s observations, the problem with many democracies lies in the competition to attainment of power. In many such democracies, the Executive usurps power from both the Legislative branch and the Judiciary.

However, in South Africa’s case, it is the Judiciary that seems to spread tentacles beyond its mandated constitutional reach.

Given that “there is a strong view being expressed [in legal circles] that in terms of s84(2)(f), it is the President who is vested with the power to appoint a Commission of Inquiry and as such the order by Ms. Madonsela was ultra vires the Constitution”. A red flag is raised as to the motives of the Judiciary.

How long would South Africa limb before members of the Judiciary are seen participating in the political space, in one form or the other.

Mr Mawere stops short of drawing a possible conclusion that highlights what happened with President Zuma as an unconstitutional judiciary assisted transfer of power.

One would then have to wonder if the judiciary (if it continues in this path) would not become a threat to democracy itself.

Dr. Kernan Mzelikahle, PhD, is an apolitical analyst, and may be contacted by cell-phone on +263775195334, or by email on k.mzelikahle@gmail.com, twitter handle is @Mzelikahle.

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Legal Literacy

Former President, Jacob Zuma and Former Public Protector, Thuli Madonsela: Which One Had the Power to Form the Zondo Commission?

Mutumwa Dziva Mawere

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Jacob Zuma (left) and Thuli Madonsela (Right): Picture Credit: dailymaverick.co.za

Mutumwa Mawere, 07/02/2021

Legal and constitutional questions that are inherent in the establishment of the state capture commission of inquiry are largely masked by the reality that former President Zuma acquiesced to the order by the former Public Protector, Ms. Thuli Madonsrla.

The former Public Protector, masterminded the establishment and appointment of a Commission headed by the Deputy Chief Justice Zondo.

In the C2C Civics and Legal Literacy group where this matter is heavily contested, a dispute is raging as to whether the Madonsela order passed the constitutional muster.

There is a strong view being expressed that in terms of s84(2)(f) , it is the President who is vested with the power to appoint a Commission of Inquiry and as such the order by Ms. Madonsela was ultra vires the Constitution.

If this view is accepted, then the dispute regarding the alleged defiance by President Zuma that he was a victim of state capture in relation to the appointment that he was forced to make by Ms. Madonsela with the complicity and constructive involvement of the judiciary will be justified.

In November 2016, the former public protector, Ms. Madonsela ordered that a commission of inquiry be instituted to establish the true facts in relation to state capture allegations.

This came after she had investigated allegations that the Gupta family wielded influence over Zuma and that cabinet ministers with links to this family were also subsequently appointed by Zuma,.

Zuma applied for an urgent interdict to stop the release of Madonsela’s report just a day before Madonsela was to release it, on her last day in office but his lawyers were only forced to withdraw the application in the North Gauteng High Court after establishing that the High Court had already ordered that the report be released.

This 335-page report informed the decision to set aside the limitation imposed in the Constitution that only the President in his discretion possessed the legal right to establish a commission of inquiry.

Ms. Madonsela substituted the President with the Chief Justice as a party clothed with the power to identify the Chair of the Commission leaving Zuma with the residual power to rubber stamp the process.

Some have argued that in relation to Trump who was also impeached, at no stage was he stripped of his powers based on untested allegations.

Although Ms. Madonsela was confident that she had uncovered evidence of corruption that justified the unprecedented decision to strip Zuma of powers reserved to him, there can be no legal and constitutional justification of the pathway chosen.

The involvement of the Chief Justice in a scheme that was patently unconstitutional, the judiciary cannot escape being accountable for this decision and prosecuting it.

A precedent had been set of judicial interference with executive decisions to permit any rational mind to conclude that Zuma had no grounds to challenge the process and outcome of a fatally defective scheme.

While commenting on the issue, Mr Chitambo said, “It is the role of journalists to unravel the mysteries behind what Zuma is alleging and the truth.

The same judiciary system prosecuted and convicted Mandela. So the onus is now on all progressive democratic forces to point towards the Truth. This should be a wake-up call to all Africans that we need a radical shift towards setting our own narrative of what it is the meaning of justice.”

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