Racial split over Hlophe

The Judicial Service Commission (JSC) was reportedly split along racial lines as it deliberated on what to do about the most recent complaint against Cape Town Judge President John Hlophe.

The full 23-member JSC panel met in a conference room at OR Tambo International Airport to discuss the matter in a meeting described as protracted and heated.

At issue was Hlophe's retainer from Oasis, a Cape Town-based financial services company, as well as impeachment charges brought by an angry advocate. The JSC ultimately cleared Hlophe of conflict of interest charges for a retainer payment he receives from Oasis. The JSC said it could not contest his view that he had received permission from the late justice minister Dullah Omar to receive the payment.

"After consideration of the evidence at present available to it, the commission decided that there is no evidence to contradict Judge President Hlophe's assertion that he had received oral permission from the late minister of justice Dullah Omar. In the circumstances, the commission decided that no useful purpose would be served in pursuing the matter any further at this stage," the statement read.

According to inside sources, the JSC was split into two camps, with one group pushing very hard for Hlophe's exoneration while another "faction", apparently led by George Bizos, maintained that there should be a thorough public investigation into the matter before a finding could be made.

The Mail & Guardian was told that the "Bizos group" argued strongly that the public was entitled to know how the JSC came to its findings.

Hlophe's time on the Cape Town bench has been controversial. He has had numerous racial clashes, including one with his deputy, Janet Traverso, and he has been implicated in two conflict-of-interest cases.

"Unfortunately we heard that the JSC was pretty divided and mainly along racial lines," a senior Johannesburg lawyer, who wants to remain anonymous, said this week.

The JSC's decision has stunned members of the legal fraternity in Cape Town because it appears that the ruling relied solely on Hlophe's testimony, which he apparently made verbally while not under oath. The Oasis Group allegedly refused to comply with the JSC's request that it provide records of its payments to Hlophe on the grounds that the JSC did not have the power to compel it to do so.

"All these rumours and stories about what happens behind closed doors at the JSC show that the system is fatally flawed. The public can't trust it because nobody really knows what happens," said advocate Norman Arendse, past chairperson of the General Council of the Bar.

"The irony is that we have a wonderful court system, which is open to the public. We don't know what evidence was put before the JSC. Was it pieces of paper? Was it sworn statements? We just don't know and therefore, quite rightly, it's called a whitewash or a blackwash -- whatever takes your fancy. It's terrible and it shows that a different set of rules count for the public and for judges. This process shows that we are not all equal in front of the law," Arendse said this week.

The M&G asked three judges, two MPs and two advocates whether they knew of any precedents of oral permission being granted, and they did not.

Steve Swart, of the African Christian Democratic Party, laid the complaint with the JSC against Hlophe, claiming a potential conflict of interest after it was revealed that Hlophe was on Oasis's payroll.

Under Hlophe the Cape Bench has had to make a high court ruling on business dealings of Oasis and will soon have to preside over continuing litigation concerning this company. Judge Siraj Desai, a high court judge and colleague of Hlophe, is being sued by Oasis. A high court judge cannot simply be sued; one needs permission to do so, and Hlophe granted this permission.

Hlophe claimed he was merely a trustee of the Oasis Group and that the funds paid to him were for his petrol expenses. Hlophe, like all other judges, has access to a free car and petrol for business and private use.

Four months ago a senior member of the Cape Town Bar, Peter Hazell, also instituted impeachment proceedings against Hlophe for "contempt of court, bringing the administration of justice into disrepute, conduct unbecoming of a judge and gross incompetence".

He requested that the JSC investigate a variety of complaints against Hlophe. In a public statement the JSC responded to the impeachment last week, saying it was still waiting for Hlophe to respond to the JSC's requests for information related to the charges.

A senior judge who asked to remain anonymous said this week: "The JSC doesn't have the legal teeth to do anything about Hlophe. The man is an embarrassment to the institution and he's a racist. He acts with impunity because he knows that his skin colour protects him. If a white judge has said and done the things Hlophe has done, he would have been out on his ear before the sun rises the next day."

When asked about the move to impeach him, Hlophe said this week that he had "no comment".

Who sits on the JSC?
The Judicial Service Commission (JSC) has 23 members, but nobody was willing to reveal who sits on it. The Mail & Guardian approached JSC spokesperson Inez Greenstein, but she refused to divulge the full member list.

However, the M&G has established that the following people are among its members:
Chairperson Judge President Pius Langa
Vice-chairperson Judge Craig Howie
Advocate Marumo Moerane
Advocate Seth Nthai
Advocate George Bizos
Advocate Milton Seligson
Advocate Julian von Klemperer

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Conviction rate only 30%

Only 30 per cent of criminals arrested for armed robbery in Uitenhage over the past financial year have been successfully convicted.

This was revealed after an armed gang robbed at least 12 businesses in central Uitenhage over six weeks in June and July this year.

In response to a parliamentary question put by Wilhelm le Roux (DA), Safety and Security Minister Charles Nqakula said 256 armed robberies had been reported in the Uitenhage area between April 1, 2005, and March 31 this year.

He said the police had arrested 76 individuals connected to the robberies, but only 23 of those, or 30,3%, had been successfully convicted.

“Manpower has been capacitated by calling up and deploying reservists to execute duties in the CBD areas where most armed robberies occur,” Nqakula said. “Meetings with business owners are held regularly to alert the community.”

The minister said an SMS system had also been implemented which allowed the police to notify all business owners on the database when an armed robbery took place in the CBD, so that precautions could be taken.

“A collective plan was compiled and is updated monthly. As a result armed robberies have decreased,” he said.

Le Roux said he was thankful that the police were taking the spate of armed robberies in Uitenhage seriously, but the figures clearly showed that the police simply did not have the capacity to address the problem.

“I‘m glad the police are reacting, but a 30% conviction rate is simply not good enough.”

Le Roux said there was clearly a lack of manpower in the police. Businesses were being forced to turn to private security companies, at their own expense, to protect their premises.

“It is not just the police, though. The whole justice system is clogged up.

“The courts simply cannot handle the case load and, even if a person is convicted, the chances of his being released early are significant because the prisons are overcrowded.”

Police spokesman Superintendent Priscilla Naidu said it was important to make a distinction between the number of arrests and the number of cases opened.

“It is possible that one person could be linked to more than one armed robbery,” she said.

She could not say whether a conviction rate of 30% for armed robberies was above or below Uitenhage‘s general conviction rate.

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Agliotti arrest shows Selebi in a good light

The arrest of businessman Glen Agliotti clearly shows police National Commissioner Jackie Selebi "in a good light", Deputy Minister of Justice and Constitutional Development Johnny de Lange said at a news conference on Thursday.

He and his principal, Justice Minister Brigitte Mabandla, were asked at Parliament whether, given the breakthrough in the Brett Kebble murder case, they were prepared to comment and whether it "put a cloud" over the national commissioner -- who has publicly acknowledged that Agliotti is a friend.

Mabandla said she expected Safety and Security Minister Charles Nqakula to make a statement later on Thursday. It was expected that this statement would be made in the National Assembly, although this was not yet clear.

Agliotti was arrested on Wednesday evening at his Bryanston, Johannesburg, home and was scheduled to appear in court on Thursday afternoon.

The Scorpions in September raided premises belonging to Agliotti, whom they have identified as "the Landlord", a kingpin in a major drugs and contraband cigarette syndicate.

The raid has placed Palto, a murky security company that freelanced for the police, in the spotlight.

The search warrant lists Agliotti as a suspect alongside members of Palto, as well as senior police officials who were Palto's contacts at police headquarters.

Allegations that Palto served as a cover for a crime syndicate remain unproven, but available evidence serves to reinforce the suspicion that the contraband syndicate was improperly linked to police at the highest levels.

Selebi, who has tried to downplay his friendship with Agliotti after initially saying that Agliotti was "my friend, finish and klaar", allegedly was close to Palto too.

Kebble was gunned down in Melrose, Johannesburg, in September 2005. He had just visited Matodzi Resources boss Sello Rasithaba, it was reported at the time.

Mabandla said on Thursday that "the minister and Department of Safety and Security will be making a statement ... they should if they feel it warrants a comment".

She said all she could do was repeat what the minister had said in the past. "You know at the moment there is not any investigation against the commissioner ... that I know of ... and that indeed if people feel that they have information they should come forward. I am repeating what the minister of safety and security said in the past."

Asked about a story that was run about the commissioner removing Judge Willem Heath from the Kebble investigation and other forensic experts, De Lange simply said that if there was such information this should be provided to the police.

Media reports said earlier this month that former Airports Company South Africa security head Paul O'Sullivan had confirmed that he was a source of a 700-page document that alleged that Selebi had close links with crime bosses.

O'Sullivan said he had handed the document over to the Scorpions in March this year after an unsuccessful six-year battle to have Selebi investigated by the Independent Complaints Directorate.

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Error of judgment

The error contained in the Supreme Court of Appeal’s (SCA’s) judgment in the civil asset forfeiture case that arose from Schabir Shaik’s corruption and fraud convictions could not have come at a worse time for the South African judiciary.

Judges all over the world are under constant scrutiny at the best of times, but in the South African context a little over a decade after the end of apartheid, there is mounting pressure for the racial makeup of the judiciary to reflect that of the population, and for the courts to pass judgments that are sensitive to the country’s fraught political history. While the complexion of the lower courts has changed markedly over the past decade, many of the country’s most experienced judges were appointed and served under the previous regime.

It was only a matter of months ago that government reluctantly backed off after a concerted effort to push through amendments to the laws governing the courts that were ostensibly intended to improve the efficiency of the system. Many, including eminent jurists, feared they would in fact impinge on the independence of the judiciary.

Transformation of the courts remains high on the national agenda, however, and the SCA’s error in repeating the media’s mistaken attribution of the phrase “a generally corrupt relationship” to Judge Hilary Squires, who presided over Shaik’s criminal conviction, will play into the hands of those in the establishment who believe they might gain by limiting one of the essential checks and balances on political power.

Already the Congress of South African Trade Unions has called for former deputy president Jacob Zuma to be reinstated, on the assumption that he can no longer get a fair trial, and that his dismissal by President Thabo Mbeki was at least indirectly influenced by incorrect media reports that attributed the phrase to Squires. It does not seem to matter that a review of the speech Mbeki made to Parliament at the time reveals that he did not refer to the phrase in question.

Of even more concern is the South African Communist Party’s suggestion that the error was politically motivated, reinforcing its contention that there is a broad conspiracy to prevent Zuma from becoming president. The public perception of the independence of the judiciary has been repeatedly undermined during the ugly battle that is being waged over who should succeed Mbeki as president of the African National Congress, and therefore the country. The SCA’s error provides more ammunition for those who either do not understand, or do not care, how serious the consequences would be for the nation were it to become generally accepted that the judiciary is politically biased. Calls for the SCA judges who presided over Shaik’s appeal to resign are therefore mischievous and irresponsible.

There is, however, no avoiding the conclusion that both the judiciary and the media who made the error in the first place and compounded it through repetition, have a lot of soul-searching to do. That does not imply that the SCA would have come to any decision other than to uphold Squires’ judgments had the phrase “a generally corrupt relationship” never entered the discourse. Other phrases that were used in the judgment were just as damaging to Zuma, if not more so. Squires spoke of a “mutually beneficial symbiosis that the evidence shows existed” and of payments to Zuma by Shaik that “can only have generated a sense of obligation in the recipient”.

Had the phrase “a generally corrupt relationship” been used by the media without the quotation marks, attributed indirectly to Squires as a summary of his central findings, there would have been no cause for complaint. The power of punctuation apparently surpasses the might of both pen and sword.

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Cops on R25 000 booze cruise

Cape Town traffic cops were taken on a R25 000 "booze cruise" in Table Bay harbour by Labat Traffic Solutions, the company that holds a lucrative contract to operate the City of Cape Town's speed cameras.

Labat said it had invited officers with whom it worked closely to its year-end function as a "gesture of appreciation". Metro Police chief Bongani Jonas has ordered an investigation into the three-hour excursion, which took place during working hours.

Labat holds a controversial five-year contract with the city to supply speed cameras and other traffic enforcement equipment and to administer the collection of traffic fines. It gets 50 percent of all speeding fines plus 25 percent of all other traffic fines.

At midday a select group of traffic officers from the speed enforcement section were seen laughing and joking as they waited to go on their cruise from the Waterfront. Labat works closely with this section.

The city has been trying to limit the monthly cost of the contract with the company, run by former South African Rugby Union chief Brian van Rooyen.

Bongani Maqungwana, executive support officer for Dumisami Ximbi, mayoral committee member for safety and security, said it was "very problematic" that a city contractor had entertained a group of selected officials.

He also questioned why these officials were allowed to go on the cruise in working hours, and said it should have been cleared with Metro Police management.

"Bongani Jonas was shocked when I told him and said he would launch an urgent probe into the matter," Maqungwana said.

Another senior city official, who asked not to be named, said: "Entertaining clients in the business world is normal practice but it is highly irregular when large amounts are spent on officials by a private contractor that is a service provider - particularly if such a contractor is dependent on the city for its income."

Weekend Argus was told about the trip by a group of traffic officers who said it raised serious questions.

A copy of the invoice obtained from the charter boat company showed that at least R5 000 was earmarked for booze.

Council safety and security committee chairperson JP Smith said the trip was a "work-related year-end function" which had been sanctioned by department heads.

But Labat spokesperson Shaheed Mohamed said the trip was his company's year-end function and only a selected number of officers who worked closely with the company had been invited.

Mohamed acknowledged that the performance of traffic officers was "a factor" in determining Labat's income from the city.

The company would also hold a more formal function for top management which would include invitations to city management staff.

"The officers, 28 of them, who we invited were those working at the coalface who were too busy to be taken off duty in the peak season coming up now," Mohamed said.

"But I know who leaked the story about our boat trip. I had been warned to expect some trouble.

"We invited just officers from Operation Reclaim, and then those who we did not include spoke out."

Officers attached to Operation Reclaim focus on warrants of arrest which have been outstanding for extended periods and unpaid traffic fines. Labat administers these cases and collects a percentage.

In April, city manager Achmat Ebrahim ordered an internal audit into the council's contract with Labat following an investigation that revealed the city had taken over the execution of all traffic warrants of arrest from Labat, even though the company was still being paid to do the task.

Labat's contract has been dogged by controversy.

Twice the company was given notice by the city to jack up its performance. The invalidation of 44 000 camera fines last year was conservatively estimated by traffic officers to have cost around R8,8-million in lost revenue, half of which would have gone into city coffers.

From the outset questions have been raised about the tenders to Labat, especially against the backdrop of the firm's holding company, Labat Africa, being R14-million in debt.

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Mugabe is abusing SA courts

BUSINESSMEN in South Africa are calling on President Thabo Mbeki and South Africa to put to an end the abuse of South Africa institutions and courts by the Zimbabwe government.

Parmanathan Maremuthe, Chairman of EEC Properties Limited, Africa Heritage Management Services Private Limited and Director of Africa Resources Limited, expressed shock and dismay at how President Robert Mugabe of Zimbabwe was using white lawyers to lie to the South Africa courts that Mugabe was the most honourabloe man.

Speaking on the sidelines of a court case pitting the Master of the High Court versus SMMZ,Maremuthe said it was shocking that the team of white lawyers were contesting the decision set aside by the Master of the High Court, a move that showed that they had no respect for the Master.

Maremuthe, a business partner to Zimbabwean businessman Mutumwa Mawere, disclosed that Mugabe was justifying his property and company seizures in SA courts through unconstitutional laws that had been promulgated in Zimbabwe.

“Does Mbeki know that this is what is happening in South Africa’s courts.This is simply ridiculous and can not be allowed to go on.

“Mugabe has been using the Reconstruction of State-Indebted and Insolvent Companies Act (Chapter 24:27) and the Temporary Measures for State-Indebted companioes and a host of other laws.

“Zim laws are more powerful than all jurisdictions. They are applicable in all foreign countries, even though the laws do not recognize the right of shareholders, do not respect propery rights, and have no respect for foreign jurisdictions, “ said Maremuthe.

Maremuthe said the S.A government in its allowing Zimbabwe to bring cases to SA courts through unconstitutional laws promulgated in Zimbabwe, the S.A government was effectively endorsing a corrupt government.

“ Our plea to the S.A government is for Mbeki to put a stop to the S.A courts from entertaining all these actions brought by the government of Zimbabwe,” said Maremuthe.

He said that it was disheartening that the Mugabe government was using a team of white attorneys who did not respect the Master of the High Court, and that for any successful black businessman to exist the foundation of his business is corruption.

“The lawyers being used by Mugabe do not trust blacks. They are stealing money from our companies and using that money to fight us, ” added Marimuthe.

His views were also supported by his business Co-Director, Mutumwa Mawere who said that S.A institutions were being tested by the Zimbabwe government.

“It is a precedent setting case where the S.A judiciary system is being tested and an army of mercernary lawyers, like barbarians, are the real beneficiaries of the expropriation of private assets in Zimbabwe,” said Mawere.

“ Can you imagine that in Zimbabwe the government uses a high moral ground alleging that SAS owed SMMZ about US$20 million, when in truth and facts, they have failed to date, to prove the claim, preferring to hide and seek while pillaging my assets.

“ They have only proved a claim of R82 000. And for such a claim it is ironic that it attracts the attention of a high powered team of lawyers who are paid more than R400 000 per court session,” explained Mawere.

The Friends of Zimbabwe Coalition was present at the court hearing on Thursday and said that it was calling on Mbeki to put a stop to this nonsense by Mugabe using the SA courts to grab properties of Zim businessmen in South Africa.

“The government of Zimbabwe is good at pissing at corporate bodies and individuals, but does not want you to say anything in defence,” said Jay Jay Sibanda, Pretoria Chapter Chairperson.

“Our appeal is to Mbeki and the SA government to stop Mugabe to use the SA courts to legitimise company seizures and his corrupt government,” said Sibanda.

The FOZC , a South Africa based group that advocates for property and human rights, sometime back demonstrated against the lawyers representing the Zim Government and demanded that they sever ties with the corrupt regime.

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Ructions rock Scorpions

In the latest blow to the beleaguered Scorpions a top state advocate employed by the unit has been arrested on allegations that he fraudulently obtained a South African ID document.

Lehlakano Ramaema’s case could have serious implications, including the possibility that convictions he secured might not stand, one legal expert warned recently.

It has also emerged that the National Prosecuting Authority’s chief executive officer, Marion Sparg, and her deputy, Beryl Simelane, have been put on special leave pending the outcome of the disciplinary process relating to alleged mismanagement of funds and tender irregularities.

Lesotho national Ramaema joined the Scorpions in 1999 as a senior state advocate. He was arrested by police last week after an investigation revealed that he provided false information to the home affairs department when he first applied for an ID book in 1995.

The investigation also revealed he did not have the necessary qualifications to work as an advocate in South Africa. According to information provided to the Pretoria Magistrate’s Court this week, Ramaema has a BA Law from Lesotho.

Ramaema’s role at the NPA included management of court rolls and inspections, deciding on criminal proceedings of a complex nature, drafting charge sheets, leading and cross-examining witnesses, and addressing courts on convictions and sentences in high-profile cases. He was also responsible for the supervision and guidance of advocates, prosecutors and other stakeholders. As a senior advocate he earned about R300 000 a year.

Praveen Sham, president of the Law Society, said Ramaema’s case could have serious implications for the state. “The possibility is that if he dealt with criminal cases one would look at whether the convictions can stand. Almost everything he did would be illegal and people might want to take their cases on review.”

Sparg and Simelane took special leave from Wednesday this week to attend to the internal disciplinary proceedings. They reportedly face nine allegations ranging from financial misconduct and misappropriation of funds to contravening the Public Finance Management Act.

The entire NPA management has been under investigation for alleged financial mismanagement and irregularities by the Public Service Commission since 2004, although most of the implicated managers have resigned.

The commission’s investigators have reported to Justice Minister Brigitte Mabandla, but their findings have not been made public.

A report claimed the investigation found irregularities in the awarding of tenders to companies and individuals close to the NPA’s top echelons. It said the probe had fingered Sparg, Simelane, HR head Elize Roos, senior finance manager Khaya Makinana, senior procurement manager Vallabh Bhika and the head of the integrity management unit, Dipuo Mvelase.

Sparg, well known as a former Umkhonto weSizwe guerrilla, was also investigated over her role in the awarding of a R3,2-million tender to a businessman to whom she was close.

Although the justic department drew up a draft charge sheet indicating the implicated officials faced charges of tender-rigging, misappropriation of funds and financial misconduct, NPA chief Vusi Pikoli reportedly said the charges related only to poor administration in the NPA between 2001 and 2003.

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Judge embroiled in child pay row

A Pretoria High Court judge is refusing to pay child maintenance to his former lover, saying the paternity-test results showing a 99,99 percent probability that he is the father of her illegitimate son are inconclusive.

Judge Ntsikelelo Poswa - who was recently criticised by the Supreme Court of Appeal when he released two suspected murderers on bail - is involved in a maintenance dispute with his former lover, Yolisa Maya, 48.

In a sworn affidavit Maya, a special legal adviser to Foreign Affairs Minister Nkosazana Dlamini-Zuma, states that she and Judge Poswa were involved in a relationship in 1992 and that she conceived a child, who is now 13 years old.

Maya says she had an on-and-off relationship with Judge Poswa for seven years. When her son was born, in January 1993, she says she did not want to question the child's paternity with the judge as "I knew there was a likelihood he might not be the father of my son". When the boy was conceived she had just ended a relationship with another man.

In 2001 she raised the issue of paternity with Judge Poswa and they agreed to undergo blood tests. "The results came out showing that there was a 99,99 percent probability that he (Poswa) was the father. Up to that point he had not had a relationship with my son. He accepted the results, came and introduced himself to the child as his father and started paying maintenance of R1 000 a month," Maya states in her affidavit.

"However, he paid for four months, then told me he was opting out as he had been advised that blood tests were not conclusive proof of paternity."

It was then that she took the matter to the maintenance court. Judge Poswa told the presiding magistrate that as Maya had been involved with another man, that man should undergo paternity tests. The magistrate agreed with the judge, and it was then that she lost interest in the matter and abandoned it.

In August last year, however, Maya began pursuing the issue again because she felt "my son will continue being dealt an injustice". She persuaded Judge Poswa to undergo genetic profiling because she was advised that that was conclusive.

"We were tested together with the child at Jacaranda Hospital. The results came out reflecting (99,99 percent) the same degree of probability that he is the father. Once again he told me that he would not accept the results unless they specifically stated that there was a 100 percent probability that he is the father," says Maya.

"His rationale for this attitude was that there was a chance that, out of the remaining 0,01 percent, there could be someone whose genetic make-up was identical to his."

After Judge Poswa once again refused to accept the results, Maya went back to the maintenance court to seek relief.

During the hearing in July this year, the magistrate, a Mr Von Reich, claimed he could not recall the 2001 hearing he had presided over, and suggested that the matter be heard by another presiding officer, says Maya, adding that Von Reich had indicated this was because the court record could not be found and he had lost his own handwritten notes.

When the matter resumed in August, the magistrate ruled that he was withdrawing and that the case would have to start afresh before another presiding officer.

"Judge Poswa has since filed an application for review of the magistrate's decision, with the purpose that the magistrate must change his mind, reconstruct the lost record of proceedings and continue with the matter again. As such we are now waiting for the High Court to allocate a date for the hearing of the review proceedings," states Maya in her affidavit.

She adds that she felt frustrated and aggrieved by the delaying tactics applied by Judge Poswa. "In my matter there are two sets of results: blood tests and genetic profiling. However, the respondent is walking all over the law, claiming he will only admit responsibility if the results reflect 100 percent probability of his paternity - something I've never heard of.

"The respondent is a judge of the honourable High Court of this country who is expected to dispense justice and pronounce objectively on matters of this nature. However, he seems not to respect the very laws that he is supposed to interpret in the performance of his mandate as a judge ... What chance do we stand as women of this country when we are made to appear before a so-called judge who appears to hold a callous disregard of his own laws?"

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