Paul Ngobeni
Pretoria - President Cyril Ramaphosa’s continued insouciance to his constitutional duties coupled with his persistent corruption of the judiciary are all matters of grave concern to those yearning to build a capable state within an appropriate ethical framework and the required competent and incorruptible executive and the judiciary.
As originally envisaged, the “Thuma Mina” or ANC renewal battle cry was to be anchored around several pillars: the battle for ANC renewal as it continues its journey to cleanse itself and recover its original values; the battle for the soul of our nation as the ANC gears itself up for the tough electoral battle in 2024; the continued struggle of the black majority for social, economic and racial justice; and the renewed determination to fight the scourge of corruption, which poses an existential threat to the remarkable gains the democratic ANC-led government has made since the advent of democracy in 1994.
Ramaphosa has, through his recent judicial appointment, proven that the “renewal” and anti-corruption rhetoric were invented to mask a continuing rot in the affairs of the state.
Putting aside the Phala Phala corruption scandal, which has engulfed the Presidency, there is irrefutable evidence that Ramaphosa has either worked tirelessly to undermine the rule of law or has systematically undermined court judgments, which stand in the way of the agenda dictated to him by white monopoly capital.
A clear case in point is Ramaphosa’s decision to appoint a white judge, Owen Rogers, to the Constitutional Court despite the fact that the said judge is facing serious complaints of judicial misconduct.
According to the rules of the Judicial Service Commission (JSC) and the judgment of the same Constitutional Court in the Menzi Simelane case, Democratic Alliance v President of South Africa (1) SA 248 (CC) (5 October 2012), a judge facing serious allegations of judicial misconduct cannot be promoted until his integrity, probity and credibility that are the subject of the Judicial Service Commission (JSC) pending complaints have been thoroughly dealt with.
In the case of Justice Rogers, the JSC, which has the power to summarily dismiss complaints it deems frivolous or meritless, has, so far, failed and refused to dismiss the very serious complaints against him.
Accordingly, Ramaphosa’s decision to appoint Justice Rogers is both discriminatory and irrational.
A few years ago, the eminent black jurist, the late Justice Lebotsang Bosielo, was forced to withdraw his candidacy for the vacant Constitutional Court position after allegations of inappropriate business dealings and financial benefits were levelled against him on the eve of the JSC interviews.
It turned out that the JSC had received an affidavit warning against Justice Bosielo’s appointment at the eleventh hour. After intense questions from commissioners and the astute intervention by Chief Justice Mogoeng Mogoeng, Justice Bosielo agreed that the JSC was not the correct forum in which to clear his name and withdrew from the race.
Apparently, different rules were applied by the Raymond Zondo-led JSC and Ramaphosa when it came to the candidacy of a white jurist, who was given flagrant preferential treatment when he should have similarly withdrawn.
It is unfathomable that Justice Rogers, who was rejected for a vacant seat on the Supreme Court of Appeal less than a year ago, can now be fast-tracked for a Concourt appointment.
Justice Bosielo’s withdrawal was consistent with the Concourt’s ruling in Simelane – the “executive is constrained by the principle that ‘(it) may exercise no power and perform no function beyond that conferred … by law’ and that the power must not be misconstrued”. The executive’s decision must be “rationally related to the purpose for which the power was conferred”. Ramaphosa’s decision fails this rationality test abysmally.
The pending unadjudicated complaints against Jutice Rogers were, and remain, highly relevant to his credibility, honesty, integrity and conscientiousness. The president’s decision to ignore it was of a kind that coloured the rationality of the entire process and thus rendered the ultimate decision irrational. Justice Rogers’ appointment is invalid and susceptible to a rescission unless Ramaphosa prevails on his minion, Chief Justice Zondo, to dismiss the JSC complaints through corrupt and underhanded methods. It is doubtful that Justice Zondo would stoop that low.
Substantively, there is evidence to suggest that Justice Rogers’ appointment was riddled through and through with political machinations and corruption at the highest level of the Ramaphosa government.
Justice Rogers dealt with a black lawyer, Barnabas Xulu, who litigated a corruption and poaching case in the courts of New York, US, and Jersey Isle on behalf of the Department of Agriculture, Forestry and Fisheries (DAFF). Xulu ultimately achieved an unprecedented settlement in excess of R120 million, which he repatriated to South Africa in 2018.
Ramaphosa and the minister of justice have kept the entire proceeds of the settlement, and completely refused to compensate Xulu for his stellar performance in the foreign courts. Instead, unverified rumours are that they dispatched another minister in the Presidency to meet Xulu to inform him that they would deliberately refuse to pay him because he does not like or support the president. They also used Justice Rogers to perform the dirty deed as follows:
Although the DAFF had represented to Parliament and the auditor-general that Xulu was duly appointed pursuant to a valid service level agreement, Justice Rogers accepted an about turn representation by director-general Mzamo Mike Mlengana that he did not know of the contract and never signed it.
But public records he submitted to Parliament state the exact opposite. Needless to say the latter was recently arrested and is facing criminal charges for his shenanigans investigated by Xulu at the DAFF. On the basis of the perjured testimony, Justice Rogers set aside the agreement and allowed the DAFF to keep all the settlement proceeds without paying for Xulu’s services.
But in a different case involving a white lawyer sent by a white minister of the DAFF to New York to litigate the same case, Justice Rogers ruled there was no prescribed appointment method and that the minister had full statutory authority to appoint the white lawyer. See, Bengis and Others v Government of South Africa (16884/2013, 2 All SA 459 (WCC) (24 February 2016).
When Xulu filed an application for his recusal, Justice Rogers refused to rule on it because he claimed he did not “like the tone” and substantive allegations of bias in the application.
Instead, Justice Rogers galvanised Dennis Davis and 10 judges of the Western Cape, held ex parte discussions with them to discuss the Xulu application off the record, and they collectively decided to file a misconduct complaint against Xulu with the Legal Practice Council on the basis of the allegations in his recusal application Justice Rogers failed to adjudicate.
Without being longiloquent, the controversy surrounding Justice Rogers’ appointment to the Concourt is unlikely to die down any time soon. The process of making Justice Rogers and Gauteng Judge President Dunstan Mlambo acting Concourt judges had been manipulated, apparently to boost their chances for the vacant positions on the apex court.
We must remember that on April 30 last year, then Chief Justice Mogoeng wrote a letter to Justice Minister Ronald Lamola recommending KZN Deputy Judge President Mjabuliseni Madondo and Judge Rogers to act as judges of the Concourt.
Lamola ignored the letter and only responded two months after Justice Mogoeng took leave. In turn, and instead, Lamola recommended his preferred candidate, Mlambo, to be among the two judges to be considered and submitted to the president.
The decision to ignore the serious allegations of judicial misconduct involving Justice Rogers must be seen through this prism of gerrymandering and manipulation.
It is puzzling that Justice Rogers himself would flagrantly ignore the admonition of the Concourt’s “Simelane” judgment and JSC procedures to accept such a politically tainted appointment that risks plunging the Concourt into further infamy.
Why is he unwilling to await the adjudication of the complaint of gross judicial misconduct by the JSC?
Pretoria News