Max du Preez

Judge not...

2009-01-14 07:41

Max du Preez

If we South Africans didn't know it before, we know it now, having been witnesses to the tragic demise of Zimbabwe: undermine the courts and the judicial system and you can kiss democracy goodbye.

If you can't go to the courts to protect your rights or to keep an authoritarian regime and its agents in check, your rights are worth nothing.

In Zimbabwe Robert Mugabe first intimidated judges, then fired some had them harassed until they quit. Then he appointed his own stooges to the bench. But even when his stooges decide something the police or the ruling party don't like, they simply ignore the court decisions.

That's why there was such an outcry when prominent ANC leaders such as its secretary general, Gwede Mantashe, and the Youth League leader, Julius Malema, insulted our judiciary to the point that it started sounding like threats.

In this kind of climate it is absolutely essential for all officers of the court and all other associated with the judicial system to behave impeccably.

History repeated?

When I was listening to Judge Louis Harms on Monday reading the Appeal Court judgment overturning Judge Chris Nicholson's ruling in favour of Jacob Zuma, I could not get it out of my mind that it was the same Harms who led the Harms Commission of Inquiry into state-sponsored violence in the early 1990s.

I had a serious stake in that enquiry, because a lot of the allegations Harms had to investigate came from exposes on police and army death squads (Vlakplaas, the CCB, etc) published in the newspaper I then edited.

Harms decided that there were no death squads and that those men who were attached to Vlakplaas, like Dirk Coetzee, who confessed that they were torturing and killing anti-apartheid activists, were lying through their teeth.

Harm's findings were a disgrace, as were the statements he made about some of the policemen who wanted to come clean. I did not believe Harms should remain a judge after that and I said so publicly.

But Harms not only remained on the bench, he was promoted to the Supreme Court of Appeal.

I have no reason to believe that the judgment he read out on Monday wasn't the correct one. But I would have preferred to hear it from the mouth of someone without a huge shadow over his head. I would not want to appear before Mr Justice Louis Harms as an accused.

Good company

I also don't want to appear before Mr Justice John Hlophe of the Cape High Court. The stuff he has said and done does not fit the picture I have of a dignified, wise man who has to sit in judgment of others. In my view he has tarnished the reputation of our higher court more than anyone else.

Hlophe and Harms are not the only judicial personalities on my black list. There is Judge Nicholson himself. The way his judgment and utterances during the Zuma hearing were comprehensively rejected and criticised by his superiors must raise questions about his ability to be a judge.

From the Appeals Court judgment one gets the idea that Nicholson was ignorant of the law and of established legal practice. If I were him, I would quietly resign.

And then there is the deputy registrar and legal adviser of the University of Cape Town, Paul Ngobeni. He left the United States under a cloud with fraud charges being investigated against him and he was indeed banned from practicing law in several states in America.

And yet Ngobeni has become one of the most opinionated people regarding other judges and the judicial system. He is Judge Hlophe's main apologist and recently launched a distasteful tirade against Judge Carole Lewis after she expressed concerns about inexperience on the Bench.

Another legal man whose integrity should now come under serious scrutiny is former judge Willem Heath. His Heath Special Investigating Unit was once our biggest hope that we would get to the bottom of the arms scandal, but Thabo Mbeki fired him, probably exactly because of that.

Heath and Paul Ngobeni are now the "brains trust" devising strategies to keep Jacob Zuma out of court. Heath should not be angry when people suspect that he could be using the inside information he gained on the arms transactions to now help cover up for those whom he once investigated.

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