EXCLUSIVE: New Constitutional Court judge's links to Zuma need scrutiny - NGO

2017-09-07 12:04
Justice Leona Valerie Theron (Supplied)

Justice Leona Valerie Theron (Supplied)

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Cape Town – Justice Leona Theron, appointed as a Constitutional Court judge in June by President Jacob Zuma, previously had business dealings with two of his legal representatives, who in turn have worked closely with his son and nephew.

One of the two legal representatives with whom she had business dealings is Zuma's lawyer Michael Hulley. Theron has confirmed that she was involved in a closed corporation with him, which she said has been dormant for two decades.

But she said she took the oath of office to be independent and unbiased very seriously.

Allegations about her links to Zuma were revealed on Thursday by non-profit organisation Forensics for Justice, which said the claims raised the worrying spectre of the capture of the judiciary.

"Throughout the last few years, the only saving grace for South Africa has been the independence of the judiciary... However, recent findings by Forensics for Justice raise the real fear that the capture of the judiciary may already be underway," it said in a media release.

The organisation asked the Judicial Services Commission to determine why links to "persons of questionable ethics" had been allowed.

The organisation asked for Theron’s appointment to be reviewed.

Spokesperson for the Office of the Chief Justice, Nathi Mncube, told News24 that Theron was committed to the oath of office.

"Judge Theron categorically states that she will never allow personal relationships to influence her decision as a judge.

"That being said, she wishes to declare that there is no personal relationship between her and President Zuma and, therefore, the members of the public should harbour no fear of potential bias in any matter related to the president."

Entangled battles

Forensics for Justice, which has exposed the matter, is a non-profit organisation partly formed by private forensic investigator Paul O'Sullivan, who is involved in a legal spat against the police.

Facing numerous criminal charges, O'Sullivan has alleged that he has been targeted by the police for the work he has done in uncovering corruption in the top echelons of the police, particularly his high-profile investigation – alongside the Independent Police Investigative Directorate (IPID) – into former acting police commissioner Lieutenant General Khomotso Phahlane.

Forensics for Justice’s executive director is O’Sullivan’s assistant attorney Sarah-Jane Trent.

She too was arrested in February for her role in the Phahlane investigation.

Trent faces charges of pretending to be an IPID official in the Phahlane investigation.

On Tuesday this week, a letter from IPID head Robert McBride to National Prosecuting Authority (NPA) head Shaun Abrahams surfaced, in which McBride said it seemed the NPA was unwilling to act on certain probes, including that of Phahlane.

Forensics for Justice's claims on Thursday that the "capture of the judiciary may already be under way", and their concerns about Theron, follow hot on the heels of McBride’s scathing letter.

Track record

According to Theron's CV on the justice department's website, about two decades ago, when she said she was involved in the closed corporation with Hulley, she was either just about to become, or was, an acting judge.

Her online CV said that, between 1998 and 1999, she had been an acting judge in the Eastern Cape and KwaZulu-Natal.

Before that, the 50-year-old Theron was a part-time lecturer at the University of Natal between July and November 1994.

In 1999, she became the first black female judge to be appointed to the High Court in KwaZulu-Natal. She was 33 at the time – the youngest appointee.

She became a Supreme Court judge in December 2010 and an acting Constitutional Court judge in May 2015.

Theron was appointed as a Constitutional Court judge in June. This move was endorsed by DA leader Mmusi Maimane.

In February 2009, she presided over Zuma’s corruption case. He was not yet president.

At the time, she postponed the case for seven months, to a date when Zuma was expected to have already been appointed as president.

A report by news agency Reuters at the time said that court documents showed prosecutors and Zuma’s lawyers had agreed on this postponement.

Theron guided by oath to be unbiased

Mncube said, when judges were appointed, they made an oath to be independent, fair and unbiased when dispensing justice, and Theron had always been guided by this.

He said each matter brought before the Constitutional Court had its own merits, and these were looked at in line with the oaths judges undertook.

"The Constitution requires that a matter before the Constitutional Court be heard by a quorum of at least eight judges. Each judge sitting in a case must indicate his or her decision; the ruling is then determined by majority vote," he added.

"This illustrates that a Constitutional Court judge would have to convince the majority to ignore the merits of the case, legal principles and their constitutional mandate in order to promote the interests of an individual litigant."

'Links to Zuma lawyers'

Forensics for Justice alleges that Theron had business links to Hulley, as well as to Jerome Brauns, an advocate who has represented Zuma in court.

The organisation says that Theron was a shareholder of two companies – Umthombo Entertainment CC and MLI Property Holdings CC – both of which News24 has established were deregistered several years ago.

Forensic enquiry reports, seen by News24, support this information, showing that Theron’s former companies were linked to the two Zuma lawyers.

Brauns and Hulley, in turn, have links to Zuma’s son Edward and nephew Khulubuse respectively.

How Hulley 'fits in'

News24 has established that MLI Property Holdings CC, which had an address in Wentworth, Durban, was registered in 1994 and deregistered in July 2010.

According to a forensic report, Hulley was listed as one of two principal members of MLI Property Holdings CC.

It also listed Theron as being a principal in this business.

Mncube said Theron had confirmed that she, Hulley, and another person, Irwin Lawrence, were members of the property holding closed corporation.

"A sectional title unit in a block of flats on the Durban Esplanade, which was leased to tenants, was purchased through the CC. This property was sold about twenty years ago and no further property was purchased. To her knowledge this CC has since remained dormant," Mncube said.

JSC interviews could've shown link

"Justice Theron has been interviewed by the JSC [Judicial Service Commission] on numerous occasions and this information could have been established during those interview processes."

Hulley, according to the forensics report, is also listed as being linked to five businesses of which Khulubuse Zuma was a principal member.

These businesses are: Elatirex (PTY) Ltd; Sanchopath (PTY) Ltd; Sanchophase (PTY) Ltd; Meziblox (PTY) Ltd; and Cyndara 92 (PTY) Ltd.

News24 independently established that these five companies, registered between 2009 and 2011, were listed under "deregistration process".

Khulubuse Zuma’s director status for each company was listed as active.

Hulley did not respond to News24 queries by the time of publication.

Another business, Zuma son and lawyer 'link'

The second company which Forensics for Justice linked to Theron and one of Zuma’s legal representatives was Umthombo Entertainment CC.

News24 has established that Umthombo Entertainment CC was registered in 1997 and is now listed as deregistered.

It was also established by News24 that this company has an active director status. Brauns, according to a forensics report, is listed as a principal member of the company.

A forensic report listed this company as having nine principal members, and Forensics for Justice said Theron owned a ninth of it.

Another of the principal members listed was "Kesie Naidu".

News24 independently established that Naidu was listed as a director of deregistered Umthombo Entertainment CC, and that he is an advocate by profession. Advocate Kessie Naidu SC represented Zuma in court more than a decade ago.

However, Naidu on Thursday told News24 that he had never heard of Umthombo Entertainment CC.

"This company rings no bell," he said.

'No recollection'

Theron could not remember this business either.

"Justice Theron is unable to respond, as she has no recollection of this business venture. In order to respond meaningfully, Justice Theron would require more details on this," Mncube said.

When it came to Brauns, Forensics for Justice said, aside from his ties to Umthombo Entertainment, he was a director of three other companies – Southeast Network Construction CC, Golding Star Trading CC and Nippon Import and Export SA (Pty) Ltd.

It said Zuma’s son Edward was a co-director of these companies.

News24 established that these three companies were based in Durban and were listed as deregistered.

The director statuses were listed as active.

Edward Zuma did not respond to a News24 message asking him to confirm if he was a co-director of businesses with Brauns.

Brauns also did not respond to an email query sent on Wednesday.

Zuma relatives

Aside from the issues surrounding Theron, Forensics for Justice also listed Judge Jeremiah Shongwe of the Supreme Court of Appeal as problematic, alleging the judge is related to Zuma.

This aspect in August emerged in the Randburg Magistrate's Court, where it became part of a legal wrangle in a case involving O’Sullivan.

He is facing kidnapping, fraud and extortion charges in the Randburg Magistrate’s Court.

In August, O’Sullivan tried, via an application in the Randburg Magistrate's Court, to have the magistrate in the matter, Ndivhuwo Sethusha, recused because she is allegedly the aunt of Zuma’s son Edward.

The defence advocate, Zirk Pansegrouw, had said that Sethusha was married to Shongwe.

He explained that Shongwe's sister, Minah Shongwe, was Edward Zuma's mother, making Sethusha the aunt of Edward Zuma, he explained.

Sethusha had said: "My husband is not a relative of the president."

She denied the application, saying her relationship with Zuma was distant.

Read more on:    jsc  |  jacob zuma  |  judiciary

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