Gordhan, Yacoob and that legal advice

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 City Press editor in chief, Mondli Makhanya. Picture: Tebogo Letsie
City Press editor in chief, Mondli Makhanya. Picture: Tebogo Letsie

One of the most bizarre tales in South African football is the story of the life and death of Dieter Bock.

Bock – for all those heathens who do not worship football – was the reclusive German multimillionaire who held a majority stake in Moroka Swallows.

So mysterious was Bock (who was worth $500 million – nearly R7 billion) that the only person in the Swallows who ever spoke to him, saw him and shook his hand was chief executive Leon Prins.

Nobody – not the other shareholders, not the executives, not the staff, not players – had access to the man. Some even resorted to Google to verify that he did indeed exist and was not an invention of the wily Prins.

His death was as strange as the life he lived. The then 71-year-old was dining in his room at a Hamburg hotel he co-owned when he choked on a piece of steak. Mysteriously it took almost two weeks for his family to announce his death, just in time for the funeral.

I also nearly choked on a piece of meat when I read the comments of retired Constitutional Court judge Zac Yacoob about what seemed like an injudicious act he committed many years ago.

Yacoob, one of the nation’s most respected legal minds, has continued to be a booming voice of reason since retiring in 2013. In retirement he has put back on the street-activist tackies that he wore in his youth and during his life as a lawyer and anti-apartheid leader. He is one of those voices of reason and conscience that we need to keep us from straying too far from the good path.

His remarks at a fundraising dinner for legal support for Finance Minister Pravin Gordhan and other former South African Revenue Services executives last Friday were in keeping with this role of an elder. With the oomph of an activist Yacoob threw brickbats at President Jacob Zuma, whom he characterised as a dishonest man who did not have South Africa’s interest at heart. No sane person would argue with that.

But then he proudly owned up to the unknown fact that he had advised Gordhan – who was then the head of Sars – at the inception of the tax agency’s investigative unit, that its setting up definitely fell within the bounds of the law.

“I want to say I analysed it very carefully and discussed it with many people. The minister and I consulted with each other on these units and I advised strongly that they were necessary and not wrong,” he was reported to have said.

Now this lowly newspaperman is no lawyer – and even if he was one all his clients would have probably received life sentences, so lousy would he have been at his job. But there was something unsettling in hearing Yacoob state that while he was a sitting justice in South Africa’s apex court he was dishing out legal advice to public servants.

My untrained legal mind asked the questions: In what capacity was this advice given? Was it personal advice to an old comrade or was it in his official capacity as a judge of the highest court? Did the rest of the court know that this advice was being given? What if a political party, an organ of civil society or any aggrieved party had taken the setting up of the unit on legal review? What if someone had challenged the legality of the revenue office running what was effectively an intelligence arm? What if the matter had wound its way right up to the Constitutional Court? Would Yacoob, as a man of integrity, have declared his conflict of interest to the Chief Justice and recused himself from the bench of justices hearing the matter? Would the folly of giving advice as if one were a practising attorney or advocate dawned on him?

This apparent conflict may not have seemed a big deal at the time because Sars was the public service’s overachiever. Its motive for the establishment of the unit was also well-intentioned and in the pursuance of the common good. But it has become clear there wasn’t unanimity on this process and that some within the state were uncomfortable with it.

The fact that some of the discomfort stemmed from self-interest and turf jealousy within the intelligence sector as well as fear on the part of some state players with tax-dodging friends is immaterial. It was a contentious matter that was open to legal contestation. So it is baffling that a senior judge who should know better would put himself in that position.

The other worrying aspect of Yacoob’s revelation is that his actions could possibly have flown in the face of the separation of powers. The idea of judges doling out private advice to ministers, bureaucrats, state entities, departments sits very uncomfortably with the principle of judicial independence. There are those who will retort that it “happens all the time”, that people seek advice from sitting judges they know before making big decisions but that certainly does not make it right.

Surely advice by judges on official matters to a major public entity should be done in a transparent matter. The testing of the legality and constitutionality of legislation, regulations and state decisions is something that is provided for in the law and South Africa’s constitutional framework.

If this dishing out of private advice “happens all the time” then judges have no leg to stand on when the state encroaches on their independence. It means they are complicit in undermining their own independence by basically being private lawyers.

There was hardly a whimper of dissent when Yacoob made his remarks. There were only nods of approval as yet another piece of proof was provided that Gordhan was right all along.

And therein lies a bigger problem. Because the cause of resisting the perpetrators of state capture is so great and noble, we are willing to overlook the missteps of those who are on the right side of the divide. This cannot be correct, as a pipe-smoking former president would say.

The errors of those on the correct side should cause us to choke as much as the wrongful acts of those who are on the bad side.

We live in a world where facts and fiction get blurred
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