Publication: Business Day Issued: Date: 2006-11-15 Reporter: Steven Friedman Reporter:

Squires’ 17-month Silence and Other Generally Odd Anomalies

 

Publication 

Business Day
Date 2006-11-15

Reporter

 Steven Friedman

Web Link

www.businessday.co.za

 

Who will protect our judiciary from the judges?

The storm since Judge Hilary Squires wrote to The Weekender pointing out that words had wrongly been placed in his mouth since June last year, has highlighted two threats to judges’ independence, one from without, the other from within.

The external threat comes from those who believe that the test of the judiciary’s worth is whether it helps Jacob Zuma. Squires, denounced last year by Zuma supporters, is now a hero of the Congress of South African Trade Unions, in the same way as Judge van der Merwe was hailed when he acquitted Zuma ­ despite a ruling whose views on women belong to our unlamented past.

Squires’ letter has also inflamed some of the worst passions of the presidential succession contest and has landed the judiciary in a new legitimacy crisis. Since the weekend, we have been asked to believe that the letter shows that Zuma’s fate has been unfairly shaped by a media and Court of Appeals which misread the Squires judgment, and that any further attempt to prosecute him is now untenable.

Little of this holds water.

If no one had misreported Squires’ judgment, Zuma would still have been prosecuted and dismissed from the deputy presidency. Squires found that Shaik tried to corrupt Zuma by giving him money in the hope of favours. While he could not say whether Zuma was corrupted (because he was not on trial), this presumably convinced the National Prosecution Authority and President Thabo Mbeki to act. Whether or not they were on firm ground, there is no evidence that either acted because they were misinformed about Squires’ judgment.

The claim that the Court of Appeals was influenced by newspaper editorials rather than Squires’ judgment is also unfounded.

The appeal judgment does not even use the phrase “generally corrupt relationship” in its main judgment ­ it pops up in a subsidiary ruling on Shaik’s assets. In its finding on his guilt or innocence it expresses its view that Squires’ ruling showed that there was “an overriding corrupt relationship” or “sustained corrupt relationship” between Zuma and Shaik. But it is interpreting Squires, not quoting him.

Their interpretation of Squires’ ruling is obviously open to debate and they were clearly guilty of sloppiness in the subsidiary judgment. But they did not uphold Shaik’s conviction because they believed Squires had said something he had not. Calls for their resignation say more about the effect on the courts of the succession contest than about their ruling.

But, if succession politics has threatened the judiciary, so has the behaviour of judges.

Despite the halo in which he has been enshrined, Squires has much to explain. That his judgment was so often misreported is an embarrassment for the media. But why did he remain silent for 17 months?

Squires says he did not want to point out the error when Shaik’s appeal was pending but he also says he raised it with the editor of this newspaper earlier this year, before the appeal was settled. The editor cannot recall this ­ making it another issue on which we need answers ­ but why did a judge who says he did not want to ask for a correction until the appeal was over also say he asked for one before it was? It is also hard to understand why the fact that an appeal was pending should preclude a judge from correcting an error. Much damage could have been avoided if Squires had pointed it out when it first appeared. By failing to do so, he has arguably let down the country and placed the judiciary in peril.

He may have been motivated by an attitude common in the judiciary ­ and as dangerous to its future as the view that judges must favour particular politicians: the insistence that judges remain above and beyond society for fear of being tainted.

His failure to write a simple letter correcting a dangerous misinterpretation created dangers for society and judges themselves. In the light of this, the largely uncritical response to Squires is hard to understand.

Second, while the appeal judges have been unfairly accused on one count, they do have a case to answer ­ in addition to their carelessness in their subsidiary ruling. When considering Shaik’s sentence, they quote Squires saying that he sought to “intensify corrupt activity and at the highest level in the confident anticipation that Jacob Zuma may one day be president”. But a search of Squires’ ruling failed to find this phrase. So the appeal judges may again have placed words in his mouth.

The campaign against them is disingenuous and exaggerated but it is right to insist that they account for what appears to be errors in ­ if not of ­ judgment. We need an independent judiciary, not one which does the bidding of powerful constituencies, but we will have one only if judges recognise that accounting to society is key to winning public trust.

Friedman is a research associate at the Institute for Democracy in SA and is visiting professor of politics at Rhodes University.

With acknowledgements to Steven Friedman and Business Day.