Publication: Business Day
Issued:
Date: 2006-11-15
Reporter:
Reporter:
The
error contained in the Supreme Court of Appeal’s (SCA’s) judgment in the civil
asset forfeiture case that arose from Schabir Shaik’s corruption and fraud
convictions could not have come at a worse time for the South African judiciary.
Judges all over the world are under constant scrutiny at the best of
times, but in the South African context a little over a decade after the end of
apartheid, there is mounting pressure for the racial makeup of the judiciary to
reflect that of the population, and for the courts to pass judgments that are
sensitive to the country’s fraught political history. While the complexion of
the lower courts has changed markedly over the past decade, many of the
country’s most experienced judges were appointed and served under the previous
regime.
It was only a matter of months ago that government reluctantly
backed off after a concerted effort to push through amendments to the laws
governing the courts that were ostensibly intended to improve the efficiency of
the system. Many, including eminent jurists, feared they would in fact impinge on the independence of the
judiciary.
Transformation of the courts remains high on the
national agenda, however, and the SCA’s error in repeating the media’s mistaken
attribution of the phrase “a generally corrupt relationship” to Judge Hilary
Squires, who presided over Shaik’s criminal conviction, will play into the hands
of those in the establishment who believe they might gain by
limiting one of the essential checks and balances on political
power.
Already the Congress of South African Trade Unions has
called for former deputy president Jacob Zuma to be reinstated, on the
assumption that he can no longer get a fair trial, and that his dismissal by
President Thabo Mbeki was at least indirectly influenced by incorrect media
reports that attributed the phrase to Squires. It does not seem to matter that a
review of the speech Mbeki made to Parliament at the time reveals that he did
not refer to the phrase in question.
Of even more concern is the South
African Communist Party’s suggestion that the error was politically motivated,
reinforcing its contention that there is a broad conspiracy to prevent Zuma from
becoming president. The public perception of the independence of the judiciary
has been repeatedly undermined during the ugly battle that is being waged over
who should succeed Mbeki as president of the African National Congress, and
therefore the country. The SCA’s error provides more ammunition for those who either do not understand, or do not care, how
serious the consequences would be for the nation were it to become generally
accepted that the judiciary is politically biased. Calls for
the SCA judges who presided over Shaik’s appeal to resign are therefore
mischievous and irresponsible.
There is, however, no avoiding the
conclusion that both the judiciary and the media who made the error in the first
place and compounded it through repetition, have a lot of soul-searching to do.
That does not imply that the SCA would have come to any decision other than to
uphold Squires’ judgments had the phrase “a generally corrupt relationship”
never entered the discourse. Other phrases that were used in the judgment were
just as damaging to Zuma, if not more so. Squires spoke of a “mutually
beneficial symbiosis that the evidence shows existed” and of payments to Zuma by
Shaik that “can only have generated a sense of obligation in the
recipient”.
Had the phrase “a generally corrupt relationship” been used
by the media without the quotation marks, attributed
indirectly to Squires as a summary of his central findings, there would have
been no cause for complaint. The power of punctuation apparently surpasses the might of both pen
and sword.
With acknowledgements to Business Day.