THE BLOG
28/05/2018 12:16 SAST | Updated 28/05/2018 12:16 SAST

SA Needs Independent, Competent Judiciary That Avoids Private-Sector Abuse

'The leadership of the judiciary must be able to go through the eye of the needle to mitigate against abuse.'

Siphiwe Sibeko/ Reuters

Marc Davies/ HuffPost SA

Our legal system has been hard at work — many are saying that the system is the last bulwark between us and utter decline, and the obliteration of the rule of law. A lot of attention has focused on the legal system, as it has its hands full intervening where the executive had failed to do its work. The interventions of the judiciary at places like Eskom, SABC and Sassa also revealed the utter abuse of the system, with millions spent on legal fees.

There is a comforting trend that the courts are no longer willing to tolerate the frivolous abuse of the system using public funds. We all now know, for example, that former minister of cmmunications Faith Muthambi abused the system as well as Jacob Zuma. The pesidency has thankfully now distanced itself from the madness, leaving Zuma with a personal bill to deal with it. This is welcome, and will send a clear message about the abuse of the legal system.

A matter that has received scant attention, though, is the way the private sector and foreigners have used the legal system — and virtually hijacked it. In an article written by columnist Lebo Keswa, I was startled to learn about a dispute between a South African group of owners and Turkish nationals. It reminded me of a case a few years ago, in which the company was hijacked using the courts.

The story also reminds us of how daily the officers of the court collude with big financial institutions in cases related to foreclosures. Lawyers get judgments that drive prices down in the biggest scam ever. Back to the Turkish story.

It seems South Africa, like many other countries, has not managed to escape the Turkish political turmoil — which resulted in a failed coup a couple of years ago. The business sector has found itself embroiled in this turmoil — but what is disturbing is the fact that it plays itself out in the legal and judicial systems as well. Lebo Keswa quotes one of the protagonists in this turmoil, Abubekir Salim, who explains how the legal system was abused in his country.

In this story, he says "After this story was reported in the South African media, their counterparts in Turkey also picked up the story — but immediately drew a coincidental parallel tactic that was deployed against prominent business people in that country."

The situation of judicial capture will strike a deadly blow to the rule of law that so many died to see come to fruition.

"This tactic basically involved the manufacturing and concoction of false evidence that includes fraud and other illegal acts against these businesspeople. The results of all these acts are that such businesspeople are summarily arrested, and by the time the truth is uncovered, their reputations are badly damaged in the eyes of the public. We believe in this case that we are the victims of a similar tactic."

Salim was referring to an incident that took place at the end of April 2018, in which he and his business partner, Selim Kaymak, woke up one morning to read in the media that apparently a business rival of theirs had secured a court order against them from the High Court in Oretoria that effectively removed them as directors of their own company, and froze all their business as well as personal banking accounts. A criminal case was also opened against them.

Salim contends that what has effectively happened, is that evidence of fraud and embezzlement of funds was manufactured and presented to the South African legal authorities in order to defame and slander their reputation. In his responding media statement, he indicates that this process was done secretly, and that the whole process took them by surprise, as it was intended to.

Even though he says that his legal team managed to have this order immediately set aside, restoring their directorship and getting their accounts unfrozen, the implication is that they will still have to travel a journey to clear their names and to recoup their tainted reputations in the public eye.

Salim is coincidentally the head of MUSIAD SA, which is a Turkish association whose aim is to promote business relations between Turkey/SA governments — and he believes this may be the reason why he has been targeted for this smear campaign.

This story tells us that the judiciary itself may well be captured and must not be left out of scrutiny — especially where the private sector is concerned. This case is inexplicable — how could all that is said to have happened, happen under the watch of a judiciary that is independent and competent?

It is exactly because the judiciary has proved itself to be independent — and the last defence of our rule of law — that cases like these must be highlighted and exposed.

There are just too many stories of judges being conflicted — this should be an area of renewed focus.

The leadership of the judiciary must be able to go through the eye of the needle to mitigate against abuse. One of the biggest debates to disappear off the radar is the issue of the declaration of interests by judges.

There are just too many stories of judges being conflicted — this should be an area of renewed focus. Justice must never be bought by those with big pockets, as seems to have been the case in the example above.

The situation of judicial capture will strike a deadly blow to the rule of law that so many died to see come to fruition. One hopes that the judicial services commission will pay special attention to this pending crisis of legitimacy in some in our courts, and put in place very stringent checks and balances to ensure untainted integrity.

Zimkhitha Mathunjwa/ HuffPost SA