Many brakes on our wheels of justice

ARISTOTLE was supposedly staring intently at the tea leaves at the bottom of his mentor and teacher Plato's cup one miserable Greek autumn day, when he came to the muttering conclusion, “At his best, man is the noblest of all animals; separated from law and justice he/she/they is the worst”. By the way, Plato's real name was Aristocles; Plato was just his nickname.

If you look at South Africa's crime statistics, you must concede that Aristotle was right. We're not looking good. We are wiping each other out at a rate that makes most paramilitary wars look like petty bourgeois squabbles. And there is general consensus that gender-based violence afflicts South African women on a scale that defies the most brutal international norms.

Yet political analysts often conclude that South Africa's judiciary represents an established buffer between our constitution and the excesses of criminals and political elites. I risk Charl Adams accusing me of negativity again, and it is extremely important that analysts do not cherry-pick the worst case studies to support their arguments, but as far as our judiciary is concerned, the reality is much more nuanced than many political analysts would like to believe. The expression “justice delayed is justice denied" is a sobering cliché for many South Africans who sometimes have to wait an eternity for the judiciary to bring its constitutional responsibilities to a conclusion.

When bureaucrats or politicians delay the process of justice in an attempt to escape responsibility, we refer to it as a Stalingrad strategy. Every potentially opportunistic and legitimate legal option is used and abused to pervert jurisprudence, regardless of its chances of working or the cost to taxpayers.

When magistrates and judges delay their verdicts beyond the point where the collective national memory stays interested, we often revert to the cynical euphemism that the wheel of justice grinds slowly but unstoppably. Increasingly, however, there is the suspicion in the seams and folds of our memory that evasion of responsibility is also at work.

Research by Judges Matter points out that in 2020 the Constitutional Court took an average of 204.5 days to reach a verdict; in 2021 it was 207.4 days. It fared significantly worse in 2020 than in 2019, when it took an average of 151.6 days. In a 2019 case about independent schools and the right to remove children from school, it took the judges 398 days — 13 months — to reach a verdict. In a News24 report, Prof Pierre de Vos from the University of Cape Town points out that justices in the Constitutional Court have significantly more administrative help than other judges. The 11 justices each have three researchers at their disposal, and as a rule they hear far fewer cases than other judges.

It was Julius Malema who got me thinking again this week about the quality of the judiciary. In a video that has been widely distributed, Malema lashed out at an East London magistrate, Twanet Olivier, because, according to him, she had been making a point of being late for court hearings. This case against Malema has been in court since July 2018. I understand investigations can sometimes be complex, but five years for a case where the accused discharged a firearm in broad daylight and in front of international television cameras makes me wonder.

The strangest thing about the case is that the investigating officer has not yet been able to find the person who filmed the day's events. Malema's security personnel were in the crowd of thousands of people, but for some amazing reason the footage does not correspond with their experience of the events. They simply saw nothing. Even the firearm that can be seen in the footage was on that day in the parallel universe of Johannesburg and not in East London. The combination of desperate investigative work and slow justice brings about a morbid fixation for the rest of us.

Malema's rant from the dock, which has been viewed more than a million times on YouTube, should be extremely humiliating for Olivier, but nowhere near as humiliating as her grovelling apologies to the commander-in-chief of the EFF for her lateness. She even undertook with sycophantic humour to be on time from now on.

Another classic example of justice crawling along is that of Judge Jacqueline Henriques, who reserved judgment on July 3, 2020 in a case between Tiger Brands and Jocatus Transport, but delivered judgment only on 30 June 2023. It took the honourable judge three years to write the judgment. Her defence is that she and her office did not get the necessary administrative support to deliver the verdict within a reasonable time.

As bizarre as this might sound, she might have a point. Judges Matter surveyed judges in 2019 and concluded that 45% of them experience significant work stress, and 95% of the judges who took part in the survey indicated that they did not receive sufficient support from the system for their workload.

A criminal case in the Lenasia Magistrate's Court — of which I could not find any details that it was finally concluded — has been postponed more than 30 times over for more than seven years. In January 2016, 14 unemployed activists from an informal settlement in Lenasia, south of Johannesburg, were arrested during a protest for basic services that coincided with local government elections. The charge sheet contained allegations of public violence, arson and wilful damage to property. Reasons for the endemic delays include files disappearing, incomplete investigative work by the prosecution, a state witness not being available, a prosecutor who did not show up, even an absent magistrate.

Another well-known case is that of Gary Porritt and Sue Bennett, who were arrested in the early 2000s on charges of fraud and racketeering. This was at least five years before the seemingly endless trial of former president Jacob Zuma, which started in 2005 and is destined to continue into the afterlife. Porritt and Bennett's trial finally began in 2015 but is still far from over. Porrit is the 71-year-old former chief executive of the then JSE-listed financial services group Tigon and has been in prison since 2017. He has already appeared before 17 different judges in various applications and appeals. In March this year, Judge Brian Spilg summed up the case as “more than a decade of the Stalingrad defence".

The Judicial Conduct Tribunal has been investigating allegations of gross misconduct against Western Cape Judge President John Hlophe for more than a decade. Hlophe's story reads like a paperback detective novel.

In November 2000, Hlophe was appointed to the board of the Oasis Crescent Retirement Fund. He received a monthly consulting fee for his role but did not consider this a potential conflict of interest. Hlophe later claimed that Dullah Omar, as minister of justice, had given him permission to receive this fee from Oasis, which just happened to have also litigated in the Western Cape courts from time to time.

It seemed to have escaped Hlophe's notice that Omar retired a year before Oasis was founded. The Judicial Service Commission (JSC) was informed of this inconsistency but decided not to act. Instead, it pursued Justice Johann Kriegler for his claims that Hlophe did not belong on the bench. In 2006, the Judicial Conduct Tribunal decided to accept Hlophe's version of events because Omar had died in 2004 and could therefore neither refute nor confirm the claim. It still did not see the relationship between Hlophe and Oasis as a conflict of interest.

Some of this information entered the public domain after Oasis Group Holdings brought a defamation action against Judge Siraj Desai in November 2004. Hlophe gave permission for Oasis to sue Desai, also a Western Cape judge. He initially refused the application, but later agreed — after receiving an advisory fee of R25,000.

Marianne Thamm of Daily Maverick points out that by August 2004, Hlophe had already received a comfortable R292,500 in fees from Oasis. Also in 2004, Supreme Court of Appeal judge Louis Harms found that Hlophe had denied pharmaceutical companies their right to a fair trial by deliberately delaying their appeal application. Given these events, the allegations in 2008 that Hlophe tried to influence two Constitutional Court justices in a case against Zuma were quite trivial.

In April 2021, the Judicial Conduct Tribunal finally found that Hlophe was indeed guilty of the kind of gross misconduct that could lead to impeachment, and in December 2022 President Cyril Ramaphosa suspended him as a judge. In the motivation for his action against Hlophe, the president said: “The Judicial Conduct Tribunal established that Hlophe's behaviour seriously threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court and undermined public confidence in the judicial system."

Some will claim that I am guilty of gross generalisation if I attribute Ramaphosa's motivation for Hlophe's suspension to some other aspects of the legal system as well, but if the ineptitude of the National Prosecuting Authority and the Hawks' lack of enthusiasm are added to the algorithm, justice is anything but a given. I read this in the tea leaves of our crime statistics, and I doubt public opinion will disagree with me.

This past week I had the dubious privilege of walking through the judiciary's institutional architecture in Tshwane. The colonial carcass stands tall, despite broken windows, chandeliers hanging loose,  crooked, broken light bulbs, and a general atmosphere of neglect. But maybe God speaks just as well through a weathered word, I thought to myself as I tried to make sense of Church Square's informal economy below the “Palace of Justice" where the injustices of the Rivonia trial took place in 1963.

♦ VWB ♦

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