Thursday, May 24, 2007

Did Tokyo give shares to Judge President?

Should a Judge President take BEE shares from a company run by a businessman with political ambitions? I am asking this question because allegations appeared in the weekend press that Tokyo Sexwale had given more than R6 million Rand worth of Batho Bonke shares to the Judge President of KwaZulu-Natal, Vuka Tshabalala.

Judge Tshabalala did not deny that he ahd received shares when approached by a journalist but, instead, declined to comment.

Batho Bonke shares – valued at R69 each – was also allegedly given to, among others, director-general of the National Intelligence Agency, Manala Manzini (41803 shares), former Mpumalanga premier Mathews Phosa (217500), former Northern Cape premier Manne Dipico (200000) and SABC political editor Sophie Mokoena (45800). This morning Xolela Mangcu, someone I greatly admire, defended the fact that he too received Batho Bonke shares from Sexwale.

I am sure there is nothing illegal about the awarding of the shares to all these influential people. Sexwale’s spokesperson says questioning the share issue “cast judgment on the consortium and every single one of Batho Bonke's shareholders and its more than one-million beneficiaries, who form part of one of the most significant broad-based black empowerment initiatives in our history."

But the case of Judge President Vuka Tshabalala must be judged differently. If the allegations are true, it seems to me that the JP may have acted in an extremely unwise and even unethical manner. A judge – especially a Judge President – must be beyond reproach. This means he or she cannot act in any way that would cast doubt on his or her independence and impartiality.

By taking shares from Mr Sexwale – a larger than life figure who has thrown his hat into the ring for the Presidency of the ANC – he may inadvertently have created the suspicion that he is beholden to Sexwale and that his decisions in politically charged cases may be influenced by non-judicial considerations.

This will create an apprehension of bias on his part in the minds of many – and not only the most suspicious among us. Justice Tshabalala is the person who decides which judge hears a specific case. He decided who would hear Shaik’s case and if Jacob Zuma is charged, he will also decide which judge would hear Zuma’s case. But Mr Zuma and Mr Sexwale could be viewed as competitors for the top job in the country.

Given the fact that conspiracy talk is thick in the air, many people would form the impression that the Judge President may not be independent and impartial when it comes to Mr Zuma. This would be a highly unfortunate turn of events and would damage the credibility of both the JP and the judiciary.

So, if Judge President Tshabalala did take the shares, he was at best deeply unwise and at worst unethical.

If he did receive shares the best thing to do would be to give away the shares. Maybe he can give the shares to the Widows and Orphans fund that was ripped off by Fidentia. That way he would restore his credibility and, more importantly, prevent a further erosion of public trust in the judiciary.

But maybe this story is all part of the rumour mill generated by opponents of Tokyo Sexwale. Unless Judge Tshabalala denies it though, it is difficult to dismiss the claims.


UPDATE:

Sadly in this morning's Mail & Guardian Judge President Vuka Tshabalala admits to taking R6.9 million worth in shares from Tokyo Sexwale. He says he does not see anything wrong with it.
Well he [Sexwale] decided to choose certain people, and he chose me.
The question is: Why did Sexwale choose this particular Judge President - the only one who would have any influence on the legal travails of Jacob Zuma? It might not have been illegal, but it sure was unethical. The fact that Judge Tshabalala cannot or does not want to see this is very sad. I say again: Let him give the bloody shares to the widows and orphans fund ripped off by Fidentia. He does not need the money.

7 comments:

Anonymous said...

Given this insight, I'll not be suprized if Judge Tshabalala takes the Zuma-case himself, nevermind appoint a judge that is partisan to the cause of the ANC in Kwa-Natal
'Lay-litigant'

Toby Hanks said...

The goings-on in the judiciary is increasingly worrying. At least four senior judges find themselves in the midst of scandalous situations. What is going on there, is what I'd like to know. Is it simply a case of "we never heard about it before but it was there" or is it a case of "they've all lost the plot and caved to pressure/corruption"?

Anonymous said...

Well prof, thanks for keeping on to feed us with contentious current legal and perhaps accademic issues. Maybe the vote of no confidence in our courts by the larger public is perhaps not unfounded, as many of us would shout cause they are not educated.Prof you know well that this particular issue ( are judges only guided by the law during adjudication)has sparked huge accademic debate which is documented. Now,i suppose the current issue legitimises such concern and debate.

Murray said...

I'd also be concerned by the shares given to Sophie Mokoena, the SABC political editor. Is Tokyo Sexwale trying to ensure favourable coverage for himself in public broadcasts? Xolela Mangcu is also a fairly influential commentator; an endorsement by him would presumably count for something. I don't think these are simply random bequests.

protocolinpractice said...

I'm really sad about this, I live in Durban and Judge Tshabalala is highly thought of. He really is one of the good guys. I hope he does the right thing.

Africannabis said...

& this... is what will stand in judgement of me and a plant?

Humpf with a capital H !!!

Rob said...

Pierre, won't you tell us what the difference is in principle between a judge accepting BEE shares and a judge accepting a financial retainer from a company. As law or practice now stands is either judge acting unlawfully? Will the proposed new legislation allow judges to own shares or to receive income from retainers?