Analysis

Is The African Commission on Human & People’s Rights Investigating Allegations of Corruption in SA Courts?

By Pinky Khoabane

ON 13 September 2019, Chief Justice Mogoeng Mogoeng called a press conference to address the allegations of corruption in the judiciary. He was scathing of those who made allegations of corruption hiding behind anonymous social media accounts: “Allegations have been made, not only that some judges have received money from the CR17 campaign or Bidvest but also that the judiciary is corrupt”. He spoke of a tweet which alleged that he had received names of judges in the Free State who were captured by ANC Secretary General Ace Magashule and he (Judge Mogoeng) did nothing about it. He emphatically denied the claims: “We have never received this information”. The Chief Justice said, at the time, he had received assurances from provincial leaders of implicated judges that there was no evidence of wrongdoing on behalf of their colleagues. “In the absence of concrete proof to the contrary, I believe my colleagues”. The CJ urged anybody with evidence that any judge is “corrupt or has been captured” to stop hiding behind “fictional identities or names in media platforms”. He said the accusers must be open about their identity, they must supply contact details and say which judge has been captured or corrupted and by whom. 

At the end of that press conference a businessman who claimed to have a dossier with the evidence, presented it to Judge Mogoeng. We published it here and several people who viewed it found it lacking of the concrete evidence required to prove corruption. https://wp.me/p7OMJc-2OX

Many others – their identities and contacts are known – have claimed to have sent allegations to the office of the chief justice and say they are ignored. The spokesperson of the South African Judiciary, Nathi Mncube, said he was aware of unsubstantiated allegations against judges in the Free State, KZN and Gauteng, and those made by lawyer Raymond Challom and Justin Lewis. 

Challom has been scathing of the courts. Take a listen to Challom in a video recording in an address to the Constitutional Court https://wp.me/p7OMJc-2Kf.

It was Challom’s scheduled interview with then eNCA’s anchor Aldrin Sampear that was cancelled “for technical reasons” and was rescheduled for the following Monday but never took place. Sampear resigned with immediate effect. 

Lewis is the founder of CASISA, a human rights watchdog group whose objective is to stop the corruption of the courts and to protect the independence of the judiciary. Lewis’s interest in allegations of court capture as he puts it, dates back sixteen years when he was involved in a property development project which eventually saw thirty-six clients liquidated. He was then requested by Lloyds of London to investigate potential corruption between banks and the courts in the contrived liquidation of these companies. https://wp.me/p7OMJc-YQ

The CJ didn’t mention a complaint lodged with the African Commission on Human & People’s Rights (ACHPR) into allegations of corruption in the South African courts. In a discussion with Mncube on 12 and 13 November 2019, he promised to  “have cite of the African Commission decision. Once I have all the information I will discuss with my principal and revert. Let’s talk again next week Thursday”. And so from this correspondence it’s not clear if the CJ is aware of this complaint with the ACHPR or not. Mncube has never returned to me on the matter. 

The complaint was lodged by Liberty Fighters Network (LFN) which seeks to change the laws guiding illegal evictions. The group has made several challenges in courts including sending a letter to Judge President Mlambo in October last year complaining about the “suspicious conduct” of judges in matters involving a particular law firm, “Vermaak Marshall Wellbslovad Incorporated (VMW), in matters pertaining to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, f988 (Act No. 19 of 1998) ’PIE Act’. They argue that WMW is abusing “court processes to gain advantage above self-represented litigants to favour its clients” and is being enabled by judges. They say “all of those being evicted are black previously disadvantaged people, are seldom represented by legal practitioners or poorly represented or otherwise simply not appearing for the one or other reason”. In their letter to Mlambo they name the judges and the reasons they believe the judges’ conduct should be investigated. Here’s the letter to Mlambo Letter to JP Mlambo

Reyno de Beer who represents LFN confirmed they had received a response from Mlambo but refrained from disclosing the details. 

In the matter before the ACHPR, the complainants are LFN, Reyno Dawid de Beer and Halbo de Beer. The respondent is the Republic of South Africa. Having exhausted all avenues, LFN says, they approached ACHPR because South Africa is a State Party to the African Charter on Human and People’s Rights (the African Charter), having ratified same on 9 July 1996. 

The ACHPR having received the complaint from LFN discussed it during the 25th extra-ordinary session from 19 February to 5 March 2019 and decided to pursue investigating the complaint. It then requested further evidence from the complainants, which Reyno confirmed was sent. The Commission has not responded to enquiries for an update from UnCensored which were sent in November 2019. 

The LNS alleges the following, among others: 

  • that there are many suspected fraudulent civil court processes followed in SA which violate the rights of people in various ways ranging from illegal evictions from their homes to repossession of their immovable properties after banks have illegally obtained judgements when they are not the owners of those bonds anymore through securitization which is a practice among many banks in SA. 

The African Commission on Human and Peoples’ Rights’ (ACHPR) noted the following complaints from LNS:

 

  • The Complainants submit that during 2016, they opened a criminal case in a matter involving the second and third Complainants, relating  to a suspected fraudulent court process to evict people from a commercial property in the City of Tshwane. The Complainants allege that  the criminal case they opened implicates two High Court Judges in Petoria, but the commencement of criminal investigation of their by case by the Hawks was blocked by the National Prosecuting Authority (NPA), specifically by the then National Director of Public Prosecutions, Shaun Abrams.
  • They allege they lodged a formal complaint with the office of the Chief Justice Mogoeng Mogoeng and they allege his office had no interest in addressing their matter which prompted them to report the Chief Justice to the SA Human Rights Commission (SAHRC) 
  • The Complainants further submit that the South African Human Rights Commission (SAHRC) acknowledged in writing that there was clearly a major problem with the way in which the administration of the Courts in SA were handled and referred the matter to the Directorate of Court Administration within the Department of Justice and Constitutional Development to attend to their matter but nothing was done. 
  • The Complainants submit that after constant internal appealing processes based on the fact that the investigation of their criminal case was blocked by the National Prosecution Authority (NPA), they eventually approached the High Court (Gauteng Division, Pretoria) on an urgent application during February 2017 to compel the National Prosecution Authority to unblock investigations in their criminal case.
  • The Complainants further submit that the President of the Respondent State and the Minister of Justice and Correctional Services decided not to oppose their application.
  • The Complainants  submit  that at the hearing in the High Court, the legal representatives of   the NPA promised the Presiding Judge that Abrahams, was going to make his decision relating to their internal appeal by February 2017 and as a result the Judge ruled that their matter was not urgent and consequently it was struck from the roll with costs.
  •  The Complainants submit that by the time they submitted their complaint to the ACHPR, the National Prosecution Authority (NPA) had not fulfilled its promise to the court to make a decision on their criminal case which implicated the two High Court judges. 

LNS makes a litany of accusations against the the South African judiciary including that the courts are enablers of fraudulent evictions and question the independence of the Constitutional Court. The full complaint to the ACHPR is here ACHRP on SA judicial corruption

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