History has some lessons for today’s controversies

Two judges of the Cape High Court recently warned that the disrespectful ignoring of court orders by state institutions could be construed as complete disrespect for jurisprudence associated with an “unfortunate country just to the north of us". But, while the image of the judiciary has been taking a pounding in recent weeks, in some instances it also echoes historical events of some three decades ago.

In the latest incident, judges W. Thring and N. Yekiso were pronouncing on the fact that the Master of the Supreme Court of Cape Town, me. Zureena Agulhas, ignored an earlier court order in a civil matter relating to the liquidation of a company.

In an apparent reference to Zimbabwe, the two judges warned that her cavalier attitude is a move in the direction of this South African neighbour, where the disrespectful ignoring by state institutions of court orders that are not to their liking, is the order of the day.

In recent times, Cape Judge President John Hlophe was involved in a spat with two judges of the Constitutional Court, who accused him of trying to influence him. In a spin-off of that case, Hhlope and retired Constitutional Court Judge Johann Kriegler became involved in a very public war of words.

In an unusual move, last week Kriegler was given time in the Cape High Court to rebut what he called "injurious falsehoods" by Cape Judge President, John Hlophe.

The court, hearing an application by Western Cape Premier Helen Zille, asking it to invalidate last year's Judicial Service Commission finding that Judge Hlophe was not guilty of gross misconduct, afforded Kriegler the opportunity to respond to an aspect of Hlophe’s answering papers.

In these papers, Hlope said that when the allegations of improper conduct came to light, Kriegler and Zille's Democratic Alliance had called for his immediate suspension or resignation. Kriegler's attempts to oust him had been part of a "very intense political campaign".

The two presiding judges allowed Kriegler's senior counsel, Henri Viljoen, to rebut Judge Hlophe's claims.

He said Judge Hlophe had "put forward facts that are untrue" and that Kriegler, who heads the organisation Freedom Under Law in South Africa, had never been part of a campaign involving other organisations. All that Kriegler had sought, was for the matter to be investigated properly, Viljoen said.

There was an outcry recently when Mokotedi Mpshe who, as acting head of the National Prosecuting Authority, in 2007 on controversial grounds withdrew corruption charges against then still aspiring president Jacob Zuma, was appointed as acting judge. It was interpreted widely as being in reward for political services rendered.

The role of Minister of Justice Jeff Radebe as apparent canvasser for Mpshe, and the fact that he was still a civil servant at the time, is also highly controversial.

It is particularly this last instance that is echoed in history.

The appointment of then Cape attorney-general (the equivalent of today’s public prosecutor) Braam Lategan in 1979 was also extremely controversial – among others, because he was a civil servant.

More importantly, however, was his role as the man who led the evidence before the Erasmus commission of enquiry into the so-called information scandal (also known as "Muldergate") which exposed the illegal and unethical use of state funds for covert propaganda campaigns. It included the establishment of front companies and newspapers.

The commission’s work not only effectively eliminated the late PW Botha’s main opponent in the race for leadership of the National Party and thus to becoming prime minister, but eventually also led to the forced retirement of Botha’s predecessor JB Vorster as ceremonial state president.

His appointment to the bench was widely interpreted at the time as reward for political services rendered. There were even talks of boycotts and widely expressed fears for the independence of the judiciary.

Perhaps the more important lesson from that history is that fears about the objectivity of a career prosecutor after moving onto the bench without reason, proved to be well grounded by later controversial judgments by Lategan. He became known generally as a "hanging judge".

In one instance, the Appeals Court overturned a death sentence imposed by Lategan for “robbery with aggravating circumstances". Appeals Court  AS Botha described the sentence as “so shockingly inappropriate, that it left me flabbergasted.”