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Dear Judge Moseneke

STEFAANS BRUMMER: COMMENT - Nov 27 2009 13:43

11 comments | Post your comment

Working on our story questioning your investment choices has been a most painful experience for me.

Six short months ago I sat before you as the applicant in a constitutional matter about access to information.

You concurred in a judgment that delivered the justice I had sought. You called me up recently after I had sent you pointed questions in
anticipation of our exposé.

I felt like a Judas Iscariot when I told you that I respected you, but I meant it, and I still do.

You are my elder. You have left indelible footprints, at least since your decade on Robben Island, where you were sent so unjustly at the age of 15.

There, you led prisoners’ initiatives to prepare for the task ahead through study and debate, and you obtained your matric and two degrees.

You left your mark in the 1980s and early 1990s as a PAC leader, when apartheid’s securocrats deemed you influential enough to plan your murder, and when you pioneered the transformation of the Bar through your professional leadership and personal refusal to be held back by discrimination.

And then you helped shape the bedrock of our democracy when you served on the team drafting the interim constitution of 1993; a task to which you returned as you and your colleagues on the Hill built our final Constitution into a living monument to South Africans’ yearning for dignity, equality and justice.

And yet, I have participated in an article that questioned whether “the demand for judges to be independent” had been compromised by your investment choices. You probably noticed our somewhat convoluted choice of words.

CONTINUES BELOW

We did not accuse you of allowing outside interests to impact on judgments you handed down, for there is much evidence that you do and say what you believe to be right regardless of the consequences.

Take, for example, your comments to historian Padraig O’Malley in December 1996, when you agreed the ANC lacked an “internal sense of self-identity” and added: “Very little beyond party discipline, whatever that means, keeps [the ANC] together. Step out of line [and] you get thrown out of a moving train …”

Lesser individuals would have kept their counsel. You spoke your mind, even though by then you, too, were hitched to the moving train as chair of Telkom and director of empowerment pioneer New Africa Investments Limited (Nail).

But that is not the point we were trying to make, your honour. You will agree that a conflict of interest is best characterised as an objective condition to be avoided and not a circumstance that becomes problematic only should one succumb to it.

You will also agree that judges are under a heightened obligation to be, and to appear, ethical in all they do.

This is because, as the Bangalore Principles of Judicial Conduct puts it, “public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society”.

A judge, the principles say, “must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly”.

I was surprised last year to read in a specialist publication that “Encha, a company controlled by the Moseneke family”, had acquired oil interests in the Democratic Republic of Congo (DRC).

This kind of frontier capitalism, in my experience, habitually fed off diplomatic deal-making and state support and entailed a heightened risk of ethical compromise.

And so, I dismissed the possibility that you would be involved in the “Moseneke family” company.

The idea, of course, that a judge might profit directly from commercial opportunities in the sway of state actors is problematic.

A case in point: when your reported post- Polokwane comment, “It’s not what the ANC wants or what the delegates want; it is about what is good for our people,” was misinterpreted by the victors of Polokwane, it may have been because of their perception that you were among the beneficiaries of the Mbeki state’s patronage.

Rightly or wrongly, they appear not to have accepted your independence. The ensuing fracas did the judiciary no service.

Later, when I heard that another company was claiming it had been robbed of the DRC oil rights that Encha had landed, I wondered about this “Moseneke family” company once more, but again thought it unlikely you were involved -- surely you would not have exposed yourself to such controversy?

And then, quite recently, specific allegations came to us about your “co-ownership” of Encha. We did not take it at face value, but we did have a duty to inquire.

We obtained the necessary public records and there it was: Swanvest 344, the nondescript shelf company that owns 45% of the Encha Group (alongside a similar stake held by your brother Tiego’s holding company, Timtex) was held, in turn, by your family trust (40%) and your children.

Encha, in other words, was a family business in the truest sense of the word, with shareholder control balanced between Tiego on the one hand and you en famille on the other.

In your defence you have emphasised that the shares are held through your family trust and that the law and judicial ethics do not prevent you acting as a trustee of such or it holding “any class of assets”.

With respect, I fail to see how your trust’s investment is different to an investment had you made it directly, in your own name.

You are the sole trustee of the trust, the fruits of which you may enjoy pending ultimate capital accrual to your children.

You have full control over the trust and its interests are aligned with your own.The trust does not hold only the home-and-hearth kind of assets often associated with a family trust.

As you were elevated to the Constitutional Court in 2002, the trust acquired a stake in New Diamond Corporation, another company embroiled in much controversy.

And as you were appointed deputy judge president in 2005, Encha Properties, then half-owned by your trust and led by your son, put the finishing touches to negotiations with Investec, the department of public works and a seller to acquire a R330-million portfolio of properties that housed, and still houses, the department of justice and police headquarters.

Encha Group’s investments are far-reaching. This reach and Encha’s investment choices has exposed it to controversy and, we have shown, to a man wanted on charges that he had helped mastermind one of the greatest currency frauds ever.

Your choice to put your trust’s money into Encha, and to keep it there, has exposed you and the judiciary to all of this too, regardless of whether you personally participated in decisions.

We have been roundly criticised for our decision to publish and to accuse you of bad judgment. But once the facts are reasonably established we have to speak our minds, your honour, regardless of the consequences.

Of us, as journalists, democracy and the Constitution demand no less.

Respectfully yours,
Stefaans Brümmer

TOPICS IN THIS ARTICLE

People

Dikgang Moseneke

Comments

What a mea culpa! Stefaans, are you implying that there are certain people the newspapers feel bad about exposing?
Why is Moseneke worthy of this mea culpa and not Shabir Shaik, Tony Yengeni or many others you have brought down?
I remember the intro of that expose. I could tell that you were mournful about writing badly about Moseneke.
Now we know why: because you think you owe him a favour after he ruled in your favour in that PAIA case.
It would seem there are certain "scumbags" our media would pursue with gusto, such as Judge Hlophe, Leonard Chuene and many others, while others remain untouchable. I was shocked to read in the Citizen a comment warning the Sunday Times about its expose about the former Communications D-G who has joined Cope. The Citizen warned the Sunday Times about serving the ANC agenda by exposing people at odds with the organisation. That told me in no uncertain terms that the media deems corruption only in so far as it involves the ANC people. Hence the Corruption scorecard in today's M&G is only ciorruption in the civil service, nothing about the Ponzi scheme and thousands others in the private sector.

Vusi Nzaphs on November 27, 2009, 3:15 pm

Remember Thabo Mbeki and Robert Mugabe in their mission in DRC,we all knew it was not for peace keeping but self enrichment.

There is a trail that Moseneke,Mbeki,Ngcuka are involved in the DRC in either oil rigs or the rich diamond mines.

Stefaan,there is much more in this story,you just need to dig deeper and you'll be surprised who else is involved and you'll also discover the link between Mbeki and Moseneke.Which is of course why Moseneke hates JZ so much, because he disturbed the business line that feeds his(Moseneke)business interest as Mbeki was a partner.

Facts and stuff like that on November 28, 2009, 9:40 am

Can we again be informed what of the Judge was wrong conduct? Being a family member? So all those judges who fill their cars at Shell Service Stations are guilty of the deeds of Shell in Nigeria?

Job Job on November 29, 2009, 9:52 am

what did the judge do wrong? Being a family member or what? Should all judges not be guilty by association with Shell if they fuel the cars at Shell?

Job Job on November 29, 2009, 11:55 am

Well, given that the family is engage in a business, supposedly the judge might also be involve. However, this is just circumstantial case. Yes, it is questionable as it might carry with it some substantial evidence if true.

Kranfy Mabotja on November 29, 2009, 6:55 pm

Why is Moseneke do an honorable thing: Quit judiciary and focus on his business empire? I agree with you Vusi, Stefaans should not feel guilty for exposing corrupt elements in our society whether they are associated with DA, former president, private sector, judiciary, cope or the ruling party.

Lucky Dladla on November 30, 2009, 10:45 am

I admire you Stefaans Brummer. We desperately need people of your courage. I admired you, too, Dikgang Moeseneke, too. I now wait to see if you are deserving of continued admiration. I sure hope so. There are so few top echelon members of the ruling elite we can still admire and trust now.

pete ess on November 30, 2009, 12:47 pm

How much didi you get paid to get this expose out. I dont trust the media especially those with a hidden agenda

Kubo Maqabane on November 30, 2009, 2:11 pm

Section7(1)-(9) and Section 24m of the Income Tax Act of 1958 was formulated to deal with dodgy business deals like the one the Judge Moseneke seems to be hiding behind the family trust.
SARS need to investigate this man and his dodgy deals.

Facts and stuff like that on November 30, 2009, 8:02 pm

the bastards must be fired, hell must be locked up, he is crook, imagin the opposition parties where nominating him for the new chief Justice post , thanx to the prez he saw that through his glasses and appoint , Mr Sandile

Africa 4 Africans on December 1, 2009, 2:18 pm

Our usual suspects are quiet just because Judge Moseneke is their man. Simelane according to them is tainted to be NPA boss, but moseneke should still be Chief Justice regardles of his shady deals. Can somebody see any double standards here. Our media genre carries a mandate and an agenda, nothing to do with our interest. shame.

Tebogo Ramoshaba on December 3, 2009, 9:49 am

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