Freedom under law has expressed deep concern about the killing of well-known insolvency practitioner Cloete Murray and his son Thomas. Board member, Judge Johann Kriegler said the apparent assassination of the Bosasa liquidator poses a threat to the rule of law and to South Africa’s constitutional democracy. The former Constitutional Court Judge told BizNews that it is an “assassination to pervert the course of justice” and sadly these killings are not unique. Commenting on the vulnerability of whistleblowers in South Africa, Judge Kriegler said they “are standing naked” until there is sufficient evidence for a prosecution. He weighs in on whether South Africa has become a mafia state and described ‘lawfare, whereby there is a growing reliance on courts to clarify and settle highly contentious political questions, as “deplorable”. Judge Kriegler does not mince his words for the Legal Practice Council that he calls feckless for failing to act against Adv Dali Mpofu and he offers solutions to the Stalingrad delaying tactics employed in the defences of former President Jacob Zuma, Judge John Hlope and suspended Public Protector, Busisiwe Mkhwebane which is costing the taxpayer millions. – Linda van Tilburg
See extracts from the interview below:
We do not have sufficient mechanisms to protect whistleblowers
It is aimed not only to get rid of a particular witness or particular investigator or particular prosecutor. But it is aimed as a deterrent to others, to frighten off the others. There is certainly good reason to think that the magistrate in exposed courts in rural areas are indeed frightened and rightly so and whistleblowers notoriously are exposed and are frightened and we do not have sufficient mechanisms to protect them.
They are protected under the Constitution, but they’re also protected under specific legislation that was adopted in terms of the Constitution in order to protect them. The mechanism is not perfect. Not only is it theoretically legally not perfect, but administratively it is not perfect. For instance, when do you qualify as a whistle-blower? Only if and when it is established that the evidence you present, in fact, would lead to a prosecution of a corruption case. That’s pretty far down the line. Unless and until that has been determined by the authorities, you, as a whistleblower are standing naked. That is a problem that is experienced, to my knowledge, by whistleblowers.
Curing it will take a long time. Address it by tightening up the legislation, making it easier, making the determination of the trigger mechanism for all protection at an earlier stage of proceedings, and also, of course, purely administratively to provide adequate resources for the authorities dealing with whistleblowers in order to deal with it competently, quickly and effectively.
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Has South Africa become a ‘mafia state?’
I’m sorry. I’m an old-fashioned lawyer. I don’t go for those terms, but I can see why people [use it], and certainly, in journalistic language, it fits. In legal language at this stage, I would rather say let’s stick to what looks like a political assassination to prevent witnesses and/ or investigators from pursuing particular targets who committed politically related crimes. That’s what the Murray case looks like at the moment and that in itself is a serious threat to all of us. If the law cannot protect those people, how can it protect any of the rest of us?
‘Lawfare’ has become part of the South African scene and it is deplorable
That has become part of the South African scene, and it is deplorable. I do deplore that it happens. Why it happens is clear. It is because of the political system and the ruling party that is immune to effective political control. If a politician misbehaves in a democracy, the remedy is that that faulty politician is fired at the next election. That doesn’t happen in South Africa. That hasn’t happened up to now. If you’re a member of the ruling party who misbehaves politically, you’re pretty secure. We know that parliament itself has failed despite the clearest indications to deal with President Zuma at the time to the great detriment of the country, to the ruin of the country. In fact, parliament refused to look at the evidence until many years later when the courageous Public Protector forced them to look at it, and the courageous constitutional court backed the Public Protector. But as we stand at the moment, the means of compelling government to do what the Constitution and the law obliges it to do, is not at the ballot box. Unfortunately, it’s in the courts, which has the effect of politicising the judiciary and institutionalising politics, neither of which is desirable.
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Legal Practice Council is a feckless body in dealing Adv Dali Mpofu
The abuse of the police position of a legal practitioner and advocate admitted officer of the court has certain privileges, certain benefits, but is also subject to very clear moral and ethical rules. I have no hesitation in saying that in the cross-examination of the former Public Protector, advocate Dali Mpofu breached the rules of professional ethics. He treated her in a manner which, I’m looking for a word which is strong enough without being defamatory. It should be impermissible, it is improper. It is not in the interest of the legal profession. It’s not in the interest of society. Unfortunately, the Legal Practice Council, the statutory body that was recently created in order to police the behaviour of legal practitioners, has so far proved a feckless body in order to deal with people such as Mr. Mpofu, who breached the rules of professional ethics. It should have dealt with him much more forcefully. It held a mock trial in which they found him not guilty on a previous charge of misbehaviour before the Zondo Commission on spurious grounds. The problem is not the law, it is the people who must implement the law. The Legal Practice Council should have dealt with Mr. Mpofu, they have not done that.
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There is a simple solution to counter the Stalingrad tactics employed by Jacob Zuma, Judge Hlope and Mkwebane
It is pretty simple. There’s nothing complicated about it. If somebody is charged with some crime arising, not in the exercise of that person’s duties, you get no backing or your defence. If it does arise out of the exercise of your duties, you know that if you are convicted at the end of the proceedings, you will have to pay back what you’re asking the state to pay in the meantime. That is a pretty strong deterrent, if you’re pretty uncertain about your own innocence. Those two provisions in themselves will do a great deal. Thirdly, the privilege, the benefit of being able to call on the state to pay for your lawyers does not mean that you can import the most expensive Silk from the London Bar to defend you in South Africa. That’s unreasonable. You can’t do that. It can only be your reasonable legal expenses. What is reasonable will have to be determined in each particular case on its merits. What’s the charge? What is the seniority of the person being charged? What are the implications of a conviction?
In a number of important cases, of which the current Public Protector is the most recent vivid example, the state is paying for the defence, irrespective of whether it arose out of official duties or not. The Hlope case is the best example, which was a case arising out of something that was clearly not within the judge’s office. It could never have been, was in the very nature of the charge, that he was doing something that the judge should not be doing and cannot be doing. And yet many, many millions have been spent in that defence. This then has the baleful effect that not only for the lawyers to make money, but in order to put off the evil hour in what we have come to call the Stalingrad defence. The Zuma case is the best example. That has now been going on for umpteen years and he still has not yet been put one single day in a court of law with a trial against him due to start. His co-operator in the alleged corruption was convicted, heaven knows how many years ago. Must be 20 years ago by now. So, it’s a process that is misapplied and then abused.
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