Search for Thuli’s successor: Legal expert, Struggle veteran sidelined – why?

By Ed Herbst*

At this, Desai said he became angry and told Foxcroft that the real problem was the “arrogance of the white middle class”.

Public Protector interviews: Desai in hot seat IOL 11/8/20167

Hofmeyer said he was under-utilised at the NPA and only worked about three hours a day. He said he was a bit frustrated as he liked working 10 – 12 hours a day.

News 24 12/8/2016

Like many South Africans I followed with keen interest the interviews in parliament last week to choose Thuli Madonsela’s successor.

In Thuli Madonsela's footsteps, a tough act to follow. More magic available at www.zapiro.com.
In Thuli Madonsela’s footsteps, a tough act to follow. More magic available at www.zapiro.com.

I was fascinated by the exchange between one of the contenders, Judge Siraj Desai and the DA’s Werner Horn over an occurrence in Mumbai in 2004.

This was summed up by Fiona Forde in Business Day:

The judge was famously accused of raping a South African HIV/AIDS activist during a conference in India in 2004, although he was later acquitted when the charges were withdrawn.

When Desai was initially questioned by the Indian police, he denied having had sex with his accuser, Salome Isaacs. However, he later rolled back on that version of events, admitting that the pair had had sex, but that it was consensual.

At the time I was a television news reporter in the SABC’s Sea Point news office and I was dispatched to the Cape Town airport to cover Desai’s return from Mumbai. I was told that as I represented the SABC I would get special treatment.

Veteran journalist Ed Herbst
Veteran journalist Ed Herbst

I was taken through a side door for an interview before the main press conference began.

Desai looked drawn and apprehensive but would not say much other than to express contrition.

Reneging on one’s marriage vows is hardly a new or recent concern and, if righteous lightning were to strike down transgressors, the world would be more sparsely populated than it is now.

Initial denial

That was not what troubled me at the time – it was his initial denial – but I was to become more troubled later on.

As a court reporter I got to know Desai when he was an advocate and, in his subsequent career on the bench, he presided over some high profile cases such as the murder of Taliep Petersen.

Sometime after Jimi Matthews was first appointed head of news at the SABC in 2002 he phoned me. He said that Judge Desai had contacted media people he knew to complain that a cabal of white judges had failed to invite him to an end-of-year lunch and this, he felt, was manifestly racist.

Siraj Desai. Pic: Twitter @dailymaverick
Siraj Desai. Pic: Twitter @dailymaverick

I phoned Desai and asked for an interview appointment which he declined.

I found that disturbing.

He was peddling a story to the media that the white judges on the Cape bench were racist but was not prepared to go on record. No news agency, to the best of my knowledge ever gave credence to Desai’s unsubstantiated accusation against his fellow judges.

I have, in a previous article, highlighted the role he played in the Desai Commission of Inquiry which angered some people, not least the Democratic Alliance, but I was perturbed by his testimony last week that Judge John Foxcroft manifested the “arrogance of the white middle class”.

In 1999 I covered the trial of Reverend Allan Boesak from start to finish where Foxcroft presided and during those months I never got the impression that he was arrogant.

I therefore look forward to a learned exposition by Judge Desai on why middle class arrogance is restricted exclusively to the white population, whether this is confined to South African whites and why it is absent in the Asian, Latin American, Indian and black African middle class – not least because Thuli Madonsela would never have generalised in such an ethnically-biased way.

Judicial rebuke

Public Protector Thuli Madonsela won't seek a second term.
Thuli Madonsela

After the debacle of the grasping Lawrence Mushwana who brought his office into disrepute but remained arrogantly unmoved by judicial rebuke of his tenure as Public Protector we can ill afford a repeat of that sordid performance. The public will thus be watching the outcome of the selection process with hope tempered by scepticism.

As a reporter I also got to know another candidate aspiring to replace Madonsela, Willie Hofmeyr, when the Scorpions was our elite crime-fighting unit and he was head of the Asset Forfeiture Unit.

It was a wonderful time for media people.

At the time I worked closely, as did other Cape Town reporters, with an outstanding advocate specialising in the forensic investigation of corruption, Steven Powell, then with Deloittes and now with ENSafrica.

The Scorpions would target criminal high flyers who were, paradoxically, flying below the radar. We would be tipped off when arrests were made, often in darkness and Hofmeyr would sometimes be present at the subsequent news conferences.

He often looked exhausted and I once remarked to one of his staff that it looked as though he had worked through the night and the response was succinct – he had.

‘Lacks energy and commitment’

This is relevant in the current context because the editor of Business Day, Tim Cohen raised this point in an article questioning Desai’s suitability for the post of Public Protector:

It’s fairly common knowledge within the Cape Bar that Desai lacks energy and commitment. We know this because the bar keeps a list of pending decisions called the “reserved judgment list” and for years, Desai’s name regularly appears at the top of the list.

In his testimony, Desai mentioned that he had survived cancer and that, as I know, can be enormously debilitating so perhaps his lack of ‘energy and commitment’ could, in part, be attributable to illness. We need, however, someone with the stamina to hold down a demanding position and there are no indications that Hofmeyr lacks that capability.

I admire and respect Hofmeyr.

I admire him because he was principled enough to go to jail for his anti-apartheid convictions, enduring six months in solitary confinement. I respect him because, while thus incarcerated, he went on a hunger strike to protest against unjust prison laws.

During his hunger strike, he brought a successful court application preventing the police from chaining him to his hospital bed and removing him to a Free State prison. Hofmeyr continued to use his legal expertise to represent numerous political prisoners on Robben Island.

His formidable legal expertise played a singular role in helping to define legislation which underpins our Constitution and current jurisprudence.

The element of his testimony last week that I found disquieting was his statement that he felt unfulfilled in his current position within the NPA because he was only working three hours a day.

Had I been a newspaper night sub-editor last Friday my headline would have reflected that sense of disquiet:

Legal expert and Struggle veteran side-lined – why?

  • Ed Herbst is a pensioner and former reporter who writes in his own capacity.
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