On Friday, Western Cape Chief Justice John Hlophe ruled that no prosecution would be brought in the case of former national security minister Bongani Bongo, who was accused of trying to bribe a senior official to thwart a parliamentary inquiry into Eskom. It was decided that .
The judgment follows a series of forces including the heated debate over the ANC's “quit” resolution, recent attacks on the judiciary, and, more importantly, the National Executive Committee's (NEC) position on the corruption case against the ANC chief executive. It landed like a grenade in the relationship. -General Ace Magashule.
Perhaps more importantly for the judiciary, the decision also involves Mr. Hlofe, a beleaguered judge who was accused of assaulting and lying to another judge, and who himself was not involved in the case. That's what they claim to have done. About my lawyerBarnabas Shrew.
Repeat offender?State Attorney Accuses Judge Hlofe of replacing judge in high-profile case involving attorney Barnabas Shrew
Above all, this extraordinary series of events reveals the pernicious nature of the problems facing South Africa and how deep their roots are.
In Hlophe's case, the first allegations of fraud date back to 2008, but it was not until the Judiciary Commission (JSC) finally held a hearing on whether he had tried to influence judges on the Constitutional Court. It was December 2020, 12 years later. Cases related to current former President Jacob Zuma.
In the case of the ANC, party leadership has been grappling with corruption and whether party members should step down since at least 2015, and in some ways even earlier.
The case against Bongo, in short, was that he approached Ntusuzero Vanara in October 2017 while serving as evidence leader in a parliamentary inquiry into Eskom. The public allegation was that Bongo had given Vanara a “blank check” to claim that he was. He was too ill to continue with the investigation to stop it from progressing.
Mr Vanara rejected the alleged offer and the investigation itself led to damning evidence at the hearing. This was just before the 2017 ANC Nasrec conference, in which Zuma's faction lost control of the party, and Cyril Ramaphosa's inauguration as SA president two months later.
Mr. Hlophe was writing the judgment on the “174 application,” which in many cases is argued by the defense after the prosecution has presented evidence. The argument is that the prosecution has not presented enough evidence to secure a prosecution and the defense does not even have to answer because there is no case to answer. In short, it is a common procedure that allows the defendant (in this case Bongo) to not have to testify under oath.
Mr Hlophe said in his judgment:
“The difficulty with Mr. Vanara's evidence is that it is not illegal to discuss delays or breakdowns in the parliamentary process. This conduct constitutes prohibited conduct, i.e. an investigation favorable to Mr. Vanara and others. It is clear that a crime is committed only if an offer of satisfaction is made in exchange for the delay or destruction of a commission.”
There were other aspects to the judgment, particularly the lack of other supporting witnesses (there is a specific legal definition as to whether a finding can be made when there is only one witness to the conversation), Vanara reported. The fact is that it didn't. And I haven't reported the matter to the police.
The National Prosecuting Authority (NPA) has not announced whether it will appeal the verdict.
Despite this discovery, some may feel that Bongo still has questions to answer.
The legal finding that he did not provide the money does not exonerate him of trying to derail the investigation. And why did Bongo's lawyer bring up the allegation that Vanara's wife had filed a case against him (Vanara) years ago? How did he know that something like this happened when it was not publicly known and there was no lawsuit? And Bongo used the position of former Minister of National Security to find out this information? Was it misused?
The political implications of this ruling could be enormous.
Magashule is currently facing political pressure to resign based on an ANC NEC resolution that says those facing corruption charges must relinquish office until their name is cleared.
This Bongo judgment is sure to strengthen those who support Magashule. They will say this proves that those forced to step down can later be cleared in court and thus suffer unnecessary political damage.
Some may say that the NPA is being used as a political tool, that judges and magistrates may indict people to resign in order to finally clear their names, but the harm is done. There would have been. end.
In this context, Zuma & Co.'s oft-repeated assertion that someone is “innocent until proven guilty'' will become commonplace.
Therefore, for all these reasons, Mr. Magashule should not be forced to stand down while he is being prosecuted.
At the same time, there are claims by Mr Zuma and EFF leader Julius Malema that some judges have accepted money to sway their decisions.
No evidence was provided to support these claims.
While Malema, Zuma and Bongo are not all fully connected to each other, it appears that Bongo was acting in Zuma's interest in asking Vanara to stop the Eskom investigation.
This finding could lead to the suggestion that supporters of Bongo, Magashule and others, often referred to as the “RET faction of the ANC'', cannot welcome this judicial decision, despite their claims about the judiciary.
And then there's the man who made this discovery: Hlofe himself.
Many say his rulings are not reliable. He is a judge, but in the JSC he is under not one but two investigations (one for allegedly trying to influence judges of the Constitutional Court; (It was a suspicion against a judge of the Constitutional Court.) Alleged assault on Judge Mushtaq Parkar and other issues arising from the situation).
Sex, lies, physical assault, cheating in court: it's all in a day's work for John Hlophe, aide claims
The decision to try the Bongo case himself was made by Mr Hlophe, in his capacity as Chief Judge of the Western Cape. And he quickly decided that Bongo had no answer.
This will inevitably lead to claims that Mr Hlophe is providing judicial support to the political struggle for the future of the ANC. Furthermore, if he were to be impeached after the JSC hearings, Parliament would have to vote to remove him from office, and the support of ANC MPs would be very helpful.
For this perception, Hlokh has only himself to blame. He could have assigned Bongo's case to another judge. His finding that Bongo was innocent was always foreseeable, and there were ramifications.
In the past, he has been accused of using his position in a manner contrary to the interests of justice in that he instructed Parker to remain on the bench even though the JSC said he should be suspended. has been done.
Judge Parker still on duty as Judge Hlophe rebels against the President, JSC and the Office of the Chief Justice
But Mr. Hlophe's supporters will argue that as chief justice he should try high-profile cases himself, and Bongo's case very much fits the definition of high-profile.
They may also say that Hlophe has never been afraid to make controversial decisions. For example, many years ago he ruled: Trade unions must take responsibility for the damage caused during the protests they organized.
This was a highly controversial issue at the time, involving the Cosatu/ANC-aligned trade union Satau and its supporters, which damaged Cape Town's CBD.
Taken together, all these events and developments demonstrate the incredible complexity and toxicity of the web of problems facing the ANC, and by extension South Africa.
Those who support the judge may be forced to criticize the Hlophe decision, and those who attack the judge may be forced to welcome it.
In the meantime, governance will continue to be disrupted. And there is still no sign of central political power asserting itself.
This ruling was a political grenade. DM