Publication: Business Day
Reporter: Steven Friedman
Squires’ 17-month Silence and Other Generally Odd
will protect our judiciary from the judges?
The storm since Judge
Hilary Squires wrote to The Weekender pointing out that words had wrongly been
placed in his mouth since June last year, has highlighted two threats to judges’
independence, one from without, the other from within.
threat comes from those who believe that the test of the judiciary’s worth is
whether it helps Jacob Zuma. Squires, denounced last year by Zuma supporters, is
now a hero of the Congress of South African Trade Unions, in the same way as
Judge van der Merwe was hailed when he acquitted Zuma despite a ruling whose
views on women belong to our unlamented past.
Squires’ letter has also
inflamed some of the worst passions of the presidential succession contest and
has landed the judiciary in a new legitimacy crisis. Since the weekend, we have
been asked to believe that the letter shows that Zuma’s fate has been unfairly
shaped by a media and Court of Appeals which misread the Squires judgment, and
that any further attempt to prosecute him is now untenable.
Little of this holds water.
If no one had
misreported Squires’ judgment, Zuma would still have been prosecuted and
dismissed from the deputy presidency. Squires found that Shaik tried to corrupt
Zuma by giving him money in the hope of favours. While he could not say whether
Zuma was corrupted (because he was not on trial), this presumably convinced the
National Prosecution Authority and President Thabo Mbeki to act. Whether or not
they were on firm ground, there is no evidence that either acted because they
were misinformed about Squires’ judgment.
The claim that the Court of
Appeals was influenced by newspaper editorials rather than Squires’ judgment is
The appeal judgment does not even use the phrase
“generally corrupt relationship” in its main judgment it pops up in a
subsidiary ruling on Shaik’s assets. In its finding on his guilt or innocence it
expresses its view that Squires’ ruling showed that there was “an overriding corrupt relationship” or “sustained corrupt
relationship” between Zuma and Shaik. But it is interpreting Squires, not
Their interpretation of Squires’ ruling is obviously open to
debate and they were clearly guilty of sloppiness in the
subsidiary judgment. But they did not uphold Shaik’s conviction because
they believed Squires had said something he had not. Calls for their resignation
say more about the effect on the courts of the succession contest than about
But, if succession politics has threatened the judiciary,
so has the behaviour of judges.
Despite the halo in which he has been
enshrined, Squires has much to explain. That his judgment was so often
misreported is an embarrassment for the media. But why did
he remain silent for 17 months?
Squires says he did not want to
point out the error when Shaik’s appeal was pending but he also says he raised
it with the editor of this newspaper earlier this year, before the appeal was
settled. The editor cannot recall this making it another issue on which we
need answers but why did a judge who says he did not want to ask for a
correction until the appeal was over also say he asked for one before it was? It
is also hard to understand why the fact that an
appeal was pending should preclude a judge from correcting an error. Much damage could have been avoided if Squires had pointed
it out when it first appeared. By failing to do so, he has arguably let down the
country and placed the judiciary in peril.
He may have been motivated by
an attitude common in the judiciary and as dangerous to its future as the view
that judges must favour particular politicians: the insistence that judges
remain above and beyond society for fear of being tainted.
His failure to
write a simple letter correcting a dangerous misinterpretation created dangers
for society and judges themselves. In the light of this, the largely uncritical
response to Squires is hard to understand.
Second, while the appeal
judges have been unfairly accused on one count, they do have a case to answer
in addition to their carelessness in their subsidiary ruling. When considering
Shaik’s sentence, they quote Squires saying that he sought to “intensify corrupt
activity and at the highest level in the confident anticipation that Jacob Zuma
may one day be president”. But a search of Squires’ ruling failed to find this
phrase. So the appeal judges may again have placed words in his mouth.
The campaign against them is disingenuous and
exaggerated but it is right to insist that they account for what appears
to be errors in if not of judgment. We need an independent judiciary, not
one which does the bidding of powerful constituencies, but we will have one only
if judges recognise that accounting to society is key to winning public
Friedman is a research associate at the Institute for Democracy
in SA and is visiting professor of politics at Rhodes University.
With acknowledgements to Steven Friedman
and Business Day.