Defending Judicial Decisions
Phillipe Abravanel once observed:
‘The judge must be on his guard against the tyranny of his own prejudices. Of course, no judge is completely immune to prejudice . . . He must, however, be aware of them and put them to one side when he discharges his duties.’
On 13 November 2006, Business Day featured an article containing the letter that was reportedly from Judge Hilary Squires, who presided over the criminal trial of Schabir Shaik (Shaik), in the case now reported as S v Shaik and Others  3 All SA 211 (D). From the letter it appears that Squires J decided to write it following fruitless attempts by him to secure the cooperation of the newspaper’s editor who failed to correct or, as he put it, had ‘clearly not disseminated the correction to his staff’ regarding the alleged use by him of the words ‘a generally corrupt relationship’ in his judgment. These were the same words that the Supreme Court of Appeal (SCA) had, to Squires J’s apparent disappointment, repeated and attributed to him at para 8 of its civil appeal judgment in Shaik v The State (1)  SCA 134 (RSA), at 98 when it said
‘ Between 1996 and 2002 Shaik and Mr Jacob Zuma engaged in what the trial court appropriately called ‘a generally corrupt relationship’.
It is worth quoting the letter, posted on the Business Day website (www.business day. co.za on 13 November) in full as follows:
Your article in the Business Day edition of Wednesday, 27th September concerning the appeal case of Schabir Shaik and Others vs. The State, then under debate in the Supreme Court of Appeal attributes to me a finding that Shaik and Jacob Zuma shared ‘a generally corrupt relationship’.
One assumes you are referring to the original High Court judgment in which Schabir Shaik was found guilty of contravening S.1(1) of the Corruption Act of 1992, since I have never had occasion to say anything about the matter at any other time.
If you have never read the judgment delivered in that case, may I suggest that you do so.
I can find no such mention of my having made any such comment. If you have already read the judgment, and in it this phrase - ‘ a generally corrupt relationship’ - occurs I would be grateful if you would advise me of the page and line number in which the statement appears.
The only question in that trial was Shaik’ s own state of mind when he made the admitted payments to, or on behalf of, Jacob Zuma, namely, whether by doing so, he intended to influence the recipient in the exercise of his official duties.
Jacob Zuma’s state of mind when he received these benefits was never an issue, nor was any finding made about it.
There was no need for any conclusion regarding the state of affairs between them, nor was there one made.
To the best of my recollection the phrase in question was used by the prosecutor in one of his pictorial presentations as part of his argument at the end of the trial.
It was put into quotation marks by some sub-editor in a report covering the State’s case, and has been mindlessly parroted ever since as a finding by the Court by many of the journalists who have felt the need to write about the ongoing saga.
Unless you can indicate to the contrary, please note that I did not make the statement and it should therefore not be attributed to me.
I have long since advised your Editor of this but he has clearly not disseminated the correction to his staff.
HG Squires (Judge of High Court,NPD )’
It is interesting to note that the judge indicated that he was sending this letter in his capacity as a judge of the Natal Provincial Division, and not as an ordinary citizen. Yet the content of the letter generally reveals the judge’s personal, as opposed to judicial concerns.
It is clear from this letter that Squires J denies ever making use, whether orally or in writing in his judgment, of the words ‘a generally corrupt relationship’. Indeed a careful reading of Squires J’s judgment reveals no mention of the words ‘a generally corrupt relationship’…
One would expect to be forgiven for thinking that the SCA relied for their use of the remarks on media reports as opposed to carefully studying the judgment of the court a quo word by word as dictated to by their judicial oath in terms of item 6(1) schedule 2 of the Constitution.
As soon as media reports circulated with the allegations that Squires J had remarked in his judgment that Shaik had ‘a generally corrupt relationship’ with Jacob Zuma, COSATU and other political formations negligently criticised Squires J as being biased towards Mr Zuma, more particularly because he was not a party to Shaik’ s criminal trial. Of course they would have ordinarily been justified, had they first read the judgment and found such remarks squarely jotted in it. They too, however, solely relied on media reports and wasted no time in attacking the judge’s independence.
Be that as it may, the question arises whether Squires J was (at least in as far as the dictates of the constitution are concerned), judicially and legally obligated to go an extra mile and explain to the general public that, contrary to the media reports and the SCA’s remarks, he himself, never made any such remarks in his judgment. In S v Mamabolo (E TV and Others Intervening) (2001 (3) SA 409 (CC), Kriegler J (as he then was), remarked as follows:
‘ The Judiciary cannot function properly without the support and trust of the public. Therefore courts have over the centuries developed a method of functioning, a self-discipline and a restraint which, although it differs from jurisdiction to jurisdiction, has a number of essential characteristics. The most important is that Judges speak in court and only in court. They are not at liberty to defend or even debate their decisions in public. It requires little imagination to appreciate that the alternative would be chaotic. Moreover, as a matter of general policy judicial proceedings of any significance are conducted in open court, to which everybody has free access and can assess the merits of the dispute and can witness the process of its resolution.’
To the extent that Squires J may have felt betrayed by the SCA’s echoing of the media’s misleading reports, his decision to write what one may term a ‘clarification letter’ to the Business Day was judicially and legally unwarranted for two reasons. Firstly, he should have communicated Business Day’s misattribution of the words to the Judge President of the National Provincial Division (NPD), who would have in turn engaged in the necessary process of ensuring that the newspaper publicly withdrew its misattribution.
And if no cooperation was forthcoming, contempt of court proceedings against the newspaper would have been the solution. Once it became clear to Squires J that his failure to engage the Judge President about the issue had led to the general perception that he had indeed made such remarks to the extent that even the SCA followed suit, one would expect internal judicial protocols to make provisions on how the matter should be resolved in the circumstances, and not for the concerned judicial officer to side-step protocols and go public. The revelation of SCA’s ‘mistake’ by another member of the judiciary is tantamount to imputing a level of incompetence or prejudice on the panel of SCA judges who decided on Shaik’ s appeal. Indeed following internal judicial protocols would have allowed the institution of the judiciary to resolve the problem properly and professionally.
Public confidence in the judiciary
The SCA later tried to underplay the matter as for instance, in legalbrief of 14 November 2006 which records as follows:
‘The Supreme Court of Appeal has pointed out its ‘misattribution’ of the words ‘a generally corrupt relationship’ did not occur in its judgment in the criminal appeal by Schabir Shaik ... . The quote is to be found only in the introduction to the court’s subsidiary civil judgment on the forfeiture of Shaik’ s assets, . . . . The SCA points out that the trial court found in the context of the corruption charges that the evidence established ‘a ‘mutually beneficial symbiosis’ between Mr Shaik and Mr Zuma’.
Lay members of society should surely not be blamed for questioning the SCA’s imputation of a ‘generally corrupt relationship’ on the part of Mr Zuma (whose state of mind when he received benefits from Shaik was never an issue, nor was any finding made on it by the trial court). It therefore follows that any impression by Mr Zuma or his supporters (including any independent fair trial proponent) that the independence of the SCA on the matter and any subsequent trial that may ensue against Mr Zuma is and should be questionable, would be justified.
Respect and confidence on the institution of the judiciary cannot be imposed on the society – it must won. Quoting the words of the late Chief Justice Ismael Mahomed would not have been more relevant to the current judicial controversy when he said:
‘The ultimate power of the courts must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation and in the confidence it enjoys within the hearts and minds of potential litigants in search of justice. That esteem and that respect must substantially depend on the independence and integrity of judicial officers. No public figure anywhere, however otherwise popular, can afford to be seen to defy the order of a court which enjoys, within the nation, a perception of independence and integrity. His or her own future would then be in mortal jeopardy.’ (see D v Z van der Merwe, Journal of Judicial Officers of South Africa (2000) 3, iii – iv)
The SCA’s imputation of a generally corrupt relationship to Mr Zuma, who was not a party to the proceedings and whose state of mind was not an issue, betrayed the esteem in which it may have been held within the psyche and soul of a nation, and in the confidence it may have enjoyed within the hearts and minds of potential litigants in search of justice (including Mr Zuma himself, should he be subsequently charged and tried?).
In conclusion, the errors of both Squires J and the SCA should, to the extent that both have brought the judiciary into disrepute and undermined the Constitution, attract the condemnation that they deserve. Their respective conduct should not amuse the legal fraternity because it threatens respect for the rule of law by members of society.
Lesirela Letsebe BIur LLB (Unin, Limpopo) LLM (UP) is an attorney at Hofmeyr Herbstein & Gihwala Inc in Sandton.
This opinion piece has been shortened – Editor.
With acknowledgements to Lesirela Letsebe and De Rebus.