South Africa’s judiciary reacted angrily this week to suggestions that parliamentarians could hold them accountable for their judgments.
We too are concerned that politicians should not undermine the independence of the judiciary. But that independence should not be an excuse for those judges who continue to propagate old South African values and political prejudices.
How else are we to understand the ruling this week by Judge WJ Hartzenberg in the Pretoria High Court to quash six conspiracy to murder charges against former chemical and biological warfare programme head Wouter Basson.
Judge Hartzenberg’s decision, as we understand it, was given for two reasons: first because of a 1989 indemnity granted by the then administrator general of the territory, Louis Pienaar – a functionary of the apartheid state whose agents had been guilty of the abuses for which they were being indemnified; and because the Namibian government subsequently endorsed the Pienaar amnesty.
We might point out that similar efforts by former state president FW de Klerk to effect a stroke-of-the-pen blanket amnesty for himself and his apparatchiks were ruled invalid. Instead we had the national soul-searching of the Truth and Reconciliation Commission (TRC).
And so what if Sam Njoma’s government, for reasons best known to itself, later confirmed the indemnity? Why should that be given the slightest weight in investigations into crimes committed by South Africans?
The Pienaar indemnity was granted at the tail-end of what the world declared an illegal occupation. As such, the international legal force of such fiats should be considered suspect.
Moreover the atrocious crimes on which Basson was charged were committed against subjects, if not citizens, of South Africa.
The responsibility unambiguously lies with South Africa. And it is especially nauseating at this point in history to be forced to walk again down the evil-smelling memory lane of the Harms commission – where the same decision, to exclude cross-border atrocities from consideration, was taken by the commission’s head.
Beyond the purely legal questions, moral considerations are equally compelling. The Basson trial is one of a group of political show trials connected to prosecutions recommended by the TRC. As such they must be seen to embody the values of the new South Africa, not to excuse or exonerate the excesses of the old. That would not only be dangerous to the national purgation of the past – which, whatever else there may be at stake, frames and illuminates the Basson trial – but downright shameful as well.
Old boys’ club
The Independent Group’s personal finance section carried an article last weekend that purported to clear its columnist Magnus Heystek of “all false claims”. The piece was signed by Bruce Cameron, editor of the group’s personal finance supplement, and a respected journalist. It attacked the Mail & Guardian for its coverage of Heystek’s involvement in a dispute about a family trust, suggesting the newspaper had been reckless and that Heystek had been proved innocent.
Cameron was wrong on both counts. Readers may recall that earlier this year the M&G ran a series of articles about Heystek and a multimillion-rand children’s trust of which he was one of three trustees. The final article described how Heystek had, together with the trust, bought a large property in Johannesburg that comprised two similarly sized stands.
Heystek bought the one stand, which boasted a large mansion, for R650 000, and organised for the trust to buy the second empty stand for R850 000. The transaction provided a textbook example of why the golden rule of trust law is that trustees should never mix their personal business with that of their trust.
The M&G approached Heystek for comment. He asked us to fax him questions. We sent him 25. On seeing them, he declined to comment. Heystek was already suing the father of the child beneficiaries of the trust for defamation. Heystek then served summons on the M&G for R2-million for its coverage. And the father launched proceedings against Heystek and his fellow trustees for the millions he claimed had disappeared. Last week the father agreed to settle the defamation suit against him so as to concentrate on his case against the trustees. He apologised for any defamatory remarks he had made, but noted that the apology had no bearing on his main case.
It was from this that Cameron gleaned that Heystek was in the clear. No mention of the case by the father, let alone the ongoing defamation case with the M&G. Cameron trumpeted the fact that the auditors hired by Heystek had cleared Heystek, failing to mention that the auditors’ report had never been presented to the father – let alone a court of law. He made no mention of the 25 unanswered questions. And no mention of the fact that Bruce and Heystek are business partners, having co-authored personal finance books and co-presented personal finance seminars.
The M&G totally rejects Cameron’s clubby, in-house cover-up. As for Heystek, we look forward to settling our differences with him in court.