Vuka Tshabalala, the judge president of the KwaZulu-Natal high court received millions of rands worth of shares in the Batho Bonke consortium from businessperson and presidential hopeful Tokyo Sexwale.
This is the most recent in a series of controversies surrounding the extent to which his decisions may have affected Jacob Zuma’s leadership prospects.
It was Tshabalala who appointed Judge Hilary Squires to preside over the fraud and corruption trial that ultimately led to the imprisonment of Schabir Shaik, and some serious legal setbacks for Zuma.
Last month it emerged that Durban businessperson, and prominent Zuma backer Erwin Ullbricht had been questioned by the Scorpions about a spying operation set up to determine who Tshabalala would appoint to hear the case.
The Mail & Guardian spoke to Tshabalala about the ethics of accepting the Batho Bonke shares, and about perceptions that his conduct in the Zuma affair may have been influenced.
It has been reported that Tokyo Sexwale allocated you some R6,9-million worth of shares in the Batho Bonke consortium, which owns a large empowerment stake in ABSA bank. Is that true?
Yes, it is correct.
Is it legal or ethical for a judge to receive a donation of that kind?
Well, it isn’t a donation. You have to pay for it at some stage. Many judges have shares. There is nothing in law that says I can’t buy shares in SA Breweries.
But this is quite different. Anyone can buy shares in a listed company, but not in Batho Bonke. It was a very special kind of deal, at a very good price.
Well he [Sexwale] decided to choose certain people, and he chose me.
Surely you must acknowledge then that you received a benefit from him?
Yes, it is a benefit. If I get dividends from South African Breweries, that is a benefit too.
But that is completely different, you have to buy the shares to get the benefit.
Look, I was allocated these shares, but I haven’t received a cent.
You say you have to pay for the shares eventually; isn’t the deal actually structured so that the dividends from Absa shares will actually pay for them over time? In other words you don’t have to pay out of your own pocket.
I don’t know.
When were you offered the shares?
A long time ago, I don’t remember exactly.
Either way, perception is important. Are you not concerned that the impression will be created that you have a conflict of interest in decisions you may take which are related to Sexwale?
I don’t think so. As I said, many judges own shares.
But you have taken decisions that could be seen as having a bearing on the ANC succession race, notably in matters involving Jacob Zuma.
When this man [Sexwale] came to me with his shares he was not aspiring to be president of this country. He has only now said he is available for nomination. I have no influence on who becomes president. I am not a member of the ANC, I will not be at the December conference. I have got these shares, and that is good for me, that’s all.
What will you do if, in future, a case that touches on the interests of Sexwale or his companies comes up in your division.
I will recuse myself, just like I would if you are my friend, and you are sued here in my division.
The law and ethics of gifts to judges
The legal limits on donations to judges are unclear, although the ethical questions are not. Asked about what the law says, Department of Justice spokesperson Leslie Mashokwe referred queries to the Judicial Service Commission (JSC). The JSC, in turn, suggested the department might have an answer.
‘The common law position is clear,†said one senior advocate. ‘Judges should not accept gifts, especially from litigants, firms of attorneys or practising advocates. Of course, there will be gifts in the course of things that are acceptable.â€
The Bangalore Code of Conduct adopted by chief justices from around the world in 2002 makes the tight ethical strictures on judges very clear.
‘A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties,†it reads.
Gifts are to be particularly carefully handled.
‘Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality.â€
The department of justice wants new legislation to more tightly regulate judges’ conduct, including a register of interests. Previous drafts of the legislation have been rejected by the judiciary because they trespass on the constitutional separation of powers between executive and judiciary, and many on the bench are concerned that fresh evidence of unethical behaviour by judges will increase the pressure for government intervention.
Most judges feel that some kind of improved disciplinary mechanism is required, but they are resisting detailed management of their working conditions by the department.
Former chief justice Arthur Chaskalson is author of a draft code of conduct for judges, which many on the bench would like to see as the basis for a new disciplinary system managed by the judiciary, rather than the state.