Dear Judge Moseneke

Working on our story questioning your investment choices has been a most painful experience for me.

Six short months ago I sat before you as the applicant in a constitutional matter about access to information.

You concurred in a judgment that delivered the justice I had sought. You called me up recently after I had sent you pointed questions in
anticipation of our exposé.

I felt like a Judas Iscariot when I told you that I respected you, but I meant it, and I still do.

You are my elder. You have left indelible footprints, at least since your decade on Robben Island, where you were sent so unjustly at the age of 15.

There, you led prisoners’ initiatives to prepare for the task ahead through study and debate, and you obtained your matric and two degrees.

You left your mark in the 1980s and early 1990s as a PAC leader, when apartheid’s securocrats deemed you influential enough to plan your murder, and when you pioneered the transformation of the Bar through your professional leadership and personal refusal to be held back by discrimination.

And then you helped shape the bedrock of our democracy when you served on the team drafting the interim constitution of 1993; a task to which you returned as you and your colleagues on the Hill built our final Constitution into a living monument to South Africans’ yearning for dignity, equality and justice.

And yet, I have participated in an article that questioned whether ‘the demand for judges to be independent” had been compromised by your investment choices. You probably noticed our somewhat convoluted choice of words.

We did not accuse you of allowing outside interests to impact on judgments you handed down, for there is much evidence that you do and say what you believe to be right regardless of the consequences.

Take, for example, your comments to historian Padraig O’Malley in December 1996, when you agreed the ANC lacked an ‘internal sense of self-identity” and added: ‘Very little beyond party discipline, whatever that means, keeps [the ANC] together. Step out of line [and] you get thrown out of a moving train —”

Lesser individuals would have kept their counsel. You spoke your mind, even though by then you, too, were hitched to the moving train as chair of Telkom and director of empowerment pioneer New Africa Investments Limited (Nail).

But that is not the point we were trying to make, your honour. You will agree that a conflict of interest is best characterised as an objective condition to be avoided and not a circumstance that becomes problematic only should one succumb to it.

You will also agree that judges are under a heightened obligation to be, and to appear, ethical in all they do.

This is because, as the Bangalore Principles of Judicial Conduct puts it, ‘public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society”.

A judge, the principles say, ‘must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly”.

I was surprised last year to read in a specialist publication that ‘Encha, a company controlled by the Moseneke family”, had acquired oil interests in the Democratic Republic of Congo (DRC).

This kind of frontier capitalism, in my experience, habitually fed off diplomatic deal-making and state support and entailed a heightened risk of ethical compromise.

And so, I dismissed the possibility that you would be involved in the ‘Moseneke family” company.

The idea, of course, that a judge might profit directly from commercial opportunities in the sway of state actors is problematic.

A case in point: when your reported post- Polokwane comment, ‘It’s not what the ANC wants or what the delegates want; it is about what is good for our people,” was misinterpreted by the victors of Polokwane, it may have been because of their perception that you were among the beneficiaries of the Mbeki state’s patronage.

Rightly or wrongly, they appear not to have accepted your independence. The ensuing fracas did the judiciary no service.

Later, when I heard that another company was claiming it had been robbed of the DRC oil rights that Encha had landed, I wondered about this ‘Moseneke family” company once more, but again thought it unlikely you were involved — surely you would not have exposed yourself to such controversy?

And then, quite recently, specific allegations came to us about your ‘co-ownership” of Encha. We did not take it at face value, but we did have a duty to inquire.

We obtained the necessary public records and there it was: Swanvest 344, the nondescript shelf company that owns 45% of the Encha Group (alongside a similar stake held by your brother Tiego’s holding company, Timtex) was held, in turn, by your family trust (40%) and your children.

Encha, in other words, was a family business in the truest sense of the word, with shareholder control balanced between Tiego on the one hand and you en famille on the other.

In your defence you have emphasised that the shares are held through your family trust and that the law and judicial ethics do not prevent you acting as a trustee of such or it holding ‘any class of assets”.

With respect, I fail to see how your trust’s investment is different to an investment had you made it directly, in your own name.

You are the sole trustee of the trust, the fruits of which you may enjoy pending ultimate capital accrual to your children.

You have full control over the trust and its interests are aligned with your own.The trust does not hold only the home-and-hearth kind of assets often associated with a family trust.

As you were elevated to the Constitutional Court in 2002, the trust acquired a stake in New Diamond Corporation, another company embroiled in much controversy.

And as you were appointed deputy judge president in 2005, Encha Properties, then half-owned by your trust and led by your son, put the finishing touches to negotiations with Investec, the department of public works and a seller to acquire a R330-million portfolio of properties that housed, and still houses, the department of justice and police headquarters.

Encha Group’s investments are far-reaching. This reach and Encha’s investment choices has exposed it to controversy and, we have shown, to a man wanted on charges that he had helped mastermind one of the greatest currency frauds ever.

Your choice to put your trust’s money into Encha, and to keep it there, has exposed you and the judiciary to all of this too, regardless of whether you personally participated in decisions.

We have been roundly criticised for our decision to publish and to accuse you of bad judgment. But once the facts are reasonably established we have to speak our minds, your honour, regardless of the consequences.

Of us, as journalists, democracy and the Constitution demand no less.

Respectfully yours,
Stefaans Brümmer