Some of the revelations by witnesses at both the Zondo state capture and the Nugent Sars commissions, although not entirely unexpected, shock me no end simply because I battle to comprehend the logic behind some of the misdemeanours or malfeasances committed by the people testifying there.
Former minister of finance Nhlanhla Nene in 2015 set up a Sars advisory committee to review, inter alia, the negative revelations by the media about the shenanigans occurring at our revenue collection institution. He appointed someone senior, both in terms of age and profession — retired Judge Frank Kroon — to chair it.
I inwardly applauded his decision because a judge, in my view, knows that every piece put before him or her has to be backed up by concrete evidence before the final verdict can be pronounced.
I recall listening to him when he was being interviewed for a seat at our Constitutional Court. He said:
“I think one should be careful to have judges appointed to commissions that will serve political services.”
The legal profession, which I am proud to be part of, directs us to be objective and ethical at all times, hence my jubilation at the time of his appointment. Here is a judge, I presumed, who will right the wrongs at Sars. He will scrutinise every piece of information given to him judiciously so that Sars can be cleansed of all the negative stories in the public domain. So much so that when he pronounced that there was a “rogue unit” operating within Sars, I had no reason to disbelieve his verdict.
Incidentally, Judge Kroon was one of the complainants to the JSC about the alleged unethical conduct of Western Cape Province Judge President John Hlophe when he attempted to sway some Constitutional Court justices one way or the other in former president Jacob Zuma’s case.
Fast forward my retired lordship to three years later, now in 2018, when he appeared before his brother, retired Judge Robert Nugent at the Nugent Sars Commission. Here he wiped off completely from the record his own Kroon Sars advisory committee findings, which had found that there was indeed a “rogue unit”.
He confessed that his committee’s findings were not evidence-based. In short, Judge Kroon’s Sars advisory committee duped us as taxpayers and irregularly spent our money without doing any work except coming to a hearsay conclusion, which Judge Kroon knew was inadmissible.
The dignity of our judges — current and retired — should not be impugned in any way so as to ensure that the judiciary remains one of the critical pillars of our democracy.
Sars bled to unmanageable proportions because of, among other things, the Kroon Sars advisory committee’s fake report.
When is an apology an apology? Should Judge Kroon, of his own accord and voluntarily, not relinquish the honourable title of a judge to show remorse?
I refuse to believe that he was wrongly advised when he came to his conclusions in the report. He intentionally breached his oath of office in my view. Whose purpose was he serving?
Interestingly, or coincidentally, the person who appointed retired Judge Kroon to head the committee — now the disgraced former minister Nene — shocked me when he confessed to having met the Guptas. Intrinsically there isn’t anything wrong with meeting people, but in Nene’s case these meetings and half-truths were completely unethical and damaging to his integrity.
At one point in time he denied having had any informal meetings with the Guptas and now, ending his second stint as a minister, he conceded at the Zondo commission that he had, indeed, met the Guptas.
What was discussed between them becomes inconsequential and secondary. It is the half-truths that matter now because we question someone’s integrity, especially when they have been is tasked with controlling and managing our purse.
Disgraced former minister Nene, like the dishonourable retired judge, apologised for his “error in judgement”. If we didn’t have the Nugent or the Zondo commissions, would we have had these apologies? I doubt it.
And, more than corruption, my take is that lack of governance, whether in government or in the corporate world, ethics and integrity, if not critically dealt with, will see us sliding down the slope.
We are yet to reach the stage where we do the right things even when there is no one watching.
Mahlodi Sam Muofhe is a human and fundamental rights lawyer based in Johannesburg