COMMENT

KZN’s captured judiciary possibly more dangerous than latest Hlophe fallout

Vanessa Burger writes how can we respect a judiciary that fails to hold its own to account?

Implications of KZN’s captured judiciary could be more dangerous than latest Hlophe fallout

27 January 2020

The Sunday Times recently reported on shockingly lenient sentences handed down to child rapists by Umlazi acting regional court magistrate Kholeka Bodlani. However sickening and unjust Bodlani’s rulings are for her victims, deeper investigation into her past conduct and allegations regarding her appointment, plus the implications of a host of other magisterial appointments made by KZN’s suspended regional court president, Eric Nzimande, could arguably cast a greater shadow over the integrity of the justice system than the latest scandal involving Western Cape judge president John Hlophe.

Because of the critical role that the … judiciary has to play in transforming our society through the Constitution, we owe it to this country and generations to come to make sure that we don't have a compromised judiciary."

Chief Justice MogoengMogoeng, Nelson Mandela Annual Lecture, University of Johannesburg, 23 November 2019

Among the shocking allegations which the Sunday Times revealed against Umlazi acting regional court magistrate KholekaBodlani, is that she described a man who raped his 11-year-old daughter as “a loving father” and thus awarded him a suspended sentence; that she released the would-be killer of a 6-year-old boy back into his community; declared another alleged child rapist unfit to stand trial because “he appeared gay” and therefore “not interested in sexual relations with females;” and that she subjected a 12-year-old victim who was allegedly raped five years ago to inappropriate cross-examination.

The Magistrate’s Commission has since begun investigating these allegations and has undertaken to audit all Bodlani’s cases since her appointment in 2013. Around 17 matters have so far been identified for special judicial review and three of Bodlani’s “merciful” judgements have already been overturned. The Magistrate’s Commission has stated it is “taking the matter very seriously” and treating the matter “as a priority.”

“Priority” however, should not be confused with ‘rapid’ or the assumption justice will prevail. For while the Commission (hopefully) grinds inexorably onwards, Bodlani has not been suspended, only removed from sexual offences cases, and is still presiding over partly heard trial matters. Her potential to do further harm is immense.

According to advocacy group Judges Matter, who sat in on recent interviews with 88 candidates for regional court posts nationwide, “a significant number” of candidates displayed a shocking lack of legal knowledge regarding sexual offences. Disturbing as this is, persistent reports of corruption in the courtroom and political bias such as the most recent scandal involving Judge Hlophe’s alleged attempt to influence the appointment of judges in the case against former president Jacob Zuma’s nuclear build programme, suggest that lack of knowledge of the law is only partly to blame for the parlous state of our judiciary, particularly our lower courts.

Regional courts are at the coalface of our country’s serious and often-violent crime crisis and deal with cases of murder, rape and other serious offences that often never make it to high court. It is therefore critical that magistrates appointed to these courts are beyond reproach.

Yet a growing number of media reports as well as personal observations over the past few years suggest that KZN’s judiciary – particularly some of its regional court magistrates – are not only failing to hand down appropriate sentences, but may be members of a corrupt patronage network who allegedly owe their privileged positions to suspended regional court president, Eric Nzimande.

CONNECTING DOTS

Nzimande, whose suspension was only confirmed by parliament’s security and justice committee in March 2019 – some five years after the first complaint was lodged against him – is accused of appointing acting regional court magistrates in return for payments as well as sexual harassment involving one of the magistrates whom he appointed.

It seems Umlazi’s magistrate Bodlani may have been one of Nzimande’s appointments.

According to Jamie Joseph, rhino crusader and director of the anti-poaching investigations organisation, Saving the Wild, “What the [Sunday Times] article fails to mention is that it was Nzimande who pushed for Bodlani’s appointment.”

Allegations against Nzimande first burst into the public domain way back in September 2016 when City Press and sister publication Rapport ran the story“Judge in sex, cash-for-job scandal.”

City Press reported that Nzimande had allegedly offered Thinake Gumede – at the time an acting district court magistrate – an acting regional court magistrate’s post in return for money and sex.

Gumede, who had allegedly been making payments to Nzimande since 2012 and admitted to having “sat on his lap” on at least one occasion, reported the matter to the Magistrate’s Commission in mid-2015, seemingly only after her contract was not renewed. Gumede, under investigation herself after having earlier been arrested for defeating the ends of justice, (she allegedly interfered with a witness in a rape case against one of her relatives) was permitted to continue dispensing justice for the months following her arrest until the expiry of her contract.

The Magistrate’s Commission subsequently initiated an investigation into the allegations against Nzimande and by May 2016 sufficient evidence was apparently uncovered, that, in terms of the Prevention and Combatting of Corrupt Activities Act (PRECCA), required the matter was reported to the SAPS. However, some three months later, City press reported that the Commission had still not responded to investigators requests for permission to do so.

It is worth noting that in terms of PRECCA, “any person who has actual knowledge of, or who believes that there is a reasonable possibility of (corrupt activities),” even if “the person has failed to obtain information to confirm the existence of (corrupt activities)” must report these matters to “a person of authority” or “any police officer” who should then refer the matter for investigation by the relevant authorities. Failure to do so is a criminal offence. This implies that the significant delay in reporting Nzimande’s alleged activities to the police could have rendered the Magistrate’s Commission in breach of PRECCA and thus a potential accessory to any alleged criminal conduct.

Although it is understood that criminal charges were eventually laid, it was not until a further two years later, when AmaBhungane published an in-depth report “Corruption in the courtroom: Rhino poachers accused of bribing officials in KwaZulu-Natal” that it seems the Magistrate’s Commission was finally forced to provisionally suspend Nzimande. But it took a further five months before parliament ratified the suspension and Nzimande was removed from office. His influence over our province’s courts, however, seemingly persists.

AmaBhungane’s Sam Sole had pieced together evidence and information that suggested that Nzimande had established a significant patronage network by “offering acting regional court magistrate positions in exchange for cash which he seemingly needed to feed a gambling habit.”

AmaBhungane revealed that according to a leaked May 2017 draft report, Nzimande’s non-transferable “loyalty card” was a regular visitor to a well known Durban gambling establishment. In fact, between 2003 and 2015 his card had visited the establishment an average of 70 days each year. In other words, for twelve years the regional court president’s loyalty card had spent one evening in five gambling, it would appear, often until well past midnight.

“Worse,” wrote Sole “it appears [Nzimande] enabled – directly or indirectly – the formation of a network of judicial officers who are allegedly using their position to pervert justice on behalf of criminals. In particular, Nzimande’s alleged patronage network appears to overlap partially with a group of court officials in northern KwaZulu-Natal who are alleged to have taken bribes – particularly around [rhino] poaching cases”.

The draft report described how, “…magistrates that had entered into a corrupt relationship with Nzimande ‘would at times be placed by Mr Nzimande in a specific court to ensure a specific outcome for the accused person, for e.g. a murder matter would be placed before one of these magistrates and the accused would be acquitted or receive a suspended sentence or the matter would be struck off the roll’.”

Via Saving the Wild’s website, Joseph has for many years been actively exposing this syndicate to public scrutiny. She has consequently received death threats, verbal abuse in court and suffered social media trolling.

Significantly, 1078 rhinos have been poached in KZN since 2008. This steep year on year rise only slowed after the arrest of a kingpin, who, it would appear, had until recently been protected from prosecution by members and associates of Nzimande’s alleged network.

Equally disturbing, particularly in light of the recent Umlazi child rape sentencing scandal, were concerns noted in the report regarding a certain “Ms B [who] was appointed as a Regional Court Magistrate about 3 years ago. She was a district court magistrate… with very limited criminal Court experience. She was placed in a specialised Sexual Offences Court… by the Regional Court President. It was apparent to all that she was out of her depth dealing with Sexual Offences matters. Her average [travel allowance] per month is R21,000… A concern is that the officer, is using [one of her cases] as a ruse to ensure the State pays for her visits to her home…”

At that stage the investigation had apparently not uncovered any evidence that “Ms B” abused her position in court or paid any money to Nzimande. While we do not know if “Ms B” and magistrate Bodlani are the same person, the timing of Bodlani’s appointment coincides with ‘Ms B’s’ deployment to “a specialised Sexual Offences Court” and concerns regarding her apparent “limited experience” in sexual offence matters were echoed by a court official quoted by the Sunday Times, who suggested that Bodlani “should have been under supervision.”

THE R4.5 MILLION QUESTION

Joseph’s allegation that, “it was Nzimande who pushed for Bodlani’s appointment,” demands urgent interrogation, as do Bodlani’s bank statements. Did she pay Nzimande for her position? Did she provide ‘other favours’? How long has this been going on? And court officials who claim to be baffled as to why Bodlani’s inappropriate sentencing remained undetected for so long, should instead be asking: why was Bodlani even appointed magistrate in the first place?

According to a 2001 News24 article “'Bungling' cops anger judge”: “An Umtata High Court judge on Monday lambasted the commercial police branch for bungling a case that resulted in the acquittal of a Lusikisiki public prosecutor. KholekaBodlani was implicated in fraud involving more than R4.5 million.”

Bodlani, it was reported, “then a magistrate in East London, was charged with ten others” back in 1997. Charges at the time were apparently sufficiently serious for the court to order she pay R40 000 bail.

At the time a clearly infuriated Judge David van Zyl slammed police conduct and ordered a copy of his judgement was sent to the national police commissioner and to the Magistrate’s Commission, stating that, “…although the State failed to prove a case against Bodlani, there were a number of factors thatraised serious concerns as to her suitability to be appointed as a magistrate.

Van Zyl requested the Magistrate’s Commission “take whatever steps may be necessary in the circumstances.”

Sadly for Umlazi’s child rape victims, the Magistrate’s Commission however, did not apparently deem any “steps” necessary, for around the same time the Daily Dispatch ran another story, “Magistrate, now suspect, made prosecutor 'in error'” in which it reported that, “Suspended Lusikisiki public prosecutor KholekaBodlani, currently facing fraud-related charges, had been irregularly appointed as a prosecutor instead of as a magistrate, a Justice Department official said this week.”

Bodlani, it seems, had been earmarked for higher office and a few million rands worth of fraud charges were not about to hold her back.

In 2011 the Daily Dispatch reported that “former prosecutor KholekaBodlani – who joined the Justice Department in 1981” and came from a “very politically conscious” legal family – was at the time “magistrate at Flagstaff court.”

Two years later Bodlani surfaced in KZN to preside over sexual offences at the Umlazi magistrate’s court. Her blotted past seemingly cleansed from memory, or perhaps no one was paying attention.

A HISTORY OF ‘LENIENCY’

In 2018 during the SAPS submission to the Moerane Commission of Inquiry into KZN’s political killings, deputy provincial commissioner Major General DumizweniChiliza – in an apparent attempt to defend the state’s shocking failure up until mid-2017 to pass meaningful sentence on a single Glebelands hostel hitman – presented arrest and prosecution figures for murder and attempted murder cases that had occurred at the hostel between 2010 and 2014. These cases would all have gone before the Umlazi magistate’s court.

According to Chiliza, of the 24 murder cases recorded for that period, nine made it to court. Of these, three cases were withdrawn, three suspects were acquitted, and a further three suspects were sentenced to 4, 5 and 10 years respectively.

Sentencing for attempted murder was equally feeble. Of the 16 out of 21 cases that ended up in court, ten were subsequently withdrawn; one suspect was acquitted; two received fines of R2000 and R5000 respectively, while two other accused were sentenced to 3 and 15 years respectively.

How little it seems the Umlazi judiciary valued hostel dwellers lives.

Neither the SAPS nor the Moerane Commission seemed to find anything untoward regarding these astoundingly weak sentences, nor the suspicious regularity with which cases were withdrawn or suspects acquitted. Bear in mind too that many suspects were repeat offenders with existing criminal records, additional pending cases, or even outstanding warrants of arrest in other jurisdictions.

The law prescribes mandatory minimum sentences for serious crimes such as murder and rape. The minimum prescribed sentence for rape is 10 years to life imprisonment unless the offender is underage or if substantial and compelling circumstances justify a lesser sentence.

While lengthy jail terms are questionable as deterrents to those who commit violent crimes, they do however remove dangerous criminals from communities that, in the absence of justice, may be persuaded to take the law into their own hands, thus perpetuating a cycle of violence. And even if a complainant withdraws from a case, the prosecution is entitled to continue with the matter if a successful outcome is anticipated.

But Umlazi magistrate’s court determinations often defy standard precepts of justice. For example, I have witnessed bail set at a meagre R500 for a man accused of raping a child who looked no older than 10-years-of age. Neither the prosecutor nor the investigating officer objected. During the same court sitting, a man accused of murder whose charges seemed tenuous at best and who told the court he had been tortured by the police and clearly feared for his life, was required to pay R20 000 bail.

For years Glebelands hostel leaders complained about court bias in favour of some of South Africa’s most prolific hitmen. Although investigations were undoubtedly hampered by witnesses’ understandable reluctance to testify (at least seven witnesses were assassinated before they could give evidence) and police collusion has made a significant contribution to the carnage, stats presented by the SAPS during the Moerane Commission supported the community’s contentions that the court was merely a revolving door through which repeat offenders were returned to the community to kill and kill and kill again, sometimes while out on bail for previous murders. It was therefore hardly surprising that by early 2019 Glebelands-related murders had peaked at 122 with around 107 incidents of attempted murder.

FOXES GUARDING THE HENHOUSE

According to the Sunday Times, court officials suggested that Bodlani’s ultra-lite sentencing had flown under the radar for so long because “no complaints were made,” “no one was watching.”

But this is simply not true. Complaints were lodged and reports written, not about Bodlani specifically, but about the conduct of other Umlazi regional court magistrates who may also be members of Nzimande’s alleged patronage network.

In one instance in 2017 an unknown male magistrate unconditionally released Sanele Thusi, a suspect charged with the attempted murder of a Glebelands resident. At the time, Thusi had FOUR pending murder and attempted murder matters and an outstanding warrant of arrest, all of which had been brought to the attention of the court. Thusi’s release was also in contravention of a previous court order, in the absence of outstanding forensic evidence, contrary to the prosecutor’s objections and without the knowledge or presence in court of the investigating officer who had conveniently been given a different court date for the suspect’s next appearance.

Application for reinstatement of the case took several months during which time Thusi gunned down another hostel resident, ZanoxoloQutha, the father of several young children. Although Thusi was eventually rearrested and subsequently sentenced to a total of 31 years imprisonment, it did not bring back Qutha. Was the magistrate held accountable? It seems not.

Another complaint in 2018 involved Umlazi regional court magistrate Vino Govindarajulu who presided over a case involving the murder of a hostel woman, AkhonaNgxokana. The victim’s sister, who had allegedly been assaulted by the accused during the same incident in which Ngxokana was killed (she had reportedly intervened physically to try and stop him shooting Ngxokana), was the key witness after another witness was assassinated. Since the murder she had received death threats and had to flee her home. Severely traumatised and fearful, she attended court under police protection.

During the trial impeccable sources reported that Govindarajulu showed “undue bias in favour of the accused,” bullied and denigrated the witness; reportedly asking her, “Why are you accusing such a handsome man like this of killing your sister?”

Despite complaints about Govindarajulu’s conduct, she was allowed to conclude the case, astoundingly finding the accused not guilty of murder or possession of an illegal firearm, but guilty of assault of the witness. The accused was released with a light tap on the wrist. Govindarajulu still presides over Umlazi regional court matters.

TOXIC ENVIRONMENT

The Sunday Times reported that the deputy minister of justice and correctional services, John Jeffrey, had approached the national director of public prosecutions to establish why prosecutors did not have Bodlani’s sentences taken on review. But investigating officers who previously urged prosecutors to report magistrates’ misconduct, claim that, “the prosecutors are scared.”

Not only is there a culture of fear at Umlazi, but there is poor record keeping, difficulties accessing case-related information that should be available to the public, inaccuracies in the court roll and case records, extremely poor security and general disorganisation – at times chaos – in day-to-day operations. While it is acknowledged that this court – like most others – is severely overburdened, the prevailing situation does nothing to further the ends of justice and has a profoundly negative impact on hardworking, dedicated staff.

It is also virtually impossible for the majority, who cannot afford costly legal counsel and do not have unlimited time, to access – or even penetrate – the opaque, confusing and intimidating court bureaucracy in order to make the most of whatever remedial measures may be available. When corruption is factored into this equation, chances of obtaining justice become even more remote.

In both the above cases Glebelands leaders reported that heavily armed hostel thugs extorted large amounts of money from residents shortly before the matters went to trial. These hostel ‘collections’ have become central to the ongoing trial of the ‘Glebelands Eight’ in which a police detective and seven alleged hitmen have been charged with multiple murders and attempted murders, racketeering, extortion and possession of a prohibited firearm and ammunition.

Over the years, a morbid pattern has seen the regular release of hostel hitmen shortly after collections are concluded. Moerane Commission and ‘Glebelands Eight’ witnesses have testified that these funds are used to buy guns and ammunition, pay hitmen and bribe police and court officials. But it seems no one is willing to follow the money.

Govindarajulu, reliable sources (who cannot be named due to fears for their safety) claim, often held “closed door” meetings with Nzimande. The reason for these seemingly irregular meetings is apparently not shared with other senior court officials or management and suspicions regarding unlawful interference is suspected.

In response to complaints submitted in 2018, we were informed that, “the state’s remedies are limited to reviews and appeals if there are grounds,” while complaints involving specific magistrates could only be made to the regional court president. By that time Nzimande had already been notified of the charges against him and asked to provide reasons why he should not be suspended. As Nzimande was to remain in office for a further five months this would have meant reporting concerns about Nzimande’s seemingly irregular relationship with Govindarajulu and her alleged misconduct to Nzimande himself. Clearly the system is broken for this even to have been suggested.

OLD BOYS CLUB

In 2017 News24 reported on multiple charges of misconduct against Pinetown regional court magistrate, Stanley Gumede, some of which dated back to 2004.

In 2013 Gumede had been former president Jacob Zuma’s candidate of choice to head of the National Prosecuting Authority (NPA). Gumede’s appointment was apparently foiled by the large number of complaints against him, as well as – according to former NPA head Mxolisi Nxasana’s testimony at the Zondo Commission – having been the butt of a “dirty tricks campaign” allegedly orchestrated by former acting NPA boss, NomgcoboJiba.

Be that as it may, Gumede faced serious charges, including: interfering with the prosecution of cases; unnecessarily threatening, interrupting, arguing and undermining witnesses and police officers; sending a robbery victim whose son had been brain damaged during the incident to police cells "for not telling the truth" and then insisting that her husband testify even though he was too traumatised to do so because of what had happened to his wife; abuse of power; using the courtroom to air personal grievances and attack prosecutors’ integrity; and reducing an advocate to tears.

The relationship between Gumede and Pinetown prosecutors apparently become so toxic that they reportedly refused to be assigned to his court, which they claimed, had the highest acquittal rate. They said the perception existed that “accused were being acquitted even if there was overwhelming evidence against them.”

When the matter eventually went before the Magistrate’s Commission tribunal, the Commission’s representative emphasized the need for judicial independence, submitting that over a period of 16 years, Gumede had shown no remorse and would thus not benefit from rehabilitation and should be fired.

Nzimande, by then himself under investigation by both the Magistrate’s Commission and the police, testified in Gumede’s defence, claiming he had not received a single complaint against Gumede who such an "asset" to the justice system that he had recommended Gumede for a post as acting judge.

Nzimande, who said he had attended university with Gumede, described him as “a pure gentleman” with “high standards” and commiserated with Gumede’s tribulations, saying he too had been challenged "on a virtual daily basis" by vexatious prosecutors while previously based at Verulam court. In mitigation, if such was really necessary, Nzimande suggested Gumede could be sent on "soft skill" training courses and recommended he be given one of the vacant permanent posts in Durban.

No record of Gumede’s ultimate sanction could be found online, but according to The Mercury, the tribunal appeared to have been “considering suspending his sentence for 12 months and having him undergo training” – specially arranged at Nzimande’s behest.

PROFOUND IMPLICATIONS

While it may be said that the wheels of justice are known to grind exceedingly slowly, when grinding their own, the judicial wheels appear to have fallen off entirely.

Flags were first raised about Bodlani almost 20 years ago yet she went on to further her career as a magistrate in various courts across two provinces. With so many years experience there can be no excuse for her purported ‘lack of knowledge’ around rape or any other laws. ‘Retraining’ is not an option.

Complaints against Gumede go back 16 years yet he has subsequently presided over high profile cases such as that of corruption-accused Durban businesswoman ShauwnMpisane.

Initial complaints against Hlophe emerged 12 years ago, but his purported reign of terror as Western Cape judge president continues undiminished.

The investigation into Nzimande is now 5 years old. When motivating for Nzimande’s suspension, the Magistrate’s Commission told parliament’s security and justice committee that the investigating officer had received death threats, the acting regional court president’s computer had been hacked, and Nzimande had been visiting witnesses. Although Nzimande has since been removed from office he still receives a full salary at our expense while his legacy of appointments apparently continues to undermine the health and legitimacy of provincial justice, wrecking young lives and seemingly furthering the ends of organised crime.

According to information in the public domain at least 17 of Nzimande’s appointees could be guilty of misconduct or engaged in questionable activities. How many more are out there? How many other courts are operating under similar conditions as Umlazi? How many of the 88 recently interviewed regional court candidates will carry more than a whiff of corruption into the courtroom?

These are not a few 'bad apples' but the tip of an iceberg upon which South Africa’s justice system will likely founder.

And it raises unfortunate questions.

How can we respect a judiciary that fails to hold its own to account? How can we respect judges and magistrates whose alleged exploits have rendered large swathes of the judiciary, at best, a tawdry soap opera, at worst, a politically compromised, dangerous, criminally corrupt patronage network?

As Joseph recently lamented: “The courtrooms in KZN have thrived for many years on bribe money and bottles of Hennessey. If the powers that be have any intention of proving to the world they are capable of honouring the victims, the rangers, the rhino cops, and sav[ing] the rhino, they need to start firing, arresting and convicting members of state with blood on their hands. It is the final countdown before dark forces will try to derail the police investigation into court corruption... Justice cannot change the past. But justice can save the future.”

Court oversight authorities can no longer delay taking potentially unpalatable or politically unpopular action without destroying the credibility of our courts. Protracted, inconclusive processes render accountability mechanisms powerless and meaningless and do nothing to further the ends of justice. Unending due process cannot become a substitute for justice. Accountability systems must be reviewed.

Investigations already underway must be properly resourced, supported and given the capacity needed to make rapid conclusions. We have good laws. They must be applied. Speedily.

The method used to appoint magistrates is clearly open to abuse. It must be revised and made more transparent and democratic. Quickly.

As upholders of our Constitution, an independent judiciary is integral to any functioning democracy. Our courts – in many instances – have proved to be the last bastions against state capture and the tidal wave of corruption that has swamped our country. As a result, our judiciary is under attack by political factions that clearly seek to undermine the rule of law to evade personal prosecution. It is therefore more important than ever that the judiciary keeps its house in order. Right now, it is failing.

Action against Hlophe is critical. But we also need action against the criminal cabal that appears to have captured KZN’s judiciary. We need corrupt, unethical, or poorly qualified magistrates out of the system before they do more damage.

ALL Nzimande’s appointees must be identified, their cases audited and reviewed if there is any whiff of impropriety. Their bank accounts must be scrutinised and they must be subjected to lifestyle audits. Personal costs orders against judicial officers implicated in irregular sentencing would help towards victim reparation and also act as a powerful deterrent to future transgressions.

We need to see all this now, not in another decade by which time South Africa will have succumbed to lawless dystopia. Those who oversee the judiciary cannot gamble with our nation’s future any longer.

As Chief Justice MogoengMogoeng told us during his Nelson Mandela Lecture: “Anybody with a functional conscience must seek to identify his or her responsibilities as contained in our Constitution. If you are indifferent because you occupy a position that pays you well, if you are indifferent to the plight of the people …because you are comfortable, …know that you are a traitor; you are a traitor of our Constitution."

So we are waiting, impatiently, for action to be taken against these ‘traitors.’

Vanessa Burger is an independent community activist for human rights & social justice