State capture can be stopped

Helen Zille writes on her and the DA's role in the long and arduous effort to hold John Hlophe JP to account

No democracy can succeed without a capable state made up of strong, independent institutions, that uphold the constitution and protect people from power abuse.

When state institutions -- like the National Prosecuting Authority, the Electoral Commission or the Human Rights Commission -- lose their independence, they are “captured”, and can no longer fulfil their functions.

They become extensions of the dominant faction in the ruling party, protecting the powerful from the people, rather than the other way around. This is the root cause of state failure.

As the DA has been showing for more than two decades, cadre deployment is the mechanism the ANC has used to capture the South African state.

The collapse of Eskom, South African Airways, Transnet and many other State-Owned Enterprises (all the consequence of cadre deployment) offer a small fore taste of what a failed state looks like.

Although the media usually misunderstand the concept of “state capture”, there has been a glut of (mis)reporting on it, since the phrase caught on around 2016.

Less well document are the rare instances of success in the “fight back” against State Capture.

When these sporadic victories occur, they should be recognised for what they are, and celebrated. They offer some hope at a time of widespread despair.

Last week saw one of these watersheds when the Judicial Service Commission (JSC) -- a crucial state institution -- finally did the right thing and voted to impeach the Judge President of the Western Cape Division, John Hlophe.

The JSC should have done this 20 years ago, when the first major, verified complaint against Hlophe surfaced, just two years after he was sworn in as Judge President. But, as a body with an in-built ANC-cadre majority, the JSC predictably let Hlophe off the hook, and enabled him to do immeasurable damage to the Western Cape bench over three long decades.

Now that Hlophe’s political shield, former President Jacob Zuma, is doing jail-time, the way is clear for some ANC deployees in the JSC to do what they should have done from the start, and hold him to account.

This does not, of course, imply that the JSC has freed itself from ANC capture. It is merely an indication of the shift in the power balance within the ruling party, that is reflected across most state institutions.

Nevertheless, I believe last week’s victory in the JSC was very significant, not because the JSC has been liberated from its ANC captors, but because it would not have happened without a sustained fight-back, both from the DA and civil society.

To show the dangers of the JSC’s current composition (with a majority of ANC MPs and its deployees) one must understand the extent of the protection Judge Hlophe has enjoyed since the early years of his tenure as Judge President (which began in 2000).

Just a few years later it emerged that Judge Hlophe had secretly received payments from Oasis, an Asset Management Company, between April 2002 and March 2003. This coincided with a period when Oasis required Hlophe’s permission to sue another judge for defamation. Hlophe eventually gave permission for the company to act against the judge.

In the preliminary skirmishes of the defamation case, the payments were exposed. After first denying publicly that he received them, Hlophe was forced to admit that he had in fact received compensation for what he described as “out-of-pocket expenses” incurred while a board member of Oasis’s Crescent Retirement Fund.

The DA then established, through a question in Parliament, that Hlophe had not, as the law requires, received permission from the Minister of Justice to receive the secret payments.

Without batting an eyelid, Judge Hlophe then claimed he had received verbal permission from the former late Minister of Justice Dullah Omar.

Conveniently for Hlophe, Dullah Omar had since died. But inconveniently for him, it was easy to show that Omar’s tenure as Justice Minister ended in mid-1999, long before the launch of the Crescent Retirement Fund, or the start of the Hlophe’s board membership and the payments made to him.

It was clearly a massive, and easily verifiable lie.

But despite this, after the scandal had dragged on for years the JSC, in November 2006, announced that it was not going to take action against Hlophe, because there was “no evidence” that Dullah Omar had not given verbal permission, as Hlophe claimed.

This outcome was as incomprehensible as it was predictable.

From that moment, Hlophe knew he had political cover. He had also been politically compromised. He now owed a debt to his political masters, in what became a mutually symbiotic relationship, with the ascendant Zuma faction in the ANC.

It certainly showed in Hlophe’s allocation of judges to cases involving the DA or the Western Cape government in the Province’s High Court.

The next time Hlophe hit the headlines, it was for something even more explosive.

On 30 May 2008, the Judges of the Constitutional Court issued a statement saying they had referred Judge Hlophe to the JSC as a result of “an improper attempt to influence this Court’s pending judgment in one or more cases”.

It emerged that Hlophe’s attempt at influencing the court related to four matters involving the then Deputy President Jacob Zuma.

It was later revealed that Hlophe allegedly approached Judges Nkabinde and Jaftha separately in their offices, reportedly told them that he would be the next Chief Justice, and that they should “consider their future” and rule in favour of Zuma.

True to form Hlophe rejected the allegations as a ploy to damage his reputation, but took leave of absence for over a year while he dealt with the matter.

In April 2009, a JSC sub-committee convened an oral hearing in which six Constitutional Court justices testified (as did Hlophe). There was no cross examination of witnesses to establish where the truth lay.

The JSC then dismissed the complaint against Hlophe by a majority vote, saying that there were different versions of events and therefore no point in pursuing the matter.

At the end of August 2009, the JSC’s Disciplinary Committee said it would not continue the investigation into the ConCourt’s complaint against Hlophe.

However, between April and August 2009, something important had happened. It was the 2009 general election, in which the ANC was voted out of power in the Western Cape. The DA won by a narrow margin. In May 2009, I was sworn in as Western Cape Premier.

There is always a long “to do” list when cleaning up the mess the ANC leaves behind in government. One was the JSC’s handling of the John Hlophe matter.

In my capacity as Premier, I was ex officio a member of the Judicial Service Commission, in matters involving the Western Cape Bench. And I had not been notified of the August 2009 meeting, at which the JSC had agreed with its sub-committee AND decided to drop the complaint against Judge Hlophe.

Furthermore, only 10 of the Committee’s 13 members had been present to consider the Hlophe matter -- and of the 10, six had voted to drop the issue. In other words, fewer than 50% of the members of the Committee had opted to let Hlophe off the hook. I couldn’t help wondering why the others, including myself, had been excluded from the deliberations.

The Province’s lawyers advised that if I mounted a challenge against the outcome on procedural grounds, the prospects were good. So we started on what was to become a marathon, and ultimately successful journey.

At the same time, the NGO, Freedom Under Law, successfully challenged the substance of the JSC’s decision not to pursue the matter against Hlophe, saying it had not made a serious attempt to establish the facts.

In true Stalingrad fashion, Judge Hlophe, like his protector Zuma, used every possible legal device to delay the case for the next decade.

And predictably, shortly after Zuma’s hourglass ran out, so did Hlophe’s.

Of course, the JSC’s belated conclusion last week that Judge Hlophe was guilty of “gross misconduct” does not necessarily mean that Hlophe has been impeached.

There is still another crucial step to go. The National Assembly must agree by a two-thirds majority, to remove him from office.

Nevertheless, this JSC’s step represents a crucial milestone in the fight against State Capture, and holds many crucial lessons.

One of the most important should be directed to deployed cadres: Think ahead. It won’t be long before your political sponsors are out of office and then you will be dropped too. Rather serve the constitution and the public, not your political masters.

But beyond these individual dramas, the hour-glass is running out for the ANC, in its entirety, as well.

In the forthcoming election, the ANC is likely to fall below 50% in many more towns across South Africa. And it is predictable that this will happen in the 2024 election too.

That will be a watershed moment in the struggle to save South Africa from the ANC’s vampire state. But it will take years to salvage state institutions, hollowed out by decades of ANC extraction, to enrich and protect themselves.

Nevertheless, in these times, when people often despair about the future, it is important to celebrate the gains and victories made by many actors in our society working in their specific ways, to turn South Africa into a viable constitutional democracy, with a dependable, capable State.

It is moments like these where one feels: It can be done.