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The man disrobed – a window into the ANC elite?

From the upper echelons down, it seems the social disintegration of South Africa may be more widespread than we realised.

Five days ago, Old Mutual Chair Trevor Manuel referred to Judge Brian Mashile of the Gauteng High Court as a “single individual who happens to wear a robe”.

When someone with a career as illustrious as that of Manuel – he served three South African presidents as finance minister, has international recognition, and once studied law – refers to a judge of the high court as “a man in the robe”, it is surely a wake-up call that the social disintegration of South Africa is wider than anticipated.

Does this show arrogance in the man, or typical arrogance in the ANC elite? Does this open a window into the assumed power of this elite? That when judgments do not go their way, they can issue a public statement damning the judge, the judgment, the court … the legal process?

Or did Manuel merely lash out? People have been castigated for lesser lapses in judgement.

(Be careful what you say)

In a recent example, a reporter was caught on camera muttering an expletive under his breath. It was not a public utterance, and was not meant to be recorded or publicly released. But many, including the South African National Editors Forum, rushed to criticise him. He apparently mouthed a bad word. Something sexist. It was one forgettable moment. One would think none of us ever utter profanities.

Surely insulting the judiciary should rate much higher than a muffled expletive by a frustrated journalist? And surely there should be more serious consequences when that insult is hurled by a man with political and economic power – particularly at a time when our legal system is above reproach, and shielding us from disaster.

For how long will our judiciary be allowed to remain independent, if this is what a senior politician and businessman really thinks of it?

Good guy, bad behaviour?

Has South Africa fallen so far that when an apparent ‘good guy’ behaves badly, we don’t want to criticise him because there are ‘worse guys’?

Manuel made this statement as a director and chair of Old Mutual, which describes itself as “the largest and most trusted financial services provider in Southern Africa”.

Is this behaviour becoming of a director? In making this off-hand remark, and as such disrespecting a judge, Manuel did not “exercise reasonable care, skill and diligence” (Companies Act). And for such a derogatory statement to be made by the chair of a listed company, are there not wider implications?  

If not, methinks the King IV Code on corporate governance and the Companies Act concerning directors’ responsibilities and liabilities will have to be amended … thou shalt not disrespect the law, nor South Africa’s institutions.

A judgement that cannot be appealed

Our law allows for judgments to be appealed. However, where a judgment is dismissed by a man ‘not in a robe’ this Act falls far outside the law. In doing so, was Manuel not placing himself above the court?

Chief Justice Mogoeng Mogoeng appeared at a press briefing on September 13 in regard to allegations of corruption in the judiciary. The chief justice’s views are in my opinion relevant to any attack on the judiciary: “The judiciary is the custodian and guarantor of our constitutional democracy,” he said.

The judiciary is mandated to uphold high ethical standards and comply with the values that are the foundation of our democracy.

Manuel’s personal attack, even though not an allegation of corruption, was a complete dismissal of the power of the court. If those in high office do not respect the law, how can it possibly be respected by those not in power? Manuel, and others in power, have a responsibility to protect our law and institutions.

As a legal academic who asked not to be named puts it: “For the ANC to not support their own institutions amounts to undercutting their own foundations.”

Does this amount to contempt of court?

One needs to be in court, behaving badly, or to ignore an instruction by the court, to be held in contempt of court. The academic mentioned earlier says that what Manuel delivered can be seen as a “backhand slap, behaving like a backroom bully”.

On September 17 Old Mutual’s communication department issued a media statement saying that Manuel “apologises unreservedly” for the “unguarded observation” that he made in regard to Judge Mashile.

Read: Trevor Manuel apologises over remarks about judge

I think the damage caused by this “unguarded” observation runs further than mere discomfort. It was another blow to our democracy.

Meanwhile, Old Mutual’s share price is stuck on a roller coaster….

 

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Everything you say is true but you completely ignore how bad the judgements are from Judge Mashile. They really are inexplicable.

If a judge’s judgements are bad the correct behaviour is to attack the judgement on factual grounds, not attack the institution or the person in derogatory terms.

There have been some shockingly poor judgements in SA recently. The old flag case and the Coligny case are two examples of this. Nobody is above reproach. Not even judges.

It is very easy to understand Manuel’s utter exasperation at these bizarre judgements, but he carries the heavy responsibility of leadership and – with that – comes the duty to follow due process and not undermine the integrity of the judiciary in a fragile democracy. The judgements betray a staggering lack of insight into how companies operate and a disturbing commercial naïveté that do the judge no credit. There is no point in granting orders that cannot practically be implemented; the employment relationship between Moyo and Old Mutual is irrevocably destroyed. If the judge finds the termination unfair, let him order damages. But to naively order that Manuel can go back and pick up the reins is about as useful to society – where judgements set judicial precedent – as an order that, henceforth, the sun shall rise in the East. Or that two enemies must be friends. What next? Ordering divorced couples to move back in together if one changes his/her mind?

Errr…that MOYO can go back and pick up the reins…
that the sun shall rise in the WEST!

I am afraid the calibre of some of our judges leaves a lot to be desired. However some of our judges are excellent. It is NOT a capture of the Judiciary but rather the inherent continuation of NOT appointing the best people for the job under the banner of transformation.This resultant is spread across the business and sporting spectrums.

eMatt is quite right – except bad judgements are beside the point.
Manuel has let himself, Old Mutual & SA down – and badly at that.

Agreed. And is the fact that there is an appeal process not precisely to minimise the effect of poor judgements? Nobody is perfect and Manuel should be sensible enough to know this and apply reasoned facts as to why he thinks the judgment unsatisfactory.

What one finds shocking is what appears to be disappointment on what Trevor said to a point of excusing him, even so far as to blame the judge..
Perhaps, an introspection is more important here. That is, how good is/was your judgement of Trevor as being this “illustrious man” who probably go do no wrong. Disappointment often stem from unmet expectations. Through your judgement of Trevor, you have set expectations on him that may have no basis.
One supposes the above is a long-winded way of saying Trevor is not the problem, you are.

Oh, “YOU” above refers to anyone.

And he is just a man with a bald head ….
Neither statement means anything.
Perhaps Trevor wants us to concentrate on the word “single” meaning one swallow doesn’t mean a summer!
Meaning.- one man does not represent the Judiciary!

I like the comment about care, skill and diligence from the company’s act which happens to be a requirement of being fit and proper from the FAIS act. The question to my mind is whether Mr Manuel is still fit and proper to be leading the second largest insurer??

We have a serious problem here, that we well know, but don’t want to admit to, much less demand something be done about it.

The problem is that we created the expectation that the “Judiciary” is some perfect, God-like institution that is above reproach.

Yes, they SHOULD keep their biases and prejudices in check (and they’re appointed precisely on the understanding that they are better at this than most others), but they REMAIN ordinary people – despite being clothed in a “robe”.

The legal profession has eagerly bought into this self-serving narcissistic view of themselves for their own greedy self-interested ends.

So we have an institution of GRAND self-entitlement, where judges are appointed “for life”, work for only 6 months of the year, get paid massive salaries and stupendous car allowances (for life!), and expect to be beyond “ordinary criticism” ie treated almost as an extension of a religious divinity (you must bow before them when you enter or leave a court).

Nowhere are they individually or collectively held to account for the efficacy of performing their required role in actually getting results.

For example, one of the major reasons violent crimes are spinning out of control is because the sanctions imposed by the courts are regarded with utter disdain by hardened criminals.

You would expect that would be the first demand from the Judiciary – that they be given better tools that WILL command respect. But no, not a single peep! Silence is NOT golden!

Then there is the “little matter” of almost every judgment being appealed. Every time an appeal is successful, it means the previous court made a MISTAKE!

There is NO censure on these judges or magistrates for “making these mistakes”.

Indeed, “appeals” are big money-making opportunities for the legal profession.

It should be such that courts that have their judgements overturned, should have to THEMSELVES pay the costs of the successful PARTY.

That will quickly bring this farce to an end.

In theory, the oversight role of the Judiciary falls to Parliament, but the HUGE problem here is that there is an incestuous relationship between the parliamentarians and the legal fraternity. Each uses the other to determine their compensation. Money talks!

It comes as no surprise then, that just like the judges, parliamentarians have created a self-serving gravy train of pay, pensions, and luxurious entitlements for their own religious divinity.

Good comment.

The problem I forsee with the judges being punished for bad judgments however is that they will then probably stop handing down judgments altogether and simply procrastinate ad infinitum.

The “procrastination ad infinitum” already occurs!

It’s called delays, postponements, and appeals.

These present huge, and enthusiastically embraced, money-making opportunities for lawyers that can (and do!) game the system every step of the way.

This is currently a HUGE problem in our court proceedings, and is a major reason why the wheel of Justice turns so slowly, In both Civil and Criminal courts.

Like any job, there HAS to be a measure of DIRECT accountability for performance on the job, and achieving the objectives of the position.

No service-provider should be in ANY position to audit his own worth or performance.

Judges that cannot, or will not, accept outside oversight for an acceptable level of performance or accountability, need to be removed forthwith.

This expectation is no different from any normal employee / employer relationship. There’s nothing special about judges in this regard, and they NEED to be put on notice in this regard.

I think Trevor acts as if he thinks that this judge is like a law student that marks his own examination paper.

He should be put in jail for 30 days for ”contempt of court”

Manuel has been so desperate to dispose of Moyo in a hurry from the start. How come?

He has failed to follow the most basic tenents of conflict resolution nor even common decency.

Clearly the real conflict of interests he projects onto Moyo, stems from himself. For one example, in his own relationship as a director of Rothschild & Co.

Over the past 18 months they advised on the separation of Old Mutual into four independent business units, $2.9bn worth of black economic empowerment transactions for Vodacom and Sasol and the sale of coal mines by Anglo American.

The Sasol deal has sour surprises at every turn, the coal shenanigans reek of political expediency and now there is also smoke at Old Mutual…

In all of this there have been major shenanigans. A flame or a hornets nest that will take deeper investigation to reveal.

Perhaps Moio could shed more light on this?

No one is above the law. And the governance rules and standard s are not negotiable for publically prominent directors- Manuel should at least offer his resignation or submit to a disciplinary enquiry.

Something definitely stinks in corporate and political SA.

We should never forget that our man Trevor was the arms deal finance minister…

We should never forget that Trev was the arms deal finance minister. So this is not his first judgement lapse.

Pre- 94 judges were appointed from the ranks of experienced senior counsel. It took about 20 years to attain senior counsel status and a further 10 years as senior counsel before being elected as a judge.

Under the ANC, of which Manual is part, this route was not followed and judges were appointed with little experience, few from senior counsel ranks and many without appropriate backgrounds. The level of expertise that used to be at High Court level is now at the SCA and Concourt level.

Attorneys cannot risk filing commercial cases in the High Court, as many judges have no commercial experience. This is recognized by the Chief Justice and commercial cases are now allocated to inexperienced judges to “practise” on. It is like appointing an airline pilot and then teaching him to fly.

In the above matter both Moyo and Manual seems unfit for their positions.

Manual also destroyed the Western Cape textile industry and about 20 000 jobs, when he opened the floodgates to Chinese textiles.

Manuel is simply clashing with his past. His past is in the all powerful socialist government who regularly enact laws to the disadvantage of business and the taxpayers whom they think they can milk ad infinitum. In his past he had the law, the police and the army on his side. His present position is in business where he has been shackled by own laws. A bitter taste of his own medicine – and being confronted with our reality on the other side of the fence. But he is still not feeling the financial pain personally. As usual other people are paying his bills. OM shareholders / taxpayers are picking up the tab to the tune R16 billion lost in the share price plus millions more to pay Moyo and Manuel ridiculous salaries and bonuses while their spat is destroying the company from within.

that’s why i still say: if he had the courage from a business perspective towards om shareholders / taxpayers, he would have resigned long ago – but is probably to use to the anc’s attitude: not to worry, somebody else is paying / going to pay for our mess, muddle and slip-ups – the sa taxpayer / citizen

It’s called “hubris” … excessive pride or self-confidence: the self-assured hubris among economists was shaken in the late 1980s.
• (in Greek tragedy) excessive pride towards or defiance of the gods, leading to nemesis.

Trevor Manuel was the Finance Minister (the country’s “CFO”) who signed off the Arms Deal.

As a member of the ANC cabinet and NEC he participated in the deprecating of the Rule of Law in SA.

Expecting him to respect the courts is a stretch too far.

At least he apologized while Malema regularly spouts his racial hatred without the hint of regret.

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