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.
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….