This week's decision by deputy chief justice Raymond Zondo, as acting chair of the Judicial Conduct Committee, to refer judges Willie Seriti and Hendrick Musi for charges of gross misconduct, should set alarms bells ringing.
The pair produced the now discredited report on the commission of inquiry into the arms deal. Any dark stain on the judiciary doesn't augur well for our democracy. And there have already been too many instances of judges behaving badly.
Zondo, who already has his hands full chairing the state capture commission of inquiry, said he was "satisfied that in the event of Shadow World Investigations and Open Secrets' complaint being established, it is likely to lead to a finding by the Judicial Service Commission that Judge Seriti and Judge Musi are guilty of gross misconduct". As far as can be ascertained, it's probably the first time judges have faced such a charge. The two judges could be impeached if found guilty of gross misconduct.
Shadow World Investigations, one of the organisations that laid the complaints, is run from London by Andrew Feinstein, a former ANC MP who was drummed out of the party for insisting on investigating the corruption in the multibillion-rand arms deal. After the Party, the book he wrote on the episode, became a bestseller.
The ANC took many by surprise when, in 1998, it decided to plough billions of rands - not into fighting poverty or illiteracy - but to buy expensive weaponry for the military. The price tag at the time was stated to be R30bn, although it was rumoured to be more. In June 2011, Lindiwe Sisulu put the cost at R50bn. But Corruption Watch estimates the amount to have ballooned to R142bn.
While it was a mystery why the government would buy arms amid a sea of poverty and with not an enemy in sight, it soon became clear that thousands of rands in bribes from arms manufacturers had gone into private pockets and that high-ranking ANC politicians had been the beneficiaries. So far only two people - Tony Yengeni and Schabir Shaik - have been found guilty of offences related to the arms deal. Allegations of corruption around the arms deal have been hanging like an albatross around Jacob Zuma's neck. He will finally get to answer the charges when he appears in the Pietermaritzburg high court tomorrow.
The arms deal was almost the first instance of looting on a grand scale in the new SA. That, and the fact that little seems to have been done to bring the culprits to book, almost became an open invitation to even more brazen looting. The arms deal was a watershed event in the political life of SA, and the direction it has taken since. It opened the sluice gates to the kind of corruption we've come to associate with state capture.
In September 2011, Zuma suddenly appointed Seriti to head an inquiry into corruption in the arms deal. The two judges who were to assist him resigned suddenly without explanation before the hearing even started. Musi, a retired judge president of the Free State High Court, was roped in.
But why did Zuma, who more than anybody else was associated with arms deal corruption, seek an investigation? Wasn't he worried he could be revealed as the culprit? According to his political associates, Zuma apparently appointed the inquiry to prevent the Constitutional Court appointing its own, and imposing even more stringent terms of reference. The court was due to make a ruling on an application by Terry Crawford-Browne.
The inquiry was meant to take two years. But after almost five years, it found no evidence of corruption or wrongdoing. For those who had been following the inquiry, the findings didn't come as a surprise. Seriti had seemed impatient with anybody who brought credible evidence of malfeasance to his commission. Zuma seemed to have got what he wanted - a whitewash.
Zondo's decision to open an investigation into Seriti and Musi's conduct is not the first blow suffered by the two judges. In August 2019, the North Gauteng High Court in Pretoria set aside the findings of the Seriti commission. Judge president Dunstan Mlambo declared the entire enterprise "a manifest failure". He was especially critical of the line of questioning of businessman Fana Hlongwane, who is alleged to have received R60m in kickbacks from British Aerospace. The judge said Hlongwane's statement required further investigation, but instead he had been allowed to ramble on.
It is gratifying to see the bench at last dealing decisively with delinquency in its midst. But it is also worrying that instances of judicial misconduct are sadly becoming too common for comfort. The John Hlophe saga has been a running sore for more than a decade. He's become almost a serial offender, facing even more charges.
The fact that he's not only been presiding over cases, but as judge president running a division for more than 10 years while under a cloud is nothing short of a national scandal. Then there's the case of Nkola Motata, who crashed into a private home while driving under the influence, which has also taken aeons to be resolved.
The fact that the JSC has thwarted attempts to impeach him brings dishonour to the judiciary. The announcement that chief justice Mogoeng Mogoeng has gone on long leave five months before his retirement has been met with disbelief in some circles, and that suggests that the judiciary may no longer be taken at its word.
Our political setup is not only dysfunctional, but corrupt and unaccountable, and the courts are evidently working overtime to maintain a semblance of normality. The judiciary, as our last line of defence, should be beyond reproach.
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