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Johannesburg - A company has laid numerous complaints against the Deputy Chief Justice of the Constitutional Court, Dikgang Moseneke, for failing to recuse himself from a case in which his brother was involved.
Since the beginning of last year, Brian de Lacy and Barry Beadon, from Cornastone e-Commerce Services, have lodged complaints with the Judicial Service Commission (JSC) and the Concourt about a judgment Justice Moseneke wrote in 2011. The case was about alleged tender corruption at the South African Post Office (Sapo).
The heart of the complaint is that Justice Moseneke did not recuse himself or declare a conflict of interest in the case.
Justice Moseneke presided over the case and wrote the judgment, while his brother Tiego, who has also been his business partner, was the director of the company, Kumo Consortium, that was awarded the disputed tender.
In terms of the Bangalore Judicial Code of Principles, to which the JSC Act refers, “a judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case”.
The complaint goes back to a tender issued by the Post Office in 2002 for the implementation and management of a secure biometric payment system for the payment of social grants.
Following the award of the tender to Kumo, De Lacy and Beadon suspected dishonest and corrupt behaviour by employees at Sapo and sued it for lost revenue.
Proceedings began in the high court in 2006 and judgment was delivered in December 2007.
The high court found the tender had been subject to “fraudulent, dishonest, corrupt and manipulative behaviour by certain employees of the respondent”.
The Post Office appealed against the high court judgment to the Supreme Court of Appeal (SCA), and the matter was heard in 2009.
The appeal court overturned the high court’s judgment, but according to De Lacy, in a complaint he made to the JSC, the court made 114 factual errors in the judgment.
The JSC asked the judge, Robert Nugent, to respond to the complaint, but according to the complainants, he refused to provide any answers.
“We were told that the JSC would appoint a committee to hear and investigate the complaint. They didn’t. But then (the JSC) advised us to bring the matter before the Constitutional Court,” De Lacy and Beadon said in a later complaint to the Concourt.
Judge Nugent would not comment on the accusations. “This has been going on for years and I am getting a bit tired of it. I suggest you get advice before publishing people’s defamatory comments.”
He said the case had been heard by 16 judges in total and the judgments were well thought out.
Judgment, which was agreed by a full panel of judges, was delivered by Justice Moseneke in May 2011. It found that the appellants failed to show that the SCA judgment contained any material misdirections that may have reasonably induced an apprehension of bias.
De Lacy and Beadon went back to the JSC because of Justice Moseneke’s involvement.
“The JSC recorded that a judge’s failure to disclose an interest and to recuse himself did not qualify as misconduct,” De Lacy said.
The JSC advised them to approach the Concourt again to request that Justice Moseneke recuse himself and the court deal with the matter afresh. Their request was turned down.
De Lacy and Beadon have approached the court numerous times in vain since then.
De Lacy said that what has taken place was a gross miscarriage of justice.
“In this regard, it is important to record, as advised, that the independence and impartiality of the judiciary are not the private rights of judges, but rather are the human rights of citizens,” he said in one submission to the court.
The complainants were given an analysis of the judgments by a senior counsel, who did not want to be named. The counsel was of the opinion the JSC’s findings that Justice Moseneke’s participation did not amount to judicial misconduct was “fundamentally wrong”.
Tiego Moseneke said: “This is just an attempt to besmirch the names of people without there being any basis of facts.”
The Star has made numerous attempts to get comment from Deputy Chief Justice Dikgang Moseneke and the Judicial Service Council (JSC) but all have been unsuccessful.
JSC spokesman Dumisa Ntsebeza said the JSC was to meet on Monday to discuss the complaint, after which he would give The Star a response. By late on Monday, the response had not come.
Justice Moseneke was e-mailed and contacted via SMS. The Star also called his house and office, and left messages.
On Sunday, The Star was told he was playing golf, and his family would give him the message and ask him to call back.
A Constitutional Court secretary also indicated on Monday she would ask him to respond.