FORGET PRESIDENT ZUMA DCJ ZONDO WILL COLLAPSE THE STATE CAPTURE COMMISSION

 

FORGET PRESIDENT ZUMA DCJ ZONDO WILL COLLAPSE THE STATE CAPTURE COMMISSION

                        By Paul M. Ngobeni

 

The latest ruling by DCJ Zondo conjures up images of an unsettling scenario in which DCJ Zondo unwittingly or knowingly is on the verge of collapsing the State Capture Commission. All this with the full knowledge that former President Zuma will be blamed for the wasteful and fruitless expenditure incurred in the Commission. Zondo appears oblivious to the cardinal rule that in our adversary system of justice, each litigant remains under an abiding duty to take the legal steps that are necessary to protect his own interests.  That was the case from time immemorial as demonstrated by two decisions involving Commissions from the apartheid era which dealt with alleged contempt by persons who refused to testify before a Commission.

 

I also highlight here specific legal blunders by DCJ Zondo in the manner he handled the issue of the criminal complaint for contempt against Zuma and how he compounded the problem further and rendered himself uniquely unqualified to continue presiding over any matter involving President Zuma. Zondo’s well-calculated tactics of issuing more summonses for Zuma to appear can be viewed as dangerous provocation that may lead to serious confrontation between Zuma’s bodyguards and whoever Zondo sends to arrest Zuma or enforce the Commission’s supposed summonses.   I also analyze the bizarre and premature decision of Zondo to seek the urgent intervention of the Constitutional Court.

 

As I understood him, DCJ Zondo said that the secretary of the state capture commission would make an urgent application to the Constitutional Court to compel former President Jacob Zuma to appear before the inquiry again and not leave until he was excused.  That appears to be premature litigation over a hypothetical question as Zuma has not been served with any summons and there is no indication that he would not comply.  Zondo is taking a big gamble but all of that may backfire and force the Constitutional Court to review the lawfullness of the Commission on the basis of the principles I discuss below.  What if the Concourt decides that the Commission was unlawfully appointed by the Chief Justice in violation of the Constitution?  This after the country spent close to a billion rand on the so-called State Capture Commission.

 

I answer the following legal questions:

 

A.            Is there Legal Precedent for A Witness’ Refusal to Appear Before A Commission established under the Commissions Act 8 of 1947 or similar Legislation?

 

The answer is in the affirmative. First is the case of  S v Mulder  (1980 1 SA 113 (T) 121F-121G) where a  comparable situation arose under the Commissions Act 8 of 1947 in the so-called Erasmus Inquiry conducted in the late 1970s. The previous apartheid Minister, Dr Connie Mulder, had been summoned to appear before the one man commission. It was revealed that Mulder, along with Prime Minister Vorster, had planned to use defence force funds to stage an apartheid propaganda campaign. This plan included offering bribes to international news agencies and purchasing a Washington newspaper. Vorster also misappropriated funds by financing The Citizen, the only English newspaper supportive of the NP and their apartheid policy.  On advice of his counsel, Johann Kriegler SC, Mulder declined to testify. He was charged with contempt for declining to testify in terms of the Commissions Act. The Transvaal Supreme Court quashed the conviction of Mulder on the ground that the mandate of the Commission was so widely and vaguely defined that he was legally justified in declining to testify.  In effect, the summons to testify was held to have been invalid in the light of the mandate given to the Commission. The court also agreed that the due process rights of citizens deserved to be safeguarded during commissions of inquiry and that the recommendations of a commission of inquiry may in “ ʼn los sin“ (“in a loose sense”) have an adverse effect on citizens. 

 

Please note the hypocrisy of the same Kriegler, a former judge of the Constitutional Court who has been railing against Zuma and hollering like a constipated baboon about Zuma’s alleged walkout from the Zondo Commission. Kriegler who has been attacking President Zuma has hidden the fact that he previously advised an apartheid minister to refuse to participate in a Commission where his rights were being violated. That surely exposes white hypocrisy. Kriegler was so solicitous of the rights of corrupt apartheid ministers and he had no qualms as senior Counsel about advising them to refuse to testify before Commissions.  And yet his organization, FUL, has been scathing in its attacks on President Zuma for simply asserting his right to review Zondo’s decision and to challenge the Commission in an appropriate forum.  After all, does Zuma not have the same right to argue like Mulder that the mandate of the Commission (State Capture) is so widely and vaguely defined that he was legally justified in declining to testify and excusing himself from attendance?

 

The other notorious case involved PW Botha, the second last State President under apartheid. Botha became the first apartheid head of state to face criminal charges after Western Cape Attorney-General Frank Kahn announced he would prosecute Botha for ignoring a subpoena to appear before the Truth and Reconciliation Commission. TRC deputy chairman Dr Alex Boraine made a late appeal for Botha to reconsider, saying the TRC would approach Kahn to withdraw charges should he agree to appear before the TRC. Botha demurred. The decision to prosecute followed a public battle of wills between Botha and the TRC, in which he failed three times to appear before the commission: initially because he was ill, but later because it was a "circus" and a "witch-hunt" against apartheid leaders.  After his second refusal the TRC wanted to charge him but Kahn ruled the subpoena was flawed. Third time around, Botha defied another subpoena. Kahn told a news conference that in considering whether to prosecute, Botha's personal circumstances had weighed heavily on him. "He is almost 82 years of age and no attorney-general in any civilised country lightly decides to prosecute a person of his age, especially given Mr Botha's medical history." However, he had eventually decided that a prosecution was warranted in law and in the public interest. Kahn said he had not bowed to any political pressures in deciding to prosecute, and had not consulted any politician or persons outside his office. The TRC believed that Botha, with his experience and information as defence minister, prime minister and state president, could give vital information for the commission to fulfill its mandate. It was clear that as chairman of the former State Security Council, Botha had information, knowledge and opinions the commission needed to weigh up, and which were critical for it to complete its work.

 

On August 21, 1998, P.W. Botha was convicted and fined 10,000 rand or imprisonment for a year by a black magistrate, Mr Victor Lugaju, in the regional court in George. See; Botha fined for his refusal to answer Truth Commission Sat, Aug 22, 1998, 01:00 PATRICK LAURENCE https://www.irishtimes.com/news/botha-fined-for-his-refusal-to-answer-truth-commission-1.185506   Pronouncing his verdict Mr Lugaju said: "It is the unanimous decision of the court that the failure of the accused to appear [before the TRC] was unlawful, intentional and without sufficient cause. The accused is accordingly found guilty on the main charge." But Mr Botha immediately served notice that he would continue his struggle against what he believed was a TRC bias towards the African National Congress and against Afrikaners. After he was released on bail of 50 rand, his lawyers told journalists that an appeal against his conviction and sentence had already been filed with the High Court in Cape Town.

 

On appeal, the notice to testify issued against Botha was also set aside by the High Court. See S v Botha 1999(2) SACR 261(C). Judge Selikowitz said the appeal had succeeded because the TRC's power to summon witnesses had temporarily expired at the time it issued the subpoena demanding Mr Botha's attendance. In his judgment, Selikowitz stated at p. 271 that:

 

"I should like to record that this Court is mindful of the fact that there will be many who may consider that it is unjust that the appellant should succeed in his appeal upon the basis that the s 29(1)(c) notice issued by the TRC and served on him on 5 December 1997, was unauthorised because it was prematurely issued. Indeed, Mr Morrison submitted that this Court should not permit the appellant to take what he called 'technical points' because of the intransigent and obdurate attitude which the appellant had demonstrated towards the TRC. The TRC was established to perform a noble and invaluable task for our country. It remains, however, a statutory body clothed only with the powers that the Legislature has given it. This Court is duty-bound to uphold and protect the Constitution and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. Suffice it to say that the same law, the same Constitution which obliges the appellant to obey the law of the land like every other citizen, also affords him the same protections that it affords every other citizen."

 

Judge Selikowitz overturned the conviction on a technicality and predictably some South Africans were outraged. Some saw the decision as a catalyst to ignite racial tensions in South Africa as it was made on the eve of Nelson Mandela's departure from the Presidency.

 

So what implications do these cases have for Zuma’s prospects in reviewing the Zondo Commission, resisting the Constitutional Court urgent application contemplated by Zondo or defending himself in the criminal contempt case Zondo has initiated?   Certainly the Commission’s overbroad mandate to investigate “State Capture” will come under scrutiny. Just as the Transvaal Supreme Court quashed the conviction of Mulder on the ground that the mandate of the Commission was so widely and vaguely defined that he was legally justified in declining to testify, the Zondo Commission is likely to be subjected to similar perscrutation. The issue of the summons cannot be separated from the other issues that are subject to the application to review and set aside the entire State Capture Commission and Zondo’s impugned actions.

 

B.            Apart from the Anecdotal Evidence from Case-law, Is There A Legal Principle Allowing President Zuma to ignore the unlawful Commission with impunity and justify his conduct by raising a ‘defensive’ or a ‘collateral’ challenge to the validity of the Commission?

 

To the chagrin of many uninformed persons, the answer is again in the affirmative. The SCA enunciated this principle in Oudekraal where it expressly stated:

 

“It is in those cases – where the subject is sought to be coerced by a public authority into compliance with an unlawful administrative act – that the subject may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge to the validity of the administrative act”. Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 6 SA 222 (SCA) para. 35 (emphasis added).

 

What exactly does this mean for Zuma’s fight against the alleged oppressive conduct of the Zondo Commission? In a review application, Zuma would be reviewing not just the lawfulness of Zondo’s refusal to recuse himself but would be challenging the legitimacy or lawfulness of the entire Commission.  He would also specifically target the specific decisions and omissions of Zondo including the recusal, the decision to issue the subpoena and any possible referral of the criminal contempt matter to the NPA. There is, accordingly, no reason why a Court cannot, on application, intervene  directly and apply the same principles concerning the validity of the summonses, even if it is done by way of a civil application. If a summons is invalid, it will be declared to be so by a Court independently from the manner in which it reaches the Court. After all, Section38 of the Constitution grants  wide  constitutional access to the High  Court.  Acts of organs of state alleged to be ultra vires are a Constitutional matter, as a result of their incompatibility with the rule of law.

 

There are countless examples of successful use of the “defensive” or “collateral challenge” principles but a better illustrative example helpful to President Zuma is S v Smit 2007 2 SACR 335 (T).  There Smit, the defendant was charged with committing two offences on twelve occasions. The first offence was the refusal or failure to pay tollgate fees, a crime under the South African National Roads Agency Limited and National Roads Act 7 of 1998 (“Roads Act”). The second offence was failing to comply with a traffic sign (a red traffic light), a crime under the National Road Traffic Act 93 of 1996. This came about when, in a gesture of vehicular rebellion, Smit drove through a toll plaza on a national road (the N4) without paying and without stopping when instructed to do so.

 

Smit’s defence was very simple and uncomplicated: government had not validly declared the N4 a “toll road” in terms of the Roads Act, he therefore had no obligation to pay a toll to use the road, and he had thus not acted unlawfully when he refused to pay the so-called toll. Id. 342I-J. The state countered by relying on the Oudekraal principle. (374F-H.) It argued, in other words, that Smit could not simply take the law into his own hands: if he disputed the validity of the toll road, his recourse was to ask a court to set the toll-road declaration aside. The State argued that Smit sought to evade the Oudekraal principle by framing his defence as a collateral challenge. (375E-G)

 

In considering whether Smit could raise the collateral challenge, the court referred to Oudekraal (376E-I).  It held that Smit’s prosecution for failing to pay the toll fees depended on the substantive validity, and not the mere factual existence, of the toll-road declaration. (378I-J.) The state, could therefore only validly prosecute Smit if the first act, the declaration of the toll road, was valid. The court ruled that Smit was thus entitled to have ignored the toll plaza with impunity. He was equally entitled to collaterally challenge the validity of the toll-road declaration in his criminal trial. (380E-F.) This he did successfully, persuading the court that the toll-road declaration had indeed been irregular. The court accordingly acquitted him of the offence of failing to pay toll fees. (391B-C.)

 

The above crystal clear legal principle leads one to ask a very painful question – what is it about our democracy that makes our lawyers so lazy and such a corrupt bunch of unthinking ass-kissing and brownnosing sycophants? I am referring to the idiotic statement issued by National Association of Democratic Lawyers of South Africa (Nadel) supporting the decision by DCJ Zondo to seek criminal action against former president Zuma following his walk-out from the State Capture inquiry. See, https://www.capetalk.co.za/articles/402450/no-one-is-above-the-law-nadel-supports-criminal-charges-against-zuma   Blithely ignorant of the legal principles justifying Zuma’s actions, Nadel simply declared “No one is above the law.”  Its president Mvuzo Notyesi says Zondo's decision to pursue criminal charges against former president Jacob Zuma is important for two reasons: “To restore the dignity of the commission and send the message that everyone has a responsibility to act according to the law. It imposes more duty on those who hold public office to lead by example and ensure that they are law-abiding citizens.” But that is fatuous and hot air rhetoric untethered to any legal principles.  The SCA was clear that Zuma “may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge” to the Zondo Commission.  Our democracy will be severely impoverished when lazy lawyers rely on newspapers analysis instead of the Constitution and court judgments before issuing nonsensical statements.  Nadel knows fully well that while Zuma seeks a review of Zondo’s alleged unlawful and unconstitutional actions in court, he cannot be charged with criminal contempt. The NPA itself would be in contempt of court if it purports to preempt a court ruling in the pending case or pronounce on Zuma’s guilt before he has exhausted his remedies in Court.  As the NPA itself argued in the Smit case, the Oudekraal principle does not allow a person in Zuma’s position to simply take the law into his own hands: if he disputes the validity of the administrative action, his recourse was to ask a court to review and set the impugned act.  That is precisely what Zuma told DCJ Zondo he was about to embark upon.  It is also downright disingenuous for Nadel to believe that Zondo who denied being biased can now claim to be or viewed as unbiased when he is a complainant in Zuma’s criminal prosecution and is also approaching his colleagues in the Concourt to deal wth Zuma.

 

This leads me to another area of zondo’s egregious missteps which threaten to sabotage the mission of the Commission and to collapse it all to the detriment of President Zuma and the public.

 

C.            Is There A Viable Criminal Contempt Case Against President Zuma, and if so, Does He Have Any Defense?

 

The answer to whether there is a defense is again in the affirmative.  For quiet some time and based on his observations President Zuma has expressed his doubts about the lawfulness of the Zondo Commission, the biased manner in which it is being conducted and the fact that it has become a “slaughterhouse” and a forum in which all kinds of unsubstantiated and defamatory allegations have been made against him.  For those reflexively shooting their mouths off in condemnation of Zuma, please bear in mind that a court of law has ruled that Zuma “may be entitled to ignore the unlawful act with impunity and justify his conduct by raising what has come to be known as a ‘defensive’ or a ‘collateral’ challenge to the validity of the administrative act.”  Folks need to do some serious introspection and ask themselves why well-known legal principles are ignored, downplayed and even deliberately distorted when a matter involves former President Zuma?

 

 

DCJ Zondo knows or should know that he has no case of criminal contempt against Zuma. Contempt of Court has essential elements which must be proved beyond reasonable doubt, just like any other crime. Contempt of Court consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body. See Milton, South African Criminal Law and Procedure, Volume ll, 3rd edition 1996 page 164 and S v Beyers 1968 (3) SA 70 (A). The State has an obligation (as in any other criminal prosecution) to prove beyond a reasonable doubt that the offence was committed intentionally and with the necessary men’s rea. The Zondo Commission is not a judicial body but contempt of its process is set forth in the Commissions Act.

 

 

When the allegations are viewed in the manner most congenial to the Complainant Zondo, President Zuma faces a particular species of contempt of Court in the instant matter. This is contempt ad factum praestandum – non-compliance with the Commission’s order requiring him to attend a hearing and to remain in attendance until released by the Chairperson.  The order or summons was crystal clear. But the overzealous DCJ Zondo overlooked a very important threshold question. The Supreme Court of Appeal has stated that the test for when disobedience of a civil order constitutes Contempt is whether the breach was committed “deliberately and mala fide”. See Frankel Max Pollak Vinderine Inc. v Menell Jack Hyman Rosenberg & Co Inc 1996 (3) SA 355 (A) at 367 H-I; Jayiya v Member of the Executive Council for Welfare, Eastern Cape 2004 (2) SA 602 (SCA) paras 18 and 19.  I refer further to Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA). The latter case is truly a leading case on the correct characterisation of Contempt of Court in the form of disobedience of a civil Court Order. Cameron JA (as he then was) writing for the full bench of the Supreme Court of Appeal stated the following elucidating formulation:

 

“Deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him-or herself entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).

These requirements – that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent.”

 

DCJ Zondo knows that President Zuma believed that he was entitled to excuse himself from the Commission in line with the Oudekraal principle. Further Zuma announced that he would file a review application challenging the lawfulness of the Commission and stated that would be accompanied by a judicial misconduct complaint to the JSC against Zondo.  He could not continue to subject himself to a hearing before the very Commissioner who was biased and was now a subject of a judicial misconduct complaint.  In this regard, Zuma’s case of bias on Zondo’s part has been considerably strengthened by Zondo’s subsequent actions including the filing of the criminal complaint with the police.  Remember, it is not a criminal offence to have a dispute with an administrative agency.  Zuma has a legitimate dispute with Zondo and is taking steps to have that ventilated in the courts.  His refusal to obey cannot meet the test that it “should be both wilful and mala fide.”  Even an “unreasonable non-compliance, provided it is bona fide, does not constitute contempt.”  After all, honest belief that non-compliance is justified or proper is incompatible with deliberate and intentional violation of the court’s dignity, repute or authority.  Oudekraal requires and justifies the action taken by President Zuma.  It appears Zondo reacted with emotions instead of carefully weighing all the factors including the basic elements of the crime of contempt.

 

 

 

D.            Has Zondo Committed Further Acts of Judicial Indiscretion That Threaten the Integrity of the Commission and Fairness of Its Process?

 

Sadly, the answer is again in the affirmative.  I have no choice here but to commiserate with DCJ Zondo.  The problem faced by a judge in a recusal application are not unique to the Commission or even to South Africa for that matter. See, Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 881 (2009) (noting that the objective inquiry is “not whether the judge is actually, subjectively biased, but  whether  the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.”)); see generally Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (holding that the Due  Process  Clause  requires  that a defendant receive a trial before a judge “other than the one reviled by the contemnor”).  It is puzzling why Zondo believes that he can, after becoming a complainant in the criminal case against the contemnor Zuma, continue to preside over a matter in which Zuma is a witness and where Zondo has to make credibility determinations. The common law maxim nemo debet esse judex impropria causa- a man may not be a judge in his own cause-unequivocally negates the power of DCJ Zondo to hear and decide a case in which he  is interested.

 

It is elementary that due process forbids a judge from wearing too many hats. For example, in In re Murchison, 349 U.S. 133 (1955). the Court found  a  violation  of  the  Due  Process  Clause and set aside contempt convictions and held that it is a violation of due process for the same judge to serve as the one-person grand jury and then preside over a contempt proceeding related to the grand jury hearing. Id The Murchison case involved a challenge to Michigan's "one-man grand jury" law whereby any judge of the state could compel witnesses to testify before him in secret about suspected crimes. Murchison was interrogated at length in secret, but the judge-grand jury, apparently unconvinced by Murchison's testimony, proceeded to charge, try, convict, and sentence Murchison for contempt. The Supreme Court reversed the conviction on the ground that the judge was biased by his concurrent role as grand jury. The Supreme Court noted that:

 

"Every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law." . . . Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice." (Id. at 136.)

 

Further, the Supreme Court noted:

"It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings. A single 'judge-grand jury' is even more a part of the accusatory process than an ordinary lay grand juror. Having been a part of that process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused." (Id. at 137.)

 

In Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971), which  followed In  re  Murchison, the defendant, in the course of trial, verbally attacked the presiding judge.  Defendant  referred  to  the  judge  as  a  “hatchet  man  for  the  State,”  a  “dirty sonofabitch,” and a “dirty, tyrannical old dog.” Id. at 456–57.  He continuously interrupted court, to the point  where  Mayberry  had  to  be  removed  from  the  courtroom. Id. at 462. The Supreme  Court  held  that  when  the  defendant  faces  criminal  contempt charges  he  “should  be  given a  public  trial  before  a  judge other  than  the one  reviled  by  the  contemnor.” Id. at 466. The same rule applies when a trial judge, following trial, punishes a lawyer for contempt committed during trial without giving that lawyer an opportunity to be heard in defense or mitigation. See Taylor v. Hayes,  418  U.S.  488, 499–500 (1974).  In  such  circumstances,  a  different judge should conduct the contempt trial in place of the judge who initiated the contempt.  Again, disqualification  was  necessary because  of  the  interaction  between  the  judge  and  the  defendant  prior  to the  contempt  hearing. Mayberry, 400 U.S. at 465.  The  Court  explained  that  a  “vilified”  judge “necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.” Id.

 

In Williams  v.  Pennsylvania,  136  S.Ct. 1899, 1903 (2016), a death row defendant successfully argued that Chief Justice Castille pursued a death sentence against him as a district attorney and that effectively precluded the chief justice from presiding over Williams’  petition  to  overturn  that sentence. Williams also asserted that Castille violated the Due Process Clause by acting as  both prosecutor and judge in his case.  The Supreme Court ruled that the risk of bias is reflected in the idea that no man can be a judge in his own case and cannot try cases in which he has an interest in the outcome. This guarantee that no man can be a judge in his own case, according to Justice Kennedy,  would have no substance if it did not disqualify a former prosecutor from sitting in judgment of a case in which he or she made a critical decision. Again relying on Murchison, the Court held that a judge cannot be wholly disinterested in the conviction or acquittal of the accused after being a part of the accusatory process.  According to Justice Kennedy,  no  attorney  is  more  integral  to  the  process  than  a prosecutor who participates in a major adversarial decision such as which penalty to pursue in sentencing. When a judge has advocated for the state  in  the  same  case that the  judge  is  asked  to  adjudicate,  a  serious question arises as to whether he or she can set aside personal interest in the  outcome  of  the  case. Justice Kennedy  argued that  there  is  a  risk that the judge would be “psychologically wedded” to his or her previous role  as  a  prosecutor, and that  he or  she would attempt to  avoid  the appearance  of  having  erred  or  changed  position. Additionally,  the judge’s own personal knowledge of the case may carry more weight than the parties’ arguments to the court.

 

Given Zondo’s anticipated cantankerous entanglements with Zuma as he rushes to meet deadlines, he would be well-advised to seriously ponder the lawfullness of the steps he has taken so far regarding Zuma. Murchison is clear that an unconstitutional potential for bias exists when the same person serves as both the accuser and the adjudicator in a case.  He is already a complainant in a criminal case against Zuma and Zuma is also a complainant in a JSC judicial misconduct complaint against Zondo.  Here the risk of retaliation by Zondo is just too palpable to ignore!  Zondo appears to have taken umbrage at the filing of disqualification application, and appears to have taken accusations of bias both personally and very seriously.   It must be acknowledged Zondo’s proposed future action of issuing more summonses for Zuma to appear may appear to be further gratuitous acts of humiliation, retaliation and abuse of the Commission’s process while the review applications are pending.  Zondo’s actions will lead to the filing of even more disqualification motions and has the potential to antagonize the challenged judge, either consciously or subconsciously, with the result that the moving litigant (Zuma) and his counsel may suffer.

 

DCJ Zondo would be well-advised to consider the wisdom in the following case, Dube & Others v The State (523/07) [2009] ZSCA 28; 2009 (2) SACR 99 (SCA) where the SCA stated the following:

 

‘The rule is clear: generally speaking a judicial officer must not sit in a case where he or she is aware of the existence of a factor which might reasonably give rise to an apprehension of bias. The rationale for the rule is that one cannot be judge in one’s own cause. Any doubt must be resolved in favour of recusal. It is imperative that judicial officers be sensitive at all time. They must of their own accord consider if there is anything that could influence them in executing their duties or that could be perceived as bias on their part. It is not possible to define or list factors that may give rise of apprehension of bias – the question of what is proper will depend on the circumstances of each case.”

 

In  another case, the US Fifth  Circuit court reversed  a failure  to  disqualify  where  there  was  a  publicized  history  of  “bad  blood”  between the  defendant  and  a  close  personal  friend  of  the  judge. United States v. Jordan, 49 F.3d 152 (5th Cir. 1995)  While  noting that  friendship  between  the  judge  and  a  person  with  an  interest  in  the case  need  not  be  disqualifying,  here  the  judge’s  friend  and  the  defendant  “were  embroiled  in  a  series  of vindictive  legal  actions  resulting  in a great deal of publicity,” some of which involved the judge’s spouse.

 

Also disqualification  has been deemed necessary where trial judges took unusual actions, or made comments, that indicated they took personal offense.  In In  re Johnson, 183.921 F.2d 585 (5th Cir. 1991) a  bankruptcy  trustee  had been  held in  contempt  because  the  trial  judge  thought  the  trustee  had  misrepresented  the  judge’s  conduct  to  another  judge  in  order  to  obtain  a  favorable  court  order.  At  the  contempt  proceedings,  the  judge  declared  that he  was  “prejudiced  in  this  matter,”  had  “all  but  made  up  his  mind,” was  “not  in  the  least  inclined  to  be  neutral,”  and  would  serve  as  “complaining witness, prosecutor, judge, jury, and executioner.” Id. at 587.  The Fifth Circuit  held  that  the  judge  clearly  “considered  [the  party’s]  actions  to be  a  personal  affront  to  his  authority”  such  that  a  reasonable  person would doubt his impartiality. Id.  But that is exactly Zondo’s view of Zuma which has led to him filing criminal charges.

 

Courts are particularly vigilant where judges appear insulted when their rulings  are challenged by a  litigant.  The Third  Circuit reversed a refusal  to  disqualify where the judge had responded to the petitioners’  mandamus motion  for  disqualification by writing a lengthy letter.  It ruled that the judge,  “in responding  to  the  mandamus  petition .  .  .  has  exhibited  a  personal  interest  in  the litigation.” Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 165 (3d Cir. 1993).  Similarly,  the  Fifth  Circuit  reversed  a  conviction where the judge remarked in court that the defendant had “broken faith” with him by raising a certain issue on appeal following his earlier trial. United States v. Holland, 655 F.2d 44 (5th Cir. 1981).

 

DCJ Zondo appears to have overlooked another principle.  It is essential that a judge’s refusal to recuse himself or herself must be subject to an appeal  to  a  higher court.    The Constitutional Court has  accepted  the need for an appeal in such circumstances.  In President of the Republic of  South  Africa  v  South  African  Rugby  Football  Union  1999  4  SA  147  (CC)  para  31,  it  stated  that  “[i]f  a  judge  of  first  instance  refuses  an  application  for  recusal  and  the  decision  is  wrong,  it  can  be  corrected  on  appeal”.  In the Commission there is no provision for direct appeal so the only avenue is the review application Zuma is pursuing.  The retaliatory steps proposed by Zondo are simply out of kilter with our Constitution and applicable laws.

 

Another persistent theme in Zondo’s comments on matters involving Zuma has been his overzealous desire to prove that he does not fear Zuma and has very little regard for him. Judges must always be careful about extrajudicial  comments  on  pending  or  impending  cases in which they will preside. In United States  v.Cooley, 1 F.3d 985 (10th Cir. 1993) the Tenth Circuit  reversed a refusal to disqualify where  the  defendants  were  abortion  protesters  and  the  trial  judge  had appeared on national television and   stated that   “these   people   are breaking the law.” Id. at 990.   The court of appeals stated: “Two  messages  were  conveyed  by  the  judge’s appearance  on  national television  in  the  midst  of  these  events.  One  message  consisted  of  the words actually spoken. . . . The other was the judge’s expressive conduct in deliberately making the choice to appear in such a forum at a sensitive  time  to  deliver  strong  views  on  matters  which  were  likely  to  be ongoing before him. Together, these messages unmistakably conveyed an uncommon interest and degree of personal involvement in the subject matter. It was an unusual thing for a judge to do, and it unavoidably created the appearance that the judge had become an active participant in bringing law and order to bear on the protesters, rather than remaining as a detached adjudicator.” Id. at 995.

 

In this context, it was bizarre for DCJ Zondo to go to the extraordinary length of pronouncing in an open hearing the measures he intended to take against Zuma when the latter and his counsel were absent.   Again, this is one of the many things that makes continued interaction between Zuma and Zondo very toxic.

 

Another area of difficulty for Zondo is his denial of or non-disclosure of his family ties or friendship with Zuma. Pictures circulating on social media networks cast doubt on Zondo’s denials and his veracity. In Moran  v.Clarke, 296 F.3d 638 (8th Cir. 2002)  the  plaintiff  moved  to  disqualify  the  judge after  a  defendant  revealed  at  her  deposition  that  she  had  known  the judge socially  for over twenty  years. The  district  judge  declined  to  disqualify  himself  without  comment,  and  the  Eighth  Circuit, faced  with  a record  insufficient  to  apply  the  “abuse  of  discretion”  standard  to  the case  before  it, remanded  to  the  same  judge  for  further  proceedings, with the following explanation and instructions: The district judge’s appearances at the same social events as Clarke and Smith brooks little mention. Judges, attorneys and public officials will often share public appearances. This does little to create the appearance of impropriety. The social relationship, however, invites more scrutiny. The  image  of  one  sitting  in  judgment  over  a  friend’s  affairs  would likely cause the average person in the street to pause. That the judge and Clarke enjoyed a friendship of sufficient depth and duration as to warrant  several  reciprocal  visits  to  one  another’s  homes  only  exacerbates the problem. We find particularly worrisome the district court’s failure to  disclose  this  conflict  himself,  as  permitted  by section  455(e).

 

E.            Is Zondo’s Urgent Application to the Constitutional Court Doomed to Fail?

 

In Magidiwana and Others v President of the Republic of South Africa and Others 2013 (11) BCLR 1251 (CC) the Court stated: “[8] This Court is not well-equipped to deal with urgent matters in general.”  See, also Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) at para 39 (“This Court is not well-geared to hear urgent matters. Urgency may afford grounds for engaging this Court directly, but in order for it to do so an applicant must establish that a delay in securing a definitive ruling “would prejudice the public interest or the ends of justice and good government.”).  Enforcement of a subpoena can be accomplished in ordinary High courts and there is no reason other than judge-shopping for Zondo to run to the Concourt for such mundane relief.

 

It is unclear what Zondo deems to be so extremely urgent that he must approach the Constitutional Court directly on an urgent basis, especially when the Concourt has declared itself to be “not well-equipped to deal with urgent matters in general.”  I am also concerned that in this context, DCJ Zondo seems to misapprehend the powers and legal status of the Commission.  As the Magidiwana court concluded:

 

“[15] …. The power to appoint a commission of inquiry is mandated by the Constitution.15 It is afforded to the President as part of his executive powers. It is open to the President to search for the truth through a commission. The truth so established could inform corrective measures, if any are recommended, influence future policy, executive action or even the initiation of legislation. A commission’s search for truth also serves indispensable accountability and transparency purposes. Not only do the victims of the events investigated and those closely affected need to know the truth: the country at large does, too. So ordinarily, a functionary setting up a commission has to ensure an adequate opportunity to all who should be heard by it. Absent a fair opportunity, the search for truth and the purpose of the Commission may be compromised.

 

The President is in my view the proper (albeit not exclusive) party with locus standi to litigate matters involving the Commission.  After all, he is the one making all the rules governing the Commission’s processes.  But leaving that aside for now, Zondo has an insurmountable problem – is he really serious that his colleagues at the Constitutional Court would be able to adjudicate a matter involving their own colleague and a Deputy Chief Justice for that matter? Throughout the common law countries the courts have led the way in subjecting public inquiries to the operation of the normal principles of administrative law review. This allows challenges in the courts in relation to Commissions that are based on the following grounds:

 

·      That the establishment of the Commission is beyond the legal power or authority to establish the Commission;

·      the validity of its terms of reference

·      the procedures of the Commission are contrary to law

·      the procedures of the Commission do not comply with the rules of natural justice

·      the Commission has made an error of law, or

·      the continuation of an inquiry conducted by a Commission constitutes contempt.

 

Zondo may be opening a veritable can of worms by suggesting that the Commission headed by a Deputy Chief Justice can litigate a matter in the Constitutional Court where any number of the above issues may be raised.  What happens if the Concourt rules that the State Capture Commission was appointed through a constitutionally invalid process? 

 

Even more concerning is the principle of nemo iudex in sua causa  which must be considered in the context of judicial collegiality.  The case of SA Motor Acceptance Corp Bpk v. Obersholzer 1974 (4) SA 809 held that collegiality may be ground to disqualify a judge from presiding in a case involving his/her colleague as a litigant.  The headnotes in this Afrikaans judgment read:

 

"Where two judicial officers are attached to the same Bench as

colleagues and one of them is a litigant or an accused, then

there is a reasonable ground for the other legal official to be recused from trying the action.

 

"That recusatio judicis suspecti applied in respect of all

judicial officials irrespective what their order of rank in the

hierarchy of the administration of justice might be. It also made no

difference whether the action concerned was a civil or a criminal

nature. "

 

Most likely collegiality would be raised as ground for recusal of the entire Constitutional Court if Zondo seeks to litigatein that forum.  This shows that it was not prudent for Zondo to accept the appointment to the Commission in the first place.

 

Let me give a crazy example.  Persons testified before Zondo and they were subsequently arrested and charged with various crimes related to the Zondo enquiry. Persons like Ace Magashule can intervene in the Constitutional Court application to argue that Zondo’s continued public discussion and investigation of matters related to their criminal cases in a public forum constitutes contempt of court and prejudices their pending criminal cases. I will in future explore the strategy and tactics that may make Zondo rue his decision to approach the Concourt on a simple issue of enforcement of a summons.

 

            Conclusion

If our courts faithfully execute their constitutional duties in the matters emanating from the Zondo Commission, there is a high likelihood that the State Capture Commission may be found to be unconstitutional. Zondo’s decision to be a criminal complainant and a litigant against witnesses in his one man Commission will prove to be the most costly blunder that collapses the Commission.