ZUMA EXCEPTIONALISM IN JUDICIAL AND PARLIAMENTARY SCANDAL BEHIND THE REMOVAL OF THE PUBLIC PROTECTOR

 

ZUMA EXCEPTIONALISM IN JUDICIAL AND PARLIAMENTARY SCANDAL BEHIND THE REMOVAL OF THE PUBLIC PROTECTOR

 

                  By: Paul M. Ngobeni

 

There is nothing lawful or historic about Parliament’s vote on the removal of the Public Protector scheduled for Tuesday march 15 2021.  More broadly, the vote is about exposing judicial incompetence and corruption, laying bare the sheer incompetence of the ruling party the ANC, a party enmeshed in factional squabbles and being misled by the racist Democratic Alliance.  This vote is not about the alleged incompetence of a black woman, the Public Protector – it is about what I call Zuma exceptionalism and the political vendetta of Ramaphosa and Gordhan who have blatantly manipulated clear legal statutes and code of ethics to cover up their own misconduct as shown through evidence below.  

 

Are there facts to substantiate these damning allegations of “judicial incompetence and corruption” in the first place?  Answer is absolutely yes.   For starters, the High Courts through three separate judgments have pronounced that the Public Protector incompetently relied on a “wrong” version of the Code of Ethics and the Independent Panel led by retired Concourt Justice Nkabinde also claims that the Public Protector relied on a “wrong code” and is deserving of removal for incompetence.  Mkhwebane’s alleged sin is that she used a 2007 version of the Code of Ethics for members of the executive, the same code used by her predecessor and the Constitutional Court itself.  Most puzzling, Justice Bess Nkabinde was on the Constitutional Court panel that decided the “Nkandla” case, Economic Freedom Fighters v Speaker of the National Assemblyand  Others;Democratic  Alliancev Speaker  of  the National Assembly and Others[2016]ZACC 11. There the Concourt stated that previous Public Protector Madonsela “concluded  that  the  President  violated  the  provisions  of  the Executive  Members’  Ethics  Act7 and  the  Executive  Ethics  Code.8These  are  the national legislation and the code of ethics contemplated in section 96(1).”  Specifically, the Concourt cited “ Chapter 1 of the Ministerial  Handbook:  A Handbook  for  Members  of  the  Executive  and  Presiding  officers(7February 2007) at pages 7-15.  Say what? Indeed the Concourt used and relied on the same Code the “incompetent” Mkhwebane used. Justice Nkabinde knew this as she participated in issuing the historic Nkandla judgment.

 

Quite logically and in keeping with legal principles, the Concourt did not rely on the earlier superseded version of the Executive Ethics Code which was promulgated by Presidential Proclamation R41 of 2000 in terms of Section 2(1) of the Executive Members Ethics Act. Paragraph 2.3(a) of the earlier Code reads as follows: “Members of the Executive may not wilfully mislead the legislature to which they are accountable.” The differences in the 2000 and the 2007 Code of Ethics are quite substantial and very important - the earlier 2000 version stated only that “Members of the Executive may not wilfully mislead the legislature to which they are accountable.” But the 2007 version added the words “may not willfully or inadvertently mislead.” 

 

In short, Public Protector, Advocate Mkhwebane correctly relied on the 2007 version which was also used by her predecessor Madonsela which had received judicial imprimatur from the apex court in the Nkandla judgment.  How can Justice Nkabinde who participated in the Nkandla judgment and used the 2007 version author a report that says that the Public Protector was ‘incompetent” because she relied on the same version of the Code that the Concourt used in the Nkandla judgment?  If the 2007 version is the “wrong” code does that render the entire Nkandla judgment null and void?  Why would a judge so easily change her position and contradict her own judgment to advance the politically motivated agenda of constant ad hominem attacks on a Public Protector who used the same law that the Concourt used in Nkandla?

 

Did Ramaphosa and Gordhan have any role in this perversion of the law and undermining of Chapter 9 institutions in such a flagrant and scandalous manner?  Absolutely yes!.  When Ramaphosa was a Deputy President and Gordhan served in the Zuma Cabinet, they both accepted that the applicable code was the 2007 version which was used by Madonsela and later Mkhwebane.  All that changed when both Ramaphosa and Gordhan were found guilty of misleading parliament – they changed tack and argued that the favorable but superseded 2000 version of the Code must apply to their conduct and not the later 2007 version relied upon by the Concourt. This was wicked clever because the 2000 version only proscribes Members of the Executive “willfully” misleading “ the legislature to which they are accountable.” But the 2007 version added the words “may not willfully or inadvertently mislead.”  Under the latter version both Ramaphosa and Gordhan are guilty even if they acted “inadvertently” when they misled Parliament.  It is for that reason that they resorted to using an outdated law to shore up their phony defense and the obsequious judiciary simply obliged. If I am wrong and Ramaphosa and Gordhan are correct that the 2000 version is the applicable law, then the entire Nkandla judgment rest on a false legal premise and is null and void.  Are we now dealing with Zuma exceptionalism?  They cannot eat their cake and have it at the same time.

 

Clearly the judiciary appears to have taken the position that these provisions of the 2007 Code were only applicable to President Zuma. When Ramaphosa was being investigated for lying to Parliament about the Bosasa payments to his son, he gave a false answer but admitted that he misled Parliament inadvertently.  Likewise, when Pravin Gordan was investigated for lying about attending meeting where a member of the Gupta family was present, he claimed that he was not guilty because he did not “deliberately mislead” Parliament. Incredibly, the High Court judges came to both Ramaphosa and Gordhan’s rescue by relying on an old 2000 version of the Code which only prohibited “deliberately” misleading.Such damnable manipulation of legal rules and processes deserve a commission of enquiry.

 

This was simply unprecedented in world jurisprudence in that the judges knew that the Executive Ethics Code contemplated by the Executive Members’ Ethics Act was  published  by  the  President  on  28  July  2000  and  amended  on  7  February  2007 by he same President (Mbeki). Further the previous Public Protector Madonsela used the 2007 version of the Code in writing several adverse reports against Ministers such as Shiceka (https://www.gov.za/sites/default/files/gcis_document/201409/shicekareport0.pdf ) and Premiers (Yes We Made Mistakes: Report of an investigation into the  alleged improper procurement of communication services by the Department of the Premier of the Western Cape Provincial Government Report No1 2012/2013 http://uscdn.creamermedia.co.za/assets/articles/attachments/40634_draft_final_report_version_3.pdf ) at least since 2010.

 

The Constitutional court’s endorsement of and reliance on the 2007 Executive Ethics Code is binding on all lower courts and it is unfathomable that a High Court judge would resort to using the old 2000 version of the Code in clear defiance of the binding precedent of the apex court. It is trite that decisions of the Constitutional Court are binding on all lesser courts based on the principle of stare decisis, which is a juridical command to the courts to respect decision already made in a given area of the law. This means that the High Court must follow the decisions of the courts superior to it even if such decisions are clearly wrong. The statement of principle by Didcott J in Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N) that is thus concisely summarised in the headnote to that judgment is in point:

"The doctrine of judicial precedent would be subverted if judicial officers, of their own accord or at the instance of litigants, were to refuse to follow decisions binding on them in the hope that appellate tribunals with the power to do so might be persuaded to reverse the decisions and thus to vindicate them ex post facto. Such a course cannot be tolerated."

 

In practical terms this means that once the Constitutional Court ruled the 2007 Code of ethics was valid and applicable it was no longer open to the High Court to prefer the earlier 2000 version of the Code which had been superseded. The Constitutional Court, in Camps Bay Ratepayers’ and Residents’ Association & another v Harrison & another 2011 (4) SA 42 (CC), paras 28-30, expressed itself in no uncertain terms about observance by courts of the maxim stare decisis or the doctrine of precedent. Brand AJ, in delivering the unanimous judgment of the court said:

  

"Considerations underlying the doctrine were formulated extensively by Hahlo & Kahn [Hahlo & Kahn The South African Legal System and its Background (Juta), Cape Town 1968) at 214-15]. What it boils down to, according to the authors, is: '(C)ertainty, predictability, reliability, equality, uniformity, convenience: these are the principal advantages to be gained by a legal system from the principle of stare decisis.' Observance of the doctrine has been insisted upon, both by this court and by the Supreme Court of Appeal. And I believe rightly so. The doctrine of precedent not only binds lower courts, but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos."

(Footnotes are omitted.)

 

The current Public Protector correctly relied on the 2007 version which was used by her predecessor and had received judicial imprimatur from the apex court.  We have all watched in horror as the various High Courts engaged in the constitutionally impermissible spectacle of prefering a version of the Code which is favorable to Ramaphosa and Gordhan while ignoring the later version which was used against Zuma in the Nkandla judgment.  In the Rogue Unit judgment, the High Court ruled that “the Public Protector’s reading and interpretation of paragraph 2.3(a) of the Executive Ethics Code is wrong in law: The Code prohibits members of the Executive from “wilfully” misleading the legislature. The wording of the Code is clear and does not contain a provision that an “innocent” mistake constitutes a contravention of the Executive Ethics Code.” This deliberate disregard of the Concourt’s “Nkandla judgment” and egregious misreading of the law to favour certain political adversaries is sufficient to make anyone think twice about entrusting their fate in the hands of our judiciary.   Only heartless corruption can account for this egregious misreading of clear statutes.

 

In its recent scathing judgment against the Public Protector in the “Rogue Unit” case, the High Court (Baqwa J) embarrassed itself and highlighted its own confusion by concluding that:

 

To claim that Potterill J “deliberately omitted the words ‘inadvertently mislead’” from the actual Code, is simply astonishing. Besides being a Public Protector, Adv Mkhwebane is officer of this court owes it a duty to treat the Court with the necessary decorum. She not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potteril personally. What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court. She owes Judge Potteril an apology. The Registrar of this Division is requested to send a copy of this judgment to the Legal Practice Council for consideration.

What is truly astonishing is not the Public Protector’s alleged error but the flagrant error made by the three judges who claim the Public Protector “not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potteril personally.” Since when has it been contemptuous to point out that a court has resorted to using an old superseded version of a statute to justify a ruling in favour of a litigant? What right-thinking judiciary would order a Public Protector who is virtually the custodian of the Code of Ethics to apologize for being correct and for insisting that the Constitutional Court precedent be scrupulously followed?  What honest and conscientious judiciary would embarrass itself by sending a copy of a totally incompetent judgment to the Legal Practice council with the recommendation that the latter act on it to the detriment of an advocate who happens to be correct on the facts and the law? The High Court’s misapprehension is further made clear when it states:

62. In the matter of The President of the Republic of South Africa v The Public Protector (The Information Regulator Amicus Curiae) 12 the full bench of this division similarly criticized the Public Protector’s flawed understanding of the contents of section 2.3(a) of the Executive Ethics Code:

"[207] Of similar concern is her confusion over the proper version of the Executive Code. She has not explained how she committed this error. Her conduct in this regard goes further than simply having reference to two different versions of that Code. The legal test for a violation of the Code by misleading the National Assembly was fundamentally different in the two versions. Instead of appreciating the difference between the "willful" misleading of the National Assembly, and the "inadvertent" misleading of it, she asserted that if she had made an error at all it was an immaterial error of form over substance. This submission shows a flawed conceptual grasp of the issues with which she was dealing.

[208] Like any official required to make pronouncements to the public, the Public Protector must surely strive to be as clear as possible in her findings. Her reasoning on the disclosure issue was muddled and difficult to understand. It failed to explain to the public why she had found that the President of the country had wilfully breached the duty of transparency established by the Code. Indeed, her conclusion inexplicably found that at the same time the President had also inadvertently misled Parliament, sowing further confusion."

The claim that the Public Protector has “confusion over the proper version of the Executive Code” is simply unfounded. The High Court after acknowledging that there were two different versions of that Code simply ignored the latter 2007 version and attacked the Public Protector and her ruling while elevating the 2000 version which favoured Gordhan and Ramaphosa. This erroneous ruling makes clear that those judges attacking the Public Protector daily and hammering her for alleged incompetence are actually the main culprits guilty of gross judicial incompetence.  The dramatic unsavory language and epithets they frequently use against her in the judgments is used to provoke public condemnation against her and to obfuscate the fact that the judges have been drafted as willing foot soldiers in the titanic battle between Ramaphosa’s forces and those perceived to be sympathetic to President Zuma. 

It is constitutionally impermissible and scandalous for a retired Concourt judge Nkabinde to ignore the very Nkandla judgment she participated in and to pronounce that a Public Protector who relied on that very precedent is “incompetent” and must be removed. It is significant that in the recent Concourt judgment regarding the Gordhan interdict the Court remarked that:

[97] This matter has garnered much public interest and criticism.  It is a matter which has a political bite to it.  It is thus understandable why the public would have an interest in it.  However, it must at all times be remembered that courts must show fidelity to the text, values and aspirations of the Constitution.  A court should not be moved to ignore the law and the Constitution, and merely make a decision that would please the public.  The rule of law, as entrenched in the Constitution, enjoins the judiciary, as well as everyone within the Republic, to function and operate within the bounds of the law.  This means that a court cannot make a decision that is out of step with the Constitution and the law of the Republic.  It must impartially apply the law to the prevailing set of facts, without fear, favour or prejudice. (emphasis added).

 

The claim that the Public Protector has confusion over the proper version of the Executive Code is simply unfounded. The High Courts, after acknowledging that there were two different versions of that Code, simply ignored the latter 2007 version and attacked the Public Protector for not using the earlier version favouring Ramaphosa and Gordhan. This erroneous ruling makes clear why the stakes are very high and the matter has been appealed to vindicate the public Protector and to show the judicial incompetence that she is facing daily.  I find it curious that Madonsela who hates her successor somuch has conveniently not come to her defense even though she repeatedly used the 2007 version of the Code herself. Likewise former President  Mbeki promulgated the 2007 Code and some ministers who served in his Cabinet and were governed by the Code are still serving in the Ramaphosa cabinet.  Why are all these illustrious ministers and people quiet?   Are they hypocritically going to allow and participate in a nonsensical parliamentary “vote” on removal of a Public Protector based on concocted charges and daylight perversion of legal principles?  Does that advance the fight against corruption one iota?

 

Parliament’s Own Resort to Zuma Exceptionalism and Violation of the Sub Judice Rule in the Public Protector Matter.

Unfortunately, the alarming incompetence discussed above is not confined only to the judicial or executive branches. Parliament is flagrantly embarking on a violation of Rule 89 of the Rules of Parliament and has thrown the sub judice principle overboard.  The sub judice rule means that the merits of a case that is still being considered by a judge or court, should not be discussed by MPs and government officials. To emphasise the high constitutional nature of the rule it suffices to state that it stands as an expression of the relationship between the different  branches  of  government—the legislative branch and the judicial branch. Parliament determines what the law should be, but it is for the courts  to  determine  in  each  particular  case  how  the  law  is  to  be  applied.  In  criminal  matters, it is not for Parliament to decide guilt or innocence. In civil cases pending trial or appeal Parliament does not adjudicate such case. That is a matter for a court of law. Where the rule is engaged, Parliament does not embark, either by debate or by question, on an  examination  of  matters  that  are  for  adjudication by a court.  Not  only is this prejudicial and unfair to those  involved in judicial  proceedings;  it is contrary to our constitutional  practices.  If Thandi Modise, the Speaker  was not a partisan CR 17 factionalist baying for Advocate Mkhwebane’s blood she would have been vigilant  to  ensure  that the sub judice rule is maintained sacrosanct.

 

National Assembly Rule 89 governing “Matters sub judice” is absolutely clear and states unequivocally that:  “No member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending.”  In South Africa, all branches of government are subject to scrutiny by the courts. Even the President is subject to the provisions of the Constitution. see President of the Republic of South Africa & Anor v Hugo 1997 (4) SA 1 (CC) at paras 12 and 28, as well as Executive Council, Western Cape Legislature & Ors v President of the Republic of South Africa & Ors 1995 (4) SA 877 (CC). The learned Judge President Hlope, in the case of De Lille & Anor v. Speaker of the National Assembly & Ors 1995 (4) SA 877 (CC) ruled:

“The National Assembly is subject to the supremacy of the Constitution.  It is an organ of state and therefore it is bound by the Bill of Rights.  All its decisions and acts are subject to the Constitution and the Bill of Rights.  Parliament can no longer claim supreme power subject to limitations imposed by the Constitution.  It has only those powers vested in it by the Constitution expressly or by necessary implication or by other statutes, which are not in conflict with the Constitution.  It follows, therefore, that Parliament may not confer on itself or on any of its constituent parts, including the National Assembly, any powers not conferred on them by the Constitution expressly or by necessary implication.”

 

This was an expression of the simple truth that in a constitutional democracy, the authority to interpret the law as well as Parliament’s rules vests in the judiciary. Thus, the sub judice rule applies by virtue of the operation of the law once a matter is before the courts.  Parliament’s violation of the sub judice rule is a disregard for the Judiciary, the only arm of the state vested with constitutional supremacy in interpreting the law in terms of the constitution.  Such violation is likely to prejudice the justice delivery process. A defining interpretation of the sub judice rule was made by a neighboring country judge, Justice Bere in the Zimbabwean case of Austin Zvoma v.Lovemore Moyo&Ors,HC1249;

   https://zimlii.org/zw/judgment/harare-high-court/2012/23/. The learned judge observed that Standing Order 62(d) of the House of Assembly is clear in that when a matter is pending before the Courts, ‘…House members are obliged to respect the Court process until a determination has been made’. The learned Judge stressed that despite the fact that the Speaker and other respondents had been duly served with the case number, debate on the motion continued in complete defiance or violation of the Standing Order in question. Such disregard by the House of Assembly of its own rules resulted in the nullification of the motion that it had adopted. The nullification effectively quashed the interpretation of the sub judice rule the Speaker had made on 5 December 2011. Justice Bere expressed the strong view that courts would not want to assist ‘the House in assaulting its own rules…’   I venture a prediction that the Public Protector may actually have the final laugh in these fake impeachment proceedings – Parliament’s flagrant disregard of its own rules will result in the nullification of any Public Protector removal motion that it adopts.  Not all judges in our judiciary can be bought with money!

 

 

Voting By MPs with Conflict of Interest

It is noteworthy that the majority of the complaints involving politicians investigated by the Public Protector are initiated by political parties or their members.  When the same parties or their representatives in the National Assembly who are in litigation with the Public Protector (or have cases pending before her) are allowed to initiate removal proceedings a specter of a serious conflict of interest looms large. The pivotal question is whether any of the Ministers or MPs who are currently under investigation by the Public Protector or have had adverse findings made against them must be allowed to participate in a committee set up by Parliament to decide the Public Protector impeachment? Some like Mbalula have smoldering grievances against the Public Protector because she exposed their corruption and they have a clear conflict of interest. In this regard, President Ramaphosa against whom the Public Protector has made adverse findings and who is currently involved in ongoing litigation against the Public Protector is a text-book case of a conflicted official who is likely to play a role in the removal process envisaged for the Public Protector.  Has the Chief Whip Majodina even made minimal efforts to ensure that MPs with a conflict of interest are not allowed to use their votes to retaliate against the Public Protector?

Political parties are the main complainants before the Public Protector and some have been vociferous in condemning her for issuing reports and remedial orders which did not suit their political agendas.  Some parties like the DA are currently involved in litigation against the Public Protector – should they be allowed to invoke the Section 194 removal enquiry to deal with matters in which they were losing litigants or matters still pending judicial decision?  Both Speaker Modise and ANC Chief Whip Majodina are deafeningly silent in this regard and that speaks volumes for ANC as a ruling party in charge of a capable developmental state!

 

 

DOES ZUMA UPHOLD THE RULE OF LAW BY REFUSING TO APPEAR BEFORE BIASED ZONDO?

 

DOES ZUMA UPHOLD THE RULE OF LAW BY REFUSING TO APPEAR BEFORE BIASED ZONDO?

                        Paul M. Ngobeni

If Zondo had wisdom and the gift of leadership he could simply allow Zuma to give his testimony before a different judge to obviate the need to litigate the matter of Zondo’s bias in the Concourt.  Nothing would be lost there -the evidence leaders would still be the same folks and nothing would prevent Zondo from using the transcripts of Zuma’s testimony in writing his report.  Unfortunately, it appears Zondo’s own stubbornness and lack of foresight will plunge the country into an unnecessary political crisis that may soon have catastrophic results for the ruling party, the ANC and particularly the leadership of President Ramaphosa.  The deepening divisions within the ANC and Ramaphosa’s shenanigans and failure in managing ever widening rift within the party may soon see him ignominiously and prematurely recalled.

 

It was totally unnecessary to push President Zuma to a corner where he would be claiming a prisoner of conscience status. By all appearances Zuma has been, and continues to be, prepared to suffer for his convictions, and would rather undergo imprisonment and even death rather than forgo his principles. This demonstrates both the depth of Zuma’s conviction and its principled rather than expedient nature. As the JG Zuma foundation puts it: “We also commend Mr. Zuma for risking it all, in order not to legitimise an irregular process disguised as a legitimate Commission. President Zuma assures us that he would rather face jail than allow himself to be bullied by an irregular, manipulated, and unlawful process. They can spin what happened all they like – but their evil intentions were thwarted.”

 

The simple irony is that in the titanic the stand-off between the Zondo commission and former president Zuma it is Zuma who is correct on the law. There has been a flurry of accusations that the commission's chairperson, deputy chief Justice Raymond Zondo is biased, has exploited collegiality with his Concourt colleagues and is bending the laws to pursue his personal agenda.  These are matters that are pending before the High Court but which Zondo has urged the Concourt to ignore.   Moreover, Zuma’s supporters have asserted that asking the Constitutional Court to jail the former president for two years instead of the statutorily stipulated six months is meant to come up with punishments only reserved for Zuma.  Of all the accusations made, the singling out of Zuma or what I call “Zuma exceptionalism” is supported by empirical facts and makes Zuma’s hardened position all the more understandable.  There are undeniable empirical facts and the law to support  all the allegations of nefarious moves by Zondo and even the Concourt justices.

 

Before dealing with the issue of alleged contempt we must pose a pivotal question of what constitutional adjudication principles did the Concourt violate in accepting the Zondo Commission case in the first place? According to legal scholar A J van der Walt, “Normative Pluralism and Anarchy: Reflections on the 2007 Term” (2008) 1 Constitutional Court Review 77-99, the subsidiarity principle allows courts to adopt a coherent approach to solving complex questions about which source of law to apply in constitutional adjudication. It has several provisos.  The first principle state that a litigant who avers that a right protected by the Constitution has been infringed must rely on the legislation enacted to protect the right and may not rely on the Constitution directly. The proviso to the principle is that the litigant may rely on the Constitution directly when the enacted legislation is being challenged for being inconsistent with the Constitution. The second principle is that litigant who avers that a right protected by the Constitution has been infringed must rely on the legislation enacted to protect that right and may not rely on Common law to protect that right. The proviso to this principle is that Common law can be invoked when the enacted legislation does not cover a particular aspect of Common law.  Why has the Zondo Commission which claims Zuma violated the Commission’s Act not relied on that legislation which contains express provisions regulating these matters?  Why have the Concourt judges who are very familiar with these principles ditched the subsidiarity principle in order to assist the Zondo Commission instead of doing justice as commanded by the Constitution.

 

This subsidiarity principle was stated eloquently in the My Vote Counts case, where the Concourt noted that the principle of subsidiarity was “a well-established doctrine within this court's jurisprudence." My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) (“My Vote Counts”) at para 161. The Concourt stated:

"[46] Parliament's argument brings to the fore the principle of subsidiarity in our constitutional law. Subsidiarity denotes a hierarchical ordering of institutions, of norms, of principles, or of remedies, and signifies that the central institution, or higher norm, should be invoked only where the more local institution, or concrete norm, or detailed principle or remedy, does not avail. The word has been given a range of meanings in our constitutional law. It is useful in considering the scope of subsidiarity, and Parliament's reliance on it - to have them all in mind.

[52] But it does not follow that resort to constitutional rights and values may be freewheeling or haphazard. The Constitution is primary, but its influence is mostly indirect. It is perceived through its effects on the legislation and the common Jaw - to which one must look first.

[53] These considerations yield the norm that a litigant cannot directly invoke the Constitution to extract a right he or she seeks to enforce without first relying on, or attacking the constitutionality of legislation enacted to give effect to that right. This is the form of constitutional subsidiarity Parliament invokes here. Once legislation to fulfil a constitutional right exists, the Constitution's embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.

[54] Over the past 10 years this court has often affirmed this. It has done so in a range of cases. First, in cases involving social and economic rights, which the Bill of Rights obliges the state to take reasonable legislative and other measures, within its available resources, to progressively realise, the court has emphasised the need for litigants to premise their claims on, or challenge, legislation Parliament has enacted. In Mazibuko the right to have access to sufficient water guaranteed by s 27(1)(b) was in issue. The applicant sought a declaration that a local authority's water policy was unreasonable. But it did so without challenging a regulation, issued in terms of the Water Services Act, that specified a minimum standard for basic water supply services. This, the court said, raised 'the difficult question of the principle of constitutional subsidiarity'. O'Regan 1, on behalf of the court, pointed out that the court had repeatedly held 'that where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution'. The litigant could not invoke the constitutional entitlement to access to water without attacking the regulation and, if necessary, the statute."

 

In the Zondo-Zuma saga, Parliament has enacted legislation, the Commissions Act 8 of 1947. Commissions of inquiry are established by presidential proclamation and are vested with authority under the Commissions Act. Section 84(2)(f) of the Constitution grants the president the authority to appoint commissions of inquiry concerning any issue. Section 6(1) of this act made refusal to testify before a commission a criminal offence. Penalties include a R100 fine "or imprisonment for a period not exceeding six months."  When a recalcitrant witness refuses to appear as summoned the Commission files a criminal complaint with the NPA and the matter is typically tried in a Magistrate’s Court.  There are no complex constitutional issues involved there.   So, on what principled legal basis did the Concourt intervene in this petty offence matter?

 

One wonders whether it was Zuma “exceptionalism” that actuated the Zondo to completely disregard the subsidiarity principle and motivated Zondo’s  Constitutional Court colleagues to intervene directly in a “pis in die straat case.”  Did Zondo as Deputy chief justice exploit judicial collegiality and did the Concourt judges bend over backwards to accommodate him even where the law stood firmly against their decision? A case in point for purposes of unpacking this violation is South African Motor Acceptance Corporation (EDMS) BPK vs Oberholzer 1974 (4) S.A.  There the Appellant sued the Respondent, the Assistant Magistrate of the District in which the action was being tried, for payment of certain sums of money. At the commencement of the hearing the Appellant raised the exceptio suspecti judicio that the Magistrate of the District hearing the matter should recuse himself, as the defendant was a member of the staff of his office. The Magistrate in the court a quo refused the application for recusal. In an Appeal against the recusal of the trial Magistrate to recuse himself it was held:

 

"a) 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;

b) The recusation judicis suspecti applied of all judicial officials irrespective of what their order of rank in the hierarchy of their administration of justice might be;

c) It made no difference whether the action concerned was of a civil or criminal nature;

d) The appellant had completely bona fide and quite correctly invoke an acknowledged, reasonable ground for recusal when he requested the Magistrate to recuse himself;

e) The trial Magistrate should have recused himself.

 

I do not for a nanosecond believe that apartheid judges had a better understanding of the law than our current esteemed Concourt judges but we must ask the pertinent question of why these judges did not perceive any potential conflict in adjudicating a case involving their very senior colleague.  Is this egregious stance based on Zuma exceptionalism or any discernible legal principle?  Zuma’s complaints that legal principles are being changed when judges adjudicate his cases appear to be well-founded. 

 

 

It is true that a failure to obey a Commission’s subpoena during the agreed-upon dates is classed as a criminal offence, with a six-month prison term identified as the toughest possible punishment (“imprisonment for a period not exceeding six months.") But Zondo seeks a two years sentence and imprisonment for Zuma. On what legal basis does a Commission established by the executive seek to bypass the legislation under which it operates and request judicial colleagues to fashion their own penalties for violation of a Commission’s subpoena laws?  That the commission feels emboldened to  request to the Constitutional Court to jail Zuma for a period exceeding the statutory maximum speaks volumes about the manipulation and twisting of legal processes only when dealing with Zuma’s cases.  Above all it lends credence to President Zuma’s claim that Zondo harbours deep-seated bias against him that makes it constitutionally unacceptable for him to preside over a matter involving him.  The JG Zuma foundation described this conduct thus: "This desperation of the deputy chief Justice Zondo, abusing his position as the second in charge in the Constitutional Court, instructing his subordinates to bend the laws of the country is unprecedented. He ignores process and jurisdictions as prescribed in law, just to ensure that The Zuma state capture commission of inquiry finds (former) President Zuma guilty by hook or crook to deliver him to some hidden masters.”

The foundation has also pointed out that Zondo is treating the former president in the way the apartheid government treated former PAC leader, Robert Sobukwe. The 1963 General Laws Amendment Act No 37 also included certain provisions for an indefinite detention. The clause was also known as the “Sobukwe Clause” since it was specifically aimed at keeping the PAC leader Robert Sobukwe in evenb after the completion of his sentence. Thus after a three-year sentence, he was actually detained for a further six years on the annual decision of the Parliament.  Viewed against the background of the violation of the subsidiarity principles and the circumvention of the Commissions Act one cannot find fault with the Zuma foundation’s statement that: “…it is clear that laws are being changed to deal with (former) president Zuma, like how the apartheid government created Sobukwe laws to deal with Sobukwe. Indeed, it sounds like an old apartheid regime in the hands of the black leaders in the democratic South Africa."

 

Another related legal principle standing firmly against the Zondo Commission’s jeremiad and the Concourt’s adjudication of the Zuma contempt case is the potential violation of Section 166 of the Constitution which establishes the hierarchy of our courts.  Currently, Zuma has a review application pending before the High Court and at the heart of that application is Zondo’s bias and alleged unfitness to preside over a matter involving Zuma.  No judge of the Constitutional Court has any right to suspend the constitution. An orderly adjudication of the case would inevitably involve allowing the High Court the space required to adjudicate Zuma’s application and to allow any ensuing appeal process to follow.  The Concourt is skating on thin ice by insisting that it can issue a broad and prejudicial order vitiating President Zuma’s right to be heard.  In Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (WC) 2007 (5) SA 540 (SCA), Judge Nugent stated the following in regard to the scope of the sub judice rule in post-constitutional times:

 

[12] It is an established rule of the common law that the proper administration of justice may not be prejudiced or interfered with and that to do so constitutes the offence of contempt of court. That is now reinforced by the constitutional right of every person to have disputes resolved by a court in a fair hearing and by the constitutional protection that is afforded to a fair criminal trial. It is not contentious in all open and democratic societies - and it was not contentious before us - that the purpose that is served by those principles of law provides a proper basis for limiting the protection of press freedom, and the reason for that is self-evident. The integrity of the judicial process is an essential component of the rule of law. If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms −including the freedom of the press − are also compromised.

 

Given that Zondo has also filed a criminal complaint  against Zuma with the NPA the Concourt cannot pronounce on whether Zuma is guilty or innocent of the violation of Section 6 of the Commissions Act without prejudicing or interfering with the envisaged criminal prosecution.  Likewise the Concourt cannot rule on whether Zuma must be compelled to appear before Zondo when issues of the latter’s impartiality and fitness to preside are pending a decision of the High Court.

 

Another principle thrown overboard because of Zuma exceptionalism is the simple notion that no one may be a judge in his own case.  In the matter of the Constitutional Court judges against Judge President Hlophe it was alleged that seven of the eleven Judges of this Court were complainants in the Hlophe complaint that  underlies  the  matter. A further Judge namely Justice  Mogoeng was allegedly involved in efforts to mediate the dispute.  Accordingly they could not adjudicate the matter when it came to the Concourt.  Zuma has a pending review application in which Zondo is a respondent. In addition, Zondo has filed a criminal case against Zuma but insists in sitting in the same matter where he would be required to pronounce on Zuma’s credibility. There are two circumstances in which a judge must recuse himself or herself. The first is where the judge is actually biased or has a clear conflict of interest and the second is where a reasonable  person,  in  possession of the facts, would harbour a reasonable apprehension that the judge is biased. The protection of the constitutional principle of judicial impartiality imposes on the judge the duty to recuse if a reasonable person would have a reasonable apprehension that the judge is biased.  In Zondo’s case, due process requires that he refrains from participating in any matter involving Zuma. He was responsible for initially bringing the criminal charges against Zuma, or in contempt cases where the judge has a strong personal interest in the outcome of the matter it is absurd to argue that Zuma must be forced to appear before the same judge.

 

In limited circumstances the constitutional right to due process may require a judge to recuse. “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). The circumstances in which the due process clause has been applied to require disqualification are:

·      Cases in which the judge has a direct, personal, substantial pecuniary interest in the outcome, such as in Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986), where a state supreme court justice had a pending lawsuit which turned on the same legal issue as the case before him on appeal.

·      Cases in which the judge who is trying a criminal case is responsible for bringing the charges in the first place or, when contempt is involved, otherwise has a strong personal interest in the outcome. In re Murchison, 349 U.S. 133, 137-38 (1955) (judge should not have presided at trial for perjury and contempt when charges were initiated by the judge in a previous proceeding); Mayberry v. Pennsylvania, 400 U.S. 455, 465-66 (1971) (judge should have recused self on contempt charges based on defendant’s repeated curses and insults toward judge during a three-week trial; judge’s personal feelings demonstrated by severity of 11-to 22-year sentence for contempt).

·      It is improper for a judge to sit where one of the parties has a pending lawsuit against the judge. See In re Braswell, 358 N.C. 721 (2004).

 

And finally, President Zuma faces a particular species of contempt of Court in the matter before the Concourt. This is contempt ad factum praestandum – non-compliance with the Concourt’s order requiring him to attend a hearing and to remain in attendance until released by the Chairperson. The SCA 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.”

 

Once again if the legal principles are applied even-handedly and not on the basis of Zuma exceptionalism Zuma’s position that the Concourt’s order may not lawfully issue an order which violates Section 166 of the Constitution and due process may be sufficient to avoid the finding that his refusal was committed “deliberately and mala fide”.