By Paul M. Ngobeni
Tony Yengeni, a liberation struggle hero, former Umkhonto We
Sizwe commander and political prisoner has filed a meritorious judicial
misconduct complaint against Chief Justice Zondo. Predictably, the swift
Pavlovian response from pseudo-journalists and other demagogues has been
personal attacks and denunciation of Yengeni whom they labeled a “convicted fraudster.” The merits of Yengeni’s complaint is immaterial
to these bigoted folks who have invested so much in Zondo’s Commission that
they cannot face the naked reality that Zondo has made costly errors of
judgment that may render the Commission’s work unlawful and forever tarnish the
image of the judiciary and his own. Let us examine the merits of the complaint.
The crux of Yengeni’s complaint is the plethora of constitutional issues involved when a serving judge, a Deputy Chief Justice for that matter, is appointed to serve on a Commission of Inquiry appointed by the executive. Yengeni correctly relies on the Code of Judicial Conduct, Articles 12(1)(b) which says: “A judge must not, unless it is necessary for the discharge of judicial office, become involved in any political controversy or activity”; and article 12(1)(d) which says: “A judge must not use or lend the prestige of the judicial office to advance the private interests of the judge or others.”
We know that Zondo has an obsession with unnecessary
political controversy and that alone exposes his jurisprudential defects and bias. A
case in point was Zondo’s recent savage attack on Minister Sisulu for her
article she penned in her capacity as ANC head of transformation committee.
Sisulu wrote that “The most dangerous African today is the mentally colonised
African.” Further she wrote. “When you put them in leadership positions or as
interpreters of the law, they are worse than your oppressor. They have no
African or pan-African inspired ideological grounding. Some are confused by
foreign belief systems.” She then used the term “house negroes” before going on
to say: “When it comes to crucial economic issues and property matters, the
same African cosies up with their elitist colleagues to sing from the same hymn
book, spouting the Roman Dutch law of property. “But where is the indigenous
law? It has been reduced to a footnote in your law schools.”These ideas were clearly intended to provoke and stimulate further political debates to accelerate transformation in our post-apartheid society.
Instead of engaging with these serious jurisprudential questions Zondo accused Minister Sisulu of grievously insulting the judiciary with her article. Zondo claimed: “This is not just criticism, it is an insult…In this case I certainly think Ms Sisulu has crossed a line.” Zondo said he had consulted with colleagues in the judiciary before addressing the matter. He implied that the judiciary endorsed his public forays. Unfortunately, Zondo’s colleagues in the judiciary grossly misled him and set him up to embarrass himself and expose his ignorance to the entire universe.
An astute jurist would have instinctively recognized that Sisulu’s article constitutes "rhetorical hyperbole," which is "'extravagant exaggeration [that is] employed for rhetorical effect.'" Backes v. Misko, 486 S.W.3d 7, 26 (Tex. App. 2015). As the United States Supreme Court has held, a published statement that is "pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage" cannot constitute a defamatory statement. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 32 (1990). Nor can it be penalized as “insulting” or “offensive” as Zondo has done. The U.S. Supreme Court has employed rhetorical hyperbole to hold that heated and emotional rhetoric receives free-speech protection rather than be deemed to be defamatory. For example, the Supreme Court ruled in Letters Carrier v. Austin 418 U.S. 264 (1974) that labor members did not defame nonunion members when they referred to them as “scabs” or “traitors” in a company newsletter. The Court stated, "Such words were obviously used here in a loose, figurative sense to demonstrate the union's strong disagreement with the view of those workers who oppose unionization. Expression of such an opinion, even in the most pejorative terms, is protected under federal labor law."' The Court, comparing the statements of the union to the accusation of "blackmail" made in another case, noted the "definition of a 'scab' is merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join”. Id. at 286.
Further, the Sisulu case can be better understood by reference to decisions on the right to free expression in which the right to use “political hyperbole” was recognized. In Watts v United States, 394 U.S. at 706, the defendant, at a public rally at which he was expressing his opposition to the military draft, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J. (the President).” He was convicted of violating a federal statute that prohibited “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The U.S Supreme Court reversed the conviction on the basis that the defendant had not made a “true ‘threat,”’ but had indulged in mere “political hyperbole” 394 U.S. at 708. In short, the defendant did not literally state his intentions to kill the President!
Likewise, in NAACP v Claiborne Hardware Co., 458 U.S. 886 white merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by black citizens of their businesses, and to enjoin future boycott activity. During the course of the boycott, NAACP Field Secretary Charles Evers had told an audience of “black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.” 458 U.S. at 900, n.29. The Court acknowledged that this language “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence ....”.Id. Yet, no violence had followed directly from Evers’ speeches, and the Court found that Evers’ “emotionally charged rhetoric ... did not transcend the bounds of protected speech ... An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.” 458 U.S. at 928. Both the Watts and Clairborne illustrate the fact that the right to free expression protects expressive acts that amount to political hyperbole, even if they contain violent imagery. These expressive acts must be tolerated, unless they constitute a real and imminent threat of, or incitement to, violence. That is a far cry from the views expressed in a newspaper opinion piece about an untransformed judiciary.
A disturbing part of Zondo’s foray into political debate with Sisulu is readily apparent when we analyze the Concourt’s own case-law on the matter of free political speech. This raises the question of whether Zondo attacked Sisulu in a genuine belief that she was wrong or whether he did so because she was rumored to be a potential ANC presidential candidate who would be Ramaphosa’s rival. I poignantly raise this issue because the Constitutional Court has made clear that the articles similar to Sisulu’s were protected. It has repeatedly acknowledged the importance of the fundamental right of freedom of speech. Thus, it has been stated that freedom of expression “lies at the heart of democracy”. South African National Defence Union v Minister of Defence and others 1999(4) SA 469 (CC) at para 7. Also, in the case of Print Media South Africa and another v Minister of Home Affairs and other 2012 (6) SA 443 (CC), the Constitutional Court held that freedom of expression “…promotes and protects the moral agency of individuals. Whether expression lies at the right’s core or margins, be it of renown or notoriety, however essential or inconsequential it may be to democracy, the right cognises an elemental truth that it is human to communicate, and to that fact the law’s support is owed.” Id. at para 53.
Further, in the Islamic Unity Convention v The Independent Broadcasting Authority and others [2002] ZACC 3; 2002 (4) SA 294 (CC) case, the Constitutional Court also endorsed the freedom to express offensive, shocking or disturbing speech on the basis of case authority from the European Court of Human Rights:
“South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society… In Handyside v The United Kingdom, the European Court of Human Rights pointed out that this approach to the right to freedom of expression is -
‘applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb….Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” Id. at para. 28.
It is irrelevant that Zondo considered the article offensive, shocking or disturbing. Zondo and his faceless judicial colleagues who advised him to tackle Sisulu are duty-bound to understand and to properly interpret the provisions of the ANC constitution and the freedom of speech provisions of the Constitution of the Republic of South Africa. They had an obligation to be mindful of that which was said in both Argus Printing and Publishing Co Ltd v IFP [1992] ZASCA 63; 1992 (3) SA 579 (A) and also in Mangope v Asmal and Another 1997 (4) SA 277 (T) about political debates.
In Argus supra, the court was concerned with whether or not a political body could sue for defamation. The court commented that “political debate should be unfettered. People should not be restrained in their political utterances by the fear of being subjected to claims for defamation”. “Mere debate on political questions, or expressions of disagreement with an opponent's political views, would clearly not be actionable. Even personal criticisms of a political opponent are not readily regarded as defamatory”. The court affirmed that which was said in an earlier judgment that “courts must not avoid the reality that in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters are aware of this.” Part of the rationale for the law’s reluctance to regard political utterances as defamatory stems from the “recognition that right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him by other politicians or political commentators”. Accordingly, the Supreme Court of Appeal endorsed the general approach that “wide latitude” should be allowed in public debate on political matters”. Zondo and his judicial colleagues seemed to be completely oblivious of these legal principles and Zondo was hell-bent on abusing his powers to further a factional ANC agenda based on a false legal theory. Judges are quint-essential public servants and criticism of the judiciary, just like that of any branch of government, cannot readily be characterized as “insulting” or “offensive”. No right-thinking judge would believe that South Africa still has a slave plantation where there are “house negroes” and “field negroes” of the American days of slavery. Zondo gratuitously insinuated himself in a purely ANC party political debate and then used his judicial status to condemn Ramaphosa’s potential rival.
In the subsequent Mangope supra decision, the court said that, although even politicians can be defamed, they should not be “overhasty to complain about slatings against them unless it is really serious”. A distinction should be drawn between an attack against the “dignity and reputation of a politician” and “an attack upon his political views, policies and conduct”. In respect of an attack on the latter, the court would be slower to come to the assistance of a politician. The same applies to performance of judiciary functions. It is unfathomable that Zondo and his unnamed judicial colleagues carved out exceptions for themselves as judges to shiled themselves against criticism on the form of political hyperbole.
To assess whether a statement is "rhetorical hyperbole," any right-thinking judge must look to the statement as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. As the court stated in Argus supra, “political debate should be unfettered. People should not be restrained in their political utterances by the fear of being subjected to claims for defamation”. “Mere debate on political questions, or expressions of disagreement with an opponent's political views, would clearly not be actionable. Even personal criticisms of a political opponent are not readily regarded as defamatory”. Lamentably, Zondo either clearly shows himself to be woefully out of touch with both the legal principles and political reality of public debates on policy or constitutional matters or he has chosen the route of political grand-standing at the expense of the judiciary.
The Argus court affirmed that “in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters are aware of this.” Part of the rationale for the law’s reluctance to regard political utterances as defamatory stems from the “recognition that right-thinking people are not likely to be greatly influenced in their esteem of a politician by derogatory statements made about him by other politicians or political commentators”. As Lewis JA remarked in the South African Supreme Court of Appeal in Mthembi-Mahanyele v Mail & Guardian Ltd and Another: “Freedom of expression in political discourse is necessary to hold members of Government accountable to the public. And some latitude must be allowed in order to allow robust and frank comment in the interest of keeping members of society informed about what Government does. Errors of fact should be tolerated, provided that statements are published justifiably and reasonably.” The judiciary also needs to be held accountable through proper and robust political discourse.
This begs the question – why did Zondo not know all this case-law from his own court? Zondo indulged in serious over-reaching when he purports to act as a super-czar of what is acceptable or “insulting” in a public political debate. Zondo simply ascended an anti-Sisulu bandwagon and went about systematically attacking her without digesting or taking cognizance of the relevant legal principles as developed by our very own judiciary. He brought the judiciary into disrepute. In light of the law deliberately ignored by Zondo, Yengeni should have added Zondo’s anti-Sisulu outburst as another ground for judicial misconduct. But there is more!
Arguably, Zondo flouted the admonition that a judge should refrain from political activity or political controversy when he waded into the political debate and convened a press conference and issued public statements at the time when he was moonlighting as an acting Chief Justice and acting as an “instrument of the executive.” It is dubious that his attacks on Sisulu can be characterized as necessary for the “discharge of judicial office” since he was unconstitutionally still performing an executive task as Commission chair and at the same time purported to be acting as Chief Justice. It is an open secret that Sisulu will face off against Ramaphosa when she enters the ring to contest the position of ANC president in the forthcoming December 2022 elective conference. Zondo’s savage attacks on her and the accompanying praises on Ramaphosa as a messiah of both the ANC and the state cannot be seen in isolation. Part of the prohibition in the judicial code means that judges must not make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.
The endorsement of Ramaphosa is purely based on Zondo’s gut feeling and not based on empirical evidence. His assumption that state capture has ended and that it ended when Ramaphosa was elected ANC president is simply preposterous. Yengeni justifiably concludes that CJ Zondo has “either deliberately or negligently launched himself in the middle of the political contestation for leadership of the ruling African National Congress, and advanced or potentially advanced the private (and political) interests of the current President of the African National Congress. “He has done so by pronouncing in his report that the election of the current President of the African National Congress at the December 2017 national conference saved South Africa from ‘further damage’.”
The Bangalore Principles to which our own judiciary subscribes are explicit - a judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. (Bangalore Principle 2.2). Further, a judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. (Bangalore Principle 4.6). Obviously, the perception of impartiality is measured by the standard of a reasonable observer. The perception that a judge is not impartial may arise in a number of ways, for instance through a perceived conflict of interest, the judge’s behaviour on the bench or his or her associations and activities outside the court.(Commentary, paragraph 52). Additionally, a judge must avoid all activity that suggests that his or her decision may be influenced by external factors such as a personal relationship with a party or interest in the outcome of a case. (Commentary, paragraph 55). In this context, everything—from a judge’s associations or business interests, to remarks that he or she may consider to be nothing more than harmless banter—may diminish the judge’s perceived impartiality. (Commentary, paragraph 65).
The ugly picture that emerges when one examines Zondo’s involvement with Ramaphosa and the Commission must not escape scrutiny by all.
He failed to draw and observe the line. It is crucially important for judges to be seen by the public as exhibiting that detached, unbiased, unprejudiced, impartial, open-minded and even-handed approach which is the hallmark of a judge. If a judge enters the political arena and participates in public debates—either by expressing opinions on controversial subjects, entering into disputes with public figures in the community, or publicly criticizing the Government—he or she will not be seen to be acting judicially when presiding as a judge in court.
Instead of vilifying Yengeni we must shine the spotlight on Zondo’s own injudicious acts and lack of discernment. The first misstep by Judge Zondo was his acceptance of the appointment to serve in the State Capture Commission as a sitting Deputy Chief Justice. In doing so, Zondo appears to have been ignorant of the basic characteristics of Commissions. As stated by Scott Prasser who stated:,
a … commission is not a “judicial inquiry”. There is no such thing in our system of government. There are courts separated from executive government and presided over by judges and magistrates to hear cases based on law. By contrast, … commissions, although often carried out by current or former judges, are not courts of law. They are appointed by executive government, report to executive government, and are instruments of executive government. Executive government decides their terms of reference, timeframes and resources. So a royal commission is not about making judgments, but about clarifying the facts and making recommendations on a broad range of issues. [Scott Prasser, “Royal commission must not be turned into a witch-hunt” The Australian (13 November 2012).]
This alone should have made it clear to Zondo that the appointment to head the State Capture Commission had the potential to compromise and soil his judicial role. For three years he served in a role where he was appointed by the President, he reported to executive and was “instrument of executive government.” To paraphrase Prasser, the Executive government decided Zondo’s terms of reference, timeframes and resources. It is puzzling that an astute jurist like Zondo appeared oblivious to the fact that he would be enmeshed in political controversy as “an instrument” of the executive. That was bound to raise questions about his political bias.
In addition, Zondo knowingly assumed the risk of political attacks when he accepted appointment as Chairperson of a Commission, a role that kept him as an “instrument” of the executive for almost four years. In the Canadian case of Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2011 FCA 217 at paras 20-22, 336 DLR (4th) 216, Létourneau JA of the Federal Court of Appeal spelled out the self-imposed dilemma as follows:
There is a world of difference in terms of significant impacts between a commission of inquiry and an adjudicative tribunal....
By definition, Commissions of Inquiry investigate rather than adjudicate. It must not be forgotten that the commissioners chairing such commissions do not have evidence establishing the facts, causes and circumstances of the events being investigated. It is the very role of commissioners to seek out that evidence and then analyze it.
Good investigators, just like fine bloodhounds, are driven by suspicion which they seek to confirm so that the file may be closed, or to dispel so that the search can pursue other tracks.
In the court of public opinion at least, the distinction between legally enforceable findings of criminal or civil and criminal liability and mere factual findings of misconduct –so central to the jurisprudence delimiting the powers of public Commissions inquiries may be illusory. Zondo had a duty to avoid publicly criticizing persons he did not like using terms that suggested they were guilty of criminal wrongdoing or acts of maladministration. Equally, he had a duty not to effusively praise Ramaphosa who rewarded him with an undeserved promotion contrary to the JSC recommendation.
Zondo let his guard down and ignored the doctrine of incompatibility which is intended to ensure that when judges do assume extra-judicial duties, their conduct will not impugn the integrity and proper operation of the judiciary as a whole. In the case of In Grollo v. Palmer, [1995] 184 CLR 348 (HCA) Australia’s High Court found that incompatibility arises under the following three circumstances: (1) where a judge assumes “so permanent and complete” a commitment to a non-judicial function that his or her judicial duties are disrupted, (2) where the nature of the non-judicial function is such that the judge’s ability to perform his or her judicial duties with the requisite integrity is impaired, and (3) where the non-judicial function is “of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity is diminished.” Id. at 365. A finding of incompatibility must ensue where any discretion purportedly possessed by the judge is to be exercised on political grounds—that is, on grounds that are not confined by factors expressly or impliedly prescribed by law.
It should have been intuitively obvious to Zondo that he was being asked to perform a Sangoma’s function and not a judicial task. Our Republic has no statute defining the contours or setting forth a working definition of “state capture.” Not surprisingly Zondo has not once attempted to define “State Capture” in his voluminous reports. He adopted a populist understanding of that concept and proceeded to exercise his discretion on political grounds. He cannot now shed crocodile tears and decry the criticism by citizens who clearly see through his political leanings. In any event, he knowingly became steeped in the cauldron of politics when he commingled his judicial duties with those of a mere tool or “instrument of the executive” as a Commissioner. It is highly disconcerting that Zondo signed the Fourth Volume of the “State Capture Report” and identifies himself in his capacity as “Chief Justice” of South Africa.
Judge Zondo was aware of the full scope of the incompatibility doctrine which was further refined in Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs, [1996] 189 CLR 1 (HCA) [Wilson]. That case concerned the appointment of a Federal Court judge under the Aboriginal and Torres Strait Islander Heritage Protection Act 1994 to investigate the potential impact of a bridge development on Aboriginal heritage interests, and to provide an advisory report to the responsible minister. The majority held that the nomination and appointment of Justice Mathews was not effective as the performance of the reporting function would be inconsistent with the separation of powers required by the Constitution. Kirby J stated:
it is not compatible with the holding of federal judicial office in Australia for such an office holder to become involved as “part of the criminal investigative process,” closely engaged in work that may be characterised as an adjunct to the investigatory and prosecutory functions. Such activities could “sap and undermine” both the reality and the appearance of the independence of the judicature which is made up of the courts constituted by individual judges. They could impermissibly merge the judiciary and the
other branches of government. The constitutional prohibition is expressed so that the executive may not borrow a federal judge to cloak actions proper to its own functions with the “neutral colours of judicial action.”
The Court characterized the appointee’s extra-judicial function as a “condition precedent” to the exercise of political discretion by the Minister. Justice Zondo was fully aware that appointment to the State Capture Commission inevitably would involve him not only in political controversy but very deeply as “part of the criminal investigative process”. He was destined to be closely engaged in work that may be characterised as an adjunct to the investigatory and prosecutory functions. As evidenced by the four years of exclusive Commission work and expenditure of almost a billion rands, the State Capture activities did “sap and undermine” both the reality and the appearance of the independence of the judicature. Zondo performed no judicial work, he wrote not a single judgment and spent his entire time consorting with the executive.
As if to underscore the deep insinuation of Zondo into the NPA prosecution, Ramaphosa published in a gazette notice an amendment dated 28 July 2020 President which effectively allows South Africa’s law enforcement agencies to have access to information gathered by the state capture commission of inquiry, making it easier to build cases against implicated individuals. This came almost two years after the Commission commenced its work and after Zondo had consistently made clear that even implicated persons did not enjoy unfettered rights to cross-examine their accusers or to give evidence. In spite of it all Zondo still feels emboldened to speculate that the election of Ramaphosa in 2017 saved the country’s treasury from further looting by persons he denied even the most basic due process rights during the inquiry. Viewed with this prism, Mr. Yengeni has ample justification for perceiving Zondo’s pontification as nothing more than naked political gamesmanship. But there is more.
Zondo deserves no sympathy as he knowingly ignored court judgments and the admonition of the very Constitutional Court he now leads. In South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00) [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000), the Concourt quoted with approval the above cited Australian precedent which held that
44.“it is not compatible with the holding of federal judicial office in Australia for such an office holder to become involved as ‘part of the criminal investigative process’, closely engaged in work that may be characterised as an adjunct to the investigatory and prosecutory functions. Such activities could ‘sap and undermine’ both the reality and the appearance of the independence of the judicature which is made up of the courts constituted by individual judges. They could impermissibly merge the judiciary and the other branches of government. The constitutional prohibition is expressed so that the executive may not borrow a federal judge to cloak actions proper to its own functions with the ‘neutral colours of judicial action’.
The Court considered the fact that the functions that the head of the SIU (Judge Heath) was required to perform were far removed from “the central mission of the judiciary.” They “are determined by the President, who formulates and can amend the allegations to be investigated. If regard is had to all the circumstances including the intrusive quality of the investigations that are carried out by the SIU, the inextricable link between the SIU as investigator and the SIU as litigator on behalf of the state, and the indefinite nature of the appointment which precludes the head of the unit from performing his judicial functions, the first respondent's position as head of the SIU is in my view incompatible with his judicial office and contrary to the separation of powers required by our Constitution.” As I lamented above, President Ramaphosa has already amended the scope of the State Capture investigation and has involved Judge Zondo in the unenviable position of being part of the criminal investigative process in which witnesses testify before the Commission only to find themselves arrested by the Hawks a short while after giving such testimony.
Judge Zondo should also have heeded the following admonition of the Concourt in Heath:
“Under our Constitution, the judiciary has a sensitive and crucial role to play in controlling the exercise of power and upholding the bill of rights. It is important that the judiciary be independent and that it be perceived to be independent. If it were to be held that this intrusion of a judge into the executive domain is permissible, the way would be open for judges to be appointed for indefinite terms to other executive posts, or to perform other executive functions, which are not appropriate to the “central mission of the judiciary.” Were this to happen the public may well come to see the judiciary as being functionally associated with the executive and consequently unable to control the executive’s power with the detachment and independence required by the Constitution. This, in turn, would undermine the separation of powers and the independence of the judiciary, crucial for the proper discharge of functions assigned to the judiciary by our Constitution. “ Id. at para. 46.
In Zondo’s case, a confluence of factors exacerbated by his career ambitions have severely dented Zondo’s image and called into question his political neutrality. He ignored the constitutional separation of the Judiciary from the other branches of government which is an important principle enshrined in the Constitution. Despite his dismal performance during the JSC interviews in which he came out dead last, he accepted a favour from Ramaphosa who appointed him ahead of a female candidate who out-performed Zondo in all areas of judicial leadership. He is actually a beneficiary of an unconstitutional, sexist and discriminatory appointment process in which the President expressly rejected a JSC selection process in favour of Zondo who would exonerate him, sing his praises and declare that Ramaphosa was god-sent messiah of the ANC and country.
There is a good chance that the entire Commission could be declared unlawful and its findings void. Zondo jettisoned all the principles in the Heath case. That case clearly established the criteria relevant to considering whether or not under our Constitution, it is permissible to assign a non- judicial function to a judge, namely, whether the performance of the function:
· Is more usual or appropriate to another branch of government. Under our Constitution, holding the President to account is a function of parliament (legislative branch) and Zuma was required to and did account to Parliament on a variety of matters including the very issues of appointment of members of Cabinet, the Jonas allegations and sundry issues Zondo purported to inquire into.
· Is subject to executive control or direction. The Constitution requires that a Commission appointed by the executive remain exclusively under the control of the executive but that was flagrantly violated when the appointment of the State Capture Commission was made a shared venture between the judiciary and the executive and the extension of the terms of the Commission have now been taken over by the judiciary. Zondo’s attempt to further involve the Concourt in coercing witnesses to appear before the State Capture Commission further emphasizes that the lines of demarcation have been irredeemably blurred.
· Requires the judge to exercise a discretion and make decisions on the grounds of policy rather than law. Early indications are that terms such as “state capture” were left deliberately vague and are not susceptible to legal definition. One searches in vain for the criterion Zondo used to decide that Cabinet appointments or dismissal of certain senior public officials were a product of state capture as opposed to discretionary functions of members of the executive including the President. Even assuming crimes were committed, why is the NPA not suitable for the role assigned to it under Section 179 of the Constitution?
· Creates a risk of judicial entanglement in matters of political controversy. Once again we are beyond the issue of whether a “risk” was created – Zondo became deeply entangled in political controversy and ANC factional battles. Zondo submitted his report to President Ramaphosa who has ultimate discretion to accept or reject its findings. The Commission’s star witness, Agrizzi, has painted a good picture of allegations of impropriety in the controversial CR17 campaign funding scandal. The judiciary has sealed the records of the funders so we are in no position to know the identity of the funders and to determine from public records whether these funders have been rewarded with government tenders. While the initial findings of the Public Protector – which claim that Ramaphosa purposefully misled parliament in connection to a dubious R500 000 donation from infamous Bosasa boss, Gavin Watson – it has also emerged that opposition EFF member of parliament, Tebogo Mokwele, had admitted to receiving funds from Ramaphosa’s CR17 campaign. Mokwele, who initially claimed that she had been paid a total of R40 000 – intended to assist with a bereavement in the family – later resigned in an effort to ‘save the integrity of the EFF’. Mokwele said that while she didn’t have a personal relationship with Ramaphosa, she wasn’t surprised when he sent her money as a show of sympathy after the passing of a family member. Judge President Dunstan Mlambo and judges Elias Matojane and Raylene Keightley found Mkhwebane did not have the requisite jurisdiction to investigate donations to a private person's political campaign. They also found that he had no obligation to declare the donations, even if he was deputy president at the time, as he had derived no personal benefit from the donations.
So from the very inception, Zondo’s appointment while still actively serving as a Deputy Chief Justice is a gross violation of the principles laid down by the Concourt in Heath. The Constitution vests in the President the exclusive powers to appoint a Commission but that power was usurped and the judiciary became enmeshed in performing the exclusive executive function. Furthermore, Zondo overlooked the principle that judges must be, and be seen to be, separate from and independent of the legislature and executive. The blurring of this line has already occurred albeit through the intervention of President Ramaphosa who appeared and testified before Zondo. Records of donations from Ramaphosa’s own funders and bank records remain sealed by court order while Zondo is furiously investigating a faction of the ANC not congenial to Ramaphosa.
I must point out that Apartheid judges were solicitous of the rights of persons required to appear before a commission of Inquiry. They ruled that a commission that pays scant regard to the rules of natural justice is not entitled to have its decisions respected by our courts or the executive. But that appears to be missing from Zondo’s jurisprudential approach.
It is undeniable that crucial to the discharge of this judicial duty is that the courts be and be seen to be independent. But that has now been brought into question by the fact that Zondo resumed his judicial duties while the tasks he was performing for the executive were unfinished and his reports are still being written for the executive as we speak. This act of moonlighting clearly negates the principle that he can be seen to be independent while acting at the behest of the executive.
The Chief Justice Ngcobo ruling by the Concourt reminds us that Zondo’s case is a more gross violation of the separation of powers and undermines judicial independence. In Ngcobo’s case, the mere extension of the term of his service by the executive was deemed to be unconstitutional because of the risk that the public could perceive that as executive favour to the Chief Justice. Zondo was worse - he was actively pursuing his candidacy for Chief Justice of the country and the man considering his candidacy is Ramaphosa who was implicated in corruption by testimony of some witnesses. Not only is Zondo managing CR damage control exercise but he creates an impression or an appearance that he may exonerate Ramaphosa in a quid pro quo where he will get the Chief Justice position. Further, indications are that the report is heavily slanted against Zuma-aligned persons and is helpful to Ramaphosa in his battle for political survival in the ANC. The appointment as Chief Justice was just the reward Zondo wanted.
One word of advise to Zondo is warranted. He must not rest on his laurels as the every-rising storm clouds of controversy will soon engulf him and pre-occupy him in litigation for the rest of his judicial career. A New Zealand case reported at Re Erebus Royal Commission [1983] NZLR 662 (Privy Council); and Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618, gives us a picture of what awaits Zondo. It perfectly highlights the unsavory consequences of a sitting judge’s involvement in Commissions where they are required to inquire into politically and socially sensitive cases.
There a highly respected jurist Peter Mahon was appointed to chair a one man Commission and to report on the 1979 Erebus air crash, which killed 257 people. Mahon’s conclusions were that Air New Zealand’s inadequate safety processes led directly to the crash. He accused the airline of covering up its mistakes with ‘an orchestrated litany of lies’. This controversial finding was fiercely and successfully challenged by Air New Zealand in the courts on the ground of denial of natural justice. The Appeal court found that Mahon had breached natural justice by not allowing those accused to respond to his allegations, and that he had acted beyond his jurisdiction in his findings of perjury. The court also cancelled Mahon’s order of costs against Air New Zealand, but did not challenge his findings relating to the cause of the accident. Justices Woodhouse and Duncan McMullin delivered particularly critical judgments. As reported in Mahon, Peter Thomas – Dictionary of New Zealand Biography, https://teara.govt.nz/en/biographies/6m7/mahon-peter-thomas :
“Mahon resigned as a judge, citing loss of confidence from his peers. He appealed the court’s decision to the Privy Council, an expensive, time-consuming, stressful and ultimately unsuccessful process. Mahon’s finding regarding the cause of the accident remained but, in his view, his reputation had been impugned. The saga divided the New Zealand legal profession and played out in full public view.”
That was an object lesson that venturing into non-judicial Commissions work can come at a heavy reputational and institutional cost. Will Zondo have the fortitude and resign as Chief Justice if his findings are reviewed and set aside? Will he stomach the loss of confidence from his peers?
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