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?
