By: Paul M. Ngobeni
Chief Justice Zondo and President Ramaphosa are busy wreaking havoc on the constitution of this country while inflicting irreparable damage on the credibility of our judiciary. Truth be told, Zondo applied for and obtained a final extension from the courts but he blew the deadline.
There is no evidence that he applied nunc pro tunc for any further extensions. Currently, the Zondo Commission ceased to exist beyond the 15 June 2022 deadline, thereafter it lacks jurisdiction to do anything pursuant to its terms of reference. Its is axiomatic that, absent a valid court-ordered extension beyond 15 June 2022, the Commission could not conduct any inquiries beyond that date for the simple reason that it had ceased to exist. It cannot issue valid reports.
The Bard of Avon once admonished that we should “defer no time” and warned that “delays have dangerous ends.” (Henry VI, Shakespeare). The latest comical helter-skelter hurtling by the Chief Justice Zondo to finalize the completion of the “State Capture” report, after he piled delay upon delay, and blew the court-ordered deadline bears out this admonition. For the entire four years he presumably devoted to the Commission Chief Justice Zondo engaged in inexcusable delays, procrastinated and squandered the time he was afforded and cavalierly flouted the court-ordered deadlines established at his own request. The date 15 June 2022 should have been edged in his mind as the drop-dead date – it was the Zondo Commission’s court-ordered deadline to wrap up its work and issue its final report.
But true to form, Zondo failed abysmally to comply and has, offered a plethora of excuses for his non-compliance. On 18 June 2022, the State Capture Commission issued a statement saying it was “not able to submit the final volume of its report to the President on 15 June 2022 due to certain challenges.” At the same time, the Commission promised that an electronic report would “certainly” be submitted to the president on 19th June 2022 and a hard copy, on 20 June 2022 during a “hand-over ceremony.” Needless to state that Zondo who never asked for another extension of the 15 June 2022 deadline is never short of excuses.
Remember that after an urgent application Zondo filed in February 2022, the court granted Zondo a seventh extension until the end of April 2022. In his final extension he falsely promised that this would be the last extension he would seek to complete the writing of the report. He stated, to the extent that the “commission may complete its report within the six additional weeks if this honourable court grants the extension, the only other extension that the commission may apply for would not be one to enable it to complete the report, but one which the commission may need to wrap up administratively.”
We should also remember that Zondo previously filed a February 2022 application for an extension. As if to highlight the irreconcilable conflict arising from his moonlighting as Chief Justice and service as State Capture Commissioner, Zondo’s claimed motivation was that he had needed time to prepare for his interview with the Judicial Service Commission (JSC) as one of four candidates for the position of chief justice. After performing abysmally and losing out to SCA President Maya, Zondo was nonetheless promoted to the Chief Justice position and frittered away more time chairing the JSC as it interviewed candidates for judicial appointment. He confessed: “As a result of those interviews and the preparation that went into them, my work relating to the commission was interrupted.” It is unfathomable that such lame excuses would be offered or accepted to any court in this country – the law reports are replete with deserving cases that were dismissed for alleged failure to comply with court-ordered deadlines. But the Zondo-led judiciary appears willing to grant the executive and the Commission more indulgences and is unconcerned about its indolence. The adage that justice delayed is in every sense justice denied should concern us all. The dilatory tactics and executive interference which prevents the adjudication of citizens’ rights and protects legal wrongs, is in a very practical sense justice sold.
Even more alarming are news reports that President Ramaphosa has met with Zondo to discuss the timing of the finalization of the report. This has prompted reactionary leaders of the opposition parties such as Steenhuisen to crow that this is “completely inappropriate”. Steenhuisen saod: “Because we all know that Mr Ramaphosa himself appeared before the Zondo Commission, that Mr Ramaphosa himself could well be implicated in this final report. And, therefore, it is wholly inappropriate and deeply unethical, for somebody who is the subject of the report, whose party is the subject of the report, to be meeting with the judge, to discuss the timing of the release of the report.” He said Ramaphosa and Zondo needed to take the country into their confidence and explain the reasons for the meeting and why the report was delayed. Steenhuisen added: “Because in the absence of that explanation, it’s going to look increasingly like this report is being managed and massaged because the Phala Phala has now created inconvenient timing for Mr Ramaphosa to be facing any further allegations.”
I have previously written that after the Commission was established Ramaphosa took an insidious step to weaponize the Commission as a political tool to be used selectively against his political enemies. Following loud criticism of the NPA for its alleged failure to prosecute high profile state capture cases, Ramaphosa amended the Commission’s regulations to allow the Zondo Commission to be used as a Trojan horse for the unwary.
Ramaphosa has effectively forced DCJ Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations which appears to be unlawful and unconstitutional. Lawyers will have a field day litigating such matters and exposing just how corrupt and manipulative Ramaphosa has been. I previously asked a rhetorical question – can a law-abiding, rational, honest and duty-conscious President commit himself to accepting and implementing the report of a commission before it is even drafted and published or before he has even seen its contents? The latest reports of unexplained meetings between Ramaphosa and Zondo simply confirm that our worst fears of political gerrymandering of the State Capture report are about to be realized.
A pivotal legal question is this: Given that the Zondo Commission had a court-ordered deadline of 15 June 2022 to finalize its work and reports, is it constitutional for the President to accept a report from such a Commission beyond the court-ordered deadline? As a corollary, would a belated Report signed by Zondo and provided to Ramaphosa, at a future time when the Zondo Commission is no longer in existence and when there is no basis in law in terms of which the Commission is authorised, entitled or obliged to deliver the report be regarded as legally valid? Fortunately, we need not re-invent the wheel here as the courts have already answered.
In Godongwana and Others v Pillay, J. and Others (1989/2008) [2009] ZAECGHC 29 (18 May 2009) Judge Ronnie Pillay headed a Commission which was appointed appointed by Eastern Cape Premier Nosimo Balindlela to investigate corruption in the provincial government. Pillay compiled an explosive report detailing corruption in the Eastern Cape government. The Commission ruled that Makhenkesi Stofile, Eastern Cape ANC chairperson and Mcebisi Jonas, and ANC executive and former economic development MEC Enoch Godongwana were corrupt and that their family members benefited from improperly awarded loans and contracts worth millions of rands. The applicants sought judicial review in terms of which they sought to have the report of the Commission reviewed and set aside; they also sought a declaratory order that the report was a nullity and of no force and effect.
The Court agreed – it ruled that although the lifespan of the Commission was extended by proclamation on two occasions, the second of which to 30 September 2006, Ms Balindlela purportedly further extended its duration until 31 December 2006. But it was clear that there was no proclamation extending the life of the Commission beyond 30 September 2006. The court agreed with the applicants that even assuming the valid extension of the lifespan of the Commission to 31 December 2006, it was no longer in existence on 1 June 2007 when the Report was signed and provided to Ms Balindlela – in other words, it was powerless to do anything and in particular lacked power to issue the Report. In Stafford v Special Investigating Unit 1999 (2) SA 130 (ECD) Leach J, remarked that a commission of inquiry, in that case, the Heath Commission, likewise, as in casu, established in terms of the Provincial Commissions Act (Eastern Cape) does not enjoy juristic personality under the common law. He held that as a creature of statute it only has such juristic personality as is conferred upon it by the statute to which it owed its existence. Consequently, both the inquiry and the report would have to be completed within the stipulated period or such extended period any further proclamation decreed. The Court ruled that:
If the further extension to 31 December 2006 was legally valid, and about that I have grave reservations, then the Commission ceased to exist beyond that date absent a proclamation to that effect. None has been shown to exist. In my view therefore the Commission lacked jurisdiction thereafter to do anything pursuant to its terms of reference. Its is axiomatic that, even assuming a valid extension to 31 December 2006, the Commission could not conduct any inquiries beyond that date for the simple reason that it had ceased to exist. As a necessary corollary, it likewise had no power to produce a report. The Report is therefore in my view clearly a nullity and liable to be set aside in terms of s 6 (2) (a) (i) of PAJA.
In Zondo’s case it gets even worse – he applied for and obtained a final extension from the courts but he blew the deadline. There is no evidence that he applied nunc pro tunc for any further extensions. Currently, the Zondo Commission ceased to exist beyond the 15 June 2022 deadline, thereafter it lacked jurisdiction to do anything pursuant to its terms of reference. Its is axiomatic that, absent a validcourt-ordered extension beyond 15 June 2022, the Commission could not conduct any inquiries beyond that date for the simple reason that it had ceased to exist. As a necessary corollary, it likewise had no power to produce a report. The much-reviled scandalous meetings between the President and Zondo are meant to micro-manage the failures of Zondo and to salvage the State Capture Commission.
The other notorious case involved PW Botha, the second last State President under apartheid. Botha became the first apartheid head of state to face criminal charges after Western Cape Attorney-General Frank Kahn announced he would prosecute Botha for ignoring a subpoena to appear before the Truth and Reconciliation Commission. TRC deputy chairman Dr Alex Boraine made a late appeal for Botha to reconsider, saying the TRC would approach Kahn to withdraw charges should he agree to appear before the TRC. Botha demurred. The decision to prosecute followed a public battle of wills between Botha and the TRC, in which he failed three times to appear before the commission: initially because he was ill, but later because it was a “circus” and a “witch-hunt” against apartheid leaders. After his second refusal the TRC wanted to charge him but Kahn ruled the subpoena was flawed. Third time around, Botha defied another subpoena. Kahn told a news conference that in considering whether to prosecute, Botha’s personal circumstances had weighed heavily on him. “He is almost 82 years of age and no attorney-general in any civilised country lightly decides to prosecute a person of his age, especially given Mr Botha’s medical history.” However, he had eventually decided that a prosecution was warranted in law and in the public interest. Kahn said he had not bowed to any political pressures in deciding to prosecute, and had not consulted any politician or persons outside his office. The TRC believed that Botha, with his experience and information as defence minister, prime minister and state president, could give vital information for the commission to fulfill its mandate. It was clear that as chairman of the former State Security Council, Botha had information, knowledge and opinions the commission needed to weigh up, and which were critical for it to complete its work.
On August 21, 1998, P.W. Botha was convicted and fined 10,000 rand or imprisonment for a year by a black magistrate, Mr Victor Lugaju, in the regional court in George. See; Botha fined for his refusal to answer Truth Commission Sat, Aug 22, 1998, 01:00 PATRICK LAURENCE https://www.irishtimes.com/news/botha-fined-for-his-refusal-to-answer-truth-commission-1.185506 Pronouncing his verdict Mr Lugaju said: “It is the unanimous decision of the court that the failure of the accused to appear [before the TRC] was unlawful, intentional and without sufficient cause. The accused is accordingly found guilty on the main charge.” But Mr Botha immediately served notice that he would continue his struggle against what he believed was a TRC bias towards the African National Congress and against Afrikaners. After he was released on bail of 50 rand, his lawyers told journalists that an appeal against his conviction and sentence had already been filed with the High Court in Cape Town.
On appeal, the notice to testify issued against Botha was also set aside by the High Court. See S v Botha 1999(2) SACR 261(C). Judge Selikowitz said the appeal had succeeded because the TRC’s power to summon witnesses had temporarily expired at the time it issued the subpoena demanding Mr Botha’s attendance. In his judgment, Selikowitz stated at p. 271 that:
“I should like to record that this Court is mindful of the fact that there will be many who may consider that it is unjust that the appellant should succeed in his appeal upon the basis that the s 29(1)(c) notice issued by the TRC and served on him on 5 December 1997, was unauthorised because it was prematurely issued. Indeed, Mr Morrison submitted that this Court should not permit the appellant to take what he called ‘technical points’ because of the intransigent and obdurate attitude which the appellant had demonstrated towards the TRC. The TRC was established to perform a noble and invaluable task for our country. It remains, however, a statutory body clothed only with the powers that the Legislature has given it. This Court is duty-bound to uphold and protect the Constitution and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. Suffice it to say that the same law, the same Constitution which obliges the appellant to obey the law of the land like every other citizen, also affords him the same protections that it affords every other citizen.”
Judge Selikowitz overturned the conviction on a technicality and predictably some South Africans were outraged. Zondo has already been criticized by fellow Constitutional Court judges for his legendary delays and incompetence regarding the Zuma contempt case. The issue of the court-ordered deadlines and validity of the report cannot be separated from the other issues that will be subject to the applications to review and set aside the entire State Capture Commission and Zondo’s impugned actions.
