Rocky road ahead to fix judiciary’s tarnished image

Constitutional Court of South Africa in Johannesburg.

By: Prof. Sipho Seepe

President Cyril Ramaphosa’s nomination of Justice Mandisa Maya as the next Chief Justice of the Republic has been broadly welcomed. The nomination is occasioned by the fact that the term of office of Justice Raymond Zondo ends in August.

Justices of the Constitutional Court can only serve up to 12 years.

The endorsement of Maya’s suitability from various political parties to hold the office of Chief Justice was swift and telling. Many have gone as far as to suggest that there will be no need to subject Maya to the gruelling Judicial Service Commission (JSC) process. For many, the previous process that led to the appointment of Zondo is still fresh.

The exercise was about choosing the best candidate. The exercise, a contest among the supposedly best judicial brains, was a testament to transparency.

The spectacle is, however, memorable in that the worst-performing candidate ended up with a crown. The absurdity of this development is no different from a referee having to muster the energy to raise the almost lifeless body and heavily bruised boxer who has lost the ability to stand so that he can declare him the winner. There is no prize for guessing what sort of opprobrium and unprintable insults would have visited the referee.

Disappointingly, but not surprisingly, the legal fraternity acquiesced and accepted Ramaphosa’s choice. Conforming to power is, after all, the most comfortable state of being. The supposedly best minds voluntarily chose to suspend their intellectual discernment. The words of Jonathan Philip Chadwick Sumption, Lord Sumption, British author, medieval historian, and former senior judge ring true. Sumption observed. “This is how freedom dies. When societies lose their liberty, it is not usually because some despot has crushed it under his boot. It is because people voluntarily surrendered their liberty out of fear of some external threat.” In our case, the best minds suspended their judgment out of fear of material discomfort.

The foundations that routinely project themselves as defenders of truth and whose preoccupation centres around former president Jacob Zuma were deafeningly silent. Zondo may have been a Chief Justice in law. In a court of public opinion, he was a mere impostor and pretender. The appointment of the worst performing candidate over the preferred candidate of the JSC is a test case of how to bring the judiciary into disrepute.

As it often happens in such matters, it takes little time before the beneficiaries of flawed processes and decisions start to think that the positions they hold are well deserved. As we move forward, we risk having to face the same mistake when proper processes are suspended. Regarding this, former President Nelson Mandela warned: “One temptation of a leader elected unopposed is that he may use that powerful position to settle scores with his detractors, marginalize them and, in certain cases, get rid of them and surround himself with yes men and women.”

Zondo’s departure would hopefully mark the end of the most controversial period of the Office of the Chief Justice. I had argued before that Zondo came across as someone destined for perdition. “Out of respect for his office, many have restrained from pointing out that in Zondo we may have an individual suffering from delusions of grandeur. Both his actions and pronouncements point to lack of discernment,” I wrote in May 2022.

Zondo’s ill-considered comment that Ramaphosa’s election as ANC president saved South Africa raised the ire of many. This remark occasioned Tony Yengeni, an ANC heavyweight, then serving on the party’s National Executive Committee to file a complaint. Zondo stood accused of breaching the Code of Judicial Conduct that requires that “a judge must not unless it is necessary for the discharge of judicial office, become involved in any political controversy or activity. (And a) judge must not use or lend the prestige of the judicial office to advance the private interests of the judge or others”.

Julius Malema, the leader of the EFF, left no room for imagination in castigating Zondo. Addressing a press conference on May 16, 2022, Malema argued:

“The Chief Justice is too forward and has got no limits and he thinks that Judges are untouchable. That’s why he has given himself a responsibility to enter even a political terrain. What do judges have to do or say regarding the outcomes of political conferences? Judges must know the limits and Zondo has got no limits. For some reason, I think that Zondo wishes to be a TV presenter… he never misses an opportunity to go on TV. We know judges to be speaking through their judgments and not to be looking forward to TV interviews.”

Malema went further. “Zondo is a factionalist that supports Ramaphosa’s second term. That’s why it is so necessary for him to (say) that Ramaphosa’s election in the ANC rescued us from where we were because he’s effectively saying if you don’t elect Ramaphosa this December we are going to be in trouble.”

Justice Maya, presumptively the next chief justice, calls for judicial restraint. During her appearance before the JSC, she remarked. “I espoused the traditional view…that judges speak through their judgments. Yes, we speak on public platforms. I do that all the time, but only for discreet purposes…… to educate the public about the law, our institution, and related matters. No more. That is my view.”

Zondo was to find himself embroiled in an unseemly tussle with Parliament’s presiding officers. Without informing himself of the developments in parliament or checking with the parliament’s presiding officers, the chief justice publicly denounced another arm of the state.

Addressing a democracy colloquium by the Human Sciences Research Council (HSRC), Zondo effectively accused parliament of being lackadaisical in implementing the State Capture recommendations. He remarked. “If another group of people [was] to do exactly what the Guptas did to pursue State Capture, Parliament would still not be able to stop it, and that is simply because I have seen nothing that has changed.”

Parliament was quick to respond and effectively accused Zondo of being an attention seeker. It argued that Zondo should have checked his facts before blurting out his mouth.

“We want to emphasise that Parliament, through the diligent efforts of the Programming and Rules Committees, has taken decisive steps to address the recommendations of the State Capture Commission…. Parliament is further actively researching to explore international best practices.” In a most stinging rebuke thus far from parliament, parliamentary officers concluded. “The criticism made by Chief Justice Zondo against Parliament is therefore unfortunate, lacks merit, and undermines the principles of separation of powers. As the head of the judiciary, the Chief Justice needs to foster an environment of mutual respect and co-operation.”

It was under Zondo that the Constitutional Court invoked the first post-1994 notorious detention without trial reminiscent of the evil apartheid system when it jailed the former president for refusing to appear before an already politically biased commission. That decision, which the minority considered unlawful and unconstitutional, triggered the most violent and deadly protest since the founding of our democracy. Had Zondo recused himself from what had become a personal quarrel between him and Zuma, the country would not have experienced the 2021 July social unrest. More than 350 people lost their lives.

South Africa runs the risk of replacing apartheid tyranny with judicial tyranny. The sooner we realise that judges are fallible and as petty as ordinary folks, the better. It is now evident that given the motivation and the right circumstances, the so-called guardians of our democracy could be no different from our erstwhile oppressors. We became living proof of what W H Auden feared. He wrote. “Those to whom evil is done, do evil in return”.

*Prof. Seepe is an independent political analyst

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