By: Paul Ngobeni and Clyde Ramalaine
The Lindiwe Sisulu article published on January 7 has attracted both flies and tigers. There is little doubt about the impact and tone-setting status of this opinion piece and its presence in our national discourse. Seldom has an opinion piece attracted and continues to solicit responses in this fashion. In the nature of discourse, all will not agree; hence, the objective could not have been a simple agreement but a rigorous engaging of content. In the two weeks since the opinion piece entered our discourse, we have witnessed a slew of elites across all spectra respond for whatever reason or agenda, all that is welcomed. There is also consensus that Sisulu’s article by far eclipsed the ANC January 8 Statement, and may for sensible reasons have set the tone for a future both in ANC and SA spaces.
While there is a lesser record of genuine attempts to grapple with the content, there has also been a mountain of shameful and troublesome ad-hominem peripheral deflections from the same elite crowds. One almost gets the sense that this is orchestrated to obfuscate the necessary and pregnant debate.
Permit us to briefly say something on the Constitution to those who keep asking, what is so wrong with the Constitution. It is perhaps worthwhile to respond here briefly, while we in a later musing hope to share our thoughts on the Constitution as an impediment for socio-economic transformation, land ownership, and meaningful life for the victims of colonialism and apartheid.
The Constitution in its preamble refers to a South African ‘past’ and yet is strangely silent on what that ‘past’ entails. While aimed to aggressively respond to this ‘past,’ the Constitution appears nakedly embarrassed to name the past for what it is namely colonialism and apartheid. The absence of colonialism and apartheid constructs and explaining what they meant in legislative and experiential contexts translates to a severe challenge. One wonders how the proverbial constitutional fathers failed or neglected to recognise the need to categorically name that past. Was it an oversight or deliberate? Or is this the heart of the political settlement best understood in an agreed silence of the elites in reference to that past? This one act of denying the truth of our colonial and apartheid pasts to be present in it attest to the challenge of the sincerity of addressing that collective treacherous and hideous?
It is now a fact of history that Deputy Chief Justice Raymond Zondo, in his capacity as acting Chief Justice, staged a somewhat confusing public statement that came for major criticism as to its political content. This act on his part in which he categorically claimed he had consulted those on the bench before his statement increasingly is being questioned and will hopefully soon be ventilated in the appropriate fora.
It is not unfair to assert; South African judges simply need to chill. They are not demigods and are a product of colonialism and apartheid in every sense. Every aspect of our country’s institutions is influenced by our colonial and apartheid legacy. Indeed the Constitutional Court made this point on the apartheid era’s systematic discrimination against black people and equality in Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197. It said: [40] As in other national constitutions, section 8 is the product of our own particular history. Perhaps more than any of the other provisions in chapter 3, its interpretation must be based on the specific language of section 8, as well as our own constitutional context. Our history is of particular relevance to the concept of equality. The policy of apartheid, in law and fact, systematically discriminated against black people in all aspects of social life. Black people were prevented from becoming owners of the property or even residing in areas classified as ‘white,’ which constituted nearly 90% of the landmass of South Africa; senior jobs and access to established schools and universities were denied to them; civic amenities, including transport systems, public parks, libraries, and many shops were also closed to black people. Instead, it provided separate and inferior facilities. The deep scars of this appalling programme are still visible in our society. In light of that history and the enduring legacy that it bequeathed the equality clause needs to be interpreted.
Yes, we were all colonized indeed. Sisulu followed this jurisprudential approach and is now being attacked left, right and centre. But to get a clearer picture of the moral hypocrisy, moral bankruptcy, and intellectual shallowness of the self-styled constitutionalists’ forces arrayed against Minister Lindiwe Sisulu, one needs to analyze the sinister role played by the like of former judge Zac Yacoob. It is no sheer coincidence that in April 2016, Yacoob met his motley crew of pseudo-activists and others dubbed A.N.C. stalwarts by the media on the steps of the Constitutional Court, where they publicly told President Jacob Zuma to resign. Dancing to the tune of their masters, the self-styled “United Against Corruption” announced its intention to mobilize civil society—local communities, trade unions, churches, and religious groups—against Zuma to force him to resign.
Present were the likes of Cheryl Carolus, Mavuso Msimang, Ronald Lamola, Ronnie Kasrils, and unhinged judge Zak Yacoob. The latter told his audience that though the rot in South Africa started from the head and that “the A.N.C. itself was seriously morally compromised, hijacked by a self-serving bloc centred around the president. Getting rid of Zuma was only the start. The A.N.C. needed to clean itself up.” The same gang has now reared its ugly head and are leading the attacks against Minister Sisulu. In this context, Yacoob who has an inveterate contempt and hatred for Africans has already launched ad hominem attacks against Sisulu calling her names such as “idiotic” “stupid” etc. As shown below this fits the consistent pattern in which Yacoob has targeted only Africans for his vile and abusive language and character assassination.
Yacoob continues to nakedly betray his profession rendering every sane mind to ask what did whoever see in this racist, fascist, misogynist of a judge ever to have appointed him to the office of the supreme court as a custodian of justice?
It is worth unpacking Yacoob in public space. It is no surprise that in 2014 Yacoob publicly showed his utter contempt for the very judiciary he now claims to protect – he asserted that Zuma should not have been acquitted of rape in 2006 and that would, had he presided over the matter, have convicted Zuma of rape. Reacting to this outrageous attack on the dignity of Zuma and the country’s judiciary, the A.N.C. blasted Yacoob. The ANC denounced Yacoob’s statement as an attack on the judiciary and said it hoped he would apologise to Zuma and Judge Willem van der Merwe, who had presided over Zuma’s rape case. Remarkably, the A.N.C. said Yacoob’s criticism of another judge was unprecedented and downright unethical. The A.N.C. said: “It is quite disheartening that a renowned jurist like Judge Yacoob would, during retirement, seek to degrade his own former colleague in a manner that casts doubt on the competency of another judicial officer and the entire judiciary.” Further, the A.N.C. expressed its hopes that the Judicial Services Commission (J.S.C.) would “interrogate this conduct and set a precedent for future incidents that embarrass this noble profession.” There is no evidence that the African National Congress followed this up with a formal J.S.C. complaint.
Around March 2015, Yacoob, in another display of feckless racist outburst, repeatedly attacked an African journalist, Piet Rampedi, as a “bloody idiot” at least 15 times during an interview. Rampedi had interviewed Yacoob as part of his SARS rogue unit probe while working for Sunday Times. However, his former employers refused to publish the story and others, resulting in his resignation in protest. It was sheer coincidence that retired judges frantically tried to stake out positions in the Rogue unit matter, which features in the recently released Zondo Commission report. In an investigation he conducted on the SARS unit, Judge Frank Kroon found it illegal and unlawful. Yacoob, for his part, confirmed in media reports that he had advised Gordhan on the unit and had advised that the unit was not unlawful while he was still serving as a Concourt judge. This depraved indifference to judicial ethics is hardly surprising.
Just last year, 2021, Yacoob was forced to resign as the chairperson of the Cricket South Africa’s (C.S.A.) interim board after verbally attacking another African journalist, Tiisetso Malapa. Again the hurled insult simply because the journalist dared to ask the retired Judge questions around the suspension of former acting CSA CEO Kugandrie Govender. When asked about whether he bullied suspended C.S.A. acting chief executive officer Kugendrie Govender and offered her R5,000 of his own money for her legal costs, Yacoob became very combative and belligerent: “You are a dishonest, irresponsible idiot. You are a rogue and dirty journalist. I prefer not to answer your questions and to air my views when the inquiry comes up,” Yacoob can be heard in the recording. After the recording was made public, Yacoob resigned in disgrace. But fellow travellers in SANEF were quiet because Yacoob is in the same ideological camp as most stooge journalists; he is protected at all costs by journalists even when he attacks a journalist who was simply doing his job asking questions.
Again in 2021, and about four months after the attack on Malapa, Yacoob launched a vituperative attack laced with vulgarities on another African, former A.N.C. Treasurer General Mathews Phosa. The latter’s menial sin was that he authored a legal opinion in which he questioned the constitutionality of the step aside resolution. This was after Secretary-General Ace Magashule was suspended for refusing to step aside. Phosa has also represented Carl Niehaus.
Phosa was forced to open a criminal case with the Hawks against Yacoob after the Judge phoned him out of the blue and verbally insulted him. As reported in the papers, the following transpired: “This man phoned me out of the blue and insulted me and told me to go and f*ck myself for writing what he called a s*** opinion for the A.N.C.” “He got so angry when I told him, politely, that I can’t discuss A.N.C. matters outside the proper structures of the organisation,” Phosa said. Phosa provided police with the screengrab of Yacoob’s call to him and said, “now I am waiting for the police to arrest him. I don’t know why Judge Yacoob is trying to involve himself with the internal A.N.C. matters or going around insulting people, for that matter. Imagine a judge telling you to go and f*** yourself without any provocation.”
When Yacoob faced a real prospect of being arrested, he got scared and went grovelling to Phosa –he was begging him “to kill this thing .” See, https://www.iol.co.za/
Unfortunately, Yacoob is not alone amongst the judges regarding political shenanigans. How can we accord our judges the presumption of independence when you have judges like Yacoob who disgracefully dabble in politics and party factional battles? Judges who do not merely make wrong decisions in judgments but publicly trade on their status as judges to advance specific political causes and ideological fights. Indeed common judicial errors are to be expected given the human frailty of participants in the judicial system – the judges, the lawyers, and the parties. However, when presented with evidence of erratic and unhinged judges like Yacoob, one wonders whether their judgments are not purposely crafted to arrive at a predetermined political outcome when it suits their predilections.
Perhaps more troublesome is that not one of his past or present colleagues came out to condemn this pathetic and embarrassing show of injustice and unethical behaviour that insults their profession. In an unholy hegemony of common interest cradled in the depravity of untouchableness, they would all find convenient excuses not to join the “not in my name campaign.” Is this not the hypocrisy that Sisulu’s article implies? Behaviour misconstrued for rational thinking.
Yacoob thus is a textbook case of a judge’s political bias and moral or ethical failure. Sisulu was right indeed!
