Zuma may be on trial, but so is the whole judiciary

OPINION: If judges, who took an oath to uphold the Constitution, can be accused by their colleagues of acting unlawfully and in violation of the Constitution, it is about time that we should ask whether we have provided the necessary safeguards against the supposed guardians of our democracy, writes Professor Sipho Seepe.

With the current Chief Justice, Justice Mogoeng Mogoeng’s term coming to an end on 11 October 2021, President Ramaphosa has dutifully kick-started the process of appointing the next Chief Justice.

Section 174(3) of the Constitution empowers the president to appoint the next Chief Justice after consulting the Judicial Service Commission and the leaders of political parties represented in the National Assembly.

The president has enlisted the services of a panel that will sift through invited nominations after which, several names will be submitted for consideration. Only one candidate was considered during the appointments of the late Pius Langa, Sandile Ngcobo and Mogoeng Mogoeng.

Mogoeng Mogoeng’s appointment was marked by vigorous public debates. An assortment of prominent non-governmental organisations opposed his appointment. The Bar Councils of the Eastern Cape, Johannesburg and Cape opposed his appointment, citing, among other things, that he lacked "requisite experience for appointment to the position of Chief Justice".

As Mogoeng pointed, this was a blatant lie. Prior to his appointment, Mogoeng had served as Judge President of the North West, as a judge of the Labour Appeal Court and a judge of the Constitutional Court. Judges Johan Froneman and Edwin Cameron were the only judges at the Constitutional Court that had a longer period of judicial service than him.

For all intents and purposes, Deputy Chief Justice Raymond Zondo was almost guaranteed to clinch the position of South Africa’s Chief Justice following the retirement of Mogoeng Mogoeng.

Compared with his predecessor Dikgang Moseneke, Zondo has had a less fractious relationship with politicians. Moseneke, who had served prison time with the former president Jacob Zuma, had unwisely waded into the politics of the ruling party.

On the occasion of the celebration of his 60th birthday, Moseneke had unwittingly made an offhand remark on the outcome of the ANC conference in Polokwane. Reflecting on his role as a judge, Moseneke indicated it is “not what the ANC wants or what the delegates want; it is about what is good for our people."

The ANC saw this as an insolent political provocation by a sitting judge. It did not help that Bulelani Ngcuka was reportedly in attendance. Ngcuka was seen as leading a crusade against Zuma.

In what could be described as history repeating itself, Zondo and the Concourt judges have allowed their irritation with Zuma to get the better of them.

They have, evidently, missed the counsel of Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Lord Atkin warned: "Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny. We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court but may sometimes affect it adversely.”

The language of the majority judgment bristles with anger than legal argument.

A simple request by Zuma for Zondo to recuse himself has bruised his brittle ego. He decided to enlist the services of his colleagues in the Concourt for help. In doing so, he disregarded the Commissions Act, which provides how such disputes can be resolved.

As a result, a personal squabble was turned into a Constitutional matter. The result has been disastrous. Had both Zondo and the Constitutional Court handled this matter with the sensitivity it demanded, hundreds of South African lives would not have been lost. The country suffered the worst social unrest since 1994. The economy suffered.

The decision by the Concourt to uphold its decision to sentence former president Jacob Zuma’s 15-month jail term comes as no surprise. To have done otherwise would be to admit that they were wrong, and thus, responsible for the mayhem that ensued.

It does not matter how much the anti-Zuma brigade wants to spin it: the Concourt is wrong on both the law and in the discharge of justice. The majority judgment threw caution to the wind. While judges may disagree on fact and the appropriate sentence, we should be worried when they can’t even agree on the law.

We should be more worried when the minority judgment goes further to argue: “The main judgment develops the law to meet the peculiarly frustrating circumstances of this case. It leaves in its wake a law that is not only bad, but also unconstitutional. It undoubtedly is an unprecedented case, but the law we apply must always be compliant with the Constitution.”

History will vindicate the minority judgment as it has always vindicated the people’s sense of justice. In his sobering article “What has gone wrong with our Constitutional Court?” (Sunday Times August 19, 2021) Ziyad Motala, Professor of Law at Howard School Washington DC, argues that recent judgements of the Concourt “smack of personal predilections and politicking”.

Part of the problem, Motala argues, can be traced to the fact that our “citizenry has been so preoccupied with inept and corrupt government that we have been inattentive to the performance, and at times, sloppy jurisprudence emanating from our highest court. Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects itself as a junior moot court bench.”

But our challenges do not end there. As Motala notes that “making up stuff from thin air based on the personal predilections of the judges, like the Constitutional Court, is haemorrhaging into lower court decisions.” Motala is not alone in his observation.

A growing number of South Africans are waking up to the fact that the judiciary cannot be trusted. A recent Afrobarometer survey, a publication of the Institute for Justice and Reconciliation, reveals that up to 32% of South Africans believe that the members of the judiciary are involved in corruption. This is a major increase in the level of mistrust. In 2002, the level of mistrust was 15%.

If judges, who took an oath to uphold the Constitution, can be accused by their colleagues of acting unlawfully and in violation of the Constitution, it is about time that we should ask whether we have provided the necessary safeguards against the supposed guardians of our democracy. But most importantly, we should not be fooled. Judges are not all-knowing. And they do not hold a monopoly of wisdom.

Finally, regarding the application and relevance of international law, it is disturbing that the Concourt has become ensnared in the ANC factional battles and anti-Zuma antipathy to a point where clear and binding legal precedent from the very same Court is flagrantly ignored and even fecklessly denied. Zuma may be on trial, but so is the whole judiciary.

* Professor Sipho Seepe is Deputy Vice-Chancellor of Institutional Support at the University of Zululand.

** The views expressed here are not necessarily those of IOL and Independent Media.

Insider