Chief Justice Raymond Zondo is fully aware that the individuals he has implicated are currently seeking a review of his report. A prudent judge would have been cautious and refrained from making public statements until the review process is completed.

By Professor Sipho Seepe

Perspicacity, discernment, and sagacity are synonymously used to refer “to the capacity to assess situations or circumstances shrewdly and to draw sound conclusions, “a spark of intuitive knowing”, and a “trait of [making] solid judgment and intelligent choices”. Drawing sound conclusions, making intelligent choices, and taking prudent action is the least we can expect from our judicial officers.

The recent spat between Chief Justice Raymond Zondo and Parliamentary Officers is unbecoming of those who are entrusted with overseeing the arms of the state. To be fair, the spat was triggered by what has proved to be yet another display of lack of discernment by the country’s Chief Justice.

Without having apprised himself of the developments in parliament or checking with the parliament’s presiding officers the Chief Justice publicly denounced another arm of the state. He told a democracy colloquium by the Human Sciences Research Council (HSRC) to commemorate a year since the release of the commission’s final report. 

“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.”

The Chief Justice, who has been accused as an attention-seeker, could have done himself a favour by checking the facts first before blurting his mouth. In their rebuttal, the parliamentary officers did not mince their words.

“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. Furthermore, to strengthen oversight over the Presidency, Parliament is further actively researching to explore international best practices. This work is vital in laying a solid foundation for enhanced oversight and accountability in relation to the Presidency.”

Parliamentary Officers went further: “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, it is essential for the Chief Justice to foster an environment of mutual respect and cooperation.”

The Chief Justice was not only being schooled about simple rules of courtesy but also about the tenets of our democracy. There is reason to believe that the Chief Justice was being less than frank with his audience.

First, the Chief Justice knows too well that his report is being taken on review by those he has implicated. A prudent judge would await the outcome of the review. Brian Molefe, who is implicated in the report, was equally scathing.

“Quite frankly, Chief Justice Zondo must shut up. His report says there must be further investigations, and then now he stoops so low in what I view as an attempt to try and influence those investigations. Not only are there further investigations that he recommended, which I presume are taking place, but there is also a criminal matter that is in front of the courts,” said Molefe.

Regarding review matters in court, Molefe correctly remarked: “One has to wonder: is the chief justice exempted from the sub-judice rule? Does Zondo view himself as the law? Is he the law?”

Molefe concluded by pointing out that it is “shocking that the highest judge in the land is subjecting individuals with rights to kangaroo courts and courts of public opinion”.

Indeed, by commenting on matters that are still to be adjudicated in the lower courts, Zondo is unwittingly or inadvertently putting pressure on the judges that must hear the cases. For a seasoned judge, this should be obvious.

Molefe is not alone

For his part Gwede Mantashe, Minister of Mineral Resources and Energy was unequivocal: “I’ll take the report for judicial review. There are areas in the report that require action. My argument is that we should take it on review because you can’t have a judicial process that makes assumptions. When I give them something they say they were not convinced, we didn’t believe this…. If it’s a judicial process and does not listen to evidence but only makes assumptions, then it needs to be reviewed judicially.”

Second, had the Chief Justice been frank he would have told his audience that after the Commission ignored his review application, Mr Matshela Koko’s legal team is on getting “a default judgment of his review application on the adverse findings made against him by the commission’s chair, chief justice Raymond Zondo.” Nothing about this is secret.

Third, Zondo has since forced many to remind him that his appointment was political. He was not the best in class during the publicly televised Judicial Service Commission interviews. As a result, he was not recommended at all. His was a political appointment. Indeed, Mantashe has been bold to suggest that despite his denunciation of it, Zondo was himself a beneficiary of cadre deployment.

Fourth, judges speak through their findings and their judgments. They do not go around having to justify and explain themselves. Beyond wading into an untidy political space, this conduct would create chaos and an unseemly denunciation by those affected.

The Chief Justice should know that recommendations are different from court judgments. This derives from the fact that rigours of court processes such as cross-examination by legal practitioners are often not required.

The Chief Justice should be reminded that he produced a report as a servant of the executive. He cannot now abuse his judicial position to add credibility to his flawed and non-binding report that is now being taken on review.

It is not the first time that Zondo had invited the ire of politicians. Last year in May, Tony Yengeni filed a complaint against Zondo to the Judicial Service Commission (JSC) after intimating in his reports that the election of Ramaphosa in 2017 as ANC President saved the country from more damage. Yengeni argued.

“When a chief justice, no less, says a candidate for the presidency of the ruling party saved the country from ‘more damage’, that political comment carries significant political weight with voting delegates and potential political donors.”

Julius Malema was less forgiving. Malema stated: “[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 the 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.”

In the fullness of time, Zondo’s penchant for attention will prove to be his undoing.

Professor Sipho Seepe is a Higher Education Specialist & Strategy Consultant