The phrase “whom the gods would destroy, they first make mad” comes to mind when the name of Chief Justice Raymond Zondo is mentioned. Zondo comes across as someone destined for perdition.
Out of respect for his office, many have restrained from pointing out that in Justice Zondo, we may have an individual suffering from delusions of grandeur. Both his actions and pronouncements point to a lack of discernment – that “spark of intuitive knowing, an inner voice of principle and certainty that aligns us with our path and purpose."
Justice Zondo does not need to be discredited. He does that on his own. His foray into ANC politics was extremely reckless. Tony Yengeni, an ANC heavyweight, serving on the party’s national executive committee, has since filed a complaint against Justice Zondo to the Judicial Service Commission (JSC).
Yengeni charges that Justice Zondo is in breach of the provisions of the Code of Judicial Conduct which require 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”.
It was just a matter of time before someone would rise and speak out against Justice Zondo’s conduct. Echoing concerns raised by Yengeni, the leader of the EFF, Julius Malema, was equally scathing.
Addressing a press conference this week, Malema averred: “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 personally 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.”
Underscoring Yengeni’s concern, Malema pointed out that “Zondo is a factionalist that supports Ramaphosa’s second term. That’s why it is so necessary for him to put that Ramaphosa’s election in the ANC rescued us from where we were because he’s effectively saying if you don’t elect Ramaphosa in this December, we are going to be in trouble.”
Yengeni’s complaint against Justice Zondo is not the first. Early on into the proceedings of the commission, the legal team of former president Jacob Zuma lodged a complaint against Justice Zondo with the JSC.
Justice Zondo had embroiled himself in a dispute regarding matters of fact. In doing so, he became a player and referee. More discerning judges would have recused themselves in cases where a conflict of interest arises. But doing so would have deprived Justice Zondo of the limelight he seems to savour.
The concerns raised by Yengeni and Malema are elementary. Judges must concern themselves with matters of fact, not allow themselves to dabble in the world of speculation.
Arguably, the factionalist in Justice Zondo has led him to ignore the incontrovertible submission of Brian Molefe about how his team “defeated load shedding in August 2015, and never had load shedding again for three years after I had left Eskom.
Load shedding came back to Eskom after Mr Ramaphosa.” Things have worsened since the departure of Brian Molefe and Matshela Koko. Reflecting on Eskom’s current performance, in a social media post, Koko had this to say (April 19). “This past weekend, @Eskom_SA burned through ‘R250m a day’ in diesel & still couldn’t keep lights on. In 2017, during my tenure at Eskom, the diesel bill was R220m a year. We kept lights on & managed to execute planned maintenance at a PCLF (planned capability loss factor) of 12.14%.” With the never-ending blackouts, Ramaphosa has become the prince of darkness.
Justice Zondo’s seeming hallucination about Ramaphosa’s presidency stands in glaring contrast to the lived experience of the majority of South Africans. Thanks to the JSC’s interviews, we know that Zondo’s performance left much to be desired.
Not only was he “not the best in class”, but he also contradicted himself. As chair of the commission, he gave the impression that he was never close to Zuma, but when questioned later, he indicated that he had a long relationship with Zuma.
As chair of the commission, he expressed frustration when witnesses claimed to suffer from amnesia. During the JSC interview, Justice Zondo appeared to be suffering from the same disorder. Zondo’s lack of discernment has helped to liberate us from the nonsensical notion that judges are by nature all-knowing, prudent, and wise.
One of their own, Judge President Dunstan Mlambo, considered by some as Ramaphosa’s henchman on the bench, insinuated that the legal profession is made up by individuals who are petty, jealous, and backstabbing.
Judge Mlambo was responding to rumours that he was guilty of sexual harassment. We need to stop treating judges as demigods. The kind of judicial impunity seemingly displayed by the likes of Zondo stems from our failure to affirm their humanity.
This has made them to be unable to acknowledge even when they are wrong. Some seem obsessed with stamping their authority, even if this means undermining the cause of justice.
The matter involving Public Protector Busisiwe Mkhwebane and the Constitutional Court is a case in point. The majority judgment, authored by Judge Chris Jafta, erred in its finding that Mkhwebane had “changed the wording of the Code to include ‘deliberate and inadvertent misleading’ so as to match with the facts.
Having effected the change in the Code, the Public Protector proceeded to conclude that the President had violated the Code”. The words “deliberate and inadvertent misleading” appears in the 2007 Executive Code of Ethics. This is the code that Mkhwebane relied on.
And it is the same code the Constitutional Court used in the now-infamous Nkandla judgment of 2016. For some inexplicable reason, the Constitutional Court based its judgment on the earlier version of 2000 in the matter involving Mkhwebane.
The judges of the Constitutional Court have yet to acknowledge this evident and demonstrable error on their part. This is judicial arrogance of the highest order. So Justice Zondo is in good company. The least we can expect is that judges abide by their own previous rulings, that is, unless new developments dictate otherwise.
Judicial decisions that are dependent on who is a litigant undermine the legitimacy of the courts.
* Seepe writes in his personal capacity.