Despite the drama around the Judicial Service Commission (JSC) interviews for the chief justice post in February, choosing one of the four nominees was always a nice-life problem for President Cyril Ramaphosa.
The candidates were all of a very high calibre and had the independence and integrity we can expect of the leader of the judiciary in SA.
Political considerations and the shambolic interviews aside, the exercise facing the president should have been to look at what SA needs from its chief justice at this time and to ask which appointment would best achieve this.
On this score, the choice of Raymond Zondo is to be commended in a number of respects. He was the deputy and next in line. When former president Jacob Zuma overlooked deputy chief justice Dikgang Moseneke in favour of first Sandile Ngcobo and then Mogoeng Mogoeng, the snubbing of Moseneke — especially the second time — caused a huge upheaval. By already indicating that he will nominate Mandisa Maya — the choice of the JSC and the majority party in parliament — as deputy chief justice, the president may be restoring predictability and stability in the chief justice race.
Zondo’s appointment is also a fitting honour to a jurist who has served SA with distinction for many years. Like most judges, this work has for most of his career been away from public attention. But as chair of the state capture commission, Zondo is now a household name. His work ethic, with relentless efforts to get through oral testimony, including in night sessions, and apparently monumental capacity to retain detailed evidence, have been on daily display on television sets across the country. This is good for public confidence in the judiciary which, according to recent research, has declined.
It cannot be business as usual … Much will depend on his ability to work well with his deputy
Zondo also exhibited backbone in how the commission pursued its contempt case against Zuma when the former president’s snub of the body put the rule of law at risk.
However, at this juncture, any chief justice in SA faces significant challenges. One of these is the state of the Constitutional Court. This week the apex court retracted a judgment it had delivered in full a few days earlier. Several senior lawyers said this was an unheard of step but the Office of the Chief Justice (OCJ) said it had happened before that the Constitutional Court has recalled judgments.
The case was between law firm Barnard Labuschagne Incorporated (BLI) and the SA Revenue Service (Sars). On Friday, a new judgment, which came to the same order, was handed down. In it, acting justice Owen Rogers said the original judgment was “rescinded by the court of its own accord” because it emerged after the judgment was delivered that Sars had filed written submissions “of which the Constitutional Court was unaware”.
So, court papers from one of the main parties to the litigation did not reached the judges. The OCJ said the bungle had happened in the registrar’s office and said Zondo had asked the secretary-general of the OCJ to urgently look into how the situation arose “and to look into other challenges in the registrar’s office with a view to finding a permanent resolution”.
The same week the Constitutional Court was handing down its first version of the BLI v Sars judgment, the finance minister had, in a different case, gone back urgently to the highest court asking it to clarify an earlier judgment on tender regulations — because of a “patent error” in a footnote and an “omission”. The two combined had led to confusion about whether the regulations were now in force, said the minister. The uncertainty had caused the National Treasury to issue a communique that no new tenders should be advertised until there was clarity. The court will hear argument and is yet to pronounce on this.
But in December 2020 DispatchLIVE reported that the office of the chief justice had admitted that an application for leave to appeal to the Constitutional Court, from Jarrod Blignaut, incarcerated in St Albans prison, had simply gone missing and had been missing for a year despite inquiries from his attorneys.
Though small errors are sometimes corrected after a judgment is handed down, in August last year the Constitutional Court reissued its judgment in the [Jon] Qwelane hate speech case a month after it was handed down (and 11 months after the case was heard), and corrected six errors in the judgment — including two in the order. Such extensive corrections are unusual and perhaps explain why counsel and media were sent away without a copy of the judgment after waiting at the court’s general office for several hours after hand-down. The changes did not affect the outcome of the matter, said the court when it reissued the judgment.
Just how bad things really are may be unclear but there is fixing that needs to be done at the highest court. On this score, Zondo was not the strongest candidate
Then, the court twice last year announced it would hand down judgments on a specified date only to announce that due to “unforeseen circumstances” the delivery of the judgments had been postponed.
Asked about these incidents and an impression that the apex court is not functioning well, the OCJ said Zondo has asked the secretary-general to report back to him as soon as possible and was “confident that the problems in the registrar’s office will be resolved soon”.
It was also acknowledged during the recent JSC interviews that there were systemic obstacles to the Constitutional Court’s ability to deliver judgments within the time guidelines established by judicial norms and standards. Constitutional Court justice Mbuyiseli Madlanga spoke in his interview of the huge increase in the workload of the justices of the Constitutional Court since a constitutional amendment had broadened the court’s jurisdiction — and how the load had affected the delivery of judgments.
This week, the Constitutional Court finally dismissed, in three lines, an application by public protector Busisiwe Mkhwebane to rescind its earlier judgment on her CR17 report. She had filed an answering affidavit in September and there had been no movement on the application since then.
Just how bad things really are may be unclear but there is fixing that needs to be done at the highest court. On this score, Zondo was not the strongest candidate. Gauteng judge president Dunstan Mlambo’s administration skills are legendary and Supreme Court of Appeal (SCA) president Mandisa Maya also runs a tight ship. In her interview, Maya detailed to the commission the undertakings she had made in her 2017 interview for SCA president and how she had delivered on each of them.
This may be contrasted with the affidavits filed in court by Zondo in his applications as chair of the state capture commission for extensions of its end-date, in which he expresses confidence he can deliver certain sections of the report by specified dates and then does not.
He will take up office as chief justice with one month left to deliver on an eye-watering number of state capture work streams. Based on his latest affidavit the sections of the report that are still outstanding are the Free State asbestos project, the Free State R1bn housing project, the State Security Agency and crime intelligence, Eskom, Prasa, the attempted capture of the National Treasury, the closure of Gupta bank accounts and the cabinet reshuffle, Estina, parliamentary oversight, the SABC and ANN7, EOH and the City of Johannesburg, the big picture and the summary of the report.
Another possible challenge for Zondo will be the litigation that may follow the state capture report. When asked about it during his interview, Zondo said the chair of a commission did not have to get involved in the litigation and that he could simply decide to “abide the outcome” and “let the judge decide”. There may be some challenges to the state capture commission that could be defended with little involvement from Zondo. But if the challenges were to allege bias by him it may be hard for him to not get involved.
The JSC, which has been the subject of intense criticism and which the chief justice must chair, will also need immediate attention. Here, Zondo may be the strong choice by the president as it emerged this week that the JSC, under Zondo’s leadership, had resolved in October last year to “set aside a day or two when its members would meet and discuss its entire mandate”.
This was what the JSC’s Yvonne van Niekerk told civil society organisations after they had written to the commission and asked for an undertaking that the JSC would publish a code of conduct and criteria for judicial appointments to flesh out those in the Constitution before conducting any further interviews.
The letter from the JSC said it was possible that this could happen at the regular meeting of the JSC the day before the April interviews. The one round of interviews that Zondo has already chaired was a success and he appears to have the respect of the JSC, which issued a statement of support after his appointment. All of this bodes well.
Zondo takes the top judicial job at a time when it cannot be business as usual and with several mammoth tasks he must juggle. Much will depend on his ability to work well with his deputy.