While still recovering from a Parliament in flames and still mourning Archbishop Tutu’s passing, the Zondo Commission Report Part One was released. It paints a depressing picture of how the state was captured by Jacob Zuma and his corrupt associates. Yet they continue their lives, undisturbed. The National Prosecuting Authority (NPA) announced a special task team to deal with the findings of the report. The NPA needs the Hawks to do their job too, but it really is hard to fathom what the National Director of Public Prosecutions, Shamila Batohi, and her team have been doing. The NPA is treading water and it is hard not to ask serious questions about Batohi herself and her ability to lead this complex institution. Bringing one high-profile case to completion will go a long way towards restoring the credibility of the beleaguered institution.

So, here we are in that strange but very South African position: we know what went wrong, have a pretty good idea of who did it, who bankrupted the state, and when and how. Some of those who stand accused are on television news daily parading as analysts. The perennial question is: “Now that we know what happened during the Zuma years, what will be done?”

If prosecutions do not happen, then it is trite to say Acting Chief Justice Raymond Zondo’s work would have been for naught. The failure of the NPA and the Hawks now present yet another existential threat to our democracy. The Hawks were designed to be pliable. After all, our memories are not that short: there is a reason the Scorpions were disbanded. It happened in full view, with our Parliament’s acquiescence and some pretty convoluted reasoning by then chair of the committee dealing with the issue, Yunus Carrim. A decent man, he twisted and turned to accommodate the wishes of the executive. There is a lesson in that too.

This institutional dysfunction within the Hawks and the NPA is why the insurrection of July 2021 could happen with such ease, it is why Parliament can be razed, why our ConCourt building can be attacked and why our defence minister and the minister in the Presidency can be held hostage. It is because we live in a country of no consequences, where we are told criminals are sick and deserve medical parole when they strut about on golf courses and where swimming pools are fire pools.

Those implicated in State Capture are taking full advantage of the NPA’s incapacity. It is for this reason that they are emboldened to spew their vitriol against Zondo in an attempt to discredit his report on television, on social media and elsewhere. Of course, the more they spew forth, the more they betray their guilt either directly or by association.

Amid all this mayhem (not perchance), attacks on the judiciary escalated. That opinion piece by Tourism Minister Lindiwe Sisulu does not deserve further analysis here, save to say that it is fact-free populist nonsense.

Justice Minister Ronald Lamola responded in a piece titled “Dear Lindiwe…”

Members of the same Cabinet writing letters to each other in the media surely indicates that something is deeply wrong within that Cabinet.

Instead of calling Sisulu to order and firing her, President Cyril Ramaphosa has kept his usual monk-like silence, sending his close ally, Minister in the Presidency Mondli Gungubele, to do his bidding and condemn the utterances as “reckless” and to distance Cabinet from the utterances. Incidentally, Gungubele has also recently been assigned political responsibility for the intelligence services. There are, after all, all sorts of targets on the President’s back.

The President finally surfaced when, in his Monday newsletter (which is always preternaturally optimistic, whether he is talking about insurrection or structural inequality), he condemned attacks on the judiciary. That defence of the Constitution and the rule of law could only be called anaemic when Ramaphosa harbours a minister (only one?) who clearly does not believe in the Constitution or the rule of law. Then, on Thursday evening Ramaphosa issued a statement stating that he had met with Sisulu and (she) “conceded that her words were inappropriate. Minister Sisulu retracts this statement and affirms her support for the judiciary.” Yet, in a show of mind-boggling defiance, Sisulu issued her own statement, saying that “under no circumstances” had she apologised or retracted. The Presidency in turn said it stood by its original statement.

At the time of writing the stalemate prevailed. The President has lost the proverbial locker room if a minister in his Cabinet is emboldened to issue such a contradictory statement. Sisulu’s position within Cabinet is surely untenable? So tenuous is the President’s grip on power, however, that he allows the Presidency to be degraded and his own authority diminished by an open spat between himself and a minister. We are left to ask: Who is in charge?

Given the gravity of the situation, Zondo called an extraordinary media briefing, having consulted his ConCourt colleagues as well as the divisional heads of court. The usually amiable Zondo looked visibly aggrieved during his briefing. Anyone who has seen the clip of Zondo during his interview before the Judicial Service Commission in April 2018 for the position of deputy chief justice could not help but be moved.

The measure of the man was also tested during the State Capture Commission he presided over and he was not found wanting. Yet, in Sisulu’s warped world, he is a “house n*****”. What despicable language and what poverty of thought to lean on such Americanisms. We cannot identify ourselves and instead default to such lazy references. Anyway, it turns out most of the piece was plagiarised.

Such plagiarism would be in line with Sisulu’s lack of principle and what is obviously a naked attempt to find favour with the Radical Economic Transformation (RET) crowd within the ANC. The prize – the Presidency. It’s all predictable, but very damaging.

Zondo was right when he said we need to draw a line as to what is and is not acceptable in a constitutional democracy. Zondo also seemed to be saying, if the President cannot or will not speak, the judiciary will. Speaking out would not have been a step Zondo took lightly. Judges, after all, are famously meant to operate “above the fray”. Some have said the acting chief justice ought simply to have released a media statement, as the Legal Practice Council and the General Council of the Bar have done. Ordinarily that would be the route taken. But to view these as ordinary times would be to miss the point and misunderstand the political moment.

The ANC and its RET allies (in the EFF and elsewhere too) present a clear and present danger to our constitutional democracy. Words matter and the words of a Cabinet minister who took an oath of allegiance to the Constitution matter even more.

There are those within Ramaphosa’s Cabinet (and outside it) who would undo the Constitution in a minute to gain power and capture what is left of the state. These are not benign forces and we should not be so naive as to dismiss them as such. So, when the edifice is under attack, it demands far more from those who lead the judiciary and from us all.

Zondo was very careful to draw the line between constructive criticism, based on an understanding of the work of the ConCourt and its judgments, and attacks on the judiciary itself. The former is welcome, the latter ought to be condemned.  

We would do well to reread the ConCourt judgment delivered in June 2021 and read on behalf of the majority of the court by Justice Sisi Khampepe. Her words are particularly apposite now: “This is not to say that the judiciary is a unique branch of state that must be sheltered from the public and all criticism… I am by no means implying that the judiciary is exempt from the accountability it owes to the society that it serves. However, critically, this does not mean that scurrilous, unfounded attacks on the judiciary and its members can be tolerated or met with impunity. It follows that the legal imperative to protect courts from slanderous public statements has little to do with protecting the feelings and reputations of judges, and everything to do with preserving their ability and power to perform their constitutional duties.”

Ramaphosa has been loath to use the goodwill that sits outside the ANC to shore up his Presidency. He lives in vain hope of renewing this dysfunctional organisation. As a result he is now wholly captive to the ANC’s corrupt politics. There are some who argue that Ramaphosa should leave Sisulu to dig her own grave instead of firing her. He needs a second term or the RET crowd will capture the ANC completely. This is the “realpolitik” argument and in many ways it is compelling.

However, how much more degradation will there be this year as the ANC slugs it out ahead of its elective conference? Deferring our demands for action on the altar of internal ANC politics is thinking that serves to entrap citizens and deny our collective agency to change our society. We really should be forming alliances across all sectors of society for one purpose and one purpose only – to protect and defend this constitutional democracy. The power of the people still exists and if the first 28 years of democracy have taught us anything it is that abdicating power to politicians alone cannot bring about a more just and equitable society.  

What is happening in South Africa takes place against the global backdrop of democracy in decline. The world is at a turning point where it will need to choose between democracy and what Edward Luce in the Financial Times (referring to the American political milieu) called “an American version of fascism” when he wrote:

“The age of 1980s ‘neoliberalism’ is over. It is unclear what will replace it. One possibility is an American version of fascism – something that really could happen here. It would be nativist and ruthless in its means of retaining power. Trump has given America a dress rehearsal. Biden’s declared rationale is to prevent that from happening.”

South Africans need to be alert to this, for we have seen strains of nativism and the ruthless desire to retain power in our own country. We need to ask what comes after the ANC’s inevitable loss of power. A kind of fascism or a new, distinctive, inclusive politics that has at its heart the people and the Constitution?

Against this dangerous backdrop, Acting Chief Justice Zondo’s media briefing, as well as his first report, were brave, bold and unselfish. He has raised the alarm. We now need to ensure that the fire does not engulf the building. DM168

Judith February is a lawyer and the author of Turning and Turning: Exploring the Complexities of South Africa’s Democracy.

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.

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