JSC ends shocking week of Chief Justice interviews with marathon Zondo grilling

Some of the most unsettling parts of a horror movie are the initial scenes. You are aware that something awful must be just around the corner, and your body is rigid with tension awaiting it. Superficially, everything you’re seeing on screen is calm and pleasant, bar a few ominous signs: the eerie notes of a breeze moving though wind-chimes, or the creepy tinkling of a child’s old-fashioned music box. But it is impossible to relax, because you know with every fibre of your being that all is not as it seems. When the inevitable jump-scare finally arrives, its shock is accompanied by a strange sense of relief.

The first two-thirds of Judge Raymond Zondo’s Chief Justice interview were a bit like those opening scenes. How civil the commissioners seemed, and how straightforward the proceedings, compared with the previous day’s turmoil. Zondo was being permitted to lay out his priorities for the judiciary, with a focus on the upgrading of judicial infrastructure and an increase in judicial independence, on which point Zondo was particularly resolute.

He had defended the fact that he would only be able to serve two and a half years as Chief Justice due to term limits for Constitutional Court judges, pointing to the tenure of previous Chief Justice Sandile Ngcobo (2009-2011) as a precedent for the possibility of making significant progress within a limited time. Commissioners hadn’t even seemed interested in making a meal of this issue, which was slightly unexpected, since it had appeared a dominant concern in the interview of Judge Mbuyiseli Madlanga, but perhaps their thirst for blood had been temporarily sated by the previous day’s feast on Judge Dunstan Mlambo.

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The focus of questioning had shifted in due course to Zondo’s high-profile work as the chair of the commission of inquiry into State Capture, where the judge revealed that he had accepted the job out of a sense of patriotic duty after a number of other judicial professionals had turned it down. Zondo assured the commission that he would have no hesitation in making adverse findings against President Cyril Ramaphosa, should they be required.

Then the first eerie notes of the wind-chime sounded, when commissioner Julius Malema demanded to know why Zondo had failed to issue a subpoena to summon former spy boss Arthur Fraser to testify before the State Capture inquiry, and potentially lift the lid on the uses of an alleged R9-billion secret intelligence slush fund. Malema’s voice had a certain distinct edge to it, but in a truly astonishing development – by the standards of the previous day’s proceedings – Chair Xola Petse instructed Malema to “moderate your tone”. Things were on the up and up.

Zondo explained that the timeline of Fraser-related negotiations had unfolded in such a way that it eventually proved impossible for his testimony to be heard without this significantly extending the duration of the commission’s lifespan, which the judge was aware was already the subject of much public unhappiness. He added that the NPA would still be able to investigate the relevant matters.

At this point some murmurings of unease began to stir among observers of the JSC interview process about whether it was strictly appropriate for Zondo to be questioned over aspects of the State Capture inquiry on which findings had not yet been released, and might not yet even have been written. But in the wider context – which was that of a JSC which had a day earlier made an exhilarating bonfire of a judge’s entire reputation – it seemed quite a small thing, really, given that everything was ticking over relatively smoothly.

Shortly afterwards, Zondo would announce to the commission, with the guilelessness of a person who is pure of heart and expects the same of others, that he would meet with Ramaphosa from time to time during the inquiry’s proceedings in order to brief the executive authority responsible for the commission’s establishment on matters including budgetary constraints, but also to provide updates on “progress” – a word vague enough to allow any manner of sinister meaning to be stuffed into it by those in the mood.

Cue the creepy tinkling of the child’s old-fashioned music box. Malema is always in the mood. After expressing suspicion about the true necessity for these meetings between Ramaphosa and Zondo, he accused the judge of delaying the release of the final Zondo Commission report in order to avoid criticising Ramaphosa before the president made the Chief Justice selection.

“I never thought about that angle, Commissioner Malema,” Zondo responded with warm interest, in exactly the same tone he might have used had Malema instead suggested Zondo might try pairing his scarlet tie with a matching pocket square.

“If there is one thing I would like behind me, it is the work of the commission.”

Zondo explained that the decision on what parts of the report to release at which time was based purely on what parts were closest to completion.

By now at least one possible element of the narrative arc designed for Zondo’s interview by the JSC’s resident saboteurs was slowly coming into ominous focus: questioning on procedural aspects of the State Capture inquiry to sow growing doubt about the judge’s motives and integrity, and consequently taint the findings of the inquiry report. For those of us who, after four days of interview proceedings, had developed an early warning system for signs of impending JSC-zure, the sensors were beginning to flash.

But surely it was possible that all might yet be redeemed – surely, with Judge Zondo continuing to beam in an avuncular fashion and greet every question as if it were truly worthy of dignified reflection; as if all were as it should be, as if JSC commissioners were motivated by nothing more than a thirst to contribute to the democratic process, a passion for the transformative potential of jurisprudence and a sincere desire to explore the qualities of the country’s most distinguished jurists…     

Any last vestiges of hope for the existence of that alternative universe were ripped away by the spectacle shortly down the line of Malema haranguing Zondo with the words: “When a person says ‘House N*****’, and I am not a ‘House N*****’, why should I be bothered?”

The ostensible higher purpose of this line of questioning was to interrogate Zondo’s decision as acting Chief Justice to call a press conference in January defending the judiciary against the insults of Lindiwe Sisulu. That choice of action has been a preoccupation for the JSC since the first day of Chief Justice interviews, with each candidate preceding Zondo more or less encouraged to criticise the action, on the grounds that it potentially amounts to a judge trespassing into the political terrain in a way that muddies the division between arms of the state.

The rogue commissioners now running the show at the JSC have, by contrast, shown almost no interest in inviting the candidates to condemn Sisulu, a sitting member of the executive, for trespassing into the judicial terrain in a way that muddies the division between arms of the state, despite the fact that an indisputable case can made in that regard and almost none at all in the other direction.

Each of the three judges preceding Zondo in the JSC interview seat have made it clear that they find nothing remotely reprehensible about Zondo’s conduct in this regard. The JSC’s evident dedication to whipping up a wholly false sense of impropriety around the issue is extraordinarily problematic given that the commissioners should surely be expected to be animated by the same kind of desire as Zondo demonstrated: to protect the judiciary against external attacks. This week’s JSC proceedings have established pretty much definitively that this is not the case, which has to trigger some serious alarm bells.

But the real meaning of those words from Malema to Zondo – “When a person says ‘House N*****’, and I am not a ‘House N*****’, why should I be bothered?” – is infinitely more grotesque, and needs to be spelled out, because Malema and his cronies deliberately operate under cover of a shadow world of doublespeak and plausible deniability: if you were not yourself a ‘House N****’, Judge Zondo, you would not have been so offended.  

What is the point of even attempting to sketch the remainder of JSC proceedings? Zondo would proceed to be accused by Malema of inappropriate intimacy with former president Jacob Zuma, because in the EFF’s conceptual universe it is possible to be an apparatchik of both Zuma and Ramaphosa simultaneously. None of this has to make sense: the intention is simply to kick enough mud in the direction of a Chief Justice candidate like Zondo, in a sufficiently frenzied fashion, to render his appointment untenable.

A full-blown shouting match would eventually break out between Malema and Justice Minister Ronald Lamola, in the course of Malema executing a time-saving strategy to take out two judges at once, by hinting at irregularities in Zondo’s appointment of Mlambo as an acting judge on the Constitutional Court.

After the formal adjournment of Zondo’s interview, which the judge somehow managed to exit still radiating kindness and decency, Chair Xola Petse read the commissioners an email which the public was not intended to hear, because Petse thought the cameras had been switched off. It was from a law academic at Rhodes University, expressing acute concern about the just-concluded Chief Justice interview process, and imploring the chair to consider starting the process from scratch.

Otherwise, she warned, the prospect of a legal challenge was very real.

Petse read the email aloud with an unconcealed smirk, and just before the mistake was realised and the cameras shut down, commissioners were shown questioning why members of the public were even allowed to contact the JSC in this manner.

The last word, predictably, went to Commissioner Dali Mpofu, the former EFF chairperson and Zuma’s lawyer.

“We have been abused for the whole week by all sorts of people,” he complained.

“We can’t just be abused freely. We are also human! There’s only so much we can take.” DM