On Friday, 13 May, senior ANC leader Tony Yengeni filed a complaint with the Judicial Service Commission (JSC) over Chief Justice Raymond Zondo’s remarks in the fourth instalment of the State Capture Report that President Cyril Ramaphosa’s election as ANC leader spared the country from “further damage”. The report reads:

“Had it not been for the fact that at the end of 2017 the ANC would have an elective conference where Mr (Cyril) Ramaphosa — who was already deputy president of the ANC and the country — would stand as a candidate to take over from Mr (Jacob) Zuma, more damage could have been done to the National Treasury under Mr Gigaba than may have been done.”

Yengeni relies on the Code of Judicial Conduct to formulate the complaint.

The relevant articles are 12(1)(b) which says: “A judge must not, unless it is necessary for the discharge of judicial  office, become involved in any political controversy or activity”; and article 12(1)(d) which says: “A judge must not use or lend the prestige of the judicial office to advance the private interests of the judge or others.”

Yengeni concludes that CJ Zondo has “either deliberately or negligently launched himself in the middle of the political contestation for leadership of the ruling African National Congress, and advanced or potentially advanced the private (and political) interests of the current President of the African National Congress. 

“He has done so by pronouncing in his report that the election of the current President of the African National Congress at the December 2017 national conference saved South Africa from ‘further damage’.”

Ultimately, Yengeni calls for the JSC to censure Zondo and order a withdrawal of the statement and a public apology. But does Yengeni’s complaint have any merit? The short answer is, no. We explain why below. 

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Zondo’s role as chair of a commission of inquiry

First, it is important to understand Zondo’s role as chairperson of a commission of inquiry. As many others, including UCT Prof Cathy Powell, have explained, commissions of inquiry offer non-binding advice on issues of public importance to the person who appointed them.

Often, commissions of inquiry are appointed in politically charged circumstances. In the case of the president, commissions of inquiry assist her in discharging her policy function as head of the state and head of the national executive. 

Commissions are not courts of law. As such, a judge sitting in a commission of inquiry is not discharging “judicial functions” in the traditional sense, but they are merely applying their forensic and analytical skills as a lawyer to answer the question they’ve been called upon to inquire.

Yengeni himself admits to this in paragraph 12 of his complaint against Zondo and says it’s not a judge-specific role.

Unless there is an allegation of gross dishonesty, bribery or other serious breaches of integrity (or a court of law finds that Zondo completely botched the investigation, as was done with the Arms Deal Commission), the scope for the JSC to investigate Zondo for statements made while at the commission is extremely limited.

Yengeni quotes Zondo out of context

Related to the point above, it is clear that Yengeni’s conclusion that Zondo meddled in ANC electoral politics ignores the narrow factual circumstances in which Zondo made the statement in the State Capture Report. 

The statement came at the tail end of a paragraph where Zondo was discussing former minister Malusi Gigaba’s role in the capture of the National Treasury, and the further damage that would’ve been wrought had he not been removed. 

The Commission was drawing a conclusion on the circumstances that prevailed at the time (December 2017) based on evidence presented at the Commission. 

It is also public knowledge that one of Ramaphosa’s first acts as President was to remove Gigaba from his post as finance minister. So it’s a logical statement to say that, had Ramaphosa not been elected president of the ANC (and subsequently president of SA), Gigaba’s reign of destruction would’ve continued unabated. 

This is a reasonable conclusion to draw based on the facts. It would strain logic almost to breaking point to say it’s an endorsement of a second term for Ramaphosa, as Yengeni (and others) suggest.

Some might argue that Zondo’s statement editorialises the facts and adds his own political opinion, but that is a matter for debate. The crisp question before the JSC will be whether this statement breaches article 12(1)(b) and if Zondo is therefore meddling in political controversy. The simple answer will be, no.

Should Zondo go the way of Mogoeng?

Yengeni adds that former chief justice Mogoeng Mogoeng was recently sanctioned by the JSC for making political statements in a non-judicial capacity, in breach of articles 12(1)(b) and (d) of the Code, and that Zondo should be treated likewise. 

This, again, ignores the context in which both statements are made. 

Although Zondo did make a statement that may be read to be “political”, he was doing so in the course and scope of his role as inquirer into facts and making recommendations as chairperson of the State Capture Commission of Inquiry — which in itself is political in nature.  

Mogoeng’s statements, the Judicial Conduct Appeal Committee found, directly contradicted official government foreign policy developed by the executive branch, in breach of a fundamental constitutional principle of separation of powers. 

So one chief justice was acting in line with his official role in a legally constituted forum, the other, in contradiction to his official role, in a webinar hosted by a foreign newspaper. 

On this score, Yengeni’s complaint lacks merit and is unlikely to be taken up by the JSC.

Should judges even involve themselves in political commissions?

The laying of Yengeni’s complaint unintentionally makes two points. The first is that the Judges Matter prediction (see here) that CJ Zondo’s tenure as Chief Justice would be taken up by litigation arising from the State Capture Commission is proving to be true. 

The second point is that the practice of using retired judges as heads of commissions of inquiry is one which requires some scrutiny and reconsideration. 

Wits Prof Cora Hoexter, in her book, “The Judiciary in South Africa”, reflects that the use of judges to head commissions — as was frequently done during apartheid — has been significantly constrained by the Constitutional Court’s decision in SA Association of Personal Injury Lawyers v Heath, where the appointment of Judge Willem Heath as the head of the SIU was found to undermine the independence of the judiciary and separation of powers. 

Despite this, the tendency of politicians to kick difficult issues into touch by means of appointing a judge to chair a commission is a feature of both the apartheid and post-apartheid states. 

We see this as a threat to judicial independence and strongly discourage it — especially the appointment of sitting judges. Yengeni touches on this point when he notes that the position of chairperson of a commission of inquiry is not exclusive to judges. We agree with him and would encourage other persons to now be considered. 

From Yengeni’s complaint, it is proving to be true that the judiciary will continue to face serious political pressure — at least until Zondo’s retirement as Chief Justice. DM

Tilley is the coordinator and Benjamin a research and advocacy officer at Judges Matter, a civil society project that monitors the appointment of judges, their discipline for misconduct and the governance system of the South African judiciary. Follow online www.judgesmatter.co.za and on Twitter: @WhyJudgesMatter.

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