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ANALYSIS

Did Chief Justice Zondo overstep the mark in his comments on Zuma?

Did Chief Justice Zondo overstep the mark in his comments on Zuma?
The 2024 Dullah Omar Memorial Lecture will be delivered by Chief Justice Raymond Zondo. (Photo: Gallo Images / Daily Maverick / Felix Dlangamandla)

Chief Justice Raymond Zondo has been accused of undermining his office, following remarks he made in a recent interview on Newzroom Afrika. A respected NGO says Zondo strayed too far into the political terrain by opining on the ongoing corruption prosecution of former president Jacob Zuma — but not everyone agrees.

‘Chief Justice Zondo’s comments fall woefully short of the conduct expected of judges by the Code of Judicial Conduct and the norms that govern judicial ethics.”

So says the Council for the Advancement of the South African Constitution (Casac), in a strongly worded statement this week published after Chief Justice Raymond Zondo gave an interview to the TV channel Newzroom Afrika this week.

Casac is known for sensible and often important interventions on matters pertaining to the South African legal system and judiciary, so its views are worth taking seriously. The statement was surprising, however, given the fact that Zondo has enjoyed a tenure as Chief Justice largely free from significant criticism from legal bodies so far.

What did the Chief Justice actually say?

Zondo spoke to Newzroom Afrika’s Xoli Mngambi on Monday and voiced opinions on a number of matters: among them, corruption, judicial conduct, the failure of the government to implement the recommendations of the State Capture Commission he chaired, and the decision of the government to grant a remission of sentence to former president Jacob Zuma following his conviction for contempt of court.

It is the latter subject that has mainly attracted condemnation.

In the interview, Mngambi asked Zondo whether there was any purpose in pursuing the ongoing corruption case against Zuma, given that the remission of sentence previously granted to the former president seemed to suggest that the government had no appetite to see Zuma behind bars.

The Chief Justice responded:

As long as the National Prosecuting Authority says it’s got enough evidence to justify prosecuting him, he must be prosecuted. Let the country know that the NPA, and the courts, will have done their part, and let the executive deal with the public at that time. So I would not say that any trials must stop. I think we must continue doing what is right. 

“The NPA believes there is a strong case against him, that’s why they are pursuing the charges. The courts are there ready to conduct a fair trial, assess evidence, and if they find that he is guilty, they will look into what the appropriate sentence should be and impose a sentence that will fit the circumstances.”

In its statement, Casac pointed out that the Code of Judicial Conduct requires judges to “not publicly comment on the merits of any case pending before, or determined by, that judge or any other court” and to “not express views in a manner which may undermine the standing and integrity of the judiciary”.

Casac expressed concern over Zondo’s “comments regarding the pending Arms Deal corruption trial of former President Zuma, a matter that is still pending before the High Court”.

The NGO added: “With his comments on contentious political issues, the Chief Justice may be perceived as wading into the public discourse about partisan politics and potentially bringing his impartiality (and that of his colleagues) into question at a time of fierce political contestation ahead of the 2024 general elections…

“Chief Justice Zondo’s comments fall woefully short of the conduct expected of judges by the Code of Judicial Conduct and the norms that govern judicial ethics.”

Comments have divided legal opinion

Not everyone agrees that the Chief Justice overstepped the mark.

Legal analyst Benedict Phiri, appearing on talk radio station 702, said that he felt the context of Zondo’s remarks provided sufficient justification.

“Judges are allowed to debate matters if they speak to matters regarding the administration of justice,” Phiri said, arguing that Zondo’s comments regarding the prosecution of Zuma fell within this realm.

It can also be argued that Zondo was playing his rightful role in defending the legitimacy of the judicial due process against the suggestion that a prosecution of Zuma would be a sham. The Judicial Code of Conduct also states, after all, that “the legitimacy of the judiciary depends on the public understanding of and confidence in the judicial process”, and that “the function of the judiciary fails if its proceedings are not understood”.

Casac’s Lawson Naidoo clarified to Daily Maverick that the mere fact that Zondo gave a media interview was not the problem, and pointed out that Casac had previously defended the Chief Justice for speaking out on the lack of implementation of the recommendations of the State Capture Commission report.

Naidoo said that Zondo’s comments on the Zuma prosecution could be interpreted as meddling in NPA matters, saying: “That’s a decision for the NPA to take. One has to respect the autonomy of the NPA”.

Naidoo added: “Once judges start commenting on political issues, what stops any other judge from doing so? Then we’ll have judges participating in the political discourse”.

Alison Tilley, the coordinator of the Judges Matter campaign, told Daily Maverick that she supported Casac’s stance.

Tilley said that South Africa already had “a conduct process which is not working simply and quickly”. She pointed to the case of Judge Nana Makhubele, against whom a complaint was laid in 2019 over her role as chairperson of the board of Prasa while serving as a judge — an impermissible conflict of interests. Makhubele’s tribunal was this week postponed yet again due to unpaid legal fees.

“It’s very much a case of wanting to make sure that the Code of Conduct is scrupulously adhered to, and the CJ — as Casac says — has strayed into territory he should not have done,” Tilley said.

Controversy gives fuel to Zondo’s opponents

Zondo is by no means the first Chief Justice to make public statements — although within his limited term he has perhaps been more vocal than most.

In January 2022, he took the highly unusual step of calling a press conference to condemn erstwhile tourism minister Lindiwe Sisulu for an op-ed the senior ANC figure had written criticising some South African judges as “mentally colonised African[s]”.

On that occasion, Zondo acknowledged that the judiciary did not ordinarily respond to attacks, but said that Sisulu’s remarks, coming from a member of the executive, were sufficiently egregious to demand a rebuttal.   

The controversy over the Newzroom Afrika interview is sure to embolden Zondo’s critics, notably the Economic Freedom Fighters, who were fiercely opposed to his appointment as Chief Justice.

At the time, EFF national spokesperson Sinawo Tambo described the incoming Chief Justice as “a politically divisive force in South African society”, and “a member of the judiciary who is prone to descending into the political arena when he is expected to exercise restraint”. DM

Gallery

Comments - Please in order to comment.

  • Carsten Rasch says:

    the EFF are the last to comment on “restraint”. they haven’t a clue what it means.

  • Miles Japhet says:

    Casac’s comments are way out of line. Zondo simply stated the obvious. The NPA believes they have a case against Zuma and the courts must do their job.
    Does Casac have an agenda?

  • Jeremy Stephenson says:

    You would expect the Council for the Advancement of the SA Constitution to direct its attention to the unpunished unconstitutional and illegal practices revealed in the Zondo Commission’s report, instead of scrutinising a reply to an interview question.

  • Karin Swart says:

    “As long as the National Prosecuting Authority says it’s got enough evidence to justify prosecuting him, he must be prosecuted. Let the country know that the NPA, and the courts, will have done their part, and let the executive deal with the public at that time. So I would not say that any trials must stop. I think we must continue doing what is right. ” – The first three words must not be forgotten, because the whole paragraph hinges on this, the premise that the NPA feels it has enough evidence.
    The second paragraph quoted is also “blemish-free”. There is no point at which gives his opinion on the specific case or says something indicating that he is issuing an instruction/directive.
    He is giving his opinion of the judiciary and our justice system, not a particular case.

  • PETER BAKER says:

    Thank you Chief Justice for your statement..no one else has come forward to get some serious prosecutions going and we know that under the present ANC dispensation nothing, nix, SFA is going to happen. We the tax payers demand that heads roll from the very top to the lowest on the totem pole.

  • Greeff Kotzé says:

    “…not publicly comment on the merits of any case pending…”
    And Zondo did not do that; at least not in any of the direct quotes supplied here. To my reading, he is abundantly clear that it is for the NPA to decide the merits of bringing the case, and for the court hearing the case to decide the outcome — on the merits thereof. If there is any point that he is making here, is that it should be an apolitical process and that all are equal before the law — if saying that is now considered to be a political/partisan stance instead of merely stating well-known constitutional principles, then we are further gone than I had thought.

    “That’s a decision for the NPA to take. One has to respect the autonomy of the NPA”.
    Yes, indeed, and that is literally what Zondo said. It is the very essence of his answer.

    “So I would not say that any trials must stop.”
    This is the only sentence of Zondo’s answer that I can see being possibly misconstrued by others. BUT, in the context of the question asked, the meaning is quite clear: Zondo does not think that ANY criminal trial should be stopped simply BECAUSE there is a possibility that the accused, if convicted, might be pardoned or have their sentence commuted by the executive branch. And for the responsible authorities to base their decision on SUCH a political consideration would be the opposite of “continue doing what is right.”

    I had not expected there to be shortage of language comprehension over at CASAC.

  • Louise Wilkins says:

    Zondo is the only one with enough integrity and intelligence to speak up. Who cares whether he has been more honest than most, listen to what he is saying, for petes sakes.

  • Paddy Ross says:

    Was Zondo speaking as ‘Chief Justice’ or as ‘Chairman of the Inquiry into State Capture’? One can not expect the person who was appointed to carry out this latter task to keep silent when questioned about the findings of that Inquiry.

  • Beyond Fedup says:

    Well done Judge Zondo for speaking out about the rot that has this country in a vice like grip through the totally useless, exceptionally corrupt and highly treasonous governing party. It has no interest at all, in fact it works to the contrary in stopping corruption and bringing those responsible to justice and then prison. We are talking about the big fish here and not the sardines that we occasionally net. It is pretty obvious that this vile party/government would cease to exist as they are the big and predatory criminals who are stealing the country blind. Keep hammering , judge, and ignore the hot air about whether it is right or wrong for someone in your position. This country is in very deep crisis – only the halfwits and those responsible for our decline cannot see the truth.

  • Betsy Kuhn says:

    Its about time someone tells the truth, someone who cannot be undermined by this rotten ANC and ZUMA – We all know how rotten the ANC, Eskom , EFF and Transet is. NOTHING NEW …but the end will come soon

  • Cunningham Ngcukana says:

    The problem with CASAC is that they have never appeared in any court of law for a trial. This is seasoned judge as an attorney that has numerous appearances and a very good grasp of administrative law as well as a good stint in the Labour Court. I have yet to hear about the track record of Lawson Naidoo as a defence lawyer even for a traffic ticket for that matter yet he has a lot to say and being allowed to say a lot of drivel as a foreign funded entity. All what the Chief Justice was speaking about was the administration of justice and has not violated any code as I was listening to him. His statements were very carefully crafted. As a person who has known the Chief Justice and recommended him at Nedlac for the Labour Court, I have found him to be very measured. When I was asked by the Unions that were working with him to forward his name I needed to be sure of his track record and had to speak to union leaders in KZN. Lawson Naidoo has a tendency to soil African legal minds without properly thinking what he says. There is nothing political when a judge discusses aspects of the administration of justice by the criminal justice system. WE are getting tired of Lawson Naidoo who must form a political party and contest elections instead of soiling the Chief Justice without a proper legal basis. The Chief Justice was within his rights and terrain when he commented on the Zuma legal issues. Naidoo is the one who brings politics into the matter.

  • Leslie van Minnen says:

    There can really be no comment harsh enough to describe the man who together with his commie buddies and fellow thieves have destroyed this country. He should already have been in jail. The ANC have sold this country to the lowest bidder and our grandchildren’s children will still be paying the debt and price of total corruption. That is of course is if the ANC has not decided to ask Russia to bail us out. If this happens there will be no whiskey for the connected. They will have to get used to third rate Russian vodka.

  • Theresa Avenant says:

    Thank you Rebecca for your well written article. The question posed to Zondo by Xoli Mngambi of Newzroom Afrika was, in my humble opinion as an ordinary attorney, loaded, politically motivated and offensive. In reply, Zondo merely stated the procedural realities in relation to Mngambi’s question, which was all he could do. It is unequivocally clear that what what Zondo said had nothing to do with the merits of the matter under discussion. In fact I admire Zondo for his patience and restraint under the circumstances. In its statement Casac points out that the Code of Judicial Conduct requires judges to not publicly comment on the merits of any case pending before, or determined by that judge or any other court etc…” Zondo did no such thing. With the utmost respect, I find Casac’s Lawson Naidoo’s assertion that Zondo’s “comment” on Zuma’s prosecution is meddling in NPA matters and his further allusion to Zondo wading into the arena of pubic politics, quite astonishing. I simply don’t see it that way and it is apparent that many other people would agree with me.

  • Anne Felgate says:

    Judge Zondo is an exceptional human being.
    Under extreme provocation, he remains calm and measured
    Disappointed in CASAC
    Or is there something else going on ?
    Politics in South Africa are so underhand

  • Walter Hay says:

    Maybe we need to draw up a ‘above the law’ list of people who can’t be prosecuted. Think of all the money and time we could save the courts and taxpayers, ongoing cases just drain the coffers, we will never see the main crooks in orange overalls
    Sorry CJZ we know how you feel.

  • Andre Grobler says:

    I understand the quandary… but he is RIGHT… and he didn’t say someone wasn’t doing their job, he said the justice sector must do their job, when asked if it is worthwhile to pursue a case… you know like in a civil society…

  • Alf None' says:

    One hopes that another institution has not been “compromised”
    Making a ridiculous accusation/inference such as this is, to me, an indication of somebody deliberately trying to cause mischief

  • Bruce Gatland says:

    Lawson who?

  • Lisbeth Scalabrini says:

    For once everybody agrees 😀

  • Hilary Morris says:

    Why the EFF is given so much attention has always been incomprehensible. It is no more than a rag-tag bunch of hooligans whose only contribution to the political debate is to create mayhem and chaos. They have nothing to contribute but noise. The fact that they are anti-Zondo is enough to enhance his credibility. It’s sad when selling papers outweighs principle, this is the result. Like naughty children being put in a corner and then screaming for attention.

  • Deirdre Lubbe says:

    It appears to me that political interference in the judiciary is not an issue – well it should be!

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