Opinionista Omphemetse S Sibanda 25 May 2020

Jacob Zuma’s attack on the judiciary may have crossed an important line

The latest episode of ‘Zooming with the Zumas’ questioned the integrity of the judiciary and some judges. Wittingly or unwittingly, the attack by Zuma was calculated to impair or had the effect of impairing the public’s confidence in the judiciary.

The expected description of the judiciary in open and democratic countries is that it is virtuous, prudent, ethical, neutral and fair. Former president of South Africa, Jacob Zuma, his supporters and sympathisers seem not to share the view that South African courts and some judges are worthy of all the adjectives with which they are showered. In his last episode of Zooming with the Zumas, Zuma unambiguously launched an astonishing attack on the judiciary.

Numerous claims were made in the online broadcast by Zuma, the veracity of which are yet to be tested. My reading of the claims is that Zuma is contesting his innocence. Alternatively, he is saying that if he goes down, he takes a whole lot of accomplices with him to prison. Who can blame him? The National Assembly during his presidency dug its heels in deep to protect him from any accountability and publicly supported him as an innocent man.

“Some people in the judiciary have unfortunately pronounced that Zuma will never win a case in my court, it is a sad thing that in a free country that you fought for, you must feel you are in the same situation as it were during apartheid,” complained Zuma in the broadcast. This is a serious claim and allegation of an anti-Zuma conspiracy, which suggests that our courts are either corrupt or captured. 

He also portrays himself as being bullied and hounded out like a rabbit by a judiciary that dislikes him, when what he would like to do is to simply enjoy his well-deserved retirement at his Nkandla homestead. “If again the judiciary in this country do not like Zuma, they want to put Zuma in jail, I will go there and serve and my conscience will be free, knowing very well I never did anything wrong,” lamented Zuma. 

With this statement, Zuma has been successful – at least in the eyes of his supporters and sympathisers within the ANC – at generating a public opinion that will stand for the proposition that an innocent old man has been harassed, crucified and sent to prison by the National Prosecuting Authority (NPA) and the courts. To support his claim of innocence, Zuma points to three investigations on the Nkandla upgrades, which he reckons all cleared him of any wrongdoing.

What would leave many with their jaws dropping is his claim that the Zondo Commission of Inquiry into State Capture was set up only to “deal” with him.

What makes Zuma’s attack on the judiciary more curious is that it came just a few weeks before his corruption, money-laundering and racketeering trial. The attack also came against the backdrop of key losses in courts, the latest being the Supreme Court of Appeal dismissing his attempt to quash the ruling of the Gauteng High Court that found his statement about Derek Hanekom being an apartheid agent defamatory. Another indirect loss related to the lost appeal case by French arms company Thales to the Constitutional Court against an October 2019 judgment by the Pietermaritzburg High Court that ordered the prosecution of Thales alongside Zuma.

It is hard not to theorise that some of Zuma’s pronouncements are deliberately intended to influence both the procedural and substantive aspects of his trial. The attacks may also be part of the defence strategy, which can backfire if done carelessly. 

Bill Cosby’s defence strategy during his sexual assault re-trial hinged on attacking the judge, and it failed dismally. The OJ Simpson civil trial defence use of the strategy of attacking the Los Angeles Police Department as a group of inept bunglers, and as corrupt and racist police was significantly limited by the courts.

The Zuma defence attorneys and advocates will also have to tread carefully because they still owe decorum to court officials. They are bound by certain guiding principles of professional standards not to run with a gratuitous attack of the court in the performance of their defence of Zuma. 

Already in 2019, Advocate Muzi Sikhakhane had to apologise for using disrespectful language in Zuma’s appeal notice to the Pietermaritzburg High Court for a permanent stay of prosecution. Zuma’s attacks on the judiciary seem to be intended at soiling the integrity and credibility of the courts; demonising them as having a hidden hand in his legal woes.

Over the years, I have experienced a sense of déjà vu, aggravated by vitriolic anti-court and anti-judges campaigns by key South African political leaders. Interestingly, some of those spewing anti-judiciary disdain have been key politicians from the ruling ANC. 

For example, in 2015, the then ANC secretary-general Gwede Mantashe accused the North Gauteng High Court and the Western Cape High Court of having a “negative attitude towards government”. Mantashe and Zuma’s remarks about the courts sounded remarkably like some politicians during apartheid who saw judges who are progressive in law and justice as being anti-government.

I have not tried to explain why, given the facts available, it is far-fetched or not to argue that the judiciary has its daggers aimed at Zuma’s back. Beyond question is that there is much politicking and incessant attempts made at pushing the judiciary into a different corner and directions, which can cast aspersions on the legality of the criminal trial against Zuma and validate claims of a witch-hunt against him. 

Our criminal justice system does suffer from some residual tendencies of apartheid justice and a series of other pathologies such as legal history and a wicked legal system where some judges have supported the regimes in a departure from the rule of law.

And some judges have had an uphill battle against executives and heads of government institutions who consciously and systematically discard the ideals of the rule of law, and against over-politicisation, inefficiencies, politicisation of the criminal process and litigation involving our top leaders at the expense of the merits and justice for all. 

Some of Zuma’s statements unfairly criticise or defame the judges, and scandalise the court. Yet, our judiciary is accommodating of constructive criticism and is never quick to punish individuals for scandalising the courts. 

The Constitutional Court in S v Mamabolo, in 2001, for instance, made an important ruling that judges must accept robust criticism. According to the court, robust criticism of the judiciary “constitutes a democratic check on the judiciary. The judiciary exercises public power and it is right that there be an appropriate check on such power,” said Judge Kriegler [at para 29–30].

Be that as it may, my view is that Zuma’s attack on the judiciary may have crossed the line of robust and fair criticism. The attack borders on the thin line of scandalising the court and therefore devaluing the authority of the courts. Instead of focusing on the competence or the correctness of the courts’ decisions, the latest episode of Zooming with the Zumas questioned the integrity of the judiciary and some judges. 

Wittingly or unwittingly, the attack by Zuma was calculated to impair or had the effect of impairing the public’s confidence in the judiciary. To borrow from the words of Justice Kriegler in the Constitutional Court case of S v Mamabolo:

“Because of the grave implications of a loss of public confidence in the integrity of its judges, public comment calculated to bring that about has always been regarded with considerable disfavour.” [at pg 33].

Politicians should be the last people to be reminded that the authority of the law rests on public confidence. They should be exemplary in supporting the notion that “it is important to the stability of the society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges,” [per British court in Gallagher v Durack (1983) 152 CLR 238, 243]. Politicians should not tread on the prerogatives of the judiciary and hurl unsubstantiated attacks at those on the bench.

The statement below by Honourable Justice Michael Kirby AC on 5 February 1998 at the meeting of the American Bar Association in Maui, Hawaii provides a fitting conclusion to the escalating levels of political and personal attacks on the judiciary in South Africa:

“Unless there is a measure of mutual restraint, the judicial institution will be damaged and judicial integrity undermined… when judges are submitted to unrelenting political attacks by people who should know better, there is a danger that the public will draw from the silence of the judges an implication that the criticism was justified. Yet silence is ordinarily imposed by judicial convention. Generally, judges cannot answer back.” DM

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