Judges are often looked at with awe and admiration. However, the Jacob Gedleyihlekisa Mhlanganyelwa Zuma Foundation seems to have lost that admiration for Deputy Chief Justice Raymond Zondo. The foundation issued a widely reported statement on Wednesday 23 September 2020 slating Justice Zondo.

The rebuke of Judge Zondo by the foundation came two days after Justice Zondo updated the public on Zuma’s second scheduled appearance at the State Capture Inquiry, and reads like a complaint about judicial corruption – at least this may be what some members of the public may consider it to be. To start with, the statement questions the bona fides of Justice Zondo:

“His media conference was ill-advised and utterly inappropriate for a person of his seniority in the judiciary,” reads the statement. The foundation “noted with dismay the utterances of the Chairperson of the State Capture Commission, Deputy Chief Justice R Zondo at his extraordinary media conference designed to humiliate President Zuma and his attorneys”.

These left me thinking: Is the Zondo Commission running amok? More interesting is the foundation’s assertion that Justice Zondo is disappointingly “obsessed” with Zuma, a strong allegation of fetish behaviour by the country’s second top judge after Chief Justice Mogoeng Mogoeng.

The foundation’s statement makes a good case study determining judicial corruption on the one hand, and contempt of the person of the judge on the other hand. The foundation went headlong into its frontal attack on Justice Zondo, or whatever you may want to call it, alleging bias on the part of Justice Zondo. “It is regrettable, though not surprising, that he decides that the way to deal with the matter is through the media,” wrote the foundation.

More eyebrow-raising is the foundation’s allegation that not only is Justice Zondo playing to the public gallery, but that he is drumming up support or trying to win favour for his possible appointment as the next Chief Justice of South Africa. “It is clear for all to see that the chairperson has made up his mind that he will treat President Zuma harshly in order to secure for himself a future career in the highest office in the judiciary,” reads the statement.

It is difficult for a curious mind not to consider this statement to be attributing political motives to Justice Zondo in his capacity as a judge, or to the Zondo Commission. Further, the statement may be understood by some as a possible allegation of judicial corruption – in the form of treating former president Zuma harshly and unjustly compared with the “soft” treatment meted out to other alleged perpetrators or accomplices to State Capture and corrupt practices.

But the statement, read between the lines, went even further and accused Justice Zondo of being economical with the facts and truth, electing to be selective on what to tell the media.

The foundation also believes that Justice Zondo is acting in a manner that contaminates the commission and jeopardises the legitimacy of its findings.

Wait a minute … Is this a red flag that the members of the governing ANC will reject the Zondo Report? One hopes that this will not happen as it will be the most scandalous waste of taxpayers’ money. After all, the commission’s findings could have varying ramifications, including absolving some of the alleged perpetrators and accomplices to the dreadful corruption and State Capture.

Then comes a cry out by the foundation for the intervention of Chief Justice Mogoeng. The foundation calls upon the Chief Justice to intervene by reminding Deputy Chief Justice Zondo “that he is not above the law and that he is accountable to the Constitution and not those who seek to peddle the theory of State Capture that only serves to punish certain people while protecting those who are for now powerful”.

What I found most interesting is not the request for Justice Mogoeng to reprimand his Deputy Chief Justice, but the foundation’s claim that State Capture is just “a theory”. Frankly speaking, there are worse things that the Chief Justice could have intervened in but elected not to do so based on principles and conviction. The Chief Justice is known to stand his ground for what he believes is right, as was the case with regard to the calls for him to apologise for his Israel comments at a webinar. 

To rebuke Deputy Chief Justice Zondo, the Chief Justice will have to agree with the foundation that State Capture is a fallacy and that the Zondo Commission is just another glorified platform for “those who seek to peddle the theory of State Capture that only serves to punish certain people while protecting those who are for now powerful”.

It must be remembered that one of the harshest judgments on corruption in South Africa was penned by the Chief Justice in 2016. The Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others 2016 (5) BCLR 618(CC), colloquially known as “the Nkandla judgment”, has been described as a “watershed moment in South Africa’s constitutional democratic history”.

The case addressed the legal effect of the powers and remedial actions of the Public Protector following a conclusion by former public protector Thuli Madonsela that then president Zuma “failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources” [Par:2].  

It is Justice Mogoeng’s aversion to corruption and corrupt practices that saw him describing former public protector Thuli Madonsela as a David who was victorious in a fight against the mighty Goliath? “She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are…,” said the Chief Justice [Par:52].

Just as a reminder, in the 2016 Nkandla case Justice Mogoeng said that former president Zuma “appears to have been content with the apparent vindication of his position by the [Minister of Police Nathi Nhleko’s] favourable recommendations and considered himself to have been lawfully absolved of liability” [Para:81].  

Justice Mogoeng noted that “the Minister of Police ‘exonerated’ [President Zuma] from the already determined liability” [Para:80]. If you recall, at the time the Chief Justice castigated the National Assembly for “passing a resolution that effectively flouted its constitutional obligations” [Para:99]. Also, he found Zuma to have “failed to uphold, defend and respect the Constitution as the supreme law of the land” [Para:83] as manifested by his “substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers”.  It is the same Mogoeng who referred to his 2016 Nkandla judgment to say that the “corrupt had become comfortable because they believed they could get away with anything”.

Everyone deserves justice and the benefit of the doubt. For others, justice means them getting the extraordinary benefit of the doubt.

Talking about benefit of the doubt, let us pose the following questions in this saga that may go into the annals of criminal justice history as “the Great Zuma Foundation and Loyalists Fightback”: will the Deputy Chief Justice deem it fit to respond to the foundation’s harsh statement and allegations of impropriety? Alternatively, will the Deputy Chief Justice demand an apology from the foundation for alleging judicial corruption? Will the Chief Justice interfere to read his deputy the riot act as requested by the foundation? Is Justice Zondo biased against Zuma? Is there judicial complicity in the persecution of former president Jacob Zuma? Should we be gravely concerned as society that there is a political agenda by the country’s judicial arm to single out Zuma as the architect and main perpetrator of the corruption ravaging South Africa? Can we say that there is a prima facie case that the foundation had committed contempt of the judge and the commission in the manner it has responded to the media briefing by Justice Zondo?  

From the above catalogue of questions, the issue of judicial bias against Zuma and contempt of the Zondo Commission by the foundation caught my attention. And to answer this question I had to refresh my law-schooling memory by reading some influential judicial politics research, such as the one written by Harris and Sen on Bias and Judging.  

Normatively speaking, we all wish for judges’ decision-making to be impartial and independent – not to be affected by race, gender, religion or political party – either their own or of the parties before them. But we should not, for example, confuse conservatism with bias or lack of impartiality.

According to reports, the Indian Supreme Court in 2019 warned  that “accusing judiciary of political bias is contempt of the gravest form”. The Zuma Foundation “bias” complaint reminds me of the resignation of all six Moldovan Constitutional Court judges after being accused of political bias by the new government led by Prime Minister Maia Sandu. This is after the court made several controversial judgments and repeatedly ruled in favour of the former governing party of Vladimir Plahotniuc.

I am also reminded of another attack on the judiciary – that of Andile Lungisa, who has in common with the Zuma Foundation a complaint that some South African judges are inappropriately partisan, biased and driving certain political agendas. These allegations are deeply disturbing if they were to be found true. It is reported that the jailed Nelson Mandela Bay ANC councillor Lungisa was caught on camera making disparaging remarks about a Supreme Court of Appeal (SCA) judge who convicted and sentenced him to jail for his 2016 assault of DA councillor Rano Kayser. The SCA is not taking lightly to being branded as having a political bias in the execution of its duties, and the court’s judges have demanded an apology from Lungisa for his remarks. Otherwise, he may find himself faced with possible charges of contempt if his allegations are unfounded.

The complaint of judicial bias against Zuma and the victimhood of Zuma will be with us for some time. Granted, State Capture cannot be left at the feet of Zuma alone. But, having some of the people accused of corruption and maladministration still occupying the highest positions in the administration of President Cyril Ramaphosa is not making things easier. It would seem that the ANC’s factionalism is now playing itself out in the courts and defacing our criminal justice system.

Call it whatever you want to call it. The fact remains that the Zondo Commission’s work is about constitutionalism, accountability and the rule of law.

To quote Justice Mogoeng in the 2016 Nkandla judgement, “… constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck” [Para:1].

The South African coin has two sides. Charges of corruption against Zuma and others must be supported by cogent and admissible evidence. It is for this reason that people must present themselves to testify and have their evidence or defence tested before the Zondo Commission. Otherwise, there will be a miscarriage of justice. On the other side,  allegations of judicial bias against judicial officials must also be supported with cogent and admissible evidence. Otherwise, there is a high risk of contempt of the legally established judicial tribunals. DM