A 1959 article by Ralph Slovenko titled “Je Recuse! The Disqualification of a Judge”, published in the Louisiana Law Review provides one of the early interesting views of recusal of judicial officers. Right at the beginning of his article, Slovenko provides an account of a letter in 1956 in the New York Times by Jean-Paul Sartre expressing an opinion that “Morton Sobell was innocent of the charge of conspiracy to commit espionage”. This opinion, according to Slovenko, was met with a reply letter by the United States attorney who sententiously rebuked Sartre by stating that “philosophers should be careful not to substitute emotion and prejudice for true inquiry and objectivity”.  

Given the political nature of the discourse surrounding the Zondo State Capture Commission, one may be tempted to borrow from Slovenko and state that “politicians should be careful not to substitute emotion and prejudice for true inquiry and objectivity”.

This will be a temptation which, in the context of the much-taunted intention of former president Jacob Zuma to petition for the recusal of Justice Raymond Zondo as the chairperson of the Zondo Commission during his testimony, may lead to the further argument that opposition to the recusal application is unconstitutional. 

One of the key features of the Constitution of the Republic of South Africa includes provisions of the right to fair trial under section 35(3) or fair adjudication process, if considered in the context of the Zondo commission, for instance. The right to a fair trial, as stated in the 2017 Pretoria High Court case of Djuma and Other versus the State, is “the hallmark of a fair and just process in the determination of guilt or innocence that accused persons enjoy. At the same time, the right is given content to and operationalised in the context of the facts and circumstances of each case in the determination of whether a trial was fair or not.”

Media reports of Justice Zondo admitting that he had a child with the sister of one of Zuma’s wives, Tobeka Madiba, about 25 years ago, heralded a new chapter in attempts to dislodge him from the State Capture commission. At the time, he said, Madiba “had no relationship” with the man who would become president. 

Now, what has been a private matter becomes a public weapon and key reason by the former president’s taunted intention to apply for the recusal of Zondo from his much-awaited testimony in November. This is set to make for a very interesting development around the legality of Justice Zondo chairing the session at which Zuma will be giving testimony. Can one conclude that Justice Zondo and former president Zuma are, or were, once friends up until Zuma was identified as a potential witness at the State Capture commission?

An article by Jeremy M Miller, “Judicial Recusal and Disqualification: The Need for a Per Se Rule on Friendship (Not Acquaintance)”, defined “friendship” as follows: “Friendship… is intimacy beyond social or business collegiality (politeness). Friendship is loyalty, and loyalty to one side of a case (be it a named party or lawyer) is the perfect antonym to impartiality. Partiality being the perfect definition of a bad judge.”

There is no dearth of legal principles and precedents on dealing with applications to have judicial officers recused, and legal practitioners must not think that recusal applications are a slam-dunk. The Constitutional Court in the 2007 case of S v Basson enunciated a very clear starting point. The court stated that ‘the impartiality of a judicial officer is crucial to the administration of justice. So too is the perception of his or her impartiality”. However, there is a paucity of authority on the point of recusal of a judge based on his or her previous relationship with people who are related to the accused person or witness by reason of affinity. The Zuma camp may not be deranged to pursue the recusal as claimed in other media if they can present convincing factual and legal arguments. It may suffice for Zuma to demonstrate a reasonable apprehension of bias on the part of Justice Zondo. 

It is still to be tested, however, if the relationship that Zondo had with the sister of Zuma’s former wife can lead to a justifiable conclusion that Zondo had developed a personal bias or prejudice against the former president. In South Carolina, for example, a judge may not be disqualified from matters in which the judge’s first cousin appears as an attorney or a witness as long as he is impartial and had disclosed such close relationship on the record. It goes without saying that Zuma’s grudge point is that Zondo has not disclosed the relationship on the record. But does this provide a cogent reason for anyone to call for the determination of the propriety of his conduct against Zuma at the commission? Clearly, the statement released on behalf of Justice Zondo argues that there is no justification to disqualify himself from presiding over the testimony of Zuma, absent any additional circumstances and compelling reasons that he cannot be impartial. Politicking is never going to be one of those compelling reasons.

“It must be conceded then that the law is not administered by a non-personal being without emotion and prejudice. The judge’s mind is not, as it were, tabula rasa. If general attitudes were grounds for disqualification, it would be impossible to fill the Bench,” argued Slovenka.

Let us hope that the possibility, not probability, of Justice Zondo being disqualified or disqualifying himself as chairperson of the Zondo commission, will not signal the Zondo Commission Report being destined for the dustbin. DM