Opinionista Omphemetse S Sibanda 19 November 2020

Recusal, friendship and impartiality: Interesting times indeed at the Zondo Commission

Assuming that it is proven that Zondo and Zuma were once friends, can we arrive at the conclusion that Zondo is a ‘bad judge’ to preside over Zuma’s appearance at the commission because their assumed friendship makes it difficult for Zondo to be impartial?

The argumentation at the Zondo Commission this week generated many talking points. These ranged from references to gold-diggers; reference to the Zondo Commission as the “Slaughterhouse Commission”; propagation of a conspiracy theory that Deputy Chief Justice Raymond Zondo, or rather the commission, had lined up witnesses in the most unintellectual manner and contained “people that truly had a gripe and an axe to grind with the former president Jacob Zuma”; and reference to professors talking about the commission as a place of accountability when they had not set foot in court.

All this was said by advocate Muzi Sikhakhane in representing Zuma in his bid to have Zondo dethroned as the chairperson of the commission.

Recusal cases are not a walk in the park for petitioners. But for now, I would like to focus on “friendship” as one of the points of concern and used to support the bid for the recusal of Zondo. 

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I previously wrote that recusal jurisprudence based on friendship between the judicial officer and the “accused” as a ground has not gained much favour in many developed legal systems (see here). In this opinion, I do not wish to regurgitate my previous argumentation about recusal and friendship, except to quote once more from an article by Jeremy M Miller:

“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.” Assuming that it is proven that Zondo and Zuma were once friends, can we arrive at the conclusion that Zondo is a “bad judge” to preside over Zuma’s appearance at the commission because their assumed friendship makes it difficult for Zondo to be impartial? 

South Africa is eagerly awaiting Zondo’s ruling on Zuma’s application for his disqualification as the chair of the commission. Some are concerned that the commission will collapse should Zondo be recused, amounting to a free pardon for all who want to get away with crimes of State Capture. 

Others may be waiting to see if the “nonsense” by Sikhakhane that “the case law applicable to recusal applications was ‘unreliable’, and ‘intellectually dishonest’, as judges got to determine what standard should be used to decide whether they should recuse themselves,” will have some legal force and effect. “I am very reluctant about case law on recusal because it is judges telling the world, ‘When you judge me, judge me this way,’ ” said Sikhakhane. 

Strangely though, Sikhakhane’s mistrust of the judges in recusal rulings did not stop him from relying heavily on the Canadian case law governing the disqualification of judges, which has, over the years, taken divergent strands on the issue of judicial impartiality. To be precise, Sikhakhane relied on R v S, Report [1997] 3 SCR 484 regarding the bias of a judge to make what at times looked like a condescending attitude toward a commission and/or its chairperson in trying to explain in a convoluted manner the concept of apprehension of bias. Not that there was anything new or worth influencing the South African case law because the gist of the Canadian case of R v S with respect to the test for the apprehension of bias is part of the test laid down by the South African Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and others 1999(4) SA 147 (CC).

My interest is in knowing what impact Zuma’s response to the denial by Zondo that they never were friends will have on the recusal decision, because this will change recusal jurisprudence in South Africa forever. 

Perhaps excitement over the outcome is in part harnessed by scholarship such as that of James Sample, which I agree with, who in his 2013 article (Supreme Court Recusal: From Marbury to the Modern Day, 26 Geo. J. Legal Ethics 95) revealed that Justice Scalia of the United States Supreme Court once remarked that “[a] no-friends rule would have disqualified much of the Court in Youngstown Sheet & Tube Company v. Sawyer [343 U.S. 579 (1952)], the case that challenged President Truman’s seizure of the steel mills. Most of the Justices knew Truman well, and four had been appointed by him.” [At p.109]. 

Just for your interest, and context, to settle a labour dispute and avert a nationwide strike of steelworkers in April 1952, which he believed would jeopardise national defence, President Harry S Truman issued an Executive Order directing the Secretary of Commerce to seize and operate most of the US’s steel mills. Fred Vinson, appointed by President Truman in 1946 as the Chief Justice of the Supreme Court, sat in the Sawyer case and gave a dissenting judgment in favour of Truman. Should it mean that the chairperson of a commission of inquiry; the Chief Justice and Deputy Chief Justice should as a general rule be disqualified from hearing matters or cases of presidents who appointed them in the first place? 

Madame Justice L’Heureux-Dubé in the Canadian case of R v S, Report [1997] cited by Sikhakhane discussed the difficulty of dealing with the concept of impartiality. She proposed that this may be addressed in part by relying on the integrity of judges and making it known that the significance of reliance on the integrity of judges is often neglected in recusal cases. I would be interested to know if Sikhakhane’s glowing admission that his client Zuma and himself do not doubt the integrity of Zondo would embolden Zondo not to recuse himself or if it would counter his argument for Zondo to recuse himself.

Perhaps most fitting for whatever outcome we will receive on recusal is the phrase, “May you live in interesting times”, borrowed from what is said to be a Chinese curse and given notoriety when used by Robert Kennedy in his speech in Cape Town in June 1996. DM

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  • Speaking as a layperson, the only pertinent observation Sekhakhane made in his convoluted arguments, was the inherent challenge of ‘self scrutiny’ or ‘self reflection’. A great pity therefore … that he did not apply that insight into his own passive/aggressive stance and attitude. The expressions on his face (for an amateur ‘body language’ observer) were priceless ! Maybe someone should provide him with a copy of his ‘performance’ ? Maybe Guliani in the US is his role model. Not that it is a guarantee that he will be able to ‘see’ the wantonness of his ways. The old adage of ‘people see/hear what they want to’ applies I guess.

  • Mr Sibanda, Please don’t make up words. Argument is a noun and a verb. The correct word where you used “argumentation” is “argument”. The English language is being messed up enough by the Americans, to whit “burglarise” when they mean “burgle”, “gonna” when the mean “going to” and “gotten” when they mean “got” are just a few examples. The last is 17th century English. The Americans are stuck in the past there.

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