I love to refer to a quotation attributed to Otto von Bismarck: “If you like laws and sausages, you should never watch either one being made.” The reference is to the legislative process, but also best describes the political and constitutional crisis in the making at the Zondo Commission. The Zuma v Zondo Commission debacle is degenerating into shameful spectacle daily.

In what cannot be a surprise, at the 11th hour before he was to appear before the commission, his lawyer, Eric Mabuza, wrote to Professor Itumeleng Mosala, secretary of the commission, on 15 February 2021 and dropped a bombshell. Mabuza, “out of courtesy”, as he would like to call it, informed the commission that Zuma would not be appearing on the day in question.

“The summons issued for our client to appear on 15-19 February 2021 is irregular and not in line with the fourth Order of the Constitutional Court judgment of 28 January 2021”, said Mabuza. He argued that “appearing before DCJ Zondo in the circumstances, would undermine and invalidate the review application over his decision not to recuse himself”.

Mabuza had a simple, unspoken caveat: Zuma’s application for the recusal of Deputy Chief Justice Raymond Zondo must be finalised first, and Zondo must take a hike. The letter by Mabuza to the commission was cleverly constructed to legitimise the absence of the former president by clothing it in legalese. Zuma’s non-appearance “should not be construed to suggest any defiance of a legal process”.

As we know, the commission did not take kindly to being disrespected again and announced an immediate strike to have Zuma arrested for contempt of the Constitutional Court. “The commission will make an application to the Constitutional Court, which is the court that made the order that Mr Zuma has defied, and seek an order that Mr Zuma is guilty of contempt of court,” Zondo said (read here and here).

Before delving deeper into this discussion let me quickly dispense with the arguments raised by Mabuza. With regard to the suspension of the recusal decision pending the appeal, Mabuza in essence, though not explicitly, contends that the Constitutional Court erred in law by ordering his client to appear before a definitive ruling on recusal had been arrived at by the court. The problem with this assertion is that there is precedence in our law that courts may, under exceptional circumstances, order the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal [see, for example, section 18(1) of the Superior Courts Act 10 of 2013].

This is one of those instances where lawyers cunningly, and using their advocacy prowess, are able to make a mountain out of a molehill. But I will have to give it to Mabuza because the Constitutional Court ruling did not express itself clearly on this issue.

The other argument by Mabuza was that, under the circumstances, the issue of summons amounted to what in law we call an irregular step. Therefore, being an irregular step, the summons should not be allowed to advance the commission proceedings further in respect of Zuma.

The plot thickens. After hearing of the intention of the commission to approach the Constitutional Court against him, Zuma issued a venomous 12-page statement. In it, he questions the real motive of Zondo’s move, insinuating that it is calculated to sink his challenge of the subpoenas.

“This calculated stratagem was to frustrate my chances of even challenging their subpoenas in our courts. The commission obviously ran to seek a licence to act with impunity. I still persist that there was no basis or dispute necessitating the commission to approach the Constitutional Court and that there was no factual basis for the presumption that I would defy the subpoena,” complained Zuma.

What chance does the commission have in obtaining the contempt order against Zuma? Certain elements must be proven to determine whether he can be found in contempt. The Constitutional Court, in the 2018 case of Matjhabeng Local Municipality v Eskom Holdings Ltd and Others; Mkhonto and Others v Compensation Solutions (Pty ) Ltd is relevant. The court ruled that the following requirements must be met: “(1) The existence of the court order; (2) the order must be served on, or brought to the notice of the alleged contemnor; (3) non-compliance with the order; and finally; (4) the non-compliance must be wilful and mala fide (there must be deliberate defiance of the court order).”

It is evident that members of the ANC are further apart on the intent to protect the work of the commission, and on respect for the judiciary and the rule of law. If members of the ANC and the ANC-led government see no need to follow the law, what chance does Ramaphosa have to convince ordinary citizens that we are a country of laws and not of man?

On the successful challenge of the subpoenas in any court, under ordinary circumstances, had the Constitutional Court not ruled on the matter, the Zuma camp would have found it extremely difficult to mount a convincing argument that the commission had failed to meet the requirements set out in the Matjhabeng/Eskom case.

To start with, the Zuma camp scored some devastating own goals, which it will find difficult to reverse. It is common knowledge that Zuma has publicly expressed his intention to defy the commission and, by extension, ignore the order of the Constitutional Court. This intention was realised through the letter by Mabuza to the commission on 15 February and finally confirmed by Zuma in his own words in a scathing statement the same day.

It should take a person of unquestionable loyalty to the former president to dispute the observation that he has been in contempt of court, whatever his excuse, and that his non-compliance with both the Constitutional Court and the commission was intentional (wilful/deliberate) and not done in good faith (mala fide). The mala fide part of it comes in the form of scandalising the Constitutional Court, Zondo in his personal capacity, the commission and the judiciary in general – even referring to some judges by name.

As a reminder, Zuma scolded the alleged improper conduct and abuse of power by the judges: “It is that type of judicial conduct that I protest against, not our law or our Constitution. It is not the authority of the Constitutional Court that I reject, but its abuse by a few judges. It is not our law that I defy, but a few lawless judges who have left their constitutional post for political expediency,” said Zuma.

As noted by Professor Pierre de Vos, reasoned criticism of the courts helps to hold the judiciary accountable. However, criticism must not slope into personal censor of the judges. One should be careful not to scandalise the court. 

Kriegler J, in the 2001 case of S v Mamabolo, noted: “How far can one go in criticising a judge? Our law, while saying that ‘justice is not a cloistered virtue’ and that ‘it is right and proper that… (judges) should be publicly accountable’, does place limits on the criticism of judicial officers and the administration of justice for which they are responsible.”

Legal contestations aside, there is a deep political dimension to this ongoing Tom and Jerry battle. To start with, Mabuza’s letter and Zuma’s latest statement came after an open and unambiguous declaration by Carl Niehaus that a platoon of uMkhonto weSizwe Military Veterans Association (MKMVA) soldiers will stand guard at Nkandla to protect the former president from arrest.

“There will be a constant presence [of MKMVA at Nkandla] to protect President Zuma,” said Niehaus. “We sincerely hope that reason will prevail and he will not be arrested. I don’t think anyone should underestimate the commitment of the MKMVA membership to President Zuma,” Niehaus added.

The picture of MKMVA members stationed at Nkandla, in military regalia, is one of the most chilling recent threats to stability and law and order in South Africa. Niehaus presents the MKMVA as a personal army or militia of Zuma that is “committed to President Zuma”.

If this was another country in Africa, I would guess that a coup was likely should tensions escalate. But this is South Africa.

Zuma let loose his wrath and harangued his fellow ANC member, President Cyril Ramaphosa, Deputy Chief Justice Raymond Zondo and the South African judiciary at large. He accused the judiciary of being corrupt and captured to the benefit of Ramaphosa.

According to him, some judges helped Ramaphosa steal the ANC election. In the words of Zuma, “we sit with some judges who have assisted the incumbent president to hide from society what on the face of it seem to be bribes obtained to win an internal ANC election. We sit with some judges who sealed those records simply because such records may reveal that some of them, while presiding in our courts, have had their hands filled with the proverbial 30 pieces of silver.”

Ramaphosa’s mouth would have been agape at hearing this, particularly after the recent NEC meeting at which he assured the country that the ANC and its members are law-abiding people and respect the Zondo Commission. Then, boom! Phaaa! (a big explosion). The Zuma 15 February statement.

Politicians cannot have it both ways: allowed to interview appointable judges and then come back to say the judges are captured. Still, I will not argue against the sentiments that our judiciary should be accountable.

It is evident that members of the ANC are further apart on the intent to protect the work of the commission, and on respect for the judiciary and the rule of law. If members of the ANC and the ANC-led government see no need to follow the law, what chance does Ramaphosa have to convince ordinary citizens that we are a country of laws and not of man?

An interesting attack directed at the Constitutional Court is that he claims the court stripped him of his constitutional rights. Zuma is also of the view that our judges are political activists. According to him, many in the judiciary had “long left their constitutional station to join political battles”. The former president believes Zondo is a person of low judicial integrity and with blinkers on when it comes to executing judicial functions. Zuma accused Zondo of having “displayed questionable judicial integrity, independence and open-mindedness required in an investigation of this magnitude”.

His own party, the ANC, did not escape his scathing pen. He has “reservations” that the commission was instrumental in his recall as “part of the campaign and sponsored multisectoral collaboration to remove me from office”.

The fact that Zuma’s legal team left it to the last minute to show the Zondo Commission the middle finger should worry everyone concerned about safety and security and law and order in South Africa. The rule of law is generally under threat.

“Summonses get issued every day, and if the message that gets sent out is that people can disregard summonses and court orders issued every day and defy those with impunity, there will be very little [left of the law],” said Zondo.

There is an urgent need to re-establish and assert the rule of law. As the Constitutional Court ruled: “In our system, no one is above the law. Even those who had the privilege of making laws are bound to respect and comply with those laws. For as long as they are in force, laws must be obeyed.”

All the contestations and allegations by Zuma notwithstanding, this is not the time to stop believing in our judiciary and justice system. So far, nothing has been proven that our judges and the judiciary are corrupt, captured or highly politicised. Much of the bashing of the Zondo Commission and the judiciary is speculative, mere allegations until proven otherwise, and playing to the gallery of the biased court of public opinion.

It is difficult to fathom politicians making general allegations that the South African judiciary is captured, corrupt and politicised. Let us say it is politicised – then what is the best intervention? The best intervention is to recuse members of political parties from taking part in the nomination and interviews of judges (including the interview of the public protector and heads of Chapter 9 institutions). In this way, the entry point of political influence and preference will be excluded.

Politicians cannot have it both ways: allowed to interview appointable judges and then come back to say the judges are captured. Still, I will not argue against the sentiments that our judiciary should be accountable.

Before I rest my case, let me leave you with something to ponder from an article by David Kosař titled “The least accountable branch”, while assessing the merits of Zuma’s latest attack on the judiciary:

“While one might still believe that the judicial power is ‘the least dangerous branch’, it is no longer accepted that the judiciary wields only limited power. The evidence is clear. The power of courts has increased worldwide at an unprecedented pace in the last few decades. Judges often clash with the executive and interfere with the agendas of parliaments. As a result, virtually all developed legal cultures now accept that judges are not like umpires whose job is just to call balls and strikes, to paraphrase the Chief Justice of the United States Supreme Court, John Roberts, and that they sometimes resort to judicial law-making.” DM