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Acting Chief Justice Zondo should have recused himself from candidature interview process

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Danwood Chirwa is Dean and Professor of Law at UCT. He writes in his personal capacity.

The widespread backlash that the JSC has received has correctly focused on the conduct of the more wayward commissioners. But little attention has been paid to other equally troubling aspects of the interview process and the appointment of judges in the country. These relate to deteriorating values prevailing within the judiciary, which suggests that the institution is cannibalising itself.

Far from demonstrating South Africa’s advance in transparency and accountability in the appointment of judges, the just-ended interviews for Chief Justice (CJ) exposed the continuing decline in the stature of the Judicial Service Commission (JSC), which began more than a decade ago. This round of interviews has shocked and baffled many, but these were not the worst showcase of unprofessional, unethical and bigoted behaviour by members of the JSC.

The judiciary is one entity. Four candidates were shortlisted for the position of CJ. All were internal candidates. The Constitutional Court alone had two candidates competing. And yet none of them decided to withdraw from the process in support of any other candidate.

I would like to suggest that this is not about healthy competition for the office, so that the best person is appointed. We already know JSC interviews are a sham, a circus and a costly spectacle. It is rather about putting personal interests above those of the institution the candidates serve. It is about power, materialism and self-interest, all of which are vices that do not bode well for the integrity and independence of the judiciary.

All four candidates were Africans. I understand that they have the right to contest for office. However, as Africans, I expected them to exhibit a degree of commitment to solidarity, to subordinating personal interest to the whole and to duty more than to individual rights.

In the lead up to the appointment of the outgoing CJ, it was reported that when President Jacob Zuma snubbed Deputy Chief Justice Dikgang Moseneke, he went down the pecking order asking one judge after another to take the position. All of them turned him down until the last accepted.

If this story is correct, it highlights a different set of values that prevailed within the judiciary at that time. These had to do with selflessness and absolute commitment to the independence of the judiciary. Now indications point to a complete reversal of values. No attention is being paid to this. A degeneration of personal and institutional values within the judiciary can be more dangerous than external attacks.

Each individual judge has a duty to protect their own integrity and, above all, that of the judiciary. This duty includes subordinating one’s personal interests to those of the judiciary, the rule of law and constitutionalism.

It would have limited the scope of the circus at the JSC had the candidates and other senior judges talked to each other and agreed on one or two candidates to proceed to the interview stage. That this did not happen suggests that within the judiciary itself there is no consensus on who is best to take the reins, leaving it to questionable characters at the JSC to make the call.

This brings me to the candidature of Acting Chief Justice Raymond Zondo more specifically.

Let me state clearly that despite all the daunting challenges he faced, Zondo acquitted himself exceptionally well as chair of the State Capture Commission. His two published reports are measured, considered, fair and objective. They will bear testimony to his legacy in the fight against corruption for generations to come.

However, I have reservations about his candidature and what went into his calculations. It is well known in Africa that commissions of inquiry are a key mechanism by which politicians cripple crime-fighting agencies and delay prosecutions or political action. Sitting judges have been thrown into the eye of political maelstroms and many have not come out unscathed. Commissions should be chaired by retired judges, senior counsel or academics, never by sitting judges.

Zondo should have known that the State Capture Commission would derail his ambition to ascend to the CJ’s office. It was already obvious at the time it was constituted that the commission would address the criminal activities of powerful politicians and their lackeys. Having accepted the role, he should have concentrated all his efforts on the commission.

Having gone through marathon hearings, in which thousands of pages of testimony and documents were presented, Zondo should have focused singly and solely on bringing that work to conclusion. Preparing for interviews, gruelling as such high-profile interviews can be, has taken precious time away from the commission. Once that work of the commission is concluded, Zondo has a duty to preserve the legacy of the commission including by not doing anything that could negatively impact the integrity of the commission.

It was predictable that the culprits of State Capture would be from one faction of the ANC and others linked to it. Zondo’s appointment as CJ could be seen as payment for his work as chair of the commission. This is a case where commitment to the greater good should have trumped personal interest.

If Zondo has belief in the abilities of the other candidates to serve as CJ, as he declared in the interview, then he has no good reason for insisting on his own candidature. Of course, this applies to other candidates as well. In view of this, I am not surprised that none of the three candidates has even at this stage withdrawn from the process and supported the recommended candidate.

One of the underlying causes of a reversal in values within the South African judiciary lies in the creation of the Office of the Chief Justice as a department. I am yet to be convinced of the merits of this institution and what good it has brought since it was established. As far as I have seen, this institution has been accepted uncritically, and yet it stands as a single most dangerous threat to judicial independence in the country.

For one thing, it has disproportionately increased the power and material benefits of the holders of certain judicial offices such as those of the CJ, DCJ, and Presidents of the Supreme Court of Appeal and of High Court Divisions. As a result, the focus has shifted from being a good judge to the pursuit of “executive judicial power”. The quest for power and material goods attached to judicial office is driving the degeneration in values within the institution. This is a benign and yet more pernicious source of corruption of the judiciary that can lead to self-destruction. DM/MC

 

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  • Dennis Bailey says:

    Yep, you are right but we can all be as cleva as you after the fact. And by the way, Zondo is not insisting. The JSC insisted on interviewing him and made its choice. The president decides, as well you know.

  • John Cartwright says:

    Professor Chirwa seems to be suggesting that if one or more of the candidates had not been (according to his definition) Africans, he would have had less expectation that they would ‘exhibit a degree of commitment to solidarity, to subordinating personal interest to the whole and to duty more than to individual rights’. This is a remarkable assumption, and it makes one wonder how he copes with being the Dean of a culturally diverse Faculty of Law.

  • John Kayser says:

    Well reasoned and argued case. It’s not that Zondo would not make a good Chief Justice, it’s that there’s an inherent “conflict of interest” between the chairman’s role (in a commission of inquiry) and chief justice’s position, for the reasons outlined by Danwood Chirwa, that is likely to last for some time.

  • Ian Callender-Easby says:

    Ah well. I suppose everyone is entitled to their 10c worth.

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