Disadvantage: Heading the state capture inquiry may work against Raymond Zondo (Phill Magakoe/AFP)
Less than a month before Chief Justice Mogoeng Mogoeng’s term ends, President Cyril Ramaphosa was said to be leaning towards naming Mogoeng’s deputy, now a household name as the chair of the state capture inquiry, as the next head of the judiciary — before two twists changed the script.
On Thursday, Ramaphosa invited public nominations for the position, something ANC insiders frowned on while believing Deputy Chief Justice Raymond Zondo was the president’s clear favourite.
Appointing him would see Ramaphosa revert to the natural line of succession at the Constitutional Court. But legal commentators have long thought it was unlikely to happen this time around.
His work at the commission is seen as too onerous and too politically fraught to allow Zondo to segue into the highest legal office after handing his final report on state capture to the president.
But Zondo’s stature as a corruption buster was said to weigh strongly with the president, who has staked his own reputation on renewal. When it seemed the state capture commission would finalise its report in October, Zondo became a real option.
But this has now been cast in the balance by the commission asking for another extension, this time until December.
Sources close to Ramaphosa told the Mail & Guardian his advisers think that naming a female chief justice would score the president political points. Enter Judge Mandisa Maya, the highly competent president of the supreme court of appeal.
Her name is being touted along with those of Gauteng Judge President Dunstan Mlambo and constitutional court Justice Mbuyiseli Madlanga.
Maya and Mlambo have been lauded for having transformed their respective offices. Madlanga is the more respected jurist, but according to ANC sources may not be interested.
Insiders have voiced doubt that Zondo has the intellectual and administrative prowess the constitutional court sorely needs.
“If you look at the judgments that have been produced, they have been intellectually wanting over the past years,” they said, adding that the judiciary needed to be run better to enhance its independence.
“Ultimately what we want is the judiciary to completely stand on its own, like parliament. At the moment the justice minister is too close to the judiciary.”
Others pointed to Zondo’s retirement date of 31 August 2024 as an obstacle.
“You need someone who can give you a proper term. You want to avoid what happened with President [Nelson] Mandela where you had Justice Ismail Mahomed [and] Pius Langa who didn’t serve the full term. The only person who served right through was Justice Mogoeng … but that had its own complications,” a source said.
A senior ANC member close to the president argued for Mlambo.
“I have communicated this to the president. He has appellate experience,” the ANC source said, noting that not one of Mlambo’s judgments had been overturned by the constitutional court.
Another ANC leader said: “Some have argued that he is politically controversial but that is a consequence of his division … a lot of his judgments were about parliament.”
Mlambo is in his early 60s.
At 57, Maya is further from retirement age, but legal commentators say there is merit in not shifting her from the appellate court where she has eased deep, factional tensions.
Both Maya and Mlambo are seen as sterling administrators who could sort out weaknesses in Braamfontein, where recently four corrections of the Qwelane ruling were issued. But there have also long been complaints about the manner in which applications are received and processed.
Constitutional law expert Dan Mafora noted that the Zondo commission did not run as “a model of administrative efficiency”, with complaints about the serving of documents on witnesses and implicated parties.
Nor did Zondo distinguish himself in this regard while at the labour court.
An ANC source put it more strongly, saying the running of the state capture commission “is absolutely shambolic”.
“He [Zondo] was selfish and could have had proper workstreams and two other judges supporting him.”
Mlambo, also a labour court veteran, has made the biggest division in the country a collegial work environment.
Both he and Maya reacted swiftly to reorganise the running of their courts at the start of the Covid-19 pandemic, with the supreme court of appeal moving to virtual hearings within a matter of days, and fairly seamlessly so.
But Mafora said beyond the practical demands, the constitutional court needed a jurist who could help steer the bench to higher ground after a period where justices at times seemed not to share a common understanding of fundamental points of law.
“There isn’t a uniform approach to the law, and a consistent intellectual level of reasoning in the court’s jurisprudence, and this has serious consequences for legal certainty,” he said.
This weakness became most publicly apparent with the majority and minority rulings on the Zondo commission’s application for a prison sentence for contempt for former president Jacob Zuma.
Many in the legal fraternity believe that Madlanga would be the most able person by far to lead the judiciary, describing him as combining intellect, integrity, work ethic and an ability to rally his colleagues to consensus. If his availability is moot, Zondo’s is not in doubt.
Choosing the latter would seem to underscore Ramaphosa’s renewal drive, but there also lies the rub. The deputy chief justice is not a neutral figure, part of the inherent risk of appointing a sitting judge to head the state capture commission.
“I would be surprised if Zondo’s name survives the consultation process within the ANC once they remember what he said about the party’s deployment committee, and about electoral reform,” said Mafora.
Ramaphosa is also required to consult opposition parties but this has little real effect.
Although Zondo may have the approval of some parties, given his image as an anti-corruption crusader, the Economic Freedom Fighters may object, having joined Zuma’s attacks on the judiciary, and on Zondo in particular, for reasons that may relate more to the commission investigating the party’s leaders than the former president’s plight.
This goes to the heart of the difficulty with naming Zondo to succeed Mogoeng as the judiciary traverses a period of political onslaught.
There is little doubt that Zondo will make findings against political enemies of the president in his final report, and ask the National Prosecuting Authority to investigate further.
“The optics will be very difficult, because Zondo needs to file a report that will be questioned, and likely be legally challenged. it will be a political hot potato,” said Mbekezeli Benjamin of Judges Matter.
“The narrative that the judiciary is captured will continue if the chief justice is the same person who made the findings, and he could be seen as having been rewarded by the president — however unmerited this is.
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