Chief Justice Raymond Zondo. (Photo by Veli Nhlapo/Sowetan/Gallo Images via Getty Images)
Acting Chief Justice Raymond Zondo was placed in an impossible situation by Tourism Minister Lindiwe Sisulu’s diatribe against the judiciary – damned if he responded and damned if he did not, constitutional law expert Pierre de Vos said on Thursday.
The minister’s remarks were plainly unacceptable but any response from the judiciary carried in itself the risk of being used for more politicking by those intent on undermining the institution, he said.
“In the abstract it was not a problem,” De Vos said of Zondo’s intervention.
“In this particular case I think it was unwise because it will be exploited by those who want to undermine the judiciary, and it has the risk of drawing the judiciary further into dirty political fights that it should try and stay out of.”
He ventured that this was probably part of Sisulu’s aim when she launched an extraordinary attack on the judiciary, in particular African judges, whom she inferred were beholden to oppressive ideology and likened to “house negroes”.
“Instead of de-escalating the comments might just have further escalated matters.”
But he added: “I understand why he did it. The comments of the minister were completely outrageous and also factually baseless.”
“You are basically damned if you do and damned if you don’t. Because the attack obviously is, like previous attacks, aimed at destroying the legitimacy of the judiciary. If you don’t respond then the baseless attack stands, if you do respond then the response is used by those who want to destroy the judiciary for their own purposes.
“So it is an impossible situation. In that situation I think it was probably better not to say anything.”
Zondo spoke out after the presidency said nothing for five days after the first publication ran Sisulu’s op-ed in which she claimed that South Africa’s “beautiful constitution” had proven nothing but a palliative for the victims of historical injustice.
“The most dangerous African today is the mentally colonised African. When you put them in leadership positions or as interpreters of the law, they are worse than your oppressor. They have no African or pan-African inspired ideological grounding. Some are confused by foreign belief systems,” Sisulu wrote.
“When it comes to crucial economic issues and property matters, the same African cosies up with their elitist colleagues to sing from the same hymn book, spouting the Roman Dutch law of property.”
The ostensible drift of her article was that the judiciary had allowed itself to be used as an instrument for the retention of economic power by a small elite.
Zondo said hers was possibly the worst insult hurled at the judiciary yet. He was speaking after a year in which former president Jacob Zuma and his supporters have relentlessly attacked the judiciary and accused senior judges of taking bribes.
Observers, including De Vos, believe it is plain that Sisulu was staking a political claim within a battle for control of the ANC.
“The aim of the article was clearly to signal, without saying so explicitly, that she is aligning herself with the Zuma approach,” he said.
Former constitutional court justice Johann van der Westhuizen said there were worrisome precedents for remarks of the nature made by the minister.
“As a retired constitutional and high court judge, I am no expert on minister Sisulu’s possible presidential ambitions. Her statements sound like an unsophisticated and baseless attempt to win support in a blatantly populistic manner,” he told the Mail & Guardian.
“Populism often is downright dishonest, as Trump in the US and Goebbels in Nazi Germany have shown.”
Van der Westhuizen added: “Political rulers let the poor down in this country, much more than the constitution and the courts would even be capable of doing.”
Judges Matter researcher and advocacy officer Mbekezeli Benjamin said he thought Zondo’s repudiation of Sisulu was “a good intervention in terms of the judiciary speaking” but issuing a statement rather than calling a briefing, would have sufficed.
“It was insulting coming from a senior member of the government and a response was necessary but I think he should not have given it so much time because now it has elevated what was really an incoherent piece. So I don’t think the chief justice should have entered that debate but simply issued a statement saying we find this unacceptable, and left it at that.”
Zondo took questions from the media, including whether he consulted with the presidency before making a statement, and if not, why not. He replied that the judiciary was independent.
Benjamin said this was fair, but unfortunately other questions “started dragging him further and further into this forest of political issues”.
He noted that even though the president had remained silent so far, others within the ANC had spoken out, notably party veteran Mavuso Msimang. Sisulu responded to that by digging in her heels, and publishing a reply that raised further controversy for, charitably put, borrowing wholesale from a speech by the former Lord Chief Justice of the UK, Lord Tom Bingham in which he cited legal philosopher Joseph Raz.
“It is plagiarism,” said Benjamin, a sentiment echoed by other law scholars on Twitter.
“The attorney-general of the UK paraphrases Joseph Raz and then Lindiwe Sisulu simply lifts this straight from the attorney-general’s speech without any attribution.”
He said though objectionable, this was almost a footnote to the other problems inherent in her second article, and those posed by her response, on social media, to Zondo. She tweeted that she was taking legal advice.
“Basically a member of parliament and a member of the executive is fighting with the judiciary, with the most senior member of the judiciary. That does not bode well for the constitutional arrangement we have in South Africa.”
The Raz citation has raised questions as to who penned Sisulu’s attack on the judiciary. When this was put to Zondo, he replied by saying she signed her name to it and therefore accepted responsibility.
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