Former MP Tony Yengeni. (Photo by Darren Stewart/Gallo Images via Getty Images)
It was foretold Chief Justice Raymond Zondo’s findings on state capture would be cited as proof that he is beholden to President Cyril Ramaphosa.
Former MP Tony Yengeni’s complaint to the Judicial Service Commission (JSC) accusing Zondo of impeachable misconduct perhaps merely confirms that a political class’ campaign against the judiciary is more about power than populist notions and, inadvertently, its own weakness.
Halfway through his complaint, Yengeni acknowledged that “a chairperson of a commission of inquiry does not perform the role of a judge”. As a result, Zondo’s findings do not carry binding force, but serve as recommendations to the president.
Observers said this points to the obvious legal hurdle that as chair of a commission of inquiry Zondo was not acting in a judicial capacity but as the head of a commission whose mandate required him to draw conclusions on events laden with politics.
Yengeni, an ally of suspended ANC secretary general Ace Magashule, accused Zondo of breaching the judicial code by straying into politics and showing himself partisan to Ramaphosa in a year when the faction-riven ruling party is set to elect a new leader.
The high water mark of his complaint concerns Zondo’s observation that had Ramaophosa not contested and won the presidency of the ANC in 2017, and subsequently removed Malusi Gigaba as finance minister, the latter may well have undermined national treasury to advance the Guptas’s interests.
“On the face of it, this subjective finding demonstrates the chief justice’s foray into intra-party politics which, I believe, is a gross violation of the Code of Judicial Conduct and, quite dangerously, may have the effect of fanning factional fires within the ruling party, the African National Congress, and influence delegates’ political voting patterns at the ruling party’s elective conference in December 2022,” Yengeni said.
He argued that it promoted Ramaphosa’s “political fortunes because it prompted newspaper headlines casting the president as a hero, he added, and similarly advantaged other politicians who – according to Zondo’s findings – had sought to oppose attempts to capture the treasury.
“There is more… He has also singled out members of the African National Congress for similarly crude and not so subtle promotion.”
Yengeni argues that testimony to support Zondo’s statement was never presented to the commission, nor subjected to cross-examination, and that it was not necessary for Zondo “in his judicial capacity” to venture here.
But the commission heard evidence that Gigaba was associated with the Guptas and it is plain fact that he was sidelined by Ramaphosa. Similarly, he heard evidence that Nhlanhla Nene and Pravin Gordhan resisted attempts to subvert the treasury.
Zondo wrote the following: “The Guptas gave President Zuma another of their friends to appoint, namely Mr Gigaba.
“It does not appear that he was able to do much for the Guptas as finance minister. Had it not been for the fact that at the end of 2017, the ANC would have an elective conference where Mr Ramaphosa – who was already deputy president of the ANC and the country – would stand as a candidate to take over from Mr Zuma, more damage could have been done to the national treasury under Mr Gigaba than may have been done.
Law professor and political analyst Richard Calland said the complaint was vexatious.
“It’s such a bum note, an abuse of process, designed to obfuscate and perpetuate the RET narrative that Zondo is ‘factional’, when in fact he is just doing his job.”
Yengeni has been a fixture at the criminal trials of both Magashule and former president Jacob Zuma, who count as figureheads of the Rapid Economic Transformation faction constituting the main intra-party opposition to Ramaphosa.
The Judicial Service Commission Act is silent on complaints relating to work conducted in a non-judicial capacity, but there has been fair warning from commentators and academics on the risks implicit in naming sitting judges to head commissions of inquiry.
Professor Cora Hoexter said in a chapter of the text book The Judiciary in South Africa that there is a particularly strong tradition since 1994 of the executive asking judges to perform non-judicial functions. But, she wrote, this carried a threat to the independence of the judiciary and the Seriti commission of inquiry into the late 1990s arms deal served as a particularly fraught example.
It was, Hoexter wrote some eight years ago, “difficult to imagine a more explosive political issue that the arms deal, or subject more likely to lead to ‘judicial entanglement in matters of political controversy’.”
But state capture dwarfed the arms deal. Zondo has recounted that it fell to him to head the commission probing the country’s biggest post-apartheid scandal because Mogoeng Mogoeng, who was chief justice at the time, could not find a retired judge who was available.
The findings of the Seriti commission lead to a complaint to the JSC, filed in 2020 by Shadow World Investigations and Open Secrets.
They accused retired judges Willie Seriti and Hendrick Musi of misconduct for failing to gather evidence and ignoring crucial information to conclude there was no evidence of corruption in the multi-billion rand deal. The report was set aside by the high court in 2019. Shadow World Investigations alleged that they flouted article 5 of the Code of Judicial Conduct, which requires judges to behave in a manner befitting judicial office at all times and to avoid impropriety in all their activities.
In May last year, Zondo found that the complaint merited referral to the Judicial Conduct Committee.
Seriti, who chaired the commission, and Musi, who served as a commissioner, responded by filing a legal challenge to the constitutionality of the JSC Act. They have argued that the definition of judges as including those no longer in active service is irrational and a violation of section 177 of the Constitution.
Section 14 of the Act provides for complaints against judges for any conduct “that is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts”.
In the case of Mogoeng, his impugned remarks on South Africa’s foreign policy towards Israel found him commenting not from the bench but, as he stressed, in his private capacity.
The Judicial Conduct Committee held that even there he remained bound by the lawful restrictions of his profession, which confined judges to pronouncing only on the legal limits that apply to those in politics.
The committee’s investigation into the complaint against Seriti and Musi has been placed on hold pending the outcome of their court application, hence it has yet to pronounce on any judge’s conduct in a commission of inquiry. In the case of Seriti, the complainants have the benefit of a court finding that the judges failed to carry out their mandate. Yengeni does not.
His complaint carries an echo instead of one recently filed by public protector Busisiwe Mkhwebane against retired justice Chris Jafta after the constitutional refused to hear her application to rescind a judgment in which he upheld the high court ruling setting aside her report on donations to Ramaphosa’s 2017 campaign to become ANC president. She found he had lied to parliament and should face criminal investigation.
Mbekezeli Benjamin, of Judges Matter, said it was unlikely the JSC would entertain Yengeni’s complaint as the judicial code of conduct “would not apply easily” in this instance, because Zondo was not performing a judicial function while chairing the commission.
“The complaint also ignores the context in which Zondo comes into this because he was appointed to head a political commission to investigate whether certain things
happened, and through making those findings and conclusions, obviously some of
them will have political implications,” said Benjamin.
Hence Zondo is not drawing himself into a situation, but rather “he was drawn into that by virtue of the appointment of a judge as head of a political commission of inquiry”.
He stressed that a commission of inquiry appointed by the president is not a judicial function but rather “a policy-making process”, usually with little legal effect.
“In essence, the only thing the judge is doing is applying his or her forensic analytical skills as a lawyer.”
Benjamin said they were also approached because of the gravitas they lent to the endeavour.
“Politicians use that prestige to try and dress up a commission of inquiry as something authoritative,” he said. “So it is one thing when a retired judge is appointed to that position but when a sitting judge is appointed, especially a deputy chief justice, that is a big no-no, and sadly this situation is proving why it is such a bad idea.”
When it emerged that Zondo was in the running to become chief justice there were warnings aplenty, including from Benjamin, that there was a risk that if he was appointed some may try to cast it as reward for finding a certain way.
With four of the five instalments of his report released to date, Zondo has made no personal findings against Ramaphosa, but has been scathing of the ruling party’s conduct. He has said he would not hesitate to find against the president if need be and that he believes himself to be impervious to political pressure.
JSC spokesperson Sesi Baloyi confirmed that Yengeni’s complaint had been received and said it would go through the same as any other filed to the commission. It has not yet taken a decision on Mkhwebane’s complaint against Jafta.
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