Molifi Tshabalala
South Africa finds herself at a similar crossroads as in 2009, namely a pending chief justice’s appointment while her independent judiciary has come under siege from one of the two main factions within the African National Congress (ANC).
It appears that her judiciary comes under siege whenever the legal odds have been stacked against Jacob Zuma, who had ascended into the ANC and South African presidencies while hundreds of counts of corruption, fraud, money laundering, and racketeering had hovered over his head.
In 2007, remarking at his 60th birthday towards a watershed 52nd ANC National Conference, where the Zuma faction had emerged with a winner-takes-all victory within the party’s upper echelons, the then Deputy Chief Justice Dikgang Moseneke asserted: “It’s not what the ANC wants or what the delegates want, it is about what is good for our people”.
Perhaps the revered justice, whose remarks had drawn the ire of ANC national chairperson Gwede Mantashe (then the secretary-general), knew that he would not be appointed the Chief Justice when the late Pius Langa retired in 2009.
Likening his remarks to “a political statement,” the national chairperson stated that he had “joined a chorus of criticism against ANC delegates and then expects the ANC to view him as an impartial judge”. Mantashe, whose former fellow trade unionist and author Ibrahim Harvey contends that he not only “often overreaches himself,” but also “shoots from the hip,” described the Constitutional Court (CC) justices, including Moseneke, as the “counter-revolutionary forces” who used Cape Town Judge President John Hlophe to pounce on Zuma.
The justices had lodged a complaint with the Judicial Service Commission (JSC) against the judge president for alleged judicial misconduct. Hlophe, who was touted as Langa’s successor, had attempted to influence two of their colleagues – Baaitse ‘Bess’ Nkabinde and Christopher ‘Chris’ Jafta – to rule in favour of Zuma in a case that related to the foregoing charges, went to lay their complaint.
Rather, in its majority judgement, the CC ruled in favour of the state, with only Sandile Ngcobo dissenting. Opining on his dissension, a renowned South African constitutional law expert, Pierre de Vos, predicted that it “will not go unnoticed”.
Indeed, it did, as Zuma had appointed him the Chief Justice, albeit Moseneke had more years left on the bench than him. Before his recall from government in September 2008, Mbeki had intended to appoint Moseneke as the chief justice.
To De Vos, Ngcobo’s dissension must have begged the question as to whether Hlophe had improperly influenced him or not. In a report released in April 2021, the Judicial Conduct Tribunal (JCT) found Hlophe guilty of gross misconduct. However, the JCT could not dig further to ascertain whether he had anything to do with his dissension or not.
As the legal odds have stacked against Zuma over allegations of state capture, the judges and the judiciary have come under siege from him and some among his key factional supporters with a narrative that they are captured without producing sheds of evidence.
They have allegedly received thousands of rand from President Cyril Ramaphosa’s ANC presidential campaign, dubbed the CR17 Campaign. Hence, goes the narrative, their judgments favour the ANC president and his key factional supporters, most notably Pravin Gordhan (a minister of public enterprises who was a key CR17 Campaign fund-raiser), on one hand , and disfavour Zuma and his key factional supporters, most notably suspended secretary-general Ace Magashule, on the other hand.
The judiciary has also come under siege from the EFF president Julius Malema and his deputy, Floyd Shivambu. The duo jumped on the bandwagon of the narrative after the former had met Zuma at his residence in Nkandla, KwaZulu-Natal, to convince him to appear before a state capture commission (SCC), chaired by Deputy Chief Justice (DCJ) Raymond Zondo.
The meeting followed Zuma’s refusal to return to the SCC and continue with his testimony on specific questions. Rather, he had brought an application for Zondo to recuse himself as the chairperson, claiming that the DCJ is biased because, among other reasons, he has a child with one of his wives’ sisters.
Zondo, who is one of the four candidates to succeed Mogoeng Mogoeng as the Chief Justice, dismissed his application.
While the SCC, also known as the Zondo Commission, had adjourned to decide whether he should continue with his testimony or not, pending his intended court application on the matter, the former ANC president literally fled. He defied the CC’s orders to appear before the SCC and answer the questions, thus leading to his 15-month imprisonment.
In an apology for his blatant disrespect for the rule of law, Shivambu implored Ramaphosa to grant the 79-year-old a presidential pardon. Before his imprisonment that had triggered a wave of unprecedented unrest in KwaZulu-Natal and some parts of Gauteng and Mpumalanga, Zuma had unleashed a tirade of attacks on some judges and the judiciary as a whole in a series of public statements.
In a statement read at a prayer event to welcome him from prison, the former president continued. In all fairness to Zuma, who has amassed a high legal costs bill, and other narrative peddlers, some among the key Ramaphosa factional supporters have also peddled the narrative.
In his testimony before the SCC, ANC Free State interim provincial committee (IPC) convenor Mxolisi Dukwana stopped short of asserting that Magashule’s web of capture in the province had extended to the judiciary.
Apart from the magistrate and regional courts as well as Bloemfontein High Court, the Supreme Court of Appeal (SCA) is in the Free State. According to Dukwana, they could not win any case against the Magashule-led Zuma faction until their matters had reached the CC, located in Joburg.
One of the matters that lend credence to his assertion is Ramakatsa and Others v Magashule and Others. In it, delivered on the eve of the 53rd ANC National Conference, the CC nullified a provincial conference, where the Magashule faction had emerged victorious.
Zizi Kodwa has also peddled the narrative without producing evidence but called for an investigation. However, unlike other narrative peddlers except for Zuma, he must have peddled it based on classified information at his disposal.
For example, the State Security Agency (SSA) had conceptualised Project Justice, aimed at bribing judges to favour Zuma (judicial capture), testified Sydney Mufamadi and Loyiso Jafta, a security adviser to Ramaphosa and a former acting SSA director-general respectively, before the SCC. As a deputy minister in the Presidency who is responsible for state security, Kodwa is of course privy to the project and its details.
Before his retirement, Mogoeng had called on the narrative peddlers to furnish him with evidence of corruption against judges, but none did. Incidentally, he rejected a R600 million donation to technologically modernise the South African courts because it smacked of a recipe for judicial capture.
Clearly, South Africa needs a chief justice who can demonstrate strong leadership to preserve her judicial independence from centrifugal intra-ANC factionalism, as the narrative is increasingly laying a fertile ground for real judicial capture, especially if the Zuma faction could regain party dominance at its 55th National Conference and the ANC holds on to state power by an outright majority in 2024. Going beyond academic qualifications and experiences of the candidates in line with his promise to fight corruption, Ramaphosa should consider three factors.
First, he should consider the contemporary nature of intra-ANC factionalism, especially its main conflict mutation. For Zuma and many among his key factional supporters, the winner-takes-all leadership change at the 52nd ANC National Conference represented it is our turn to eat (to paraphrase Kenyan author Michela Wrong’s seminal book title), with a zero-sum competition over access to and control of benefits of state patronage, especially office and tender pay-offs.
If the allegations of state capture against them are anything to go by, then the majority of them must have made ends from the proceeds of grand administrative corruption. Their primary political objective, therefore, is no longer the office and tender pay-offs. Rather, it is to regain access to and control of the critical law enforcement agencies, especially the Directorate of Priority Crime Investigation (DPCI) and the National Prosecuting Authority (NPA), to protect themselves from prosecution.
They also seek access to and control of the Presidency and other equally critical public institutions, such as the Department of Justice and Correctional Services and the parole board, to grant themselves paroles, presidential pardons, or remissions of sentences. This, in a nutshell, constitutes the contemporary nature of centrifugal intra-ANC factionalism.
Second, Ramaphosa should consider the fact that he may not make it for a second term as the South African president, be it if his faction fails to retain party dominance at the 55th ANC National Conference or the ANC fails to muster an outright majority in 2024. Alluding to him, Zuma has reiterated that leaders who have failed to implement party policies should be removed.
Strategically, as he is straddled (with one leg inside government and the other leg outside government in that he would be recalled if his faction fails to retain party dominance), the president should appoint Zondo at least until 2024, the year in which the ANC is most likely to remain below 50% following a 2021 local government election (LGE), to preserve the country’s judicial independence. Without an ANC outright majority, it would be arduous for the Zuma faction to engage in judicial capture.
By pushing for Zuma’s imprisonment, the DCJ has already demonstrated requisite leadership to preserve judicial independence, which is indispensable to strengthen our constitutional democracy. In the spectre of information warfare, it appears that Zuma and his henchmen within an intelligence community, most notably Arthur Fraser, a former national correctional services head who released him on medical parole, have no mud in their hands to throw at the 61-year-old to impugn his integrity. The intelligence community, as Stephen Ellis points out in ‘’External Mission’’, constitutes Zuma’s “key institutional base”.
Third, Ramaphosa should appoint Zondo to ensure leadership continuity within the upper echelons of the judiciary. Apart from imprisoning him for 15 months, the CC ordered Zuma to pay for a portion of the non-security features at his Nkandla residence, twice suspended an unlawful contract between Cash Paymaster Services (CPS) and the South African Social Service Agency (SASSA) to prevent a social grant payment crisis, and ended a leadership crisis (largely borne out of Zuma’s appointments) at the NPA to name but a few. The apex court, in essence, has prevented the country from teetering further into a failed state while the ANC-dominated Parliament failed to hold the executive to account.
While the three other candidates (Mandisa Maya, an SCA president; Mbuyiseli Madlanga, a CC justice; and Dunstan Mlambo, a judge-president of the Gauteng Division of the High Court) equally deserve to succeed Mogoeng, the DCJ, who has outsmarted Zuma at his own game (Staling grand strategy) stands out on the second and third factors. As part of breaking the glass ceiling, it would be good to have Maya, who is the youngest of the four candidates, as the first female chief justice, not to mention a black one.
However, bearing in mind that our judicial independence is at stake, the president should primarily consider her candidacy based on the second and third factors, as this is not necessarily the time to make history. To her disadvantage, the public tends to be less critical of historically first-time office bearers.
Molifi Tshabalala is a political writer