NEWS & ANALYSIS

Ray Zondo's nomination for DCJ has our support, but... – Mmusi Maimane

DA leader says President needs to apply his mind to certain outstanding issues

DA Leader officially responds to the nomination of Justice Zondo as new Deputy Chief Justice

15 March 2017

In terms of his obligation under section 174(3) of the Constitution, President Jacob Zuma wrote to me requesting my views and input on his decision to nominate Mr Justice Raymond Zondo as the new Deputy Chief Justice of the Republic of South Africa.

I have today responded in writing to his request, outlining my support for the nomination of Mr Zondo, while drawing the President’s attention to a handful of concerns pertaining to the candidate which require further consideration. The full response can be accessed here.

We approach candidates for judicial appointment with one central thing in mind: Judicial independence is of paramount importance in any Constitutional democracy, but especially so in a young democracy which is still working to establish and entrench the institutions that make a democracy work for the people and limit the power of individuals.

To us, it is essential that appointees to the bench in South Africa observe, and evince, a genuine strict independence from the Executive, from party politics, from corporate interests, from organised religion, and all other external interests. In the South African context, this more often than not manifests itself in judges having to stand opposed to unfair, prejudicial or unconstitutional actions by a powerful state. This judges must be comfortable to do without fear or favour.

Furthermore, I appealed to the President, as head of the national executive, to take the lead in fostering an attitude of respect towards the courts, particularly the Constitutional Court - the highest in the land. The courts are not a burden to Constitutional democracy, but are given a particular Constitutional mandate to both protect and advance the Constitution and all that it embodies.

Text of letter:

14 March 2017

His Excellency J. G. Zuma

President of the Republic of South Africa

Tuynhuys

Plein Street

Cape Town

8001

Dear Mr President,

consideration of the appointment of mr raymond zondo as the deputy chief justice of the republic of south africa

Your letter dated 03 March 2017 refers, in which you state your intention to nominate Mr Justice Raymond Zondo to the position of Deputy Chief Justice of the Republic of South Africa.

After careful thought and consideration, I wish to formally give my support for your decision to appoint Mr Zondo to the position of Deputy Chief Justice.

Justice Zondo has both the skills and the requisite experience to be appointed as Deputy Chief Justice. His resume includes experience in the North Gauteng High Court, a ten year term as Judge President of the Labour Court, as well as being a permanent member on the bench of the Constitutional Court since September 2012.

We approach candidates for judicial appointment with one central thing in mind: Judicial independence is of paramount importance in any Constitutional democracy, but especially so in a young democracy which is still working to establish and entrench the institutions that make a democracy work for the people and limit the power of individuals. To us, it is essential that appointees to the bench in South Africa observe, and evince, a genuine strict independence from the Executive, from party politics, from corporate interests, from organised religion, and all other external interests. In the South African context, this more often than not manifests itself in judges having to stand opposed to unfair, prejudicial or unconstitutional actions by a powerful state. This judges must be comfortable to do without fear or favour.

Section 165(2) of the Constitution states that the judiciary is an independent organ of state that is “subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. The Constitution requires the courts to be the guardians of the Constitution. The important point here is that the Constitution does not simply create an independent judiciary, rather it entrusts to the court, especially the Constitutional Court, to advance the spirit and purports of the Constitution.

An independent judiciary is crucial to ensure accountability. In particular, the Constitutional Court has a large role to play in this regard. A large number of matters referred to the Constitutional Court concern the exercise of State power.

Yet, there are those in government who view the judiciary as a hindrance and an inconvenience. This must be denounced in the strongest terms.

Judges’ entire loyalty must be to the Constitution alone, and in particular to the Bill of Rights. This is one of the chief ways in which the poor and vulnerable in our society can be protected from power abuse, whether that abuse happens at the hands of the state, or indeed at the hands of corporate powers. In addition to this foremost consideration, any nominee must also obviously display exceptional legal competence, a comprehensive grasp of the law, and ability to argue forcefully and laterally without having his or her judgments constantly overturned on appeal.

To the best of our ability, we have attempted to scrutinise Justice Zondo’s record against this standard, and we have satisfied ourselves that Justice Zondo has displayed the necessary legal ability and firm independence that the office of Deputy Chief Justice requires.

Having said that, I would like to draw your attention to three matters of concern regarding the candidate, which ought to be fully considered before the final appointment is made.

  1. Questionable claims for transport and living expenses. In 2007, the Minister of Justice and Constitutional Development disclosed to Parliament that the candidate had been paid R1 275 493 in transport and living allowances over a five year period on top of a salary of R704 475 per annum. Concerns were raised as to the appropriateness of these seemingly excessive claims, paid to Justice Zondo in his capacity as Judge President of the Labour Court. This has yet to be interrogated further.
  2. Failure to timeously disclose a material interest in a matter in which he sat. In the matter of Hlophe v Premier of the Western Cape Province, Hlophe v Freedom Under Law & Others (CCT 41/il, CCT 46/11) [20121 ZACC 4 (30 March 2012), Justice Zondo failed to disclose, in advance of the hearing of that matter, that he had been involved in earlier attempts to mediate the matter that was before the court – a dispute between several judges of the Constitutional Court and Judge President of the Western Cape High Court, John Hlophe. That fact was only disclosed after the hearing, and shortly before judgment was handed down. Although none of the parties sought his recusal once he disclosed his interest in the proceedings, the matter ought to have been raised timeously so that if parties had wished to, they could have sought his recusal prior to the candidate participating in the process of preparing a judgment. This is a serious matter, and ought to be raised with the candidate.
  3. SMS case: Deference to the Executive. In the candidate’s judgment in the “SMS case”, Justice Zondo ruled that the SMS in question constituted a statement of fact which was false and, accordingly, was in violation of the Electoral Act and Code. He found that an ordinary, reasonable reader of the SMS would have understood it to mean that the Nkandla Report explicitly concluded that President Zuma stole taxpayers’ money to build his R246 million home – which the Nkandla Report did not do. To understand the SMS otherwise would require the reader to review the Nkandla Report in its entirety, which such a reader would not normally do. In our view, this judgment was not only an erroneous interpretation of the Electoral Act and Code, but also undermined the Constitutional protection to freedom of expression so long as such expression is ‘fair comment’, and most importantly, indicated a deference towards the Executive in such a highly politicised and sensitive case. Fortunately, the Constitutional Court upheld the Democratic Alliance’s assertion that the SMS was fair comment. However, we take careful note of Justice Zondo’s view in the matter.

Finally, may I take this opportunity to raise a concern regarding your own views on - and attitude towards - the judiciary.

You have, in the past and again more recently, made public comments which point to an official attitude on your part that the judiciary is increasingly seen as a hindrance for government. This poses an obvious threat to the inviolable independence of the judiciary. One can only interpret these public assertions as you wanting to see the courts acting less often to inhibit illegal, irrational and unconstitutional actions by the Executive.

I therefore wish to take this opportunity to urge you, as head of the national executive, to foster an attitude of respect towards the courts – particularly the Constitutional Court, the highest in the land. And that this attitude of respect is echoed by the executive and the government at large. The courts are not a burden to Constitutional democracy, but are given a particular Constitutional mandate to both protect and advance the Constitution and all that it embodies.

I trust you will give due consideration to all the contents above.

Kind regards,

Mmusi Maimane MP

Leader of the Official Opposition

ENDS

Issued by Mmusi Maimane, Leader of the Democratic Alliance, 15 March 2017