Judges Vandalizing the Constitution to Spite President Zuma?

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By: Paul Ngobeni

The cruel, mean-spirited, disgraceful and unconstitutional decision of Judge Pillay to issue a warrant for the arrest of former President J. G. Zuma must be seen in the context of the anti-African hysteria manifesting itself in most of our state institutions. By all accounts, the elderly President Zuma, who has never missed a court hearing in the entire decade was required to appear as an accused person, has an undisclosed serious illness which has forced him to seek specialized medical treatment abroad.

Early February 2020 Zuma’s legal representatives appeared in court and informed the court that their client was overseas receiving medical treatment. Additionally, he presented a medical certificate to bolster his assertions and to shed light on the fact of Zuma’s illness. Without question, Zuma’s failure to appear was not willful – it was due to illness and it was impossible for him to appear in person given that he was receiving medical treatment overseas.

Inexplicably, Pillay rejected the doctor’s note and issued an arrest warrant for President Zuma. This was not just a gratuitous act of cruelty and humiliation for Zuma but it represented unprecedented gross abuse of judicial power out of kilter with the dignity jurisprudence of our Constitution.  A reasonable judge would have sought clarity from the medical experts or at the very least inquired further into the circumstances of Zuma’s absence from the country and his medical condition before resorting to the draconian measure of issuing an arrest warrant for a seriously ill former president.

In the Wretched of the Earth, Frantz Fanon (1967) warned us not to expect seismic changes in our revolution and that we must not expect the new nation to produce new men. South Africa could not be an exception – white and Indian judges with ingrained anti-African attitudes will continue to treat Africans with absolute contempt and disdain and no amount of “transformative constitutionalism” can change that.  Judge Pillay appears insouciant that human dignity is stated in section 1 of the Constitution to be a foundational value of our democratic state.   Section 10 of the same Constitution provides: ‘Everyone has inherent dignity and the right to have their dignity respected and protected.’ Dignity jurisprudence is used frequently in judicial decisions for maximum protection of human rights, for example our courts have invoked dignity to proscribe the criminalisation of sodomy as well as to allow for the recognition of same-sex partnerships, adoptions, and, most recently, marriages. In finding that the death penalty was an unlawful violation of the Constitution in S v Makwanyane and Another (CCT3/94) [1995] the Court found that the rights to life and dignity are the “most important of all human rights” as well as “the source of all other personal rights” set out in the Bill of Rights. How could Pillay miss that? A deeper analysis is required to understand the Zuma arrest warrant decision and I conclude that only unbridled anti-African bigotry and feckless disregard of the constitution can explain the issuance of the said arrest warrant.

Apartheid not only branded black South Africans as inferior – the legal essence of apartheid was to subordinate, discredit and stigmatise blackness and white judges accepted the notion that black people were inherently unreliable as witnesses and created all kinds of artificial barriers before evidence of black Africans could be credited in court. Some judges went further and purported to take judicial notice that black Africans were inveterate liars and inherently unreliable as witnesses.  In this context martyred Steve Biko viewed black people’s struggle against racist oppression as being against “forces that seek to use your blackness as a stamp that marks you out as a subservient being”. Biko, I Write What I Like, at 53. Biko proclaimed that the fundamental tenet of black consciousness was that the black man must reject all value systems that seek to make him a foreigner in the country of his birth and reduce his basic human dignity.  What Judge Pillay did was to cast aside the dignity jurisprudence she was constitutionally obligated to uphold, the judge became predisposed to interpret Zuma’s inability to attend court consistently with her anti-Zuma baseline and inherited apartheid myopia. Medical certificates that cried out for further clarification became clear evidence of deception and lies to her; investigation or further engagement with the medical professionals seemed superfluous or unnecessary. The judge became disproportionately receptive to arguments by the NPA pointing to willful wrongdoing, even though Zuma’s lawyers presented evidence that he indeed traveled abroad for medical treatment. Fueled by this anti-Zuma bias the judge became curtly dismissive of contrary evidence showing that neither Zuma nor his lawyers engaged in falsehood and deception when they asserted that he was very sick and was receiving medical treatment abroad.  Zuma was deemed undeserving of the right to dignity routinely and rightly accorded to gays and lesbians.  He was “discredited” and his representations given short-shrift treatment by a judge who did not give a damn about due process rights for Africans.

I am by no means arguing that Zuma is entitled to molly-coddling or favourable treatment from judges by virtue of his status as former President of our country.  On the contrary, I argue that he is entitled to equal treatment and to be judged like any other criminal defendant charged with an offence. Unfortunately judges with ingrained anti-Zuma prejudices are completely unable accurately to judge reality where they deal with matters involving Zuma.  Such judges are liable to pervert the course of justice or abuse their vast judicial powers to settle political scores at the behest of their political allies with an axe to grind against Zuma.

I have previously written about evidence of judicial misconduct equaling corruption based on the High Court’s recent judgments involving President Zuma’s application for a permanent stay.  There, a simple issue presented to the full bench in KZN was whether a losing defendant in a criminal case must be condemned to pay costs.  That simple question had already been answered by the Concourt in another permanent stay case, Sanderson v Attorney- General, Eastern Cape 1998 (1) SACR 227 (CC) (1998 (2) SA 38; 1997 (12) where Kriegler J stated at para [44]:

“Ordinarily the dismissal of a claim such as this in the High Court should not carry an adverse costs order. It is not a suit between private individuals; it relates directly to criminal proceedings, which are instituted by the State and in which costs orders are not competent; and the cause of action is that the State allegedly breached an accused’s constitutional right to a fair trial. Although the appellant failed to establish the constitutional claim he advanced, it was a genuine complaint on a point of substance and should therefore not have been visited with the sanction of a costs order.”

When it came to Zuma the full bench of senior KZN judges flagrantly ignored this controlling precedent that costs orders are not competent and ruled that Zuma must pay the costs for his unsuccessful application.  It is mind-boggling that former Concourt judge Kriegler who authored the Sanderson judgment and his racist NGO outfit “Freedom Under Law” have maintained a deafening silence in the face of this blatant misreading of the law by the KZN senior judges.  Are they quite because Sanderson was white and Zuma is an African? Our judiciary cannot retain its legitimacy and public confidence when clear legal rules are deliberately ignored or perverted when it comes to adjudicating Zuma’s cases.  It would certainly be incongruous if the principle “ignorance of the law is no excuse” applies to everyone but those judges charged with interpreting and applying the law to others.  No amount of feigned constitutional fatigue about Zuma’s cases or collective “end justifies the means” approach can ever obfuscate the fact that some members of the judiciary have apparently been mobilized to join the lynch mob gunning for Zuma. It is unconscionable that elderly Zuma whose health is reportedly failing is pushed to litigate a gross judicial error for another couple of years.