By: Paul M. Ngobeni
May I start off with an apology for at times addressing the Honorable Deputy Chief Justice as “You” instead of using the honorific titles or referring to the “Zondo Commission” throughout this letter. It is simply stylistic short-hand – there is no intent to convey undue familiarity or disrespect for the Honorable Deputy Chief Justice. I write this letter in an emergency situation horrified by the suggestion from the 28 December 2020 Concourt directives that the Chief Justice will participate in the hearing of the Zondo Commission’s application before the Constitutional Court.
The last time I wrote an “Open Letter” to a member of our esteemed judiciary was my letter to former Chief Justice Langa (may his soul rest in peace) and the judges of the Constitutional Court. That was in connection with the well-publicized complaint these justices filed against Judge President Hlophe alleging that that he tried to influence the apex court’s ruling on the validity of the search and seizure warrants used against then ANC president Jacob Zuma. See, Daily News. 20 June 2008 which was also published in the Business Day.
Without laying claim to any gift of prophesy or clairvoyance I warned the judges that they had run afoul of judicial ethics and had plunged the Constitutional Court into a crisis and had destroyed a forum for fair adjudication of the Judge President Hlophe matter. I stated, amonst other things: “…. If media reports that all 11 judges of the court participated in the complaint against Hlophe are correct, then your court has unquestionably violated the common-law adage that no man should be a judge in his own cause.” I also warned about the palpable conflict of interest amongst the judges by stating: “Judicial ethics would certainly preclude such a complaining judge from arranging that all 11 judges, in a well-orchestrated show of solidarity, issue statements adopting the said complaint as a complaint of the entire court. Judicial ethics would certainly prohibit that aggrieved judge from further deliberations on the Hlophe matter because of the apparent and palpable conflict of interests.” I further admonished that “by adopting the said complaint as a consolidated “class action” complaint by all judges of the Constitutional Court (including those who were not contacted by Hlophe) you have effectively put judicial imprimatur on a one-sided complaint process and made findings you felt emboldened to publicise in the press, notwithstanding that the accused had not been afforded a due-process hearing. The Hlophe case cried out for extreme caution aimed at ensuring the impartiality of the remaining uncontaminated pool of jurists. Sadly, your court threw these hallowed constitutional principles overboard and unleashed media frenzy at Hlophe’s expense. In egregious violation of the principles of natural justice, Hlophe was denied an opportunity to respond – he was just tarred and feathered in the press as a corrupt judge. In what court would Hlophe challenge the decision on procedural or constitutional grounds, given that the entire court has transformed itself into a complainant?” Id.
Sadly, I was fully vindicated as Judge President Hlophe’s disciplinary case dragged on for a full twelve years and is to date still far from resolution. The predicted conflict of interest was laid bare when the two justices, Jafta and Nkabinde broke ranks and embarked on separate litigation of their own, retained separate legal counsel and denied that they were ever complainants. The premise of my letter is that I take very seriously the Constitutional Court’s admonition that judicial openness is essential to the continued democratic governance of South Africa. In S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) para 29, the Court elucidated even further the importance of an open judiciary, saying:
“Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud, or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self evidently such informed and vocal public scrutiny promotes impartiality, accessibility, and effectiveness, three of the important aspirational attributes prescribed for the Judiciary by the Constitution.”
Against this background I wish to address salient points in the embarrassing, incoherent, legally flawed Concourt application filed on the Commission’s behalf by the Secretariat of the “Judicial Commission of Inquiry into Allegations of State Capture,. Corruption and Fraud in the Public Sector including Organs of State.” Briefly, Professor Mosala notice of motion beseeches the apex court to order that former President Zuma shall answer any questions put to him — “subject to the privilege against self-incrimination, and may not rely on the right to remain silent.” He asks the court to declare that Zuma is constitutionally obliged to appear before it and to comply with any summons it has issued. Mosala claims: “I do not make this application lightly” and argues that even though the Constitutional Court was ordinarily the court last to be approached, rather than first, “I believe that only this court can grant effective and adequate relief … in the grave situation that has arisen.” The application has been made on the basis that the highest court has exclusive jurisdiction to hear the case or, alternatively, that there are exceptional circumstances warranting approaching it directly. I am particularly perturbed by Mosala’s fallacious and misleading statement in paragraph 35.8 of his Founding Affidavit that: “Mr. Zuma’s defiance of the summons also infringes judicial authority protected under Section 165 of the Constitution. The Commission is chaired by the second most senior member of the judiciary. The defiant posture adopted by Mr. Zuma undermines the special role of a judicial commission of inquiry.” A Commission is a tool of the executive and while you serve as a Chairperson you are not performing a judicial function. Therefore, it is uniquely inappropriate and unethical for Mosala to invoke or tout your status as a Deputy Chief Justice to argue that the executive’s commission deserves special status merely because it is led by a deputy chief justice. I deal with this later.
Professor Mosala’s affidavit detailed the efforts made — from as far back as September 13 2018 — by the commission to invite Zuma to respond to allegations against him and secure his attendance to give evidence and to respond to the evidence of more than 30 witnesses that had, or may have, implicated him in state capture. Mosala asserts: “Mr Zuma’s failure or refusal to appear before the commission totalled no less than five weeks of scheduled hearing time. This is apart from the dates of 16 to 20 November 2020, which were also lost as a result of Mr Zuma’s belated application for recusal and his walkout of the commission’s proceedings.”
As you know, President Zuma’s attorney subsequently filed a letter informing the Concourt that: “We are instructed by our client, President JG Zuma that he will not be participating in these proceedings at all.” That means the matter will be heard unopposed today, 29 December 2020. However, if the Concourt scrupulously observes legal principles it will summarily dismiss your application as it is woefully insufficient to persuade the highest court that the matter is urgent, that it should hear its application directly and to find in the Commission’s favour on the merits.
I must first address the legitimacy or justification of President Zuma’s non-participation in the Concourt matter. Thereafter I deal with some parts of the flawed legal argument raised by the Commission.
Understanding Zuma’s Alleged “Snub of the Concourt” in Light of Scandalous Judicial Bias Against Him.
A pivotal question is whether there is any concrete evidence that the judiciary has changed legal principles and misread the law when adjudicating cases involving President Zuma and other officials associated with him? To understand Zuma’s current position or attitude towards the extant court process one must focus on a brewing judicial scandal involving Zuma that will soon unfold for all to see. There is evidence that the courts have misread statutes in matters involving Zuma on the one hand and Ramaphosa and Gordhan on the other.
The Conourt’s judgment in Economic Freedom Fighters v Speaker of the National Assemblyand Others;Democratic Alliancev Speaker of the National Assembly and OthersZACC 11. There the Concourt stated that previous Public Protector Madonsela “concluded that the President violated the provisions of the Executive Members’ Ethics Act7 and the Executive Ethics Code.8These are the national legislation and the code of ethics contemplated in section 96(1).” Specifically, the Concourt cited “ Chapter 1 of the Ministerial Handbook: A Handbook for Members of the Executive and Presiding officers(7February 2007) at pages 7-15. See, footnote #8 of the EFF (Nkandla) judgment.
Section 2.3 of the Executive Ethics Code expressly states that Members may not: “a. Deliberately or inadvertently mislead the President, or the Premier or, as the case may be; the legislature.”
But the judiciary (High Court judges) appears to have taken the position that these provisions of the 2007 Code were only applicable to President Zuma. When Ramaphosa was being investigated for lying to Parliament about the Bosasa payments to his son, he gave a false answer but admitted that he misled Parliament inadvertently. Likewise, when Pravin Gordan did was investigated for lying about attending meeting where a member of the Gupta family was present, he claimed that he was not guilty because he did not “deliberately mislead” Parliament. Incredibly, the High Court judges came to both Ramaphosa and Gordhan’s rescue by relying on an old 2000 version of the Code which only prohibited “deliberately” misleading. This twisting of the law was simply unprecedented in world jurisprudence in that the judges knew that the Executive Ethics Code contemplated by the Executive Members’ Ethics Act was originally published by the President on 28 July 2000 and amended on 7 February 2007. No competent and conscientious judge will ever prefer an older version of a statute that was expressly amended. Further the Public Protector used the 2007 version of the Code in writing several adverse reports against Ministers such as Shiceka (https://www.gov.za/sites/default/files/gcis_document/201409/shicekareport0.pdf) and Premiers (Yes We Made Mistakes: Report of an investigation into the alleged improper procurement of communication services by the Department of the Premier of the Western Cape Provincial Government Report No1 2012/2013 http://uscdn.creamermedia.co.za/assets/articles/attachments/40634_draft_final_report_version_3.pdf) at least since 2010.
Importantly, the Constitutional court’s endorsement of and reliance on the 2007 Executive Ethics Code is binding on all lower courts and it is unfathomable that a High Court judge would resort to using the old 2000 version of the Code in clear defiance of the binding precedent of the apex court. Unquestionably, decisions of the Constitutional Court are binding on all lesser courts based on the principle of stare decisis, which is a juridical command to the courts to respect decision already made in a given area of the law. This means that the High Court must follow the decisions of the courts superior to it even if such decisions are clearly wrong. The statement of principle by Didcott J in Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N) that is thus concisely summarised in the headnote to that judgment is in point:
“The doctrine of judicial precedent would be subverted if judicial officers, of their own accord or at the instance of litigants, were to refuse to follow decisions binding on them in the hope that appellate tribunals with the power to do so might be persuaded to reverse the decisions and thus to vindicate them ex post facto. Such a course cannot be tolerated.“
In practical terms this means that once the Constitutional Court ruled the 2007 Code of ethics was valid and applicable it was no longer open to the High Court to prefer the earlier 2000 version of the Code which had been superceded. The Constitutional Court, in Camps Bay Ratepayers’ and Residents’ Association & another v Harrison & another 2011 (4) SA 42 (CC), paras 28-30, expressed itself in no uncertain terms about observance by courts of the maxim stare decisis or the doctrine of precedent. Brand AJ, in delivering the unanimous judgment of the court said:
“Considerations underlying the doctrine were formulated extensively by Hahlo & Kahn [Hahlo & Kahn The South African Legal System and its Background (Juta), Cape Town 1968) at 214-15]. What it boils down to, according to the authors, is: ‘(C)ertainty, predictability, reliability, equality, uniformity, convenience: these are the principal advantages to be gained by a legal system from the principle of stare decisis.’ Observance of the doctrine has been insisted upon, both by this court and by the Supreme Court of Appeal. And I believe rightly so. The doctrine of precedent not only binds lower courts, but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos.“
(Footnotes are omitted.)
That doctrine requires that a relevant previous decision of the court, even if reached by majority, be followed and applied unless it is to be overruled. In Queensland v Commonwealth, (1977) 139 CLR 585 (Second Territory Senators Case) Gibbs J rightly said that ‘[n]o Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the court’ (emphasis added). That is why, as Gibbs J also pointed out, again rightly, ‘[i]t is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his [or her] own opinions in preference to an earlier decision of the court’.
The differences in the 2000 and the 2007 Code of Ethics are substantial and very important in that the earlier version stated only that “Members of the Executive may not wilfully mislead the legislature to which they are accountable” whereas the 2007 version added the words “may not willfully or inadvertently mislead.” The Public Protector correctly relied on the 2007 version which was used by her predecessor and had received judicial imprimatur from the apex court. Zuma has watched as the High Court engaged in the constitutionally impermissible spectacle of prefering a version of the Code which is favorable to Ramaphosa and Gordhan while ignoring the later version which was used against him in the Nkandla judgment. What would any objective observer think of the undisciplined judiciary if he/she were to walk a mile in Zuma’s shoes?
The High Court has repeatedly emphasized its misreading of the Ethics Code and ruled as recently as the “Rogue Unit” judgment that “the Public Protector’s reading and interpretation of paragraph 2.3(a) of the Executive Ethics Code is wrong in law: The Code prohibits members of the Executive from “wilfully” misleading the legislature. The wording of the Code is clear and does not contain a provision that an “innocent” mistake constitutes a contravention of the Executive Ethics Code.” This deliberate disregard of the Concourt’s “Nkandla judgment” and egregious misreading of the law to favor certain political adversaries is sufficient to make anyone think twice about entrusting their fate in the hands of our judiciary. No one can blame President Zuma if he looses faith in the judiciary that behaves in this fashion.
The war against Zuma by proxy has spoiled over into the Public Protector’s work. In its recent scathing judgment against the Public Protector in the “Rogue Unit” case, the High Court (Baqwa J) embarrassed itself and highlighted its own confusion by concluding that:
To claim that Potterill J “deliberately omitted the words ‘inadvertently mislead’” from the actual Code, is simply astonishing. Besides being a Public Protector, Adv Mkhwebane is officer of this court owes it a duty to treat the Court with the necessary decorum. She not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potteril personally. What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court. She owes Judge Potteril an apology. The Registrar of this Division is requested to send a copy of this judgment to the Legal Practice Council for consideration.
What is truly astonishing is not the Public Protector’s alleged error of law but the flagrant error made by the three judges who claim the Public Protector “not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potteril personally.” Since when has it been contemptuous to point out that a court has resorted to using an old superceded version of a statute to justify a ruling in favour of a litigant? What right-thinking judiciary would order a Public Protector who is virtually the custodian of the Executive Code of Ethics to apologize for correctly insisting that the Constitutional Court precedent be scrupulously followed? What honest and conscientious judiciary would embarrass itself by sending a copy of a totally incompetent judgment to the Legal Practice council with the recommendation that the latter act on it to the detriment of an advocate who happens to be correct on the facts and the law?
The High Court’s misapprehension is further made clear when it states:
- In the matter ofThe President of the Republic of South Africa v The Public Protector (The Information Regulator Amicus Curiae) 12 the full bench of this division similarly criticized the Public Protector’s flawed understanding of the contents of section 2.3(a) of the Executive Ethics Code:
“ Of similar concern is her confusion over the proper version of the Executive Code. She has not explained how she committed this error. Her conduct in this regard goes further than simply having reference to two different versions of that Code. The legal test for a violation of the Code by misleading the National Assembly was fundamentally different in the two versions. Instead of appreciating the difference between the “willful” misleading of the National Assembly, and the “inadvertent” misleading of it, she asserted that if she had made an error at all it was an immaterial error of form over substance. This submission shows a flawed conceptual grasp of the issues with which she was dealing.
 Like any official required to make pronouncements to the public, the Public Protector must surely strive to be as clear as possible in her findings. Her reasoning on the disclosure issue was muddled and difficult to understand. It failed to explain to the public why she had found that the President of the country had wilfully breached the duty of transparency established by the Code. Indeed, her conclusion inexplicably found that at the same time the President had also inadvertently misled Parliament, sowing further confusion.”
The claim that the Public Protector has “confusion over the proper version of the Executive Code” is simply unfounded. The High Court after acknowledging that there were two different versions of that Code simply ignored the latter 2007 version and attacked the Public Protector and her ruling while elevating the 2000 vesrion which favoured Gordhan and Ramaphosa. This erroneous ruling makes clear that those judges attacking the Public Protector daily and hammering her for alleged incompetence are actually the main culprits guilty of gross judicial incompetence or even dishonesty. The dramatic unsavory language and epithets they frequently use against Advocate Mkhwebane in the judgments is used to provoke public condemnation against her and to obfuscate the fact that the judges have been drafted as willing foot soldiers in the titanic battle between Ramaphosa’s forces and those perceived to be sympathetic to President Zuma.
Another serious and legitimate justification for Zuma’s non-participation in the Commission’s Concourt application is the issue of punitive or personal costs which the Commission seeks. You may recall that President Zuma challenged the constitutionality of the Commission and the Public Protector’s remedial orders in the North Gauteng High Court which dismissed his application with a punitive costs order. Zuma lodged an appeal but his successor and political nemesis President Ramaphosa withdrew the said appeal. The quandary for Zuma is that he risks further punitive costs orders from a hostile judiciary if he opposes the Commission’s application but the issue around the lawfulness of the Commission will not simply disappear. Can we surmise that Prof. Mosala’s calculated choice to launch his application in the Constitutional Court and to seek a cost order even though he claimed Zuma was constitutionally obligated to participate in the Commission was premised on using the costs issue as a blunt in terrorem instrument to keep Zuma away from the Concourt?
Zondo Commission’s Procedural Blunders and Constitutional Flaws
It is extremely disconcerting that the Commission has bypassed the normal judicial process and sought to have its case leap-frog ahead of other deserving cases in the Concourt. All this for a case that should be hear in the local Magistrate’s court. Let me sound a warning. If your colleagues acquiesce in this brazen act of judicial gerry-mandering, the public’s confidence in the judiciary will be forever lost. It is true that a commission is an instrument of executive power, and not part of the judiciary. But the doctrine of “apprehended bias” extends much further than judges in court cases. In Keating v Morris it was expressly applied in the context of an Inquiry, reflecting “common law rules of procedural fairness which require a fair hearing for those likely to be adversely affected by a decision, report or recommendation and impartiality on the part of an inquirer”. The court said: “Condemnation without a proper hearing or by an apparently biased tribunal is unacceptable; exoneration by such a tribunal may be worthless. The issue is not whether the decision-maker is in fact biased but whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial or unprejudiced mind to bear on the task.”
As a complainant in a criminal complaint the Zondo Commission filed against Zuma you are clearly biased and your continued involvement in any hearing concerning Zuma is unacceptable. Simply put, you are not in a position to bring an impartial or unprejudiced mind to bear on the task of adjudicating cases involving Zuma. Even if your were initially correct in refusing the recusal application you have now provided the best justification for your recusal as you have now become Zuma’s adversary in criminal proceedings where you are the alleged complainant or victim. Under what legal theory should the Concourt force Zuma to appear before his putative ‘victim” and accuser especially where a criminal case you filed against Zuma is pending?
Another troubling aspect of your approach is the dilemma you create for your Constitutional Court colleagues. You have effectively raised a question regarding their entitlement – so to say- to sit as Constitutional Court Judges in a matter involving their colleague, the Deputy Chief Justice. Consciously or sub-consciously, their presiding over your matter may, because of the normal bonds of fraternity and collegialitv, be perceived by a reasonable litigant as not being completely impartial when addressing this issue of national importance involving former President Zuma. It is a matter of record that two of your former colleagues Yacoob and Moseneke have, shortly after their retirement from the Concourt publicly expressed their contempt for President Zuma. The South African Motor Acceptance Corporation (EDMS) BPK v Oberholzer – 1974 (4) SA 808 judgment (headnote) reads :-“Where two judicial officers are attached to the same Bench as colleagues and one of them is a litigant or an accused, then there is a reasonable ground for the other legal official to be recused from trying the action …That recusatio judicis suspecti applied in respect of all judicial officials irrespective what their order of rank in the hierarchy of the administration of justice might be. It also made no difference whether the action concerned was a civil or a criminal nature. ” Even under Apartheid your Concourt colleagues would not have been permitted to hear the Commission’s case especially where your status as a Deputy Chief Justice is being flagged to add weight to a case.
In the Oberholzer case the Appellant sued the Respondent, the Assistant Magistrate of the District in which the action was being tried, for payment of certain sums of money. At the commencement of the hearing the Appellant raised the exceptio suspecti judicio that the Magistrate of the District hearing the matter should recuse himself, as the defendant was a member of the staff of his office. The Magistrate in the court a quo refused the application for recusal. In an Appeal against the recusal of the trial Magistrate to recuse himself it was held:
“a) Where two judicial officers are attached to the same bench as colleagues and one of them is a litigant or an accused, then there is a reasonable ground for the other legal official to be recused from trying the action;
- b) The recusation judicis suspecti applied of all judicial officials irrespective of what their order of rank in the hierarchy of their administration of justice might be;
- c) It made no difference whether the action concerned was of a civil or criminal nature;
- d) The appellant had completely bona fide and quite correctly invoke an acknowledged, reasonable ground for recusal when he requested the Magistrate to recuse himself;
- e) The trial Magistrate should have recused himself.
As you know, there was improper involvement of the judiciary in the inception of the Commission and when it usurped the executive’s exclusive power to appoint this Commission. You have now compounded the problem by having your colleagues over whom you have supervisory responsibilities to decide a matter in which you are the complainant and the much-reviled Zuma is being judged. The credibility of the entire Constitutional Court as an institution and the integrity of the individual members of that Court are unquestionably at stake. The unprecedented and premature involvement of the Concourt in this matter can only fuel the fires of suspicion. The converse is also true. If they toss your case out of court your own credibility and that of the Commission are both in tatters.
Your approach to the Constitutional Court is completely out of kilter with our constitution and the rule of law as follows: As a Chairperson of a Commission and tool of the executive you have correctly recognized that you lack the power to hold anyone in contempt or the power to commit an uncooperative witness to prison which is within the very heartland of the judicial power and therefore cannot be exercised by non-judicial officers. See, De Lange v Smuts NO and Others (CCT26/97)  ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (28 May 1998). In De Lange, the Concourt quoted the U.S Supreme Court based its holding partly on separation of powers concerns:
“The inquiry whether a witness before the Commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot be committed to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment. . . . the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States, can only be exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises.” Interstate Commerce Comm. v Brimson 154 US 447, 485 (1893), citations omitted.
The Concourt ruled that powers of contempt to coerce recalcitrant witnesses have however generally not been conferred upon administrative or quasi-judicial bodies established by statute, even where those bodies are exercising powers very similar to the powers of a court of law. So, for example, powers of contempt are not conferred upon commissions by the Commissions Act, 8 of 1947 even where the commission is led by a judge. Section 5 of that Act stipulates that a person who wilfully obstructs or hinders the conduct of a commission shall be guilty of an offence and section 6 establishes that a person who has been summoned to give evidence at a commission and fails to do so, or refuses to be sworn, or to answer a particular question shall similarly be guilty of a criminal offence. The criminal offence will have to be prosecuted in a court having jurisdiction, that is typically a Magistrate’s court.
The Commission as the administrative or quasi-judicial proceedings is not clothed with any extraordinary powers. You are still required to resort to the NPA and request that it prosecutes the matter in a magistrate court having jurisdiction. You recognized this proper route in your earlier ruling when you instructed the Commission Secretariat to file a criminal complaint against Zuma. What has changed now?
I submit that your Concourt application seeks to unlawfully bypass proper legal channels and to augment your powers in a procedurally unfair and inappropriate manner. You would be hard-pressed to identify the circumstances justifying the Commission’s urgent Constitutional Court case compelling Zuma to abide by summons to appear before the commission next year when you have readily available statutory remedies under the Commissions Act. After all this anticipatory application is an abuse of process and unheard of in our jurisprudence.
I am compelled to say this because a Commission cannot inquire into a matter if its inquiry would interfere with the administration of justice. McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 84. It has been held, for example, that a Royal Commission could not inquire into allegations that a person has been guilty of criminal conduct if a criminal prosecution has been commenced against the person in respect of the alleged conduct. Hammond v Commonwealth (1982) 152 CLR 188, 198.
In your case, your appointment as a serving judge to chair the State Capture Commission was uniquely incompatible with the separation of powers ordained in the Constitution and therefore unlawful and invalid. You should have refused and you failed to heed the admonition of the Constitutional Court in the case of SA Association of Personal Injury Lawyers v Heath 2001(1) SA 883 (CC) which deemed the appointment of a High Court judge, to lead a special investigation unit, established in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996 as incompatible with the constitution. The Concourt In this case the Constitutional Court stated :
- That there can be no doubt that the Constitution provides for a separation of powers (at 897B). The separation of the Judiciary from the other branches of government is an important aspect of the separation of powers required by the Constitution and is essential to the role of the courts under the Constitution (at 898G).
- Parliament and the provincial legislatures make the laws but do not implement them. The national and provincial executives prepare and initiate laws to be placed before the legislatures, implement the laws thus made, but have no law-making power other than that vested in them by the legislatures. Although Parliament has a wide power to delegate legislative authority to the Executive, there are limits to that power (at page 898G).
- Under our Constitution it is the duty of the courts to ensure that the limits to the exercise of public power are not transgressed. Crucial to the discharge of this duty is that the courts be and be seen to be independent (at page 899A).
- The separation required by the Constitution between the Legislative and Executive, on the one hand, and the courts, on the other, must be upheld, otherwise the role of the courts as an independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights and other provisions of the Constitution will be undermined (at page 899 B).
- The principle of separation of powers is not necessarily compromised whenever a particular judge is required to perform non-judicial functions. The performance of functions incompatible with judicial office would however not be permissible (at page 899 E).
Arguably, your appointment is a gross violation of the principles laid down by the Concourt in Heath. The Constitution vests in the President the exclusive powers to appoint a Commission but that power was usurped and the judiciary became enmeshed in performing the exclusive executive function. You were ultimately appointed through a Court order and that explains why you repeatedly turn to the judiciary seeking the extension of the terms and mandate of the Commission instead if leaving the executive solely in charge of these matters. The separation of powers principle was severely compromised because the courts failed to ensure that the limits to the exercise of public power are not transgressed. Crucial to the discharge of this judicial duty is that the courts be and be seen to be independent but that rings hollow when the judiciary usurped the executive function and participated in the original appointment of the State Capture Commission. Your ill-conceived Concourt application further underscores this point.
As you know, the Heath case clearly established the criteria relevant to considering whether or not under our Constitution, it is permissible to assign a non- judicial function to a judge, namely, whether the performance of the function :
- Is more usual or appropriate to another branch of government. Under our Constitution, holding the President to account is a function of parliament (legislative branch) and Zuma was required to and did account to Parliament on a variety of matters including the very issues of appointment of members of Cabinet, the Jonas allegations and sundry issues you now seek to inquire into. The numerous “No Confidence” motions and ultimate recall of Zuma was Parliament’s way of holding the executive to account as ordained in our Constitution.
- Is subject to executive control or direction. The Constitution requires that a Commission appointed by the executive remain exclusively under the control of the executive but that was flagrantly violated when the appointment of the State Capture Commission was made a shared venture between the judiciary and the executive and the extension of the terms of the Commission have now been taken over by the judiciary. Your attempt to further involve the Concourt in coercing witnesses to appear before the State Capture Commission further emphasizes that the lines of demarcation have been irredeemably blurred. You are improperly invoking judicial power at the highest level to aid the executive function.
- Requires the judge to exercise a discretion and make decisions on the grounds of policy rather than law. Your potential violation here is a no-brainer – by what legal criteria do you judge “state capture” and how do you decide that Cabinet appointments or dismissal of certain senior public officials were a product of state capture as opposed to discretionary functions of members of the executive. Even assuming crimes were committed, why is the NPA not suitable for the role assigned to it under Section 179 of the Constitution?
- Creates a risk of judicial entanglement in matters of political controversy. Once again we are beyond the issue of whether a “risk” was created – you are deeply entangled in political controversy and ANC factional battles. Let me sketch it out for you how deeply enmeshed your Commission is in ANC factional battles. At the conclusion of the Commission’s work you will ultimately submit your report to President Ramaphosa who has ultimate discretion to accept or reject its findings. The Commission’s star witness, Agrizzi, has painted a good picture of allegations of impropriety in the controversial CR17 campaign funding scandal. The judiciary has sealed the records of the funders so we are in no position to know the identity of the funders and to determine from public records whether these funders have been rewarded with government tenders. The essence of state capture will involve whether there is quid pro quo between the donations to CR 17 campaign and subsequent government tenders awarded to the donor compaies or persons. At the heart of it, the Commission may need to distinguish between contributions that were given or received with the “anticipation” of official action and contributions that are given or received in exchange for a “promise” of official action. When a contributor and an official clearly understand the terms of a bargain to exchange official action for money, they have moved beyond “anticipation” and into an arrangement that crosses the line. This understanding need not be verbally explicit. You may consider both direct and circumstantial evidence, including the context in which a conversation took place, to determine if there was a meeting of the minds on a quid pro quo. See, United States v. Carpenter, 961 F.2d 824, 827 (9th Cir.1992).
Ramaphosa and CR17 donations go beyond Bosasa. While the initial findings of the Public Protector – which claim that Ramaphosa purposefully misled parliament in connection to a dubious R500 000 donation from infamous Bosasa boss, Gavin Watson – it has also emerged that opposition EFF member of parliament, Tebogo Mokwele, had admitted to receiving funds from Ramaphosa’s CR17 campaign. Mokwele, who initially claimed that she had been paid a total of R40 000 – intended to assist with a bereavement in the family – later resigned in an effort to ‘save the integrity of the EFF’. Mokwele said that while she didn’t have a personal relationship with Ramaphosa, she wasn’t surprised when he sent her money as a show of sympathy after the passing of a family member. But Ace Magashule, the ANC Secretary-General is facing criminal charges for asking acquaintances businessmen to assist with tuition payments for students, for asking them to assist with sponsoring students trips to Cuba etc. Ramaphosa’s appearance as a witness before the Commission will be totally worthless if the CR 17 campaign funding records are still sealed. You may recall that Judge President Dunstan Mlambo and judges Elias Matojane and Raylene Keightley found the Public Protector did not have the requisite jurisdiction to investigate donations to a private person’s political campaign. They also found that Ramaphosa had no obligation to declare the donations, even if he was deputy president at the time, as he had derived no personal benefit from the donations. But Magashule can be arrested for donations the NPA admits were not for his personal benefit.
What is significant is the extent to which money is exchanged within the politician’s circles is itself a deep political mess and it cannot be explained away by using the Guptas as a code word.
Another area of your political entanglement is the matter of the Barbara Hogan fabrications about the reasons for her dismissal from Zuma Cabinet. Hogan started courting trouble by operating as a lone ranger and blasting her cabinet colleagues for their handling of the Da Lai Lama issue long before Zuma became President. That clear violation of the constitutional principle of collective responsibility of cabinet occurred under Motlanthe and before Zuma assumed the presidency. Hogan’s haughtiness and inability to function within the cabinet collective persisted until Zuma fired her. But as part of the political narrative the fiction linking her dismissal to the Guptas was invented. By what legal criterion are you going to decide whether a President who has unbridled constitutional powers to dismiss a cabinet minister exercised his powers out of ulterior motives to favour the Guptas? In a similar vein, the fictitious story by Maseko must be summarily discarded. Maseko considers it to be improper “interference” that Zuma allegedly wanted him fired and instructed late minister Chabane to pull the trigger. But we now know from the judgment in Apleni v President of the Republic of South Africa and Another (65757/2017)  ZAGPPHC 656;  1 All SA 728 (GP) (25 October 2017) that the President does indeed have the final say in the suspension and dismissal of Director-Generals. We also know that the Jonas allegations about obscene amounts of money offered by the Guptas was debated in parliament and Zuma dealt with that issue within the confines of parliament as the Constitution requires. The Commission’s appetite for these gossip and gossamer can only deepen its entanglement in political controversy and inflict lasting damage on the judiciary with no tangible benefit for the generality of the public.
- Involves the judge in the process of law enforcement. Sadly, you fail abysmally on this criterion as well. In South African Association of Personal Injury Lawyers v Heath and Others (CCT27/00)  ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR 77 (28 November 2000) the Concourt quoted with approval Australian precedent which held 44.“it is not compatible with the holding of federal judicial office in Australia for such an office holder to become involved as ‘part of the criminal investigative process’, closely engaged in work that may be characterised as an adjunct to the investigatory and prosecutory functions. Such activities could ‘sap and undermine’ both the reality and the appearance of the independence of the judicature which is made up of the courts constituted by individual judges. They could impermissibly merge the judiciary and the other branches of government. The constitutional prohibition is expressed so that the executive may not borrow a federal judge to cloak actions proper to its own functions with the ‘neutral colours of judicial action’.
You have, by virtue of your appointment as chair of the “State Capture commission”, become involved in the process of law enforcement being one of the criteria mentioned by the Constitutional Court in Heath’s case supra. Your Commission is tasked with advising the executive on whether corruption, fraud and maladministration have occurred. It is undeniable that NPA indictments have been served on witnesses shortly after they appeared before your Commission and more are expected to follow suit. You effectively function as a conveyor belt for the NPA. In this regard the words of Le Bel J in the Canadian Supreme Court case of In re Application under S 83.28 of the Criminal Code 2004 SCC 42;  2 SCR 248 at para 185are apposite.
“In my view, a reasonable, well-informed person could conclude that the purpose of having a judge at such an investigation is to help the executive branch compel the witness to answer questions. The judiciary’s symbolic and legal weight will assist the police in their investigations. The judiciary will then no longer be playing the role of an independent arbiter.”
Clearly, your Concourt application can be perceived as an attempt to galvanize your judicial colleagues and to use your judicial weight to help the executive branch (Commission) to compel Zuma to answer your questions. In addition the judiciary’s symbolic and legal weight will assist the police in their investigations of State Capture. The judiciary will then no longer be playing the role of an independent arbiter. Even more perverse, you have filed a criminal complaint against Zuma for his failure to obey your previous subpoena. Before the law enforcement agencies deal with your complaint, you have now asked your judicial colleagues to issue a preemptive declaratory order that indeed your subpoena is valid and Zuma is obligated to comply with it. Once you have such an order securely in place the NPA’s hands are tied – it must accept the Concourt’s ruling, arrest and prosecute Zuma for defying your subpoena. In the final analysis
your Commission trenches upon the role of the investigating directorates, established under Chapter 5 of the National Prosecuting Authority Act 32 of 1998, as well as the power of the National Director of Public Prosecutions. The investigation of fraud, corruption, maladministration, serious malpractices and other unlawful conduct is a function which under section 179 of the Constitution falls within the powers of the NPA. If Zuma was given a fair chance to appear in the Concourt he could legitimately argue that the tangled web not only involved judicial usurping of the executive power in appointing the Commission but it went further by imbuing a judge with executive functions and transported the judge into the realm of the prosecuting authority. Apart from effectively furnishing a judge with prosecutorial powers, which is a gross violation of the principle of separation of powers, it further enables a member of the executive to usurp investigative and prosecutorial powers through his tool, the judge-led “State capture commission.” This is clearly incompatible with the separation of powers and therefore unlawful and invalid.
- Will occupy the judge to such an extent that he or she, is no longer able to perform, his or her usual judicial functions ( Heath at page 899 H – 900 B). This is self-evident as you have not effectively participated in the adjudication of cases in the Concourt now for almost three full years and, upon your return to judicial duties, you are likely to be side-lined from hearing any of the slew of “state capture” cases likely to serve before the Concourt in many years to come.
If the Constitutional Court faithfully applies established legal principles the Commission’s hopeless case will be summarily dismissed. But if it allows itself to be swayed by the dramatis personae then it will squander the reservoir of public goodwill still left and the credibility of the judiciary will be irretrievably lost. In peroration, I note with amusement that the Zondo Commission’s over-reaction to the alleged indiscretions by President Zuma actually suggest that Zuma was correct about alleged bias arising from family ties, friendship etc. A magistrate’s court case about a subpoena was prematurely expedited to the apex court simply to make Zuma shake in his boots or stop singing “Mshini Wami.”