‘Chief Justice Zondo’s comments fall woefully short of the conduct expected of judges by the Code of Judicial Conduct and the norms that govern judicial ethics.”
So says the Council for the Advancement of the South African Constitution (Casac), in a strongly worded statement this week published after Chief Justice Raymond Zondo gave an interview to the TV channel Newzroom Afrika this week.
Casac is known for sensible and often important interventions on matters pertaining to the South African legal system and judiciary, so its views are worth taking seriously. The statement was surprising, however, given the fact that Zondo has enjoyed a tenure as Chief Justice largely free from significant criticism from legal bodies so far.
What did the Chief Justice actually say?
Zondo spoke to Newzroom Afrika’s Xoli Mngambi on Monday and voiced opinions on a number of matters: among them, corruption, judicial conduct, the failure of the government to implement the recommendations of the State Capture Commission he chaired, and the decision of the government to grant a remission of sentence to former president Jacob Zuma following his conviction for contempt of court.
It is the latter subject that has mainly attracted condemnation.
In the interview, Mngambi asked Zondo whether there was any purpose in pursuing the ongoing corruption case against Zuma, given that the remission of sentence previously granted to the former president seemed to suggest that the government had no appetite to see Zuma behind bars.
The Chief Justice responded:
“As long as the National Prosecuting Authority says it’s got enough evidence to justify prosecuting him, he must be prosecuted. Let the country know that the NPA, and the courts, will have done their part, and let the executive deal with the public at that time. So I would not say that any trials must stop. I think we must continue doing what is right.
“The NPA believes there is a strong case against him, that’s why they are pursuing the charges. The courts are there ready to conduct a fair trial, assess evidence, and if they find that he is guilty, they will look into what the appropriate sentence should be and impose a sentence that will fit the circumstances.”
In its statement, Casac pointed out that the Code of Judicial Conduct requires judges to “not publicly comment on the merits of any case pending before, or determined by, that judge or any other court” and to “not express views in a manner which may undermine the standing and integrity of the judiciary”.
Casac expressed concern over Zondo’s “comments regarding the pending Arms Deal corruption trial of former President Zuma, a matter that is still pending before the High Court”.
The NGO added: “With his comments on contentious political issues, the Chief Justice may be perceived as wading into the public discourse about partisan politics and potentially bringing his impartiality (and that of his colleagues) into question at a time of fierce political contestation ahead of the 2024 general elections…
“Chief Justice Zondo’s comments fall woefully short of the conduct expected of judges by the Code of Judicial Conduct and the norms that govern judicial ethics.”
Comments have divided legal opinion
Not everyone agrees that the Chief Justice overstepped the mark.
Legal analyst Benedict Phiri, appearing on talk radio station 702, said that he felt the context of Zondo’s remarks provided sufficient justification.
“Judges are allowed to debate matters if they speak to matters regarding the administration of justice,” Phiri said, arguing that Zondo’s comments regarding the prosecution of Zuma fell within this realm.
It can also be argued that Zondo was playing his rightful role in defending the legitimacy of the judicial due process against the suggestion that a prosecution of Zuma would be a sham. The Judicial Code of Conduct also states, after all, that “the legitimacy of the judiciary depends on the public understanding of and confidence in the judicial process”, and that “the function of the judiciary fails if its proceedings are not understood”.
Casac’s Lawson Naidoo clarified to Daily Maverick that the mere fact that Zondo gave a media interview was not the problem, and pointed out that Casac had previously defended the Chief Justice for speaking out on the lack of implementation of the recommendations of the State Capture Commission report.
Naidoo said that Zondo’s comments on the Zuma prosecution could be interpreted as meddling in NPA matters, saying: “That’s a decision for the NPA to take. One has to respect the autonomy of the NPA”.
Naidoo added: “Once judges start commenting on political issues, what stops any other judge from doing so? Then we’ll have judges participating in the political discourse”.
Alison Tilley, the coordinator of the Judges Matter campaign, told Daily Maverick that she supported Casac’s stance.
Tilley said that South Africa already had “a conduct process which is not working simply and quickly”. She pointed to the case of Judge Nana Makhubele, against whom a complaint was laid in 2019 over her role as chairperson of the board of Prasa while serving as a judge — an impermissible conflict of interests. Makhubele’s tribunal was this week postponed yet again due to unpaid legal fees.
“It’s very much a case of wanting to make sure that the Code of Conduct is scrupulously adhered to, and the CJ — as Casac says — has strayed into territory he should not have done,” Tilley said.
Controversy gives fuel to Zondo’s opponents
Zondo is by no means the first Chief Justice to make public statements — although within his limited term he has perhaps been more vocal than most.
In January 2022, he took the highly unusual step of calling a press conference to condemn erstwhile tourism minister Lindiwe Sisulu for an op-ed the senior ANC figure had written criticising some South African judges as “mentally colonised African[s]”.
On that occasion, Zondo acknowledged that the judiciary did not ordinarily respond to attacks, but said that Sisulu’s remarks, coming from a member of the executive, were sufficiently egregious to demand a rebuttal.
The controversy over the Newzroom Afrika interview is sure to embolden Zondo’s critics, notably the Economic Freedom Fighters, who were fiercely opposed to his appointment as Chief Justice.
At the time, EFF national spokesperson Sinawo Tambo described the incoming Chief Justice as “a politically divisive force in South African society”, and “a member of the judiciary who is prone to descending into the political arena when he is expected to exercise restraint”. DM