Raymond Zondo took over as chief justice of SA, and thus head of the judiciary, on Friday April 1. It is an occasion that perhaps deserves a sigh of relief, if not a little shimmy. Things are often so bad in this country that we tend to see as cause for celebration the few occasions when our rulers make fairly rational decisions.
Zondo’s ascension rescues the judiciary from the shadow left by his predecessor, who came to be known more for — and was more passionate about — his religious fanaticism than for his judgments or judicial philosophy. And for now, at least, the court has been saved from the clutches of the bomb throwers who were relishing the prospect of making it the instrument of their misguided rebellion. Zondo will steady the ship.
It is imperative that the legitimacy of the judiciary be restored and preserved. Our future hangs on it. Its legitimacy or public acceptance is the only tool by which the courts can enforce their decisions. Alexander Hamilton, one of the founding fathers and the first US treasury secretary, once remarked that the US Supreme Court, unlike the other two branches of government, had neither the sword nor the purse to enforce its decisions. It depended solely on its legitimacy for public compliance.
Those with a beef against the judiciary have often had Zondo himself in their sights
American law professor Veronica Root Martinez, elaborating on the ethical challenges facing the US Supreme Court not so long ago, wrote: “The supreme court has power because we have all chosen to submit to its power. It has no army. It cannot enforce its own pronouncements. What it has is our perception that its rulings are legitimate, and because we view its work as legitimate, we comply.” Same apples to our judiciary.
But SA is a much more contentious terrain than the US. There are contending theories about the law born out of our past, with some seeing our current legal system as a colonial imposition. The judiciary has come under attack recently because it is seen by some as playing an overtly political role. Zondo himself, as chair of the judicial commission of inquiry into state capture, is often in the eye of the storm. His role in the jailing of former president Jacob Zuma divided the country and is often partly blamed for the unrest in July last year.
It is interesting that Zondo will begin his public duties by chairing the Judicial Service Commission's interview panel for prospective judges this week. Many will be relieved that an adult is at last in charge of the kindergarten. The JSC is partly responsible for the poor perception of the judiciary. It has not only politicised the process of choosing judges, but too often qualified applicants have been overlooked for the wrong reasons. Perhaps that is to be expected for a body dominated by politicians.
Zondo’s own experience the last time he was at the JSC could not have been a pleasant one. In fact it was nasty and humiliating, a desperate attempt by small men to stop him from rising to the top job. Luckily President Cyril Ramaphosa displayed uncharacteristic resolve, ignoring all the hype about Supreme Court of Appeal president Mandisa Maya to anoint Zondo.
It was during one of the JSC interviews that Mogoeng Mogoeng, making his swansong as chief justice, let the lynch mob loose on Dhaya Pillay, one of the candidates, by suggesting that Pravin Gordhan had tried to lobby him on her behalf. It was an outrageous lie, but it served its purpose because Pillay, an excellent jurist by all accounts, never made it to the Constitutional Court, where she probably belongs. This week public protector Busisiwe Mkhwebane, to no-one's surprise, announced that an investigation had absolved Gordhan of that canard.
That Mkhwebane saw fit to use state resource to “investigate” such an obvious falsehood shows once again that she should not be the public protector. But the incident also helps to expose the hypocrisy of those who were pushing for Maya to be chief justice because she was a woman; it's the same crowd that successfully derailed Pillay’s Constitutional Court bid. Pillay would have been forgiven for repeating US abolitionist and women's rights activist Sojourner Truth’s lament: “Ain't I a woman?”
The interviews this week will indicate whether the new broom is going to sweep clean. Zondo has only two years at the helm. He'll have to hit the ground running. Much of the blame or accusations heaped on the judiciary is undeserved. The courts don't go around looking for cases or controversies. It is the public that approaches the courts, and it's the courts’ responsibility to resolve disputes and maintain the rule of law. The fact that the judiciary ends up mediating political disputes cannot be laid at its door. It is political actors who, having failed to solve their problems through their own processes, seek the mediation of the courts.
As his name, Mnyamezeli, suggests, Zondo will need a huge dollop of perseverance and tenacity
Those with a beef against the judiciary have often had Zondo himself in their sights. As chair of the state capture probe, it’s obvious, he wasn’t going to be in the good books of those who’ve looted the state. But it is Zuma's imprisonment that has drawn hostility for him. It's a misguided view, however. The blame lies with Zuma, who refused to appear before the commission. Zondo should in fact be showered with plaudits for taking such a strong stand against Zuma's intransigence. He was emphasising a fundamental principle of the law: that all are equal before the law. He'd have been remiss in his duties if he didn't do that.
Legitimacy is never handed to institutions such as the courts in a platter. They have to earn it — not only by the decisions they make, but also by appointing fair-minded and highly qualified individuals of all colours and creeds. To enjoy a wider public acceptance the judiciary must look like SA. That's the challenge facing Zondo and the JSC.
As his name, Mnyamezeli, suggests, Zondo will need a huge dollop of perseverance and tenacity.
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