President Cyril Ramaphosa’s announcement on 10 March that Deputy Chief Justice Raymond Zondo had been promoted to head South Africa’s judiciary finally ended 149 days of the republic being without a permanent person in the role. This is an astonishing – and worrying – passage of time considering everyone and their tithe collector was well aware that former chief justice Mogoeng Mogoeng’s term was ending in October last year.
It was also apparent that Mogoeng had become an absentee chief justice – physically and philosophically – towards the end of his tenure, affecting the functioning of the Constitutional Court especially, which made a swift replacement paramount. The urgency was further underlined by the judiciary straining under unprecedented internal and external pressure, including cynical and anti-factual attempts to politicise it. It rendered the president’s lack of foresight in preparing for a seamless succession all the more alarming.
Ramaphosa, it seemed, was well and truly asleep at the wheel despite the screams of his fellow South Africans horrified by a decade of state capture as well as attempts, like last July’s insurrection by supporters of former president Jacob Zuma, to destroy the rule of law and the country.
Is the decision to appoint Zondo one born of the president applying his mind to the information placed before him after his unprecedented call for public nominations, followed by a screening process that delivered four names he then submitted to the Judicial Service Commission (JSC) for interviews? Does his decision warrant the time he took to reach it?
How carefully did Ramaphosa factor in a lucid analysis of what the judiciary, Constitutional Court, JSC and country need right now from a chief justice against the strengths and weaknesses of the four candidates?
The answer is not very carefully, if one reads between the lines of a shockingly offensive series of interviews conducted by a JSC whose main protagonists appeared more consumed by the need to score political points and discredit judges – in the case of Gauteng Judge President Dunstan Mlambo with spurious and defamatory rumours – rather than follow their constitutional mandate for the good of the country.
Zondo’s urgent tasks
The challenges facing the judiciary and the JSC that Zondo must address include last year’s cyberattacks on the Department of Justice, which has created a huge backlog in the offices of the master of the high court. This has only added to the woes of a legal system still not streamlined and modernised for optimum efficiency or ensuring access to justice for all South Africans, especially society’s most vulnerable communities. There is little compulsion to address this backlog, according to attorneys.
Some court buildings, meanwhile, are literally falling apart. And, despite judicial norms and standards requiring judgments be handed down within three months of hearing, there has been an increase in reserved judgments, with the Constitutional Court being one of the main culprits. Recently, the court that is the final arbiter of South African law has also been recalling some of its judgments, or not handing them down when scheduled to do so. Unprecedented.
Dogged by faltering, acrimonious relationships between some judges during Mogoeng’s tenure, the Constitutional Court has also been in need of a healing balm for several years already. It is desperate for a leader with the emotional intelligence and experience in managing people with undeniably big intellects and egos so as to orchestrate the kind of toenadering (rapprochement) that the court was famous for under the leadership of chief justices like Arthur Chaskalson and Pius Langa.
The Constitutional Court has also been overwhelmed by applications for leave to appeal to it since a 2013 constitutional amendment to expand its jurisdiction to all matters of law. During his JSC interview for the top job in February, Justice Mbuyiseli Madlanga – the longest-serving justice on Constitutional Hill after Zondo – said the amendment had the effect of quadrupling the court’s workload.
Madlanga said the volume of work had increased from about 100 annual applications between 2009 and 2013 to almost 400 last year. With all justices required to decide the merits of an application to be heard at the court, the “deluge” of cases approved to be heard and the need to circulate comments to post-hearing notes and draft judgments, the system has been buckling. Judgments have been reserved for months and when they have been handed down some have been riddled with errors.
That Mogoeng had done little to address this problem was apparent when Madlanga told the JSC that he and Dhaya Pillay, an acting justice in the Constitutional Court, had started researching a turnaround strategy in October last year after Mogoeng had officially left. Madlanga said a new rotational approach to how applications would be handled had been implemented by early December 2021 and had already begun to bear fruit.
Strengthening the JSC
As evidenced by the February interviews, the JSC itself is in need of a strong chairperson capable of reigning in the worst excesses of political grandstanding and bullying that Mogoeng allowed, especially during the second half of his tenure. It also needs proper procedural rules and orientation for commissioners to ensure that the kind of attacks Mlambo suffered are not repeated, and a set list of criteria to ensure the equitable interviewing of candidates.
Mogoeng chaired JSC sittings poorly, allowing special leeway for the pseudo “radical-Africanist” cabal in the JSC, which includes EFF leader Julius Malema and, until now, advocate Dali Mpofu (also an EFF leader). There was a sense that the chief justice who carried an intellectual chip on his shoulder aspired to the hot-oil political home that Malema and Mpofu’s posturing promised.
But Mogoeng also set the tone with his own irascible behaviour. The former chief justice demonstrated a gossamer-thin skin and was notoriously sensitive to criticism from the media and academia to the point that JSC interviews sometimes descended into spittle-flecked rants where he would pulpit-thump and dismiss the need for vibrant conversations about judgments.
One such incident occurred in April 2019 during a round of interviews for the Constitutional Court when Supreme Court of Appeal (SCA) Judge Azhar Cachalia (a stand-in for Mandisa Maya, the court’s president) started asking candidates about the quality of commercial and contract law judgments emanating from the apex court.
Mogoeng appeared enraged. He monopolised a large part of Judge Jody Kollapen’s interview to rave against judges who wanted to be the darlings of the media and the academy to the point of “outsourcing our thinking” to these individuals and institutions. Mogoeng firmly concluded that he did not read academic articles about judgments. It was an astonishing admission by the leader of South Africa’s judiciary, one that demonstrated a disturbing anti-intellectualism and an equally worrying sense of a chief justice who did not entertain a plurality of opinions.
The toxic culture embedded in the JSC, which sees inappropriate jokes being made at the expense of female judges, a decade-long inability to grapple constructively and profoundly with gender bias in the legal fraternity and a belittling of female judges – especially if they are assertive and from minorities – needs to be addressed urgently.
Attacks from outside
As Mlambo pointed out during his interview, the judiciary currently exists in a politically “toxic” and volatile climate in which social networking platforms are being used to undermine the integrity of judges with unsubstantiated claims. Supporters of Zuma have also demonstrated a penchant for misrepresenting judgments and the law on social media and on television.
Whether it is from Zuma’s thuggish supporters who want a return to untrammelled kleptocracy or cynical EFF members who appear hellbent on destruction for short-term political gain, with little consideration for long-term damage to our constitutional order, the aim appears to be a return to the authoritarianism of apartheid.
As demonstrated recently in South Africa, but also in countries like the United States, Brazil and India, the misinformation chaos on social networking platforms is an essential weapon in the rise of anti-democratic tendencies and fascism. This is increasingly being used by the EFF and the pro-Zuma faction in the ANC.
To protect the judiciary South Africa needs a chief justice who is technologically sussed and able to think innovatively about responses to the various attacks it faces.
Zondo is a judge of unimpeachable integrity. He is independent-minded and has made a massive contribution to the development of South Africa’s jurisprudence, especially in the field of labour law. His work at the commission of enquiry into state capture clearly illustrated a judge with seemingly infinite patience for even the most intransigent of witnesses, an eye for granular detail, the capacity to digest and retain extremely large volumes of evidence and who acts with the very best interests of the country at heart.
Yet, if Ramaphosa had used even a few hours from the past five weeks since the interviews were conducted to consider the various candidates’ strengths and weaknesses, Zondo would not have been his first choice. Both Mlambo and Maya demonstrated a deeper understanding of what was required to protect and strengthen the judiciary, reform the JSC and lead the Constitutional Court towards a harmonious future marked by ground-breaking and progressive jurisprudence.
Back to the future
So why, then, did Ramaphosa take so long to reach a decision that no one – aside from the most cynical and self-serving – would be critical of if he had done so in October 2021? The answer goes to the very heart of who the president is. To understand Ramaphosa one must return to the evidence, and nothing illuminates his character more than the circumstances around the 2012 Marikana massacre.
In July 2010 Ramaphosa was appointed a non-executive director of Lonmin, the multinational platinum mining company at whose operations a wildcat strike was called by rock drill operators two years later. Ten people, including striking and non-striking miners, police and security guards were killed in the week leading up to the police massacre of 34 striking miners.
Ramaphosa, as part of his company Shanduka’s black economic empowerment deal with Lonmin, assumed the position of chairperson of the transformation committee in November 2010. The committee’s role was to provide oversight of management, especially in fulfilment of its legally binding social and labour plans, which could see the revocation of the company’s mining licence if targets were not met.
In 2006, Lonmin promised to convert 124 of its hostels into single-use dwellings while also building 5 500 houses by 2011 as part of these plans. Ramaphosa’s job when he was appointed transformation chairperson was to monitor progress in this regard. His company was paid R250 000 a month to advise Lonmin on empowerment matters.
The housing crisis at Lonmin was considered one of the major contributors to the strike in 2012. Ramaphosa conceded this at the Marikana commission of inquiry into the massacre. He also conceded that he had not read the sections of the annual reports that made it clear that Lonmin had not reached its targets. Lonmin had, in fact, only built three show houses and converted 68 of the hostels by 2011. The company had also readjusted its stated goals for 2009, for example, moving the target to build 1 200 houses that year to only three units – and indicating a 100% completion rate in that year.
Siding with Lonmin
Confronted under cross-examination, Ramaphosa would delicately describe this failure as “underperformance” and an “underachievement”. This appeared to be a direct contradiction of an article that appeared under his byline in a 2011 edition of Mining Weekly in which he bemoaned the slow pace of transformation of the migrant labour system and flagged housing provision as an essential part of the reform process.
Questioned at the inquiry, Ramaphosa said he had no reason not to believe Lonmin’s explanation for failing to build houses or convert hostels when he became transformation chairperson. The reasons Lonmin gave were a lack of money and a shortage of land made available by the municipality.
Yet, as advocate Tembeka Ngcukaitobi demonstrated during cross-examination on behalf of the Legal Resources Centre, Lonmin had registered multibillion-dollar revenue increases in all the years it had promised to build houses before 2012, aside from one. It was also recorded in its annual reports that at least 2 300 stands for houses had been approved and proclaimed by 2009.
The man who had founded the National Union of Mineworkers in the 1980s and who was supposed to be the caring face of transformation on the Lonmin board cared nought for the conditions under which miners worked and lived, despite his Mining Weekly article. He appeared too apathetic and lazy to even read the annual reports of the company paying him R250 000 to do that, at a bare minimum.
Increasingly, Ramaphosa has acted like an average white male given powers well beyond his capacity purely because of his privilege.
In February, he was outmanoeuvred by Malema, Mpofu and even his own appointment to the JSC, advocate Thandazani Madonsela SC. They asked unwarranted questions that sought to embarrass and discredit the candidates. Their actions made a mockery of Ramaphosa’s decision to expose four of the country’s top judges to slings and arrows from a toxic JSC at a time when judges around the country are coming under increasing attack. The JSC then further embarrassed the president by nominating its preference as chief justice, rather than stamping all four candidates as “fit and proper”, as required by the Constitution.
It is apparent that Ramaphosa no longer cares for granular detail. He is consumed by the optics of any situation, by how he appears to the public.
With both the EFF and his own party’s deployment committee and national executive committee (including forces faithful to Zuma) backing Maya for the position of chief justice, Ramaphosa’s need to appear strong and independent trumped the needs of the country and its judiciary. So he appointed Zondo and nominated Maya as his deputy to ward off accusations of being anti-gender transformation – decisions that were more self-serving than in service of the country.