State Capture in South Africa – Zuma versus the Judiciary – Where Do You Go When You Have a Dispute with the Courts/Judiciary?

Brian Kazungu, 08/02/2021

In the twist and turns of the state capture drama which is continuously unfolding in South Africa, members of the public are suddenly being drawn into the discourse of civics matters on a daily basis as they are getting more informed on important issues of life in their communities.

The internet and social media has suddenly availed so much information to the common folk so much that they can now quickly check and trace what is happening with government resources even in the corridors of power.

One such issue at the moment is the issue of President Zuma’s refusal to appear before the Zondo Commission citing some irregularities in the Commission’s modus operandi and in even the basis and legality of its formation.

It has been argued in some circles that the formation of the Commission itself violated some provisions of the Constitution and as subtly hinted in the conversation below, Zuma’s appointment of Justice Zondo has been likened to putting a signature on a document when a gun is pointed on your head.

This conversation between a former lawyer Fredrick Kyle (Rikki) and a businessman (Mutumwa Mawere) is part of the legal literacy initiative of the Connections2Communities (C2C) community in search of a shared understanding on matters of interest to the community.

[2/6, 11:13 AM] Rikki: If your signature is on a document, but it was placed there with a gun to your head, it is indeed your signature. However, can one simply ignore the gun to your head because the first statement is true? In the absence of the real context, one can only make assumptions. No good comes from arguing on assumptions.

The scariest part is that despite us living in the age of information, we have never been so in the dark about this and even the Coronavirus.

 [2/7, 8:47 AM] Rikki: The doctrine of separation of powers is a fundamental cornerstone in the provision of the South African Constitution.

If one has a dispute with another, including the state, one goes to the Courts who are supposed to be independent and impartial to resolve such dispute based on the law’s prescripts.

Where does one go when you have a dispute with the Courts/Judiciary? In a constitutional system based upon checks and balances surely there must be a check for this? Who supervises the Courts/Judiciary to make sure they are doing their job correctly?

[2/7, 8:53 AM] mdmawere1: In this case, is it true and fact that the Public Protector issued an extra-judicial order whose effect was to divest and deprive the President of the power to independently appoint a Commission of Inquiry?

If so, did the Chief Justice act in terms of the limitations imposed on him and the judiciary by proceeding to nominate Zondo and for Zuma to be limited in choice to the names given?

Zuma tried to challenge the judicial overreach but the judiciary closed the doors on him and proceeded to give orders that were ultra vires the Constitution.

In this case the equality promise of the 3 branches of the government was undermined by the judiciary. Indeed given these facts, what are the lessons, if any?

[2/7, 9:03 AM] Rikki: This could never have happened if the three-sphere of government acted independently and in terms of their constitutional mandate.

The cunningness of these extra-judicial orders are that the Judiciary washes their hands in the process and then claims authority to continue to adjudicate matters in respect thereof as they are independent.

They did not issue the order.

Just look at what happened in SMM. When Willis allowed such conduct in a South African Court, it should have been a big red flag to the South African citizens about what the powers think of their Constitutional mandates and the citizens’ rights entrenched therein.

[2/7, 9:06 AM] Rikki: South Africa is no longer and in fact, has not been a Constitutional State for many many years.  So why does one try and resolve a dispute within a democratic framework, if it does not exist?

If the South African people do not step up to the plate and take control back, they will continue their demise.

[2/7, 10:27 AM] mdmawere1: Thanks for your insights. It is fact that the knowledge on constitutional matters is not commonly shared.

It could very well be the case that Madonsela could have been provoked by the evidence she had gathered that the relationship between Zuma and the Guptas was corrupt and as such in her considered opinion,  he was no longer fit to be President.

Having concluded in this question, she may have reckoned further was left for the judiciary except to convict him.

It is this arbitrariness and unilateralism that has characterised the real enterprise of justice delivery in many countries.

[2/7, 10:53 AM] Rikki: Irrespective of Madonsela’s views or consideration, the power to remove a President is not hers to exercise nor that of the Judiciary.

If either was moved to act because they believed that Zuma was not fit to hold the president’s office, they were not impartial and everything they have done subsequently flawed. The power to remove a President lies with the Parliament.

The real problem is as you correctly identified the arbitrariness and unilateralism.

I believe that the Judiciary, like all other spheres of government, should be independent of each other, act strictly following the constitution but most importantly, be transparent and accountable to the people of South Africa.

[2/7, 11:58 AM] mdmawere1: Thanks again for your useful insights. It appears that the ears to listen are few and far between.

What is the correct interpretation of the cause that says the President has the right to appoint a Commission of Inquiry? Is it a discretionary or qualified right?

Did Madonsela possess the power and authority to order that a commission be established fully cognizant of the reserved nature of the authority?

What should have been the attitude of an independent and impartial judiciary?

[2/7, 12:02 PM] Rikki: It is a discretionary power bestowed specifically by legislation on the President, and as such, it can’t be delegated. An independent and impartial judiciary would have struck down her recommendations as being ultra-virus and unconstitutional.

[2/7, 12:06 PM] mdmawere1: Does the recognition and enforcement of an illegality taint the integrity of the courts?

If this is not cured, what are the implications on the rule of law?

[2/7, 12:12 PM] Rikki: A very difficult but important question. Considering that a Court is supposed to determine lawfulness or not, it would seem that it won’t taint the integrity as a Court found it to be lawful. It goes back to my previous question, where do you go if you are not satisfied with the Court?

[2/7, 12:13 PM] mdmawere1: Then you are f****d or you need to start from the bush.

[2/7, 12:14 PM] Rikki: Then the check and balances contained in the Constitution is not working or merely a smoke screen?

[2/7, 12:14 PM] mdmawere1: This is scary

[2/7, 12:33 PM] Rikki: Indeed very scary. If any one of the spheres of government like in this instance becomes unchecked, democracy failed and one is no longer in a democracy state