CASAC CONCERNED BY CHIEF JUSTICE’S RECENT PUBLIC REMARKS
On Monday 13 November 2023, Chief Justice Raymond Zondo participated in a wide-ranging 40-minute interview on Newzroom Afrika. In the interview, the Chief Justice expressed his views on several topics, including the implementation of the recommendations of the State Capture Commission, judicial misconduct and the pending prosecution of former President Jacob Zuma. The interview follows the Chief Justice’s remarks at the National Anti-Corruption Advisory Council conference last week, in which he expressed views on similar issues. CASAC regards the Chief Justice’s remarks as unfortunate and ill-advised. The Constitution guarantees judicial independence and, to that end, grants judges security of tenure and ensures that their remuneration and benefits cannot be reduced. These measures are meant to insulate judges from political pressure and other outside influences. In return, judges are expected to stay clear of political controversy and everyday partisan politics and to carry out their judicial function impartially and without fear or favour.
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 believes that the Chief Justice’s remarks in the interview crossed the boundaries of acceptable speech by judges and should be reproached. While answering questions about the recommendations of the State Capture Commission, which he chaired, the Chief Justice ventured into commentary about matters he has no personal knowledge of, even speculating as to the reasons for the government’s failure to implement the recommendations. More concerning were the Chief Justice’s comments regarding the pending arms deal corruption trial of former President Zuma, a matter that is still pending before the High Court, as well as his insinuation that Zuma may, in future, benefit from a remission of sentence if tried and convicted. These comments, as well as the Chief Justice’s willingness to take media interviews generally, create the risk of perceptions that may compromise his and the judiciary’s Council for the Advancement of the South African Constitution standing and integrity.
The rule of law requires an independent judiciary whose decisions are enforced by the executive. This is only possible where the judiciary has legitimacy in the eyes of the public and commands its confidence. As far back as 1998, the late Chief Justice Ismail Mohamed stated clearly that: “The court’s ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity.” 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. It is important to remember that the job of Chief Justice is primarily that of a judge and that the office of a judge requires prudence, restraint and the maintenance of comity between the judiciary and the other two arms of the state. 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. We urge the Chief Justice to exercise restraint in his public engagements and to always act with the best interests of the judiciary, a fragile institution, in mind.
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