Constitutional Court Judge Raymond Zondo, nominated by President Jacob Zuma to succeed the retired Dikgang Moseneke as the South Africa’s next Deputy Chief Justice appears a solid, if unremarkable, choice by a doggedly below average President.
Zondo has extensive experience in labour law matters having served in, and then headed, the Labour and Labour Appeal Courts and is known for his lucid, if sometimes “unnecessarily lengthy”, judgments according to the advocates who have appeared before him.
In political and legal circles Zondo had long been considered a Zuma administration favourite for the Constitutional Court before his eventual appointment in 2012.
He was criticised in several quarters, including by the General Council of the Bar (GCB), which represents the advocates’ profession, for a severe lack of judgment when the matter of Hlophe v Premier of the Western Cape Province, Hlophe v Freedom Under Law & Others came before the Constitutional Court in 2012.
The case related to the long-running saga involving an alleged approach by Western Cape Judge President John Hlophe to members of the Constitutional Court in the adjudication of a matter involving fraud and corruption charges against Zuma. At one point in the torturously drawn out affair both the full Constitutional Court bench and Hlophe had levelled misconduct charges against the other.
Zondo, then acting at the Constitutional Court when the matter was heard, did not disclose that he had previously been involved in attempts to mediate between the two parties until only after the hearing and shortly before judgment was handed down. Although none of the parties sought his recusal from the case, the GCB considered this a “serious matter” in its submissions to the Judicial Service Commission prior to Zondo’s interview for the Constitutional Court position he currently holds.
Zondo served in the Labour Court and the Labour Appeal Court from 1997-2010 before moving on to the North Gauteng High Court from 2011 until his appointment to South Africa’s highest court in June 2012.
In 2000 Zondo was appointed Judge President of the Labour Court and the Labour Appeal Court.
When Zondo was interviewed for a position at the Constitutional Court in May 2012, the GCB, in its submissions to the Judicial Service Commission, also raised “concerns” about his performance as the head of the Labour Court, where it was widely felt that the then-Judge President had been lacking in the administrative skills to run a slick operation.
The GCB noted that during Zondo’s tenure as head of the Labour Courts, missing files were commonplace, as was “a somewhat chaotic and unreliable filing system” — described as “obstinate features” of that Bench.
“In our view, a lack of strong and determined senior management may be responsible for permitting these employees to slide into a zone of comfort seemingly immune to criticism and discipline. Without knowing the circumstances under which senior management (the registrar and office manager) are appointed, we are not in a position to understand why more assertive and motivated senior managers have not been appointed,” the GCB noted.
The chaos at the Labour Courts may have been one of the contributing factors to his being passed over for a position at the Constitutional Court in 2009 and the Supreme Court of Appeal in 2010. Both the Supreme Court of Appeal and the Constitutional Court had been critical of the Labour Court’s inability to hand down judgments timeously during Zondo’s tenure. In one case, a judgment regarding the dismissal of an employee had not been handed down ten years after first appearing in the Labour Court.
Further controversy surrounded his time as Judge President of the Labour Court when, in 2007, questions were raised in Parliament about the appropriateness of the transport and living allowances Zondo was being paid. It was reported that Zondo had been paid R1 275 493 over a five-year period on top of an annual salary of R704 475 per annum.
Zondo’s successful 2012 interview for the Constitutional Court was fairly easy-going and responding to the GCB’s concerns regarding his travel expenses, he submitted the following response: “I had requested the then Minister of Justice, Dr Penuel Maduna, to make the Durban Labour Court / Labour Appeal Court my headquarters and he had done so. By reason of that I was entitled to subsistence and travelling allowance for the periods I spent away from Durban in connection with my work and for short periods spent in Durban as long as my accommodation commitments in Johannesburg remained during the time spent in Durban. That was in terms of the regulations.”
“Throughout my term of office as Judge President my accommodation commitments [i.e. financial obligations] in Johannesburg continued. Accordingly, I was entitled to subsistence and travelling allowance and the allegation made in the [MoneyWeb article submitted by the GCB] article falls to be rejected.”
In anticipation of his Constitutional Court interview, the GCB hastened to point out that Zondo had limited experience in adjudicating matters of administrative law (which deal with the President, ministers, premiers and other members of the executive administering power) of which a large number ended up at the Constitutional Court. Zondo had two reported judgments, in 2000 and 2008, which dealt with administrative law at the time of his appointment to the Constitutional Court.
The range of his labour law jurisprudence, however, is vast and diverse, and, in the words of the GCB, “probably unsurpassed” in developing labour law in South Africa. In Modise & Others v Steve’s Spar Blackheath, Zondo’s judgment ensured that it was legally required for employers to grant workers facing dismissal following an unprotected strike, a fair opportunity to state why they should not be dismissed or disciplined.
Insight into his legal philosophy and independent-mindedness was perhaps demonstrated in a dissenting judgment handed down in the Constitutional Court in 2015 in the Democratic Alliance (DA) v African National Congress (ANC) and Another, matter which related to a bulk text message the DA had sent out to voters before the 2014 national election.
The DA’s message had read: “The [Public Protector’s] Nkandla Report shows how [President Jacob] Zuma stole your money to build his R246m home. Vote DA on 7 May to beat corruption. Together for change.”
In a majority co-written judgment, Justices Edwin Cameron, Johan Froneman and Sisi Khampepe found that the message did not breach section 89(2)(c) of the Electoral Act, which prevents people or organisations from making a false statement with the intention of influencing the conduct or outcome of an election. The majority found that the text message was an interpretation or opinion of the Public Protector’s damning report on Nkandla, overturning the Electoral Court’s decision.
Zondo, with Jafta and acting Judge Monica Leeuw concurring would have dismissed the DA appeal on the grounds that the text message constituted a statement of fact which was false and in violation of the Electoral Act and Code. Zondo found that an ordinary, reasonable reader of the message would have understood it to mean that the report, Secure in Comfort, explicitly concluded that President Zuma stole taxpayers’ money to build his R246-million home – which the report did not do. Zondo found that to understand the message in another way would require reading the report in its entirety, which such a reader would not normally do.
Observing that the DA, “did not set out any of [the Public Protector’s] findings or facts in its SMS,” Zondo wrote: “There would still have been enough room in the SMS for it to have included at least three or four of the most serious findings of the Public Protector upon which its alleged comment or opinion was based. It did not do so.”
Together with Justice Chris Jafta, Zondo is considered part of the growing trend of “legal formalism” (adjudication that appears enthralled by the technical aspects of the law, rather than its more philosophical aspects and how the latter are connected to the Constitution and its vision) at the Constitutional Court.
This was perhaps demonstrated in the dissenting judgment Zondo penned in Maphango and Others v Aengus Lifestyle Properties (PTY) Ltd, which was handed down while he was acting at the Constitutional Court in 2012.
At issue was whether a landlord of a Johannesburg inner-city apartment block had the right to increase rental above the maximum imposed by the lease agreement with tenants and whether he could effect evictions if they refused such increases. The majority of the court found that the high court should have staved off any evictions until the Rental Tribunal had decided on whether the increases contravened the limits of the Rental Housing Act.
Zondo, with Jafta and Chief Justice Mogoeng Mogoeng concurring, sought inspiration for his dissent in labour law from which he suggested the drafters of the Rental Housing Act, “may have derived the concept of an unfair practise”.
Zondo, understanding the tenants to have claimed “unfair practise” on the part of the landlord, underlined that it was established precedent that “the determination of whether conduct is an unfair labour practice or is unfair is not a question of law but involves the passing of a value judgment”.
“I am unable to uphold the proposition that the termination of the leases constitutes a limitation of the applicants’ right of access to adequate housing, let alone its infringement. In my view the cancellation terminated the applicants’ legal entitlement to occupy the flats and no more. It did not, of itself, result in the loss of access to housing. What would have implicated the applicants’ housing right is the eviction,” he wrote.
Zondo, who was born in 1960 in Ixopo, KwaZulu-Natal, holds a BJuris degree from the University of Zululand and obtained his LLM from the University of KwaZulu-Natal. He also holds an LLM (cum laude) from the University of South Africa and another with a specialisation in commercial law. He practiced as an attorney at Mathe and Zondo Inc. He is married with four children.
Justice Raymond Zondo’s interview for the Deputy-Chief Justice position started on a poignant note and, three-and-half hours later, ended on a ponderous one.
Zondo wiped a tear from his eye as he was asked by Chief Justice Mogoeng Mogoeng to recall his impoverished childhood and the difficulties he overcame — an absent migrant labourer father, the heavy expectation to support his family after completing school — to study law at university.
Describing how he approached a local businessman who agreed to support his mother and siblings with monthly food vouchers for groceries while he attended the University of Zululand, to be paid back when he obtained his degree three years later, Zondo’s voice turned tremulous when talking about the day he went to negotiate a repayment: “He said: ‘No, don’t worry, just do to others what I have done to you. I thought that was very important and in my own small way I have tried to do that.”
Zondo said without that kindness of strangers and the assistance of bursaries, “I would never have gone past primary school.” Later, when pressed for any advice he would give people who experienced similar socio-economic hardship, he said: “Don’t just sit there and do nothing and say you are poor, be proactive.”
The potential successor to Dikgang Moseneke was quizzed on a spectrum of issues, including the challenges at the Constitutional Court (the greater workload after the 2013 decision to make it the apex court in all matters), his thoughts on land restitution (most of which were avoided because of the potential for such issues coming before the Constitutional Court), what he had done to promote gender and race transformation in the judiciary (pinpointed and asked black and female lawyers to act at the Labour Court) and what he would bring, if appointed, to the entrenchment of judicial independence, and its protection against “state capture”.
In response to the last, Zondo said he and his colleagues “take our independence as judges very, very seriously, it is crucial for our democracy that we don’t take chances with that.” He added that it was not just up to judges to protect their independence but that it also depended on the “popular citizenry and how much they are prepared to fight for it to be maintained”.
Zondo probably experienced the hardest line of questioning from commissioner Julius Malema, the Economic Freedom Fighter’s member of parliament, who raised issues about the friendships the judge shared with both Mogoeng and ANC MP Thoko Didiza, which went back to the 1980s. Malema suggested that his appointment would create the “perception” of a “broerskaap” at the JSC which ensured that “here are two friends running the most senior office at the Constitutional Court”.
Zondo said that was a “possibility”, but only a concern to the informed public if the friends lacked integrity or were corrupt — which he assured the commission he was not.
Malema also pushed Zondo as to why, if he was as concerned about gender transformation at the judiciary as he professed, he had not declined his nomination by President Jacob Zuma — especially since the appointment of his Constitutional Court colleague Bess Nkabinde as acting Deputy-Chief Justice, had been “one step forward” for female representation on the Bench.
Zondo, a stickler for legal formalism, said he would have considered such a decision if he was “privy” to the facts before the president when Zuma had made the decision to nominate him.
The interview drew to a close with public services minister, Faith Mthambi, sitting in place of justice minister Michael Masutha and perhaps drawing on her own challenges as political head of the South African Broadcasting Corporation during a period when it slumped into massive debt, unchecked by her, asked how he “would ensure you exercise prudent financial management” in the organising of the upcoming Congress of Constitutional Jurisdictions of Africa?
Zondo, who is chairperson of the organising committee for the conference to be hosted in South Africa later this month said he had a team, including “financial people” to ensure he didn’t run over budget or that malfeasance didn’t run rampant.
Read the full interview transcript: JSC Interview transcript – Judge Raymond Zondo