Chief Justice Raymond Zondo’s legacy as Chief Justice

50-day countdown: Chief Justice Raymond Zondo’s legacy as Chief Justice

Friday, 12 July 2024, marks 50 days until Chief Justice Raymond Zondo officially retires. Deputy Chief Justice Mandisa Maya will take over the top job on 1 September 2024.

At a little over 24 months, Zondo’s term was short – although not as short as Chief Justice Sandile Ngcobo’s, which lasted for 21 months from October 2009 until its abrupt, court-ordered end in August 2011.

How has Zondo’s tenure at the helm of South Africa’s judiciary impacted the institution’s progress and operations?

Zondo’s career started as a labour attorney, working primarily for trade unions. Later in his career, he would serve as one of the drafters of the new Labour Relations Act of 1995, which granted extensive new rights to workers. It was, therefore, a natural progression to be appointed as a judge of the Labour Court in 1997. He was simultaneously appointed a judge of the Gauteng High Court in 1999 and subsequently Judge President of the Labour Court and Labour Appeal Court in 2000.

After serving a decade at the helm of the labour courts, Zondo was appointed as a justice of the Constitutional Court in 2012, winning the coveted spot against his now deputy, Maya.

Zondo was prolific as a justice of the apex court, writing 50 judgments between his first appointment in 2012 and final elevation to the top job in 2022. He remained true to his first love, labour law and wrote the most judgments in that area – but so many more. Perhaps most famously, he wrote the Constitutional Court’s judgment in the 2018 case of Minister of Justice and Constitutional Development v Prince, which allowed marijuana (cannabis) to be used, possessed, or cultivated in a private place for personal consumption.

Zondo’s time as chairperson of the State Capture Commission

Zondo would go on to serve for six years on the court before he was appointed as chairperson of the State Capture Commission of Inquiry in 2018.

His work on the Commission entailed him wading through mountains of evidence and interrogating numerous witnesses, to expose the shocking truth of how state institutions and state-owned companies were infiltrated and repurposed, with billions looted from them. South Africans followed the proceedings on their television sets daily, making Zondo an instantly recognisable public figure.

While Zondo’s acceptance to serve on the State Capture Inquiry was nothing short of patriotic, it would pull him out of the judiciary for the next three years. He effectively returned to the judiciary in August 2021, shortly after then Chief Justice Mogoeng Mogoeng took a long leave ahead of his retirement in October 2021. Zondo served as acting Chief Justice.

The massive task of being Chief Justice

Zondo’s first major task was to restore the credibility of the Judicial Service Commission, following a disastrous round of interviews in April 2021, where Julius Malema embarrassingly shouted “You are nothing but a political activist!” to Constitutional Court candidate Judge Dhaya Pillay. This led to the NGO CASAC turning to court to demand a rerun of those interviews. This occurred in October 2021.

Ahead of those October 2021 interviews Zondo, as acting Chief Justice and JSC chairperson, organised a pre-interview workshop to help get all commissioners (lawyers, judges and politicians) on one page. A key undertaking from that workshop was that all commissioners would be respectful of the candidates and be more cooperative.

The workshop proved a success as the interviews in the days thereafter turned out to be much smoother and more respectful to the candidates, even though the JSC ultimately produced the same list of candidates for the Constitutional Court as in the April 2021 round. This was the first major coup for Zondo and would set in motion a series of reforms which dramatically improved the interviews in subsequent rounds.

In 2022 Zondo was one of four candidates for Chief Justice, competing with Maya, fellow Constitutional Court Justice Mbuyiseli Madlanga, and Gauteng High Court Judge President Dunstan Mlambo. Maya was seen as a front-runner, as she would be the first woman Chief Justice and also because she would serve the full 12-year term. In contrast, Zondo was seen as an unlikely winner as he would serve only two years before mandatory retirement.

The Chief Justice interviews proved that the problems Zondo sought to fix ahead of the October 2021 interviews stubbornly remained. EFF leader and commissioner Julius Malema, joined by advocates Dali Mpofu SC and Griffits Madonsela SC, turned the interviews on their heads. They used the interviews as a platform to wage a thinly veiled political fight against Zondo and others like Mlambo, who were somehow seen as pro-President Ramaphosa.

Through weaknesses in the chairing, the interviews veered wildly off course, with a furious screaming match between Malema and Justice Minister Lamola, and Mpofu launching unsubstantiated claims of sexual harassment against Judge Mlambo. At the end of the interviews, the JSC announced Maya as their preferred candidate, which drew condemnation from CASAC, who argued that the JSC overstepped its constitutional mark.

Ultimately, President Ramaphosa appointed Zondo as Chief Justice, starting on 1 April 2022.

Zondo’s top priorities as Chief Justice

Although Zondo had been acting as Chief Justice for a year prior to his permanent appointment, it still took a while for him to fully outline the top priorities of his tenure.

He eventually named his priorities as implementing the full administrative independence of the judiciary, addressing problems at the Constitutional Court, and enforcing performance standards in the judiciary to speed up the delivery of judgments.

He eventually named his priorities as implementing the full administrative independence of the judiciary, addressing problems at the Constitutional Court, and enforcing performance standards in the judiciary to speed up the delivery of judgments.

Regarding the first priority, Zondo dusted off the judicial governance reforms that had been restarted by Chief Justice Mogoeng but whose steam died around 2014. These reforms included setting up a judicial administration that is entirely separate from the executive and would be able to determine its own budget and expenditure, without involvement from the Minister of Justice. Judges would also have a greater say in the running of court administration. Zondo, therefore, called on the President and Minister Lamola to move on the proposals previously made. This call was reiterated even stronger at the Judges Conference at the end of 2023, with a strong demand that Zondo take this up with the President directly.

Although Zondo met with President Ramaphosa on this issue in December 2023, there have been no outcomes of this meeting or any updates on what the executive’s response to it was. It is understood that the Ministry of Justice had prepared a response which only concedes an inch of the demands made by the judges, but largely rejects the idea of judges being fully in charge of the nearly R3 billion court administration budget. Zondo is likely to leave without achieving this priority.

Zondo made a little more progress on his second priority to fix the Constitutional Court. The seventeenth constitutional amendment, which expanded the Court’s jurisdiction and made it the apex court on all cases, rapidly grew the court’s caseload. Because the number of justices didn’t also increase, the Court found itself buckling under the workload and was taking exceptionally long to deliver judgments.

In response, Zondo devised a strategy to bring in retired justices Zak Yacoob and Johan Froneman to assist in filtering the cases and providing guidance memorandums that the sitting justices could use in decision-making. This strategy attracted condemnation from civil society organisations like CASAC and Judges Matter, who raised constitutional concerns about giving an adjudicative role to non-members of the Court. Zondo withdrew this proposal but committed to improving the functioning of the Court.

…the JSC still couldn’t attract more than the bare minimum of four candidates required by the Constitution, and therefore could not recommend them for permanent appointment, and the vacancy remained – much to Zondo’s disappointment.

After two years of the JSC failing to attract sufficient candidates to fill the vacancy on the Constitutional Court, Zondo devised a strategy to invite non-judges to act on the Court, which would be the first time in 25 years. Human Rights Professor David Bilchitz, and senior advocates Alan Dodson SC and Matthew Chaskalson SC, were appointed as acting justices for term four of 2023 and term one of 2024, with the expectation that they would make themselves available in the subsequent interviews in April 2024. Even though the former two applied and were interviewed, the JSC still couldn’t attract more than the bare minimum of four candidates required by the Constitution, and therefore could not recommend them for permanent appointment, and the vacancy remained – much to Zondo’s disappointment.

Zondo was much more successful in his third endeavour, to enforce judicial standards of performance. As chair of the Judicial Conduct Committee during his time as Chief Justice, he understood the problems with holding judges accountable.

Zondo was much more successful in his third endeavour, to enforce judicial standards of performance. As chair of the Judicial Conduct Committee during his time as Chief Justice, he understood the problems with holding judges accountable. In June 2023 Zondo issued a directive for all judges president to submit misconduct complaints against judges who take too long to deliver judgments. This immediately led to KwaZulu-Natal Judge President Thoba Poyo-Dlwati filing a complaint against the serial defaulter and now retired Judge Anton van Zyl.

In addition, Zondo got the JSC to set up judicial conduct tribunals to investigate a complaint by Gauteng Judge President Mlambo against two of his judges who had perennially defaulted on delivering judgments. Both tribunals started their investigations in March 2024. However, the one tribunal – against Judge Tshifiwa Maumela – had to be postponed due to his illness. The other tribunal found Judge Nomonde Mnqibisa-Thusi guilty of a lesser form of judicial misconduct, short of impeachment.

Reforms to the JSC

Perhaps Zondo’s most successful endeavour as Chief Justice are the reforms to the JSC. After the success of his initial workshop in October 2021, Zondo led the JSC to adopt written criteria for judicial interviews in April 2023 and was also a firm chair during the seven JSC interview rounds from October 2021 to May 2024. He emphasised that the JSC needed to be respectful to candidates while being laser-focused on assessing the suitability of candidates for appointment as judges. This yielded some success, as seen in the gradual improvement of the quality of the candidates who made themselves available for appointment to judicial office. It no doubt also enhanced the credibility of the JSC for the future.

A lasting legacy

The long shadow of Zondo’s star status as chair of the State Capture inquiry followed him to his substantive role as head of the judiciary. He was seen as an anti-corruption champion and was regularly invited to public engagements to speak about this and more. This unfortunately put him on a collision course with the political branches of government.

In one engagement hosted by the Human Sciences Research Council in June 2023, Zondo criticised parliament’s slow implementation of the State Capture recommendations. This drew the ire of Parliament’s leadership, who issued a furious statement “expressing shock and strong objection” to Zondo’s remarks. Speaking after a meeting they had with Zondo after this saga, National Assembly Speaker Nosiviwe Mapisa-Nqakula and National Council of Provinces Chairperson Amos Masondo said they “firmly reiterate that allegations suggesting Parliament’s sluggish processing of the Commission’s recommendations are unfounded,” and that the meeting provided them an opportunity to brief Zondo on the “extensive work being undertaken by Parliament”.

Civil society organisations like Judges Matter and CASAC also castigated Zondo for a television interview he did on the Newzroom Afrika in November 2023, where again Zondo spoke on the implementation of the State Capture recommendations but this time also spoke on former President Jacob Zuma’s pending trial, including an insinuation that Zuma may one day benefit from a remission of his sentence. “[We] regard the Chief Justice’s remarks as unfortunate and ill-advised,” CASAC said, adding that Zondo’s comments and his willingness to take media interviews risk compromising his and the judiciary’s standing and integrity.

It is also worth crediting Zondo for using his public image to speak out in defence of the judiciary.

It is also worth crediting Zondo for using his public image to speak out in defence of the judiciary. When former minister Lindiwe Sisulu wrote a puerile article attacking black judges and the judiciary, Zondo had a furious defence, hosting a long press conference condemning the minister for her remarks. Similarly, Zondo has often spoken out against claims of judicial capture, urging those who have evidence to come forward, while condemning to silence those with baseless claims.

It is unlikely that, at his appointment as a judge, Zondo ever dreamt that nearly 30 years later, he would end up as Chief Justice. Despite his relatively short tenure as Chief Justice, Zondo leaves a mixed legacy for incoming Chief Justice Maya and the rest of the judiciary. Partly because of the limited time he had available, he was unable to finish the judicial governance reforms he set out to achieve, nor did he entirely succeed in fixing the court. However, he has been able to change the course of the JSC – a vitally important institution in the judiciary – and improve its credibility. While his celebrity status and public remarks have both helped and harmed the judiciary, few will deny him the credit of taking on a difficult national task as chairperson of the State Capture Commission, which might turn out to be his most enduring legacy.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter.