Newly-appointed Chief Justice Zondo: What can we look forward to?

After four weeks of radio silence, President Cyril Ramaphosa finally announced the appointment of Deputy Chief Justice Raymond Zondo as the new Chief Justice of South Africa. The announcement was met with some surprise but was generally warmly welcomed. Judges Matter joins those who were pleasantly surprised by Zondo’s appointment – he has the least number of years left on the Bench – but we warmly welcome the years of experience and deep knowledge of the judiciary that he brings to the role. We congratulate him on his appointment.

Based on his strength and experiences, what could we look forward to in Chief Justice Zondo’s tenure?

His immediate concern: Fixing a broken JSC

In an earlier article, Judges Matter noted that one of the priorities of the new chief justice would be to fix the Judicial Service Commission and restore its legitimacy in the public eye. Few people could be more suited for this role than Justice Zondo. He has already proven that he is capable of doing so. In the October 2021 interviews, Zondo had the unenviable task of chairing a JSC session which featured a court-ordered rerun of the Constitutional Court interviews that the JSC had spectacularly botched and was sued by CASAC (the Council for the Advancement of the SA Constitution) to have them overturned. Zondo earned plaudits for the respectful and dignified manner in which he ran those October 2021 interviews, with commentators applauding the gravitas he brought to the session.

Zondo now again has the task of rescuing the JSC from a muddy patch – one in which he ironically was the victim of the JSC’s free-for-all interview style. But this time, the reforms would have to be searching and thoroughgoing – the JSC needs to fundamentally change the way it does things. During the Chief Justice interviews in February, the JSC committed to a workshop to draw up clear criteria for judicial appointment. This commitment was repeated in a letter the JSC addressed to 8 civil society organisations who demanded that the JSC not proceed with interviews until criteria were in place. According to the JSC April 2022 interview schedule, the JSC has set aside an entire day where there will be a “discussion of the JSC mandate”.

As we have repeatedly said in the past, this discussion cannot conclude without the JSC drawing up clear criteria for judicial appointment, rules of procedure, and a code of conduct for commissioners. Zondo’s immediate task is to make sure that this is done. With only two years on the job, fixing the JSC will be Zondo’s signature legacy project.

His second major task: Rescuing an overwhelmed Constitutional Court

Although Zondo has served as justice of the Constitutional Court since 2012, he readily admitted during his interview that all is not well at Constitution Hill: our apex court is taking far too long to deliver judgments. Zondo, like other candidates, noted that this is likely due to the 2013 constitutional amendment, which expanded the Court’s jurisdiction to deal with all appeals instead of only those dealing with constitutional issues.

All four candidates had a suite of ideas which could be implemented in the short, medium, and long term. But the problems at the Constitutional Court cannot wait. In a recent column, legal writer Franny Rabkin notes at least four major operational incidents at the court which had dire consequences: from the missing appeal of a person languishing in St Alban’s prison to the fiasco over the procurement judgment, which almost put a halt to the government’s multi-billion-rand procurement machinery, to two retractions of judgments that had already been sent out publicly. While there may be reasonable excuses for all these, it is still unacceptable.

Zondo is the most senior judge both by the position he holds and the number of years on the Concourt Bench. He would have witnessed some of these errors, and it now falls on him to fix them. As Rabkin points out, Zondo will still be preoccupied with writing the State Capture report in the first few weeks of his tenure, but he nevertheless needs to come up with immediate measures to arrest the decline. He has already asked the court registrar to investigate how some of these errors arose, but that’s not enough – the court needs a detailed plan.

His third task: Dealing with judicial misconduct

For the last several years, Zondo has chaired the Judicial Conduct Committee, a subcommittee of the JSC that deals with misconduct complaints against judges. He has led that body with a relatively steady hand. Under his leadership, there have been encouraging signs of the JCC processing complaints in a relatively short space of time – including the complaints against Zondo’s boss and predecessor, retired chief justice Mogoeng.

Zondo now needs to intensify some of the successful measures he previously implemented as JCC chairperson and initiate new ones. These include amending the law to streamline the complaints system, recruiting retired judges to handle judicial complaints, allocating dedicated staff, and boosting transparency by publishing outcomes of major complaints plus the status of all complaints in the system. All these measures will help in some way in protecting the independence and integrity of the judiciary and in ensuring that judges themselves are subject to the same accountability they expect of everyone. Getting the conduct system working effectively will be yet another one of Zondo’s legacy projects.

The two issues Zondo will find intractable

i) Dealing with the fallout of State Capture

For the last four years, Zondo has been in the spotlight as the chairperson of the State Capture Commission. This has earned him the reputation as SA’s chief anti-corruption warrior, but it has also earned him (and the broader judiciary) some enemies. The Economic Freedom Fighters – the third largest party in parliament – oppose Zondo’s appointment based on his time at the State Capture Commission, describing it as a “reward for treating Ramaphosa with kids gloves (sic)”, and adding that it was Zondo’s “spiteful, vindictive and dishonest” decision [to refuse to recuse himself at ex-President Zuma’s request] which led to the deadly unrest in July 2021. These are strong words from a political party that litigates the most in SA’s courts. It’s not unreasonable to expect more of this kind of language as Zondo delivers further instalments of the State Capture report, and the report itself is taken on judicial review in the courts (as Minister Gwede Mantashe has indicated an intention to do).

Zondo will, unfortunately, be unable to tame this kind of political fallout. But he should already have a plan in mind and should be pressed on making it clear to the public. This plan must also speak to the politicisation of the judiciary, which fellow chief justice candidate Judge Dunstan Mlambo identified as a significant threat to the judiciary today.

ii) Leading the post-covid judiciary

As Judges Matter said earlier, the judiciary was not left unscathed by the covid-19 pandemic and the lockdowns in response. We are told of high case backlogs in some courts, especially in regard to criminal cases, which could not be dealt during the five months of hard lockdown. It will take several years to deal with these backlogs – several years, which we already know Zondo does not have. In the time remaining, he can put in place the systems and plans that will sustain this work post his retirement. This is why it shows some strategic foresight for the president to nominate Justice Mandisa Maya to be Zondo’s righthand woman as Deputy Chief Justice. She has already proven herself as a visionary leader who has a deft hand for dealing with complex problems.

Chief Justice Raymond Zond has some formidable problems awaiting his tenure as the sixth chief justice of South Africa. But his track record shows that he could make a few dents to many of them. Judges Matter stands ready to lend a hand in fixing these problems. Still, we also promise to stay true to our mission of holding him and the judiciary accountable to the transformative promise of the constitution. We wish the new chief justice well!

 “A version of this article was published in the New Frame: https://www.newframe.com/zondo-has-his-work-cut-out-tackling-many-issues/ “

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a civil society project that monitors the appointment of judges, their discipline for misconduct, and the judicial governance system in South Africa. Follow the project on www.judgesmatter.co.za and Twitter on @WhyJudgesMatter.