JGZF RESPONSE TO JG ZUMA'S CONCOURT JUDGEMENT
The Jacob Zuma Foundation has taken note of the judgment of the Constitutional Court (both majority and minority). We are busy studying the judgment and discussing with our lawyers to get legal advice on the options available to our Patron, H.E President Zuma. We, however, would like to make the following observations:
Firstly, we are cognizant that the State Capture Commission (Zondo Commission) was established to perform a very important and invaluable task for our country. However, it remains a statutory body clothed only with the powers that the Legislature has given it.
Our courts (including the Constitutional Court) are duty-bound to uphold and protect the Constitution and to administer justice to all persons alike without fear, favour, or prejudice, in accordance with the Constitution. Suffice to say that the same Constitution that obliges our Patron to obey the supreme law of the land like every other citizen also affords him the same protections that it affords every other citizen.
Secondly, our Patron has never believed that he is above the law or the Constitution, the supreme law of the land. On the contrary, he has always insisted that he must be treated like every other citizen, and his rights to equal protection of the laws must be respected and protected. Indeed, our Patron has expressed his doubts about the lawfulness of the Zondo Commission, the biased manner in which it is being conducted, and the fact that it has been transformed into a "slaughterhouse" and a forum in which all kinds of unsubstantiated and defamatory allegations have been made against him.
He sought the recusal of DO Zondo on the basis of bias, followed appropriate legal channels, and lodged a judicial review application in the High Court. Instead of allowing a lawful judicial review process to unfold in the High Court, DCJ Zondo ignored that review court process and lodged an urgent application in the Constitutional Court seeking to hold our Patron in contempt despite exercising his rights of access to courts. In our view, that cannot be consistent with the substantive upholding of the rule of law that some only pay lip service to. Justice must be seen to be done.
Thirdly, it is not a criminal offence to have a dispute with an administrative agency such as the Zondo Commission. Our Patron has a legitimate disagreement with DCJ Zondo and has taken steps to have that dispute ventilated in the High Court.
The refusal of our Patron to comply with an order which he considered unconstitutional cannot be characterised as willful or "mala fide." He was acting in good faith and seeking to uphold the law. In addition, DO Zondo, through an affidavit that he deposed, is a complainant in a criminal case he has opened against our Patron.
Surely it cannot be consistent with the rule of law for DCJ Zondo to continue to preside over a matter where our Patron is an implicated party4 wherein the same DCJ Zondo has to make credibility determinations. The common law maxim that a man may not be a judge in his own case-unequivocally negates the power of DCJ Zondo to hear and decide a case in which he is an interested party.
Finally, the principle of equality before the law was dearly violated, and the Zondo Commission was given an advantage in a case that was adjudicated by DCJ Zondo's colleagues, whom he supervises. In addition, the majority judgment makes a spurious claim that our Patron "attacked" the Constitutional Court, which is utterly false.
If true, it is unconstitutional and a serious conflict for the same "vilified" panel of judges, which is supposedly embroiled in a running, bitter controversy with the alleged contemnor to preside as judges in their own case. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication. The characterisation of our Patron by the majority panel paints a picture of a very angry panel of judges. We concur with the view of other justices who said the Constitutional Court majority acted contrary to the rule of law,
The primacy of our Constitution was not vindicated in this matter at all. Actual or perceived judicial bias is unacceptable in our constitutional order. Judicial authority is an integral and indispensable cog of our constitutional architecture. Our supreme law vests judicial authority in the courts. (Section 165(1) of the Constitution,) It commands that courts must function without fear, favour or prejudice, and subject only to the Constitution and the lave. It follows that, at all times, the judicial function must be exercised in accordance with the Constitution. Judges are not above the law.
At a bare minimum, this means that courts must act independently and without bias, with unremitting fidelity to the law, and must be seen to be doing so. That did not happen in the Constitutional Court, as evidenced by the latest judgment, The dissenting minority judgment confirms that the majority judges breached the Constitution and their oath of office. This is so because courts are final arbiters on the Constitution's meaning and the law —a high duty that must be discharged without real or perceived bias.
In conclusion, the Jacob Zuma Foundation denounces Judge Kampempe judgment as judicially emotional & angry and not consistent with our Constitution.
Statement issued by JGZF Spokesperson Mr J Manyi, 30 June 2021
