Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
23 April 2008

This lady is not for turning – even if it means being a hypocrite

Helen Zille must be a busy woman, so I am quite honoured that she has found the time to attack me for an article posted on Thought Leader. She seems upset that I criticised her response to the appointment of the Erasmus Commission of Inquiry. Maybe it was that headline: Zille, Zillier, Zilliest?

Zille’s recent attack sadly reminds me of President Thabo Mbeki. When President Thabo Mbeki told religious leaders that they should “trust him” on Police Commissioner Jackie Selebi, he was rightly vilified in the media and by the Democratic Alliance (DA). Now it seems Helen Zille, leader of the DA, is telling us we should “trust her” on the Spygate matter and should not complain when she impugns the integrity of a judge.

In response to the earlier post she argues: (1) that her name has already been cleared by a Commission appointed by her with terms of reference decided on by her and thus that she has nothing to hide; (2) people will appear before the Commission and will make scurrilous and untrue allegations that will damage her reputation and that of the DA; and (3) that Judge Erasmus should never have accepted to chair the Commission because it is a political hatched job and she is therefore perfectly entitled to attack him personally.

First, it is true that a Commission headed by a senior advocate cleared Helen Zille and the DA of wrongdoing. But the terms of reference of this Commission was decided on by Helen Zille herself, and she was thus cleared of what she knew beforehand she would be cleared of. The terms of reference of the Erasmus Commission is much wider, and thus has the potential to uncover evidence of wrongdoing not covered by the Zille Commission.

It might well be that even these wide terms of reference will not allow Judge Erasmus to make any adverse finding against the leader of the opposition or the party she heads. In that case she would have been truly exonerated by a judge (whose formal position should make his findings more authoritative than those of an advocate) and her name would really be cleared. But by pulling out all the stops to try and prevent this broader investigation, reasonable people without an axe to grind will inevitably become suspicious and will begin to wonder why we should trust Helen Zille. When politicians ask us to trust them, I for one starts getting suspicious – but maybe that is just me.

Second, in a constitutional democracy that guarantees freedom of expression, a politician cannot choose which allegations she wants to have aired in public and which one’s not. As the Constitutional Court has said, the guarantee of freedom of expression means that we must allow almost all speech – even speech that might be untrue or scurrilous – because in the free marketplace of ideas the real truth will emerge eventually.

Now Mrs Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a Commission of Inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Helen Zille and creates the impression of serious hypocrisy on her part.

Besides, to say that Mr Rasool might have a political axe to grind and might want to gain a political advantage out of this sorry saga and that the whole exercise is therefore illegitimate is also laughable – coming as it does from the DA. When the DA screams blue murder about allegations of corruption in the arms deal it does so knowing that it could gain a political advantage out of the matter. That does not make it illegitimate to ask for a commission of inquiry into the arms deal – it merely makes the DA a good, and therefore somewhat opportunistic, political party.

Third, it is true that in South African Association of Personal Injury Lawyers v Heath the Constitutional Court said that given the principle of the separation of powers in our Constitution, a judge should not perform a task that is “incompatible with judicial office” and that one of the factors that might be relevant in deciding whether the task is incompatible with judicial office would be whether it would “create the risk of judicial entanglement in matters of political controversy”.

But the Court also said that judges can preside over commissions on inquiry because the performance of such a function “ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, weighing-up of information, and giving a decision on the basis of a consideration of relevant information”.

Here we have a commission set up in terms of Provincial Legislation to establish wrongdoing by the City or its officials, which seems very close to the judicial function and therefore does not suggest an infringement of the principle of the separation of powers.

However, if Mrs Zille believed that the Erasmus Commission infringed on the principle of separation of powers as set out in the Heath judgment, she would be free to challenge its legality in the Constitutional Court. But she has not done so – perhaps because she has been advised by senior lawyers that such a case has little chance of success? Instead she has chosen to launch a personal attack on a sitting judge not on the basis of any of his actions or decisions (which would have been legitimate) but based on his previous political affiliations (which undermines one of the main pillars of our democracy).

This personal attack is deeply irresponsible and flies in the face of existing Constitutional Court precedent. The Constitutional Court has already found in the SARFU judgment that one cannot and must not assume that a judge would be biased merely because he or she belonged to a political party before his or her appointment.

We all have a duty to uphold the independence of the judiciary and to respect the members of the judiciary and we should not attack their integrity based on nothing more than their history. A judge does not stop being a judge merely because he sits as the head of a commission of inquiry and to suggest that he does is to engage in mental gymnastics of the highest order.

And once again the attack on Judge Erasmus reeks of hypocrisy. When Judge Sisi Khampepe was appointed by President Thabo Mbeki to investigate issues around the Scorpions – a politically controversial subject if ever there was one! – the DA did not complain and did not attack the judge for taking on the assignment and even launched a laudable action to gain access to her final report.

But now that another judge is appointed to head another commission dealing with politically less controversial matters such as lowly corruption in little Slaapstad, the judge is attacked personally and in Orwellian manner accused of undermining the independence of the judiciary.

This is rich, because, lets face it, it is the statement by Mrs Zille – and not the actions of a judge acting in terms of legislation – that is undermining the independence of the judiciary.

Hypocrisy of the highest order rules again.

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