The Zondo Commission is, according to Dr Paul Ngobeni, fraught with existential, substantive and procedural irregularities.
It blurs the line between the executive and the judiciary, thereby disregarding the separation of powers doctrine; its flirtation with state law enforcement agencies following the president’s extraordinary changing of the rules during the game brings it into collision with the constitutional imperative of judicial independence; its conduct of its proceedings is in sharp contrast with well-established international norms and standards.
All this, says Dr Ngobeni, opens the Zondo Commission up to judicial review.
But will South African courts see it that way? Read for yourself, and decide.
Read the full analysis here: Why Justice Zondo Got It Wrong
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I have watched Paul Ngobeni surface, like pond-scum, after a long silence. He is clearly seeking a new way to make himself useful since Sisulu sacked him as her legal adviser.
He does not indicate whether his piece draws on his own expert knowledge having been struck off in Connecticut (affirmed by the US Supreme Court itself, no less, when he misguidedly appealed it).
Dear Tony. I appreciate your point. However, contributions to the website is based only on the substance of the contribution and not on who the person is. Subscribers to the website (mostly law students, practising lawyers and judges) are interested more in the legal content. That is what the website is about primarily. If the contributor says s/he is the author of the work, I take them at their word, edit the piece to the extent necessary, and publish it. Because this is a law website, I have taken out some gratuitous personal attack on people because I want the focus to be on the legal argument and not the personal attacks.
Many thanks for your comment.
Wow! Such a vile ad hominem attack!
I agree with Dr Ngobeni’s concern in so far as his article discusses the potential unconstitutionality of the regulations that give the NPA access to evidence given at the Commission, more so in circumstances where these were promulgated two years after the Commission had commenced its work.
The arguments regarding the recusal application are unconvincing for the following reasons:
(1) By its very nature, a recusal application is a complaint about the conduct of the presiding officer, and necessarily results in the presiding officer being both a witness and a judge in that application. Our law currently operates on the basis that a recusal application (just like an application for leave to appeal) is directed at the “implicated presiding officer”.
(2) The Erasmus Commission reference lacks proper comparison because for instance, no attempt is made to compare its (Erasmus) terms of reference with those of the Zondo Commission. The Zondo Commission terms of reference are clear and limited in scope.
(3) Dr Ngobeni makes a few statements that are clearly political or sensational in nature, and lack any factual or legal basis. Examples of these include the following extracts that are meant to describe or characterise the Commission or the DCJ: (a) “an obviously deflated DCJ Zondo…”: (b) “and the fact that it has become a “slaughterhouse” …”; (c) “I do not expect sanity and principled legal reasoning to prevail in this anti-Zuma atmosphere saturated with hatred and malevolence towards the former president”.
Many thanks for your perspective. I think there is an element of overbreadth in the Zondo Commission ToR and some judges (in private conversation) have raised the concern. Some of us raised this issue in February 2018 already. But, this issue will come up in court, of that I am certain. I don’t view the 3 examples to which you point as “clearly political” or “sensational”. The first seems to me a recordal of what the author observed as he was watching the proceedings, the second is an articulation of what Mr Zuma himself said, and the third is an observation of the author from what he has seen or perceived of the commission’s processes.
Thanks for engaging.
My comment is not on law but Paul Ngobeni is not a Dr. He must correct this.
In his article titled Legal Culture and Transformative Constitutionalism, Karl Klare bemoans what he calls the dominant conservative legal culture of South African lawyers, including the judiciary. Legal culture generally refers, amongst others, to the habits of mind, the repertoire of language and institutional behavior. Whereas South African law is generally said to have experienced a legal revolution, there is a sense in which the fundamentals of colonial and apartheid legal culture have not been disrupted. In this sense, the belief in the neutrality and objectivity of the law and the separation of law and politics are still very much a central aspect of the imagery of law and lawyering in South Africa. In short, South African legal culture continues to be obstinately predominantly formalist. It is no wonder that a lot of commentary around and about the Zondo commission is largely doctrinaire. The focus, either in the form of critique or support of the Commission is always almost on legal concepts such as bias, recusal and the audi principle, to name a few. This unfortunately happens at the expense of other equally valid non-doctrinaire approaches in relation to the Zondo commission. Having said all these, the basic question, I suggest, should be why is it that the constitutionally deleterious decision of the 2017 North Gauteng High Court in the case of President of the Republic of South Africa v Office of the Public Protector directing a President to appoint a commission of enquiry and a person who would chair it was greeted with muted discontent? I will suggest later that a law/politics prism succinctly illuminate the current dominant obsequiousness to something that should ordinarily have a chilling effect on our nascent constitutional democracy. I begin with the law and end with the politics of law. For starters, nowhere does Section 84 (2)(F) of the Constitution dealing with powers of the President to appoint commissions suggest that a President requires assistance from any quarter in the appointment of commissions. The entire section 84 of the Constitution deals with the powers and functions of the President. We should visit Section 10 of the Interpretation Act of 1957 which deals with “Construction of provisions as to exercise of powers and performance of duties”. Section 10 (1) states that “when a law confers a power or imposes a duty then, and unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires”. Section 10(2) makes it clear that where a law confers a power, therefore and unless a contrary intention appears, such power shall be performed by the holder of the office. The essence of section 10 of the Interpretation Act is, inter alia, that the holder of a power conferred to the holder by law has the discretion to exercise such powers. A power implies discretion whereas a duty must be performed. If we may go back to section 84 (2)(f) of the Constitution: This section deals with a myriad of powers and functions of the President including assenting to and signing Bills, pardoning or reprieving offenders etc. The assenting to and signing of Bills has an element of power and function in one. It is a power to the extent that the President has the discretion to send back a Bill if the President has reservations about the constitutionality of a Bill (section 79 (1)). However, the discretion withers in that ultimately the President must, after exhausting certain processes, assent to and sign a Bill. The Public Protector cannot for instance, prior to the exhaustion of the requirements of section 79 (4)(a) and (b) of the Constitution direct the President to assent to and sign a Bill. This is because at this stage, the President still has powers and therefore a discretion. So why is it that the Public Protector was allowed to temper with the powers of the President in relation to section 84(2)(f) regarding the appointment of a commission of inquiry. Is it not the case that the Public Protector’s performative act effectively amended the Constitution? It would have been different if Section 84(2)(f) read as follows: “The President is responsible for appointing commissions of inquiry and the Public Protector or any chapter 9 institution may, in the event that the President fails to do so, direct the President to appoint such a commission”. So why is it that we have come to accept something that is glaringly a constitutional abomination? The answer, I suggest, lies in the fact we are dealing with the person of Zuma. The environment is so politically toxic that when it comes to the former President Zuma, we are willing to accept acts of rabid unconstitutionality. The same happened to former President Mbeki when he was branded “the mad President”, only to be remembered fondly when he was gone. The point is that we need to guard against expediently sacrificing our constitutional democratic values in order to deal with a particular individual. We can’t behave unconstitutionally in order to be constitutional. One can only imagine what would happen if the current Public Protector were order the current President to establish a commission to investigate apartheid era crimes. It is therefore possible that what we are witnessing in relation to the initial establishment of the Zondo Commission and how it is playing itself out is essentially the inevitability of the politics of law and therefore the untenability of the distinction between law and politics. However because of our legal culture, we would rather focus on technical matters.