The Ten
The curious tale of the absent judge
On Tuesday, 29 December 2020, the Constitutional Court heard the State Capture Commission’s application to compel the former President Zuma both to appear and give evidence before it. This application comes after the Chairperson of the Commission, Deputy Chief Justice Zondo (‘the DCJ’), dismissed an application for his recusal brought by the former president. Upon that dismissal, the former president and his lawyers, presumably on the advice of his counsel, (unlawfully) ‘excused themselves’ from the Commission’s proceedings for that day.
There is a running gag among the hosts of Just Us Under a Tree, a podcast about the Constitutional Court, that the DCJ has absconded from his duties as a judge of the Court. Of course it is tongue in cheek, but it strikes at something quite fundamental. And that is that the Court, at least since July 2018, has only had ten judges sitting in court and hearing cases. This is concerning for several reasons.
For one, the risk of the Court arriving at an even 5–5 split decision is increased. Split decisions are of course rare, even when the court sits as an 8-member bench (I’m not aware of any 4–4 splits in recent years), but the fact that a 5–5 split has occurred at least twice in the space of a year is in itself concerning. When the Court cannot agree on what order to grant, the order of the lower court remains in force, and where the split relates to the reasoning, a question of law — sometimes with conflicting High Court decisions on it — remains unresolved. It is unclear whether the decision of either side of a 5–5 split is binding on any other court, let alone the Court itself. Is the reasoning of 5 judges of the Constitutional Court binding on a 3-judge bench in the High Court, or even one judge in the High Court? What about the Supreme Court of Appeal, which sits in panels of 5 judges? Is the result of a split court decision with no majority on the ratio merely a non-decision? We have no clue. I digress.
Second, as far as the public is aware, the DCJ is not on leave, long leave, or special leave from the Court during the time that he is chairing the Commission. We know, for example, that he sat in at least four matters after he had been appointed as Chairperson of the Commission in January 2018. What this means is simply that no other judge can be appointed to act in his stead because, legally, he is still on coram. Coram refers to the judges before whom a case is brought. These judges are able and entitled to: set down cases for hearing, dismiss cases, issue directions and orders in relation to those cases, sit for hearings, and write judgments in any of the matters that they participate in.
Perhaps let’s take a step back. The Constitution states that any matter brought before the Court must be heard by at least 8 judges. That is the quorum requirement (but not coram), which is to say the 8 judges who set a matter down for hearing do not necessarily have to be the same 8 judges who will hear the matter. But where only 8 judges heard a matter, only those 8 same judges can participate in the judgment writing process. The only three ways I’m aware of that a judge may not be part of the coram is when: (a) they recuse themselves; (b) they have taken a leave of absence; or (c) the matter relates to a decision that they were previously involved in. Recusal at the Court is largely an internal matter and so we will never know who recused themselves when and for what reason unless an application for recusal is brought, which is also rare.
But what we do know is that the DCJ is not on leave. How do we know this? No one has been appointed to act in his place. It is my understanding too, that the DCJ maintains chambers and staff at the Court. So when someone asked on Twitter, whether the DCJ had recused himself from hearing the Commission’s application today, it was not a silly question. In response to the question, someone suggested that he didn’t have to. At least not formally. Let’s unpack that.
While the DCJ’s absence from the Court may have created the impression that he is not involved in the Court’s work during the lifespan of the Commission, we know from the four matters that he was involved in post his appointment as Chairperson that that is not true. We also know that he is, legally, still on coram — the fact that he has not participated in cases for over a year (as far as we know) does not mean that he cannot participate in any case brought before the Court, on any grounds other than those listed above. His absence is merely that: absence. It is not an automatic recusal or leave, properly understood. But what does the absence mean, constitutionally? Is the DCJ “absent” for the purposes of section 175 that another judge may be appointed to act in his stead? That certainly seems to be the case.
Section 175(1) provides that a judge of the Constitutional Court may be appointed as the acting Deputy Chief Justice when there is a vacancy in that office or if “the person holding such office is absent”. In November 2019, Justice Khampepe was appointed by the President as the acting Deputy Chief Justice and in the press release, it was merely said that Zondo DCJ was ‘not available to perform his usual duties’ because of ‘his involvement with the Commission of Inquiry on State Capture’. But the Constitution contemplates that such an appointment can only be made where there is a vacancy or the judge in question is absent. And if the appointment was constitutionally made, that must mean that the DCJ was absent. If we are to accept that the DCJ was not merely ‘unavailable’ but actually ‘absent’ for the purposes of section 175, we must accept too the reason for his absence, which is his involvement with the Commission. Since that involvement is ongoing, we can safely assume that the DCJ remains absent for the purposes of section 175, both as the Deputy Chief Justice and as a judge of the Court. Unlike Schrödinger’s cat, which is both dead and alive, he cannot be both present and absent, on coram and off it. This means that a judge of the Court ought to have been appointed to act as DCJ and another person to act as the eleventh member of the Court. This conclusion is inescapable.
But that has not been done. And so we are left with the opposite, a judge and a DCJ who is simply unavail. It is often said that justice should not only be done, but should be seen to be done. Even if the DCJ took no part in today’s proceedings, which I am sure he did not, as a party to the case (in the person of the Secretary of the Commission) a formal recusal from the matter, by him, should have been made to his colleagues. Alas, we will never know.
It is a curious state of affairs, and one is left to wonder how things came to be this way. It is a constitutional quagmire, no doubt occasioned by the fact that a sitting judge was appointed to head a commission of inquiry. A decision that, with the benefit of hindsight, created more problems than it resolved. What is more curious though, is why this state of affairs persists.
