It is unlikely that state capture commission chairperson Raymond Zondo will change his mind on recusing himself following his statement that he fathered a child with the sister of Jacob Zuma's wife many years ago, writes Matodzi Ratshimbilani.
In what appears to be a pre-emptive strike, Deputy Chief Justice Raymond Zondo, in his capacity as the chairperson of the state capture commission, issued a statement last month delving into some of his own personal affairs and explaining how, over 25 years ago, he had a relationship with an unnamed woman which resulted in the birth of a child.
He further stated that the woman's sister later married Jacob Zuma.
This was in response to a letter by the attorneys of the former president addressed to Zondo on 28 September in which they reportedly threatened to bring an application for the recusal of the chairperson, for amongst others, an alleged family relation that exists between the chairperson and the former president.
The commission decried the fact that whereas the intention to apply for recusal was made known over a month ago, none had been forthcoming and as a result the chairperson had not been afforded a timeous opportunity to address the allegations upon which the former president seeks his recusal. This development and persistent media enquiries are advanced as reasons why the chairperson was compelled to take the unusual step to discuss his personal life publicly.
The principles of recusal are well entrenched in South African law.
In essence, the idea of a judge or presiding officer recusing himself/herself in a matter that he/she is called upon to adjudicate is intended to realise the constitutional right to a fair trial by ensuring that judges and presiding officers act partially when adjudicating matters and not be influenced by extraneous factors.
Recusals find more resonance in court proceedings where litigants and accused persons have no influence over who is appointed to adjudicate over their cases.
It is not uncommon that a judge appointed to adjudicate over a matter purely as a function of scheduling, which is managed by the Judge President in the High Court, may find himself/herself in circumstances where he/she is required to preside over disputes between parties with whom he/she has a relationship, whether positive or negative.
For this reason the principle of recusal operates on the basis that should a presiding officer find himself/herself in a position of actual or perceived conflict, the ethics and decorum of judicial officers require that such a person should voluntarily recuse themselves from a case. It is for this reason that the decision for recusal in the first instance, lies with the presiding officer concerned.
In quasi-judicial proceedings such as arbitration, the possibility of a judicial officer being in a position of conflict is uncommon as parties in these proceedings elect and agree upon the identity of the presiding officer before matters commence.
It is only in instances where parties become aware of conflicts once matters have commenced that an arbitrator may be called upon to recuse themselves once proceedings have commenced. It is for this reason that article 12 of the International Arbitration Act 15 of 2017 provides that a party may challenge an arbitrator appointed by him or her or in whose appointment he or she has participated only for reasons which he or she becomes aware after the appointment has been made.
This provision amongst others will be instructive on the current impasse between the chairperson and the former president as it is well documented that the former president approved the appointment of the chairperson to his position. The former president will be hard pressed to rely on facts that were at his disposal about the chairperson when he gave the approval. The only grounds that will be worth debating for this purpose can only be those that arose or came to the knowledge of the former president once the Commission had commenced its work.
A family relation that dates more than two decades will be a long shot and it is likely to be the reason among others that the chairperson elected to throw down the gauntlet to the former president.
Another relevant factor for the purposes of this debate is that the Judicial Services Commission Act, which legislates the terms for the appointment and conduct of judges in section 12 thereof, contemplates the promulgation of the Code of Judicial Conduct by the Chief Justice which regulates the conduct and misconduct of judges.
In this regard, Article 13 of the Code of Judicial Conduct provides that a judge must recuse himself/herself for real or reasonably perceived conflict of interest or reasonable suspicion of bias based on objective facts and thus the trite test of a reasonable man applies to assess whether or not allegations are sufficient for a judge to recuse himself/herself from a case.
Article 13 specifically provides that a judge need not recuse himself/herself on insubstantial grounds.
The explanatory notes to Article 13 of the Code of Judicial Conduct, in line with case law, amplify the fact that whether a judge ought to recuse himself/herself is a matter to be decided by the judge concerned and a judge ought not to defer to the opinion of the parties or their legal representatives in making such a decision.
To this end, the chairperson's opinion on whether or not he is in a position of conflict is the determining factor and if the commission statement is anything to go by, the chairperson has made it clear that the family relations he has with the former president have not influenced his ability to deal with any legal matters that the former president has been a party to.
It appears unlikely that the chairperson will change his mind in this regard.
- Matodzi Ratshimbilani is a director at Tshisevhe Gwina Ratshimbilani Inc.