Who will judge the judges? Zuma says he can

Former president Jacob Zuma took aim at judges this week. Faced with contempt proceedings from the state capture commission for defying an order of the highest court, he said in a statement that some judges had "sold their souls" and forsaken their oaths of office in order to vilify him.

It was not the constitution or the law that he was defying, he said. It was these few individual "lawless judges who have left their constitutional post for political expediency".

In an extraordinary accusation, Zuma said: "We sit with some judges who have assisted the incumbent President to hide from society what on the face of it seem to be bribes obtained in order to win an internal ANC election. We sit with some judges who sealed those records simply because such records may reveal that some of them, while presiding in our courts, have had their hands filled with the proverbial 30 pieces of silver."

This was a reference to the directive issued by Gauteng deputy judge president Aubrey Ledwaba who, upon request by President Cyril Ramaphosa's lawyers, sealed a portion of the court record when Ramaphosa was litigating against the public protector to set aside her report on his #CR17 campaign, which saw him elected ANC president.

Zuma's statement was closely followed by similar claims by EFF leader Julius Malema in his response to the state of the nation address. Malema said there were "growing and now believable allegations" that some judges were "on the payroll of the white capitalist establishment" and had received bribes "through CR17 donations".

The complaint public protector Busisiwe Mkhwebane had initially investigated was about whether Ramaphosa had misled parliament in his answer to a question about a single donation. But in her investigation she subpoenaed and obtained bank records for the whole #CR17 campaign. When she released her report she revealed that millions had been donated and said they created "the risk of some sort of state capture".

When the president went to court to review and set aside Mkhwebane's report, she put all the documents before the court, including the bank records. This would normally have brought them into the public domain because court records are, unless directed otherwise by a court, public documents.

It is not uncommon for parties to ask that parts of a record are kept confidential by courts. In this case, Ramaphosa's lawyers said they contained confidential information belonging to third parties. The public protector's lawyers objected, but Ledwaba issued the directive and said that if anyone had a problem they could raise it during the court hearing, in which the EFF participated.

But throughout that litigation the parties - including the EFF and its lawyers - had access to the full record. No objection was raised. It was only after the high court gave judgment that the EFF launched a new and separate court case to make public the bank records. The case is due to be heard in March.

More importantly, there has not been in any of the court papers any allegation of the corruption of judges or an intention to seal the record in order to protect them.

Until this week, the accusations around judges and #CR17 were circulated by anonymous accounts on social media in 2019, with no evidence to back them up. In September 2019, chief justice Mogoeng Mogoeng came out guns blazing, saying anyone with any evidence of judicial corruption should come forward. He also said he would ask the police to investigate who was behind the anonymous accounts. The allegations stopped.

In his statement, Zuma names two judges: deputy chief justice Raymond Zondo and Gauteng judge president Dunstan Mlambo.

Mlambo has often been on the receiving end of the ire of Zuma's supporters. Most of the cases involving Zuma began in the Pretoria high court and the former president has lost many of them. But the court, and Mlambo, have not always found against Zuma.

In his statement, Zuma refers to Mlambo's "flip flop" and contradictory rulings. This appears to be a reference to the judgments when it came to Thuli Madonsela's "Secure In Comfort" report on Nkandla versus Busisiwe Mkhwebane's Bosasa report on #CR17. Mlambo presided in both cases. In court, Mkhwebane's counsel had argued that if the public protector could tell the president to establish a commission , then the public protector should also be able to tell the National Prosecuting Authority to look into a prima facie case of money laundering.

The court rejected this argument, saying that the context and facts were completely different in the two cases.