1. With JZ being granted medical parole, does it effectively mean that the pending decision of the Constitutional Court on the application to rescind JZ’s direct imprisonment has been rendered moot and academic as being of no practical force or effect? How do we get here? Is the apex court sleeping on the job with its indecisiveness? Does this bode well for the future as a precedent?
2. The apex court has been superseded by events or recent developments in this regard as it inordinately delays rendering its decision on a matter where it has bitten the cherry 🍒 more than once! The Department of Correctional Services has effectively placed JZ on medical parole whatever the Constitutional Court eventually decides. This is a serious indictment on the Constitutional Court’s efficacy and lack of consistency in timeously delivering its judgments, especially when it came to the contempt case against JZ.
3. The apex court heard the IEC application to postpone the elections after the JZ imprisonment rescission application was argued before it but the same court delivered its judgment on Friday, 3rd September 2021 on the IEC elections postponement. The apex court has not yet delivered its ruling on the unprecedented rescission application by JZ despite the very same court being the court of first and last instance on the matter on three occasions, from the application to compel JZ to abide with the Zondo Commission’s subpoena and questions, to the direct application that he should be held in contempt and punished with direct imprisonment and then followed the imprisonment rescission application.
4. When mavericks and sea lawyers on social media platforms criticise the apex court and accuse it of having a special jurisprudence and legal dispensation for JZ, the denials and protestations from the apex court end up sounding hollow and unconvincing. What is so difficult for combined eight (8) legal minds from the top court in determining a rescission application of their own previous judgment? They have heard all legal arguments and submissions. What more do they need to render their unanimous or split decision?
5. Similarly with the IEC losing out their legal bid to postpone local government elections, they have no sympathy from this urchin. They are full-time institutional employees entrusted with periodically running elections. Elections do not occur every year so why doesn’t the IEC have contingency plans in place given the fact they were well aware since April 2020 that the Coronavirus pandemic was here and not abating? Instead IEC outsourced its functional responsibilities to retired DCJ to conduct hearings and come up with a Report Recommendation. Would you blame any skeptic to think that this was just a ruse seeking to rubber stamp the IEC’s pre-determined self-fulfilling prophecy to the effect that “the elections won’t be free and fair” if they are conducted now. This line of argument in favour of postponing local government elections ignores the fact that several by-elections have been held successfully under this Coronavirus pandemic and they were declared free and fair. Covid-19 has become an occupational hazard for all other jobs, why can’t the IEC adapt to this new harsh reality and even explore technological options beggars the question? To use Moseneke’s Report in order to try postpone the elections was a cheap shot from IEC along these inarticulated premises that ‘the Report’ would find favour with the Constitutional Court because it is authored by one of theirs who is a respected retired jurist’. It was as if the IEC was mimicking and taking a leaf from the Zondo Commission book with Zuma’s contempt charge, where the Zondo Commission sought direct access to the Constitutional Court as the court of first instance and last instance to convict Zuma for contempt. Effectively the IEC made Moseneke its consultant to justify its seemingly rehearsed inclination for local government elections to be postponed. If there was no dereliction of duty or remissness on its state of readiness on the part of the IEC it would not have come up with the notion of asking the former DCJ to investigate whether it would be feasible to conduct free and fair local government elections. Whether the local government elections will be free or fair is indulgent speculation and conjecture that result from putting the cart before the horse. You can’t determine “free and fair elections” by plucking straws from the air. It is a question best answered by the benefit of hindsight.
6. Admittedly Covid-19 has shattered any illusions of control and certainty that we have harboured. We have come to accept and learnt to live with the fact that the deadly Covid-19 is here now and the near future but that in itself is not an excuse for the IEC to shirk its institutional and constitutional responsibilities to conduct elections within the time periods ordained by the Constitution especially in the era of such advanced technological developments.
7. Related to this is the question whether IEC is another Chapter 9 institution which does not show collective foresight, institutional wisdom and incremental development in executing their constitutional mandate? We have not forgotten how IEC went back to the Constitutional Court to request an extension to the deadline of verifying addresses of voters in the Matlotsana case. For such an institution to ask for extensions to meet deadlines shouldn’t be a norm.
8. We need to set the bar high for our apex court, IEC and other branches of government, if indeed they are pillars supporting and reinforcing our constitutional democracy. The endemic problem of outsourcing institutional responsibilities continue to plague us, look at the Public Protector impeachment stalemate where there is already legal forum shopping by Parliament and the DA, in the pending appeal by Parliament and DA, to both the Constitutional Court and Supreme Court of Appeal, against the Western Cape High Court full bench decision to the effect that retired Constitutional Court judge Bess Nkabinde should not have been one of the panellists in a Parliamentary process of determining whether the current the Public Protector should be impeached or not.
9. Another curveball in our seemingly racially polarised oversight bodies is evident in the JSC’s majority recommendation for Hlophe JP’s impeachment. Why do you still need the JSC to duplicate and compound issues with a split majority and minority decision whether to impeach Hlophe JP or not if the Judicial Conduct Committee tribunal heard evidence directly from all witnesses under oath and they were subjected to cross-examination and a unanimous verdict was rendered? Interestingly the minority decision of the JSC to the effect that Hlophe JP should not be impeached is mainly from persons of colour. Parliament in its impeachment deliberations will have these two divergent views from the JSC, notwithstanding the findings of the Judicial Conduct Committee Tribunal. Your guess is good as mine as to whether the race card will be pivotal as an ace in the sleeve of Parliamentarians in deciding whether Hlophe JP is guilty or not guilty of gross misconduct as found by the JCC and majority of the JSC.
10. If the law enforcement agencies did their jobs without fear or favour, and if Parliament diligently exercised its oversight role dutifully, would there have been a need for the expensive exercise like the Zondo Commission of Inquiry into State Capture? These are some of the honest questions we need to ask ourselves. Commissions of Inquiries do not always reveal the truth but may serve the opposite, that is obscuring the truth and not resulting in criminal prosecutions. The Harms Commission into Death Squads, Farlam Commission on Marikana Massacre and the Seriti Commission of Inquiry into Arms Deal amply prove the point of obfuscation! Festina lente: hasten slowly in seeing some of these outsourcing processes of accountability as the ends in themselves. Political expediency, irrespective of its opportunism and toxicity, seem to count for everything and win the day while merits are relegated to the periphery as inconvenient distractions!
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