Constitutional term limits for Zondo and Ramaphosa could be SA’s unforeseen saving grace

By: Stef Terblanche

South Africa’s new Chief Justice, Judge Raymond Zondo, will fill this position for two years only before he will have to retire. That is just what South Africa needs at this juncture – a two-year Chief Justice beholden to no-one and nothing but the Constitution, his oath of office and doing his job. And limited time in which to build a lasting, respectable legacy. We have already seen the fruitful signs of that as he goes about his job without fear or favour.

Also, in two years’ time, South Africans go to the polls in their next general election. If President Cyril Ramaphosa can secure re-election as ANC president at the ANC’s national conference to be held in December this year, and should the ANC be returned by the electorate to govern the country in 2024, Ramaphosa may well return for a constitutionally determined final term as president of the country. That could afford him the same freedom as Zondo to finally do what needs to be done and to leave office with a respected legacy in place.

Both men are restricted by term limits prescribed by the Constitution. It may well be that these term limits – included by the drafters of our Constitution as democratic protections – may come to safeguard our democracy in ways the drafters never foresaw. It may just be that our democratic future will depend entirely on such an unforeseen twist in our national tale.

Zondo is already safe and secure and in the fast lane of the fight against corruption and criminal rot – testament perhaps to Ramaphosa’s wisdom in selecting him for the job. But Ramaphosa himself, however, still needs to cross a political minefield to get to 2024 and free himself from all the political restraints.

The Constitution stipulates that a judge of the Constitutional Court, including the Chief Justice, may hold office for a non-renewable term of 12 years or until he or she attains the age of 70, whichever occurs first. This term can only be extended through an Act of Parliament. Chief Justice Zondo has been a judge of the Constitutional Court since 2012, leaving him just over two years of his term.

While this term limit and Zondo’s short tenure may make it difficult for him to implement his overall vision for the judiciary, it will not prohibit him from vigorously engaging in the battle against corruption during these two years. In fact, it may even motivate him to deal with the corrupt with greater urgency.

He has already laid significant groundwork for doing that as chair of the Judicial Commission of Inquiry into State Capture. The Commission just recently, at the end of April, handed the fourth volume of its fourth report to President Ramaphosa – a damning indictment of the politicians, officials and businesspeople involved.

It should be noted, however, that as a judge Zondo’s is not a prosecutorial role. That function resides with the National Prosecuting Authority (NPA). But as the top officeholder in the overall criminal justice system – often viewed informally as second to the President only in terms of his official importance – Zondo may be able to indirectly influence the fulfilment of vigorous anti-corruption investigations and prosecutions but cannot determine them. He can, however, ensure that the courts will be in the best position to play their role.

This means he can see to it that cases are assigned to capable or sufficiently experienced judges, that they are placed on the courts’ rolls speedily, and that cases are heard with minimal or no interruptions. His authority as Chief Justice extends beyond just the Constitutional Court to the Supreme Court of Appeal as well as the various High Courts.

Furthermore, as a public and leadership figure, his voice and his pronunciations carry significant weight. And Zondo has already shown that he is not scared to use his position and his voice, even to the rather unheard-of extent of calling press briefings to get his message across. While in his person always the polite and gentlemanly judge, South Africa should prepare for two years of a feisty, combative Chief Justice when it comes to corruption. It may be safe to assume that Zondo will spare no quarter for those who have been stealing the people’s money with near impunity till now.

It is likely or at least possible too that, having identified the major culprits who benefitted from state capture and corruption as chair of the state capture commission, and having recommended the prosecution of such people by name, that he will lean on the investigative and prosecutorial entities to bring these people before the courts speedily.

Zondo has also shown that he will show no fear or favour to any particular political party. That means that he is not likely to be influenced by any high-ranking politicians in respect of any matters pertaining to the prosecution of any person. Zondo’s appointment as Chief Justice by President Ramaphosa had to follow a interview procedure of short-listed suitable candidates conducted by the Judicial Service Commission (JSC).

Among the JSC members are a number of representatives or appointees from different political parties or other politically connected or aligned representatives, some of whom arguably treated Zondo at times during the JSC interviewing process with what bordered on disrespect or even contempt. It may well have been an indication of politicians or political parties that felt, for whatever reasons, that it would be better to prevent his appointment as Chief Justice.

As a result, Zondo had to field insinuations that he had used his position as chairperson of the state capture commission of inquiry to persecute former president Jacob Zuma and gain favour with Ramaphosa. His JSC interview ended in a chaotic shouting match between Economic Freedom Fighters (EFF) leader Julius Malema and ANC Justice Minister Roland Lamola. In the end the JSC did not recommend Zondo for the position, but President Ramaphosa had the last say and appointed him anyway.

Nonetheless, displaying his political independence, Zondo has called for the prosecution of senior ANC figures, including members of Ramaphosa’s Cabinet, and has criticised others as well as the party. Zondo only has two years in which to round off his work in the state capture commission with successful trials of the perpetrators – expect him to waste no time.

For President Ramaphosa the road to uninhibited or unfettered rule is somewhat trickier. The ruling party remains highly divided among competing factions. Ever since becoming president of the ANC in 2017 and of the country in 2018, Ramaphosa had been constrained by the precarious balance of power between the two main factions – the one backing him, the other backing his opponents who have been seeking to topple him.

This arguably prevented Ramaphosa from getting rid of tainted ANC politicians he inherited from the period of rule of his predecessor, some even still serving in his Cabinet and various high positions in the ANC. It may also in many instances have prevented Ramaphosa from taking any strong and decisive action against his enemies in the party and in various high official positions, lest it be seen as a witch hunt. Something like that could have turned the tide against him and could have toppled him. The same dynamics may have slowed down or even prevented him from pursuing with greater vigour his promised war on corruption and the corrupt or cleaning up his own party. Simply put, Ramaphosa could not risk upsetting the apple cart too much for fear of being ousted himself.

Although Ramaphosa and his close allies have in the interim managed to restrict some of his key opponents in the ANC and to alter the balance of power in the party more in his favour, the divisions, his enemies and the quest to topple him have not gone away. In fact, these divisions have already shown themselves significantly in various ANC elective conferences taking place in the provinces at present in the run-up to the national elective conference in December. Even though the outcomes of these elections have so far mostly favoured him, the margins were narrow, and a number of provincial elective conferences have yet to take place. Ramaphosa’s re-election in December is therefore by no means yet a foregone conclusion.

However, should he be re-elected in December, one could argue that for the remainder of his first term as President of the country he will be free of some of the previous restraints and able to act more aggressively against his opponents in the party, and by implication in many cases, against those who are corrupt. But that won’t quite yet be the case.

The ANC still has to win a general election in 2024 in order for Ramaphosa to theoretically be able to return as President of the country for a second and final term. It is probably unlikely that the ANC will be ousted from power… just yet. But nonetheless, to get to that point, Ramaphosa will still have to tread carefully as he cannot weaken or split his party with more internal ructions and battles that could drive away ANC supporters to vote for other parties or simply not vote at all. And depending on how strong the opposing faction in the ANC continues to be in this period, Ramaphosa may still have to be careful to avoid a potential recall, the fate that befell former President Thabo Mbeki at the hand of Jacob Zuma. And finally, Ramaphosa will need majority support in the ANC’s parliamentary caucus to be elected president of the country for a second term.

Once he makes it to a second term, however, Ramaphosa will no longer have to worry that much about currying favour with any particular alliance partners, factions or individuals in his party in order to remain in power. It is only then, assuming that he has overcome all of these possible hurdles and has started his second term as President, that Ramaphosa himself will no longer constantly have to watch over his shoulder and will be fully liberated from internal party restraints.

He may then finally begin to deliver fully on his promise of a “new dawn”, of going all-out after corruption, of cleaning up and renewing his party, of removing the ideological shackles of his alliance partners and the radical faction, and of creating a capable, professional public service that is able to deliver to the long-suffering citizens of South Africa. So, it may well be, that in the cases of both the Chief Justice and the President, the constitutional terms limits placed on them may, as an unforeseen consequence, finally help bring South Africa back to a better place and even save our democracy.

Stef Terblanche is a Cape Town-based political analyst/consultant and journalist.