You can’t sue me, I’m a judge – Chief Justice Zondo tells Fraser

Chief Justice Raymond Zondo has told former State Security Agency (SSA) director-general Arthur Fraser to take a chill pill and forget about dragging him to court because the law does not allow him to take a judge to court unless he seeks permission from the president of the Supreme Court of Appeal.

 Zondo said this through his lawyer, Baitseng Rangata, when responding to Fraser’s complaint to the deputy judge president of the Gauteng division of the high court in Joburg, Aubrey Ledwaba, that the chief justice has failed to file an affidavit in the matter where the former spy chief is taking the state capture commission report on review.

In this matter, Fraser cited Zondo as a respondent.

 In a written response, Rangata said she “respectfully submits that the entire application is not jurisdictionally competent because of the applicant’s failure to comply with Section 47 of the Superior Courts Act 10 of 2013”. 

Section 47 provides that where civil proceedings are instituted against a chief justice, consent should be sought from the president of the Supreme Court of Appeal.  

“No such consent has been sought, let alone obtained by Fraser, and, accordingly, no court has jurisdiction to hear the matter,” Rangata wrote.

 However, Fraser is taking action against Zondo in his capacity as the chairperson of the state capture commission of inquiry and not as the chief justice.

 The showdown between Zondo and Fraser started when his lawyer, Eric Mabuza, lodged a complaint with Ledwaba on April 2, saying the chief justice had taken more than a year to file an affidavit to oppose his application. He said he had also “failed to meet every undertaking they made to file an answering affidavit, leaving our client in a prejudicial position”. 

Mabuza has asked Ledwaba to put the matter on the unopposed roll so that it could be heard quickly to clear Fraser’s name on allegations that he was involved in corruption during his tenure as the boss of the State Security Agency.

“Unless it is corrected, this will send a regrettable message that the chief justice is above the law,” Mabuza stated in his letter.

Mabuza added that Zondo, through his lawyers, had filed a notice to oppose Fraser’s application as early as January 20, 2023, but failed to do so. He explained that Zondo failed to file the record as per the rules, but instead, requested an extension and promised to file it by March 2, 2023 and then again by March 27, 2023.

Mabuza stated that Zondo and Rangata  eventually filed the record but “failed to meet every undertaking they made to file an answering affidavit, leaving our client in a prejudicial position”.

 Rangata, in her response to Zondo’s failure to submit the answering affidavit to date, said Fraser must consider that the chief justice has deduced his response from voluminous state capture reports. However, she said the draft answering affidavit was almost ready and should be completed in the next few days.

“It is over 200 pages in length,” read the response.

Rangata said they undertook to file the answering affidavit on or before Friday, 19 April. She said they had also discovered that Fraser did not attach a letter to the commission as he so stated in his answering affidavit.

“The commission’s records do not seem to have such a letter, and we have asked Fraser’s attorneys to furnish us with a copy to enable us to respond properly to paragraph 287 of his founding affidavit.”

She asked Ledwaba not to direct the court registrar to set the matter down for the hearing on an unopposed roll as they were opposing it nonetheless.

She further said Ledwaba could not direct the registrar to allocate a date for the hearing of the matter “in circumstances where it is plainly not ripe for hearing, nor is it jurisdictionally competent for a court to hear the matter at this stage”.

 Three legal experts who spoke to Sunday World this week on condition of anonymity as they fear victimisation, said Zondo’s reaction suggests he is above the law.

“Chief Justice Zondo is clearly telling Arthur that, ‘hey dude, you can’t sue me. I am a judge’, but Fraser is taking him to court as the chairperson of the state capture commission,” one source said.

Another legal expert added “Zondo is trying to buy time until his term is finished in August and [is] trying every trick in the book not to face Arthur in court during his tenure as chief justice.”

Fraser went to court to review Zondo’s report, saying the chief justice, as chairperson of the state capture commission, used dirty tricks to deny him an opportunity to appear before it and clear his name after he was accused of treason and looting SSA slush funds.

Fraser has also opened a perjury case against the commission’s evidence leader, Advocate Paul Pretorius SC, President Cyril Ramaphosa’s adviser Sydney Mufamadi, South Africa’s ambassador to Russia Mzuvukile Maqetuka, former intelligence operative and ambassador to Canada Mo Shaik, a former inspector general of intelligence Setlhomamaru Dintwe, former SSA director-general Loyiso Jafta and five other spooks implicating him in allegations of corruption, saying they were economical with the truth at the Zondo commission.

The case is before the -National Prosecuting Authority for a decision whether to prosecute.

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