In a ruling that could have been soundtracked by the Brothers of Peace kwaito classic hit, “O kae molao, ha se mo States mo,” Judge Fiona Dippenaar drew a sharp line between South African and American legal principles while dismissing Gwede Mantashe’s attempt to challenge the Zondo Commission’s findings.
In a quirky twist, Dippenaar reminded Mantashe that South Africa is not the United States, rejecting the application of American legal principles to the case.
Referring to the US doctrine of absolute judicial immunity, she stated, “I am not persuaded that it is appropriate to apply those principles to the South African context, given that South Africa follows a different legal regime than that of the USA.
“The United States authority is thus of limited, if any, value, given that circumspection must be applied in relying on foreign precedents.”
The judgment, which rejected the precedent set in Memela v Chairperson of the State Capture Commission of Inquiry and Others, has deepened confusion about judicial immunity, unwittingly suggested that Zondo is untouchable, and left critics wondering if the commission was a legal hatchet job.
However, this Sunday judgment—while rejecting the recent Memela precedent—has only deepened confusion regarding judicial immunity.
It inadvertently suggests that Zondo is beyond legal challenge, leading critics to question whether the commission was simply a R1-billion state-sponsored legal attack on those it sought to question. The ruling also reignites debates around the Zondo Commission’s legacy and the boundaries of judicial accountability.
Prima facie case
At the centre of the dispute is Gwede Mantashe, the Minister of Minerals and Energy, who sought to set aside the commission’s finding that there was a “reasonable prospect” of uncovering a prima facie corruption case against him.
Mantashe also argued that these conclusions were speculative, exceeded the commission’s mandate, and unfairly damaged his reputation. Yet, instead of addressing these substantive issues, the court dismissed his application on procedural grounds—specifically, his failure to obtain consent as required under Section 47(1) of the Superior Courts Act.
Section 47(1) has become a focal point in this case. It requires that anyone wishing to initiate civil proceedings against a judge must first obtain consent from the head of the relevant court. Mantashe’s legal team argued that this provision should not apply to Zondo, since he was acting as the commission’s chairperson, not as a judge.
Dippenaar disagreed, holding that Zondo’s role as chairperson fell within the definition of “judicial functions” in South African law. She quoted extensively from relevant statutes, stating: “The wording of s 47(1) draws no distinction between judicial and non-judicial functions… The protection afforded is further not limited to a judge performing judicial functions. It extends to his private affairs.”
This broad reading of Section 47(1) raises concerns that Zondo, as the commission’s sole member, was effectively shielded from legal scrutiny. The judgment notes that Zondo was “the chair and only member of the commission”, prompting questions about the lack of oversight in the commission’s operations.
Additionally, the judge rejected the precedent set in Memela v Chairperson of the State Capture Commission of Inquiry and Others, a recent ruling that concluded that Section 47(1) did not apply to Zondo in his capacity as commission chairperson. In Memela, the court found that Zondo’s role was a public or statutory function, not a judicial one.
Dippenaar dismissed this reasoning: “After anxious consideration, I must conclude that Memela is clearly wrong, and I respectfully decline to follow it.” She argued that Memela failed to consider binding precedents, such as Soller v President of the Republic of South Africa and Freedom Under Law v Judge Motata, which both interpret Section 47(1) expansively.
“The protection afforded by s 47(1) is not limited to a judge performing judicial functions,” Dippenaar wrote. “It extends to his private affairs. The expansive interpretation… must also take into account the definition of service in s 1 of the Judges Remuneration and Conditions of Employment Act 47 of 2001.”
Protected from accountability
Rejecting Memela only adds to the confusion around Section 47(1)’s scope. Critics might argue that a provision originally intended to protect judges from frivolous lawsuits is now being used to shield them from genuine accountability.
Mantashe’s legal team further insisted that Zondo’s commission chairmanship is distinct from his judicial role. They cited Erasmus and Others NNO v SA Associated Newspapers Limited and Others, which held that a commission headed by a judge is not a court of law, and that the commissioner acts in a capacity “wholly unconnected with the position which he otherwise occupies.”
Yet, Dippenaar rejected this argument, noting that the definition of “service” in the Judges Remuneration Act includes acting as the chairperson of a commission. “Even if a distinction were to be drawn in s 47(1) between judicial and non-judicial functions… the chairing of a commission of enquiry falls squarely within what are ordinarily and legally considered to be judicial functions,” she wrote.
The judgment also rekindles criticisms of the Zondo Commission itself. Mantashe argued that its findings were speculative and overstepped its mandate, with no evidence supporting the claim that he may have been involved in corruption. However, the judgment did not address these substantive points, instead dismissing the application on procedural grounds: “This review application is thus a legal nullity. It follows that it must be dismissed.”
Such a procedural dismissal may fuel suspicions that the commission—chaired solely by Zondo—operated with unchecked power, raising doubts about whether its findings were impartial or predetermined.
Avenue to review left open
Importantly, the dismissal of Mantashe’s application does not prevent him from seeking a review of the commission’s findings. As the judgment clarifies: “The applicant is not barred from a review… The applicant must simply follow the correct procedure.” However, the procedural requirement of obtaining consent from the President of the Supreme Court of Appeal may prove a formidable hurdle.
Critics would argue that Section 47(1) imposes unnecessary barriers to justice, especially in matters involving commissions of inquiry.
For Mantashe, this judgment is a setback—but it also highlights the intricate procedural challenges involved in contesting the findings of commissions of inquiry.