The Impartiality Test: Zak Yacoob's Return to the Judiciary Raises Red Flags

The stirring appointment of retired judge Zak Yacoob as an advisor to South Africa’s Constitutional Court has reawakened the perennial debate about the impartiality of the judiciary—a bedrock principle in any democratic society's quest for fair and unbiased jurisprudence.

Zak Yacoob's history as a former Constitutional Court judge is not in question. However, it is his marked political stance and recent advisory role that invites scrutiny. Despite serving a noble institution, his political affiliations and strong public statements could be seen as at odds with the expectation of impartiality that is the hallmark of any judge's mandate.

Controversy first flared up over Yacoob’s position following reports by the Sunday World which led to the Office of the Chief Justice releasing details about his role. The office clarified that Yacoob was not making decisions but providing "support service" by drafting memorandums for new appeal applications. This decision had ostensibly been made to reduce the Court's burden owing to its expanded jurisdiction.

The concern here is twofold. First, there's the procedural oddity of appointing a retired judge to work customarily done by legal researchers and clerks. Second and more significantly, there is the spectre of Yacoob's polarizing political connections and outspokenness potentially clouding the Court's judgment.

Zak Yacoob's political leanings are well documented, from his already public affiliations with key political figures like Minister Pravin Gordhan to involvement in movements such as #SaveSA—interventions that appear to extend well beyond the neutral posture expected of a judicial figure.

A striking example of Yacoob’s partiality was his diplomatic yet strident demand from ANC veteran Mathews Phosa to retract a legal opinion on a contentious party issue, an action that evidently aligns Yacoob with certain factions within the ANC. Such incidents have painted Yacoob as an actor involved in political machinations, rather than an independent arbiter of the law.

Yacoob's statements concerning internal party politics, particularly within the ANC, further illuminate the extent of his political engagement. His forthright assertion that the fall of former President Jacob Zuma was only a partial victory in the broader struggle against corruption within the ANC is more akin to political commentary than judicial discretion.

Anonymously cited allegations against Yacoob have even suggested that his political relationships have been used to influence and sidestep professional protocol—actions which, if true, indicate a departure from judicial conduct into the realm of political advocacy.

The principle of impartiality in the judiciary is sacrosanct, and Yacoob’s current responsibilities—mainly reviewing appeals—directly influence the outcome of cases. The question lingers whether Yacoob could disentangle himself from his pronounced political convictions to offer unbiased judicial advice, especially in appeals involving his political allies or adversaries.

Judge Mogoeng Mogoeng’s case, which led to a censure by the Judicial Conduct Committee for expressing personal views, serves as a poignant reminder of the delicate balance judicial officers must maintain between personal belief and professional obligation.

Therefore, the key issue remains: how should figures like Yacoob navigate their relationships with the judiciary upon retirement, particularly when their advisory roles carry significant weight in the adjudicative process?

The path forward for the Constitutional Court, and by extension, the broader South African judiciary, involves a deep introspection on the mechanisms for preserving its independence and the integrity of its appointments. As the judiciary persists as the bastion of national justice, it must avoid any semblance of partiality that could tarnish the sacred trust placed by the public in the institution.

In conclusion, Yacoob's appointment ignites essential questions about transparency, accountability, and the adherence to impartiality within the highest echelons of the South African judiciary. Delineating the line between retired judicial officers' freedom of political expression and their engagement with a court that must remain beyond reproach is essential to upholding the public's confidence in judicial outcomes.