LAW & SECURITY
Zondo Commission, recusal and the way forward for the rule of law? At the time of writing, Deputy Chief Justice Raymond Zondo had recently delivered his decision following the presentation of arguments by Advocate Muzi Sikhakhane on behalf of former President Jacob Zuma and responses by the evidence leader Paul Pretorius on 16 November 2020. By Peter Bagshawe
T
hese arguments related to the application by Zuma for Justice Zondo to recuse himself for alleged partiality and bias. In a previous article (The Impact of Amendment of Section 11 of The Regulations Governing the State Capture Enquiry) reference was made to the background to the establishment of the Commission of Enquiry as well as to the likely application for Justice Zondo to recuse himself. As a potted history the Commission of Enquiry was established out of recommendations contained in the “State of Capture Report” prepared by then Public Protector, Thuli Madonsela. The release of the report was delayed by an interdict applied for by 32
Messrs. Zuma, Van Rooyen and Zwane; the interdict application was subsequently withdrawn. By then Madonsela’s term of office had expired and the report was released by the current Public Protector, Busisiwe Mkhwebane on 2 November 2016. In line with recommendations made by Madonsela, then President Zuma established the State Capture Inquiry, via promulgation, in January 2018 and appointed Deputy Chief Justice Raymond Zondo (in accordance with the State of Capture Report recommendation of Chief Justice Mogoeng Mogoeng) to chair the Enquiry. At the stage of the appointment of Justice Zondo to chair the Commission, then President Zuma openly expressed his faith in the judiciary and their ability
SECURITY FOCUS AFRICA OCTOBER 2020
to execute their tasks fairly, with impartiality and independently and, on a number of occasions, stated that he would cooperate with the Commission. It is also noteworthy that former President Zuma recommended Justice Zondo for the position of Deputy Chief Justice in 2017. After hearing the respective arguments for and against the recusal application, Justice Zondo initially indicated he would release his decision on 17 November. This was subsequently held over and the decision was given on 19 November. The first leg of the decision was on the alleged friendship between former President Zuma and Justice Zondo, which Zuma alleged made Justice Zondo conflicted in his role as Commission
chairperson. On this point Justice Zondo had previously read into evidence his statement refuting the alleged friendship. Zondo stated there was no reason for Zuma to raise the alleged personal relationship almost three years after Zuma appointed him as Commission of Inquiry chairperson. The decision stated that this should have been brought to the attention of the Chief Justice by Zuma at the appointment stage. Justice Zondo held that no friendship existed that could support the recusal application. The second leg of the decision dealt with allegations that Justice Zondo was biased against Zuma with allegations made that Justice Zondo had treated various witnesses who allegedly implicated Zuma in securityfocusafrica.com
