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

These 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 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 Zuma, Van Rooyen and Zwane; the interdict application was subsequently withdrawn.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 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 alleged acts of state capture with partiality. Justice Zondo was at pains to point out that Zuma had not completed his evidence (going back to July 2019) before the Commission and had not replied with affidavits relating to the evidence of 35 witnesses that appeared to implicate him in acts of state capture despite being served with summonses requiring these affidavits be submitted to the Commission. It appears that the Commission has, in writing, on some 26 occasions, requested Zuma to provide his version of events and on some 16 occasions requested time slots for him to give testimony. The decision also referred to the subpoena that was served on Zuma to secure his attendance before the Commission for the week of 16 November. Justice Zondo also clearly stated that the Commission can call any witnesses that the evidence leaders chose to, provided Zuma was afforded the opportunity to appear at the Commission free to come before it to deal with evidence deposed. Justice Zondo said that Zuma had opportunities made available to come forward to give his events to the Commission but had failed to do so. The recusal application thirdly alleged bias on the part of Justice Zondo apparently based on Justice Zondo’s comments and questions during the course of hearing evidence. This appears to refer to Justice Zondo’s habitual careful and frequent summarising or encapsulating points of evidence for clarity. Here Justice Zondo stated that, as Chairman of the Commission, he was entitled and obliged to seek comments and ask questions on the matters the Commission is investigating. This cannot be a passive role. On this leg, again, the decision was that Zuma and his legal team had failed to prove an objective apprehension of bias on the part of Justice Zondo sufficient to find recusal. Accordingly, Justice Zondo’s decision was that the application for recusal was dismissed.

Immediately following this, Advocate Sikhakhane advised that his instructions were that the decision would be taken on review and that a complaint would be lodged with the Judicial Services Commission in respect of Justice Zondo acting in a matter in which Justice Zondo was involved. The sitting then went into recess for a tea break with Justice Zondo making it clear that proceedings would continue thereafter. After a more protracted break than normal a visibly perturbed Justice Zondo advised that former President Zuma and his legal team had left the hearing and adjourned the Commission until 23 November. The actions of Zuma and his legal team have precipitated a crisis within the hearing of the Commission in that leaving the hearing without being excused by Justice Zondo during the period covered by the subpoena is a criminal act. At the same time as being in contempt of the Commission the real possibility now exists that Zuma will not testify prior to the conclusion of the Commission’s term. Given the evidence heard to date by the Commission and the basis for the establishment of the Commission, this position is manifestly unacceptable.

From Zuma’s side it is likely that the Stalingrad defence tactic would be to approach the High Court, the Supreme Court of Appeals and possibly the Constitutional Court to delay his appearance. The more expedient option would be to apply for an urgent interdict to stop the Commission hearing evidence from Zuma prior to the review. However, given that the Commission hearing is more administrative in nature (rather than criminal) the granting of the interdict is debatable and may not be the route taken by Zuma’s legal team.

It is imperative that the Commission establishes control of a volatile situation and Justice Zondo indicated he “would consider that which needs to be considered” going forward. In terms of the Commissions Act regulations a person who fails to abide by a summons is guilty of an offence and can be fined a maximum of 50 pounds or a maximum of 6 months imprisonment or both. A further option is laying charges against Zuma with the referral of these to the National Prosecuting Authority for a criminal hearing. Finally, Justice Zondo could issue a warrant for Zuma’s arrest. These options need to be reviewed and acted upon to secure attendance and evidence essential to the work as well as protect the integrity of the Commission and the sanctity of the Rule of Law.

The level of reaction from the Commission to the action of Zuma, a former sitting head of State who enacted the Commission is an affront to both the Commission and Rule of Law must be measured and considered, but decisive. The actions taken by Justice Zondo in his capacity as Chairman of the Commission are likely to form part of the abiding legacy of the Commission. As such they will be followed and debated with interest going forward.

PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.