Has team Zuma outfoxed the State Capture Commission? Or, is its legal strategy informed by a panicked response after his elaborate opening speech made way for some uncomfortable questions in pursuit of the truth?
It would be disingenuous to pretend that former president Jacob Zuma didn’t claim control of the room on Monday when he stepped into the witness box before Deputy Chief Justice Raymond Zondo.
Accompanied by a heavyweight legal team, Zuma arrived, not under subpoena as an implicated party to answer to serious allegations of wrongdoing under oath, but rather as a guest of the commission, so say his lawyers.
This, they argue, means he can’t be grilled about witness claims that he auctioned the country off to the Guptas, or that he enabled them to influence the hiring and firing of Cabinet ministers or executives at state-owned companies or, that he had aided them in their raid on state coffers.
Instead, Zuma’s lawyers believe he ought to be given an ear, that he be allowed to testify in a somewhat uncritical or sympathetic environment as all those who have come before him.
But Zuma didn’t come to willingly share his experiences or accounts of such events. He was there at the invitation of Justice Zondo and knows nothing about State Capture, fraud or corruption.
It is remarkable that proceedings ran for three days before they were stopped on Wednesday afternoon when head of his legal team, senior advocate Muzi Sikhakhane, accused the commission of having brought Zuma there under “false pretences”.
There is no arguing that Zuma came kicking and screaming for round one: A statement released by the Commission on 20 June 2019 clearly states that the commission had been negotiating with his legal team for confirmation that he would appear for five days this week.
But Sikhakhane said he had advised his client to “honour” the request to appear, but that he now believed that was a mistake.
This is because his client was being cross-examined — there appears to be a fine line between asking Zuma to respond to what other witnesses have said about him vs cross-examining him as one would expect in a criminal trial.
Zuma is not an accused before the State Capture Commission and the inquiry is inquisitorial in nature, not accusatory as would be the case in criminal proceedings.
The rules of the commission allow witnesses to be questioned in order to assess the truthfulness of their evidence.
But Zuma’s lawyers took issue, several times, with the manner in which he was being questioned and have seemingly tried to restrict advocate Paul Pretorius, head of the inquiry’s legal team, to a rigidly soft line of questioning.
The legal strategy at play was marked by multiple interruptions of Pretorius’ attempt to wade through the witness’s testimony.
Twice on Monday Sikhakhane sought to rattle Pretorius by asking that he reads an isiZulu statement that Zuma had allegedly made to former government DG, Themba Maseko, in which he had allegedly called to ask Maseko to help the Guptas.
Pretorius, who said his reading of the paragraph may not suffice, was forced to leave the reading thereof to Justice Zondo.
Following Sikhakhane’s firm objection on Wednesday afternoon, the parties retreated to their corners; team Zuma to consult their client after which they met Justice Zondo.
It was then agreed to postpone Zuma’s appearance to Friday to allow the parties to figure out how best to proceed.
Sikhakhane’s objection came shortly after Zuma raised issue with the proceedings during questions around Barbara Hogan’s claims that he had allegedly interfered in a Transnet Board decision to appoint a new CEO, when he insisted that he wanted Siyabonga Gama, then the subject of an investigation into misconduct.
“I have a problem because I am being made to go through the details that are the details of the officials and expected to remember every other detail on work generally done by DGs and other officials.”
Said Zuma: “I am not Cabinet secretary or one of those who take minutes. The manner in which I am being asked questions on the details that I can’t even remember properly (because I wasn’t working with these).
“Now, naturally, this would have its own results. The results that would make the commission to take some conclusions.”
Pretorius was being thorough in his questioning. He had attempted to extract responses from Zuma about a detailed memorandum that Hogan had sent him on the proposed appointment and the board’s preferred candidate for the job.
“Now, if we take this document, either the DG or the Secretary for Cabinet, they worked on it. I am not sure about the purpose of me having to remember where the ‘i’s were dotted or the ‘t’s were crossed,” said Zuma.
Justice Zondo tried to reassure him and said where he did not know or could not recall things, he could simply say so.
Zondo also reminded him that Hogan’s allegations were that he had interfered in the process, so it was important for the commission to understand how matters had unfolded — according to him.
Zuma didn’t budge.
“I hear you. But, my problem does not go away. For example, the allegation put forward by the minister is that I interfered. I don’t know what that means, because the president talks to the minister about what they do. So if there was an appointment to be made, they consult with the president. I don’t understand this very broad word (interfere).”
Justice Zondo tried again, providing a cushion that Pretorius may have to go through the gist of Hogan’s claims as opposed to line by line.
Zuma, realising that he was not going to win this round then said:
“Chair, I hear you but I am being cross-examined on the details and I don’t know what will be the outcome. If we’re looking at that particular allegation, if I go through all of this and the commission does not consider my answer?”
And that summed up what appears to have been a grave concern, one followed by a visible huddle by members of his legal team for a caucus session, and then it was up to Sikhakhane to rise and end the day’s proceedings.
Zuma’s appearance was a much-anticipated moment for the country and the public is no doubt divided on the significance of the moment, or their expectations.
While those who have come to understand the former president probably didn’t expect much from the man who usually has an escape plan, some probably hoped that the powers of Zondo — those that have led to the Agrizzi-style revelations — would come into play.
But team Zuma has had a long time to prepare for 15 July 2019 — the commission’s been at it since August 2018 and like many implicated parties, it can safely be assumed that they have watched and observed as they calibrated and plotted their strategy.
Zuma does not believe that any witness thus far implicated him in State Capture, fraud or corruption, and so he has not responded to a single notice issued by the commission’s legal team.
Neither has he opted to rebut their versions by putting forward his own and nor has he applied to cross-examine any of them.
This left the commission somewhat empty-handed — devoid of his take on the allegations, something that made his spell in the proverbial dock seem almost unjust.
He is, after all, accused of being the prime suspect in the State Capture project.
In this round, Zuma is meant to respond only to claims by former finance ministers Pravin Gordhan and Nhlanhla Nene, that of former ANC MP Vytjie Mentor, former government DG Themba Maseko, former ministerial adviser Samuel Muofhe, among others.
His legal team were virtually rolling their eyes as Pretorius tried to give Zuma an opportunity to reflect on every allegation by Maseko, Hogan and Mentor.
At some point, it sounded as if they were more eager to get to Gordhan’s evidence, but with the short break until Friday, it’s unlikely to happen — and that is if Zuma agrees to return.
It was clear from the start that the Zuma team were not happy about being there, there were too many uncertainties; Zuma hadn’t been given a set of questions he would be answering; his lawyers had been unable to prepare him; and they didn’t even know who he may be implicated when he started testifying on Monday.
He was “handed” over to the commission “at its peril,” Sikhakhane had said.
So it was up to Pretorius, one of the commission’s big guns, to lead this reluctant witness.
Pretorius had previously led the evidence of, among others, Gordhan, Nene, that of former Ipid boss Robert McBride, and Bosasa’s Angelo Agrizzi.
But former president Zuma is no ordinary witness, their engagement at the commission went from tense to delicate as the days went by — and the jury is out on who had the better game plan.
The commission resumes on Friday when Zuma may or may not return to the witness stand. DM
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