On Monday evening it emerged that lawyers for former president Jacob Zuma had written to the Zondo Commission of Inquiry into State Capture, asking its chair, Deputy Chief Justice Raymond Zondo, to recuse himself. Their stated complaint: they believe Zondo is biased against Zuma.
The cynicism of this move is remarkable for many reasons, and continues a persistent pattern of Zuma’s behaviour from at least 2006. But it also demonstrates the strategy to use court action to delay the final findings of the commission, giving some measure of protection to people who may have findings against them. As a result, the likes of Mosebenzi Zwane may be able to retain their positions in Parliament and the ANC’s National Executive Committee for a longer period.
The letter written by Zuma’s attorney Eric Mabuza to the commission complains that only Zuma has been the subject of a press conference by Zondo. This is a reference to Zondo’s comments last week that he will not negotiate dates with witnesses. As a result, they believe there is bias against their client.
The two most important paragraphs of their letter are probably these:
“President Jacob Zuma is of the firm view that the chairperson’s bias against him is the result of personal matters and strained relations that the chairperson ought to have disclosed right at the beginning of the inquiry.”
“President Zuma believes that the source of the Chairperson’s bias against him stems from the fact that the President and the Chairperson have historical, personal, family and professional relations that ought to have been publicly disclosed by the chairperson before accepting his appointment.”
This appears to be a claim that something happened in the past that makes Zondo unfit to judge Zuma fairly in the present. Of course, in classic Zuma style, he has not revealed what that might be, but rather opened the door to speculation. This is exactly the same tactic Zuma used when he had to testify before Zondo, where he claimed that he was the victim of a conspiracy going all the way back to 1991, but failed to provide evidence of this.
Then he claimed that former tourism minister Derek Hanekom had been an “enemy agent” — a claim that a court later ruled was defamatory. When Zuma tweeted his formal apology, he did so in two languages. In English he tweeted the apology, in Zulu he said that he was making the apology because a court had ordered him to.
But his claims against Zondo are a new low, even for him. And while his cynicism is more than breathtaking, it is his inconsistency that is staggering.
In 2006, Zuma faced a charge of rape (he was later acquitted). It was decided that one of the deputy judge presidents, of what was then still called the Transvaal Division of the High Court, would preside over the case. That judge was Jeremiah Shongwe. Zuma asked Shongwe to recuse himself because he had a child with Shongwe’s sister, Minah Shongwe (the child was Edward Zuma, who was born in Swaziland, but still managed to make xenophobic statements).
Shongwe agreed to recuse himself.
Then, in 2014, Zuma, now president, appointed that same judge, Jeremiah Shongwe, as chair of the Electoral Court of South Africa. Nothing had changed in their familial relationship between his request for Shongwe to recuse himself and his appointment of Shongwe as chair of the electoral court. So Zuma first said it was unfair to be judged by this person because of their familial relationship, but was happy to allow the party that he led to be judged by this same person.
Then there is the fact that Zondo was first nominated to the position of deputy chief justice in 2017 by Zuma himself. There was no mention then of these “historical, personal, family and professional relations” between them.
This, of course, is not the end of the hypocrisy.
In January 2018, Zuma was under intense pressure in the last days of his presidency. It was he who formally appointed Zondo as chair of the Judicial Commission of Inquiry into Allegations of State Capture. The circumstances were such that he had to accept a nomination to chair the commission from Chief Justice Mogoeng Mogoeng. Mogoeng, realising the vital importance of this commission, selected Zondo, his deputy.
In his statement announcing the decision, Zuma said, “I urge everyone to cooperate with the commission of inquiry. I trust that we will all respect the process and place no impediments to prevent the commission from doing its work.”
Again, there was no mention of these “historical, personal, family and professional relations”. It is only now, when Zuma is under pressure, that these “relations” are suddenly important.
And, it is him who’s been trying to place “impediments to prevent the Commission from doing its work”.
However, just because a tactic is cynical doesn’t mean it won’t actually work or have an impact.
It would seem unlikely at this late stage in the game that Zondo will feel compelled to recuse himself or step down. He may well have factored in this kind of tactic and prepared for it. And it may be that there is no real “historic” relation to worry about, that the evidence for this is the same as the “evidence” on which Zuma’s conspiracy theories have been based.
But in a worst-case scenario for the deputy chief justice, not all would be lost. Even if he had to step down, or even if the entire Zondo Commission had to fall apart now, much of its work would still have value. This is because the investigators who have uncovered much of the evidence for the commission up until this point are now working with the National Prosecuting Authority. As a result, the NPA is now in a stronger position to prosecute those who have had evidence led against them, including Zuma.
Meanwhile, in a best-case scenario for Zondo, Zuma’s latest accusations seem to threaten court action against the entire commission, or at least in its findings against Zuma. This could take several forms. Zuma could try to force Zondo to step down, or he could refuse to testify, or he could await the findings of the commission and then challenge those.
In the end, they would all amount to the same outcome, a delay. Zuma-time again.
This could have important consequences for the balance of power in the ANC. It could mean that people against whom findings are likely to be made, such as current MP (and former Free State Housing MEC) Mosebenzi Zwane could cling to their positions for longer. And that other people in the party who would be named in the commission’s findings would not have to step down for a long time.
It appears likely that the final findings by the Zondo Commission could be used to tip the balance of power in the ANC, considering how the factions are still deadlocked. If those findings were to be delayed, the current deadlock would be more likely to continue.
However, the fact that Zuma is taking this action is also a sign of desperation. It is obvious that he wants to avoid answering questions under oath. The only reason can be that he is scared of what he will be asked, for which he has no answer to give. And if he had a version, if he had evidence of how he was the victim of a “conspiracy”, if he had an explanation for what happened during his presidency, there would be nothing to fear.
But that is not the case. Instead, Zuma has everything to fear.
Zuma has shown since the moment he first took money from Schabir Shaik in the 1990s that he will do anything to avoid accountability. This tactic has worked well for him over many years. It helped him to force the NPA to withdraw charges against him in 2009, it helped him to the presidency, it kept him in office for nine years.
He is not going to change his habits now. It is upon South Africa’s legal system to once and for all blow away the fog he’s created and deal with the former president who set South Africa’s democracy and economy back for decades — and call his latest move what it really is: a cynical tactic that harbours staggering hypocrisy while revealing a man in a great deal of panic. DM
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