After giving the State Capture Commission of Inquiry the runaround for two years, the rubber hit the road for former president Jacob Zuma when chairperson Judge Raymond Zondo authorised the legal team to issue summons to compel him to appear from 16 November to 20 November 2020.
On Friday 9 October at 10.31, Zondo said: “I am satisfied that a proper case has been made for the commission secretary to sign and issue a summons for Mr Jacob Gedleyihlekisa Zuma to appear before the commission at 10am from November 16th to November 20th.” The judge made provision for Zuma to give testimony electronically from his home at Nkandla as he used his age as a factor for Covid-19 transmission and a reason for not attending the commission in September 2020. The commission must stop hearing testimony in December so Zondo can write his report before the state capture probe wraps up in 2021.
But Zuma is unlikely to accede as his team plans to launch an application before the commission for Zondo to recuse himself. If the judge refuses, Zuma’s team intends to make a Gauteng High Court petition to compel him to do so. His legal team believes that once a recusal application is triggered, Zuma can’t be compelled to appear before the commission.
“Thirty-four witnesses have implicated Mr Zuma,” said the commission’s legal head, Advocate Paul Pretorius, as he argued for a summons to be granted, adding: “There’s a duty at common law that obliges the commission to call Mr Zuma to answer. This commission has issued over 2,500 summonses, of which 99 were issued for witnesses to appear. It’s a necessary mechanism for this commission to do its work.”
Pretorius said Zuma’s testimony was crucial because he is named in four direct terms of reference of the commission and in two indirect terms – he is a marquee witness to understand state capture. “Mr Zuma’s evidence is necessary and desirable for the work of the commission. Much, if not most, of the acts of state capture occurred during his term of office,” said Pretorius.
Zondo has resisted summoning Zuma despite the former president leading the commission on a merry dance.
He has been asked to provide his version of events since 13 September 2018 after former GCIS CEO Themba Maseko testified to influence-peddling by him on behalf of the Gupta family who wanted the government advertiser to place campaigns in their media outlets. In April 2019, he was invited to respond to various testimonies which had implicated him and he appeared in July 2019.
In that three-day appearance in July, he failed to answer any substantive questions but chose to give testimony of various alleged long-standing conspiracies against him. Zuma said then that he was withdrawing from any participation in the commission, but after an agreement was struck in Zondo’s chambers, his team agreed to stay in.
Long road to a summons
After the July 2019 agreement, the commission repeatedly wrote to Zuma’s legal team requesting his affidavit (in response to verbal claims he made about broadcaster Redi Tlhabi), seeking to set up three further appearances and requesting his version to dozens of implicating testimonies. Zuma cited first his arms deal trial and later an illness not to appear and in January 2020, the commission’s legal team drew up a preliminary summons application which Zondo again kicked into touch, preferring negotiation over confrontation.
By September, Zondo began to run out of patience: “…they (Zuma’s counsel) had construed it would be dates agreed with them and I made it clear that I decide dates”.
On Friday 9 October, the judge was strained but determined: he ruminated aloud on several occasions about testimony he had heard implicating Zuma (the axing of former finance minister Nhlanhla Nene, the attempt by the Gupta family to bribe former deputy finance minister Mcebisi Jonas, various Eskom testimony alleging meddling by Zuma) and how he would struggle to do his job without the former head of state’s testimony.
“All these things can’t be ignored. I can’t ignore those things if I am to do my job,” said Zondo at one point in the summons application hearing.
Later, he said:
“If, on the information available to me, there can be no doubt that if I form a view that a particular person may have or does have knowledge of matters relevant to my investigations, I must take steps to get that person to come testify. If I don’t do that, I will be failing in my duty.”
To which Pretorius replied, “There is an election not to answer by a witness but there is no right not to come to a commission at all.”
Zuma’s legal team is preparing an application to get Zondo to recuse himself and once this is launched, they believe this will place the summons in legal abeyance.
It’s going to be an ugly fight as the former president intends to raise his previous personal relationship with the judge as one of the factors for recusal.
In a four-page letter addressed to Zondo in September, Zuma’s lawyer, Eric Mabuza, accused the judge of bias and a lack of partiality; he wrote that the former president had doubts about the legality of the commission even though he appointed it and signed it into life.
Raising a spectre of arguments to come, the letter to Zondo states:
“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.” DM