In March, 2016, the Public Protector was asked by three complainants to investigate “alleged improper and unethical conduct by the president and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of ministers and directors of State Owned Entities (SOEs) resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses”.
Then Public Protector, Thuli Madonsela, managed to secure an interview with then President Zuma on 6 October 2016, less than two weeks before she was due to finalise her report and leave office. With his lawyer, Michael Hulley in tow, Zuma refused and failed to answer any of the questions that Madonsela wished to pose, saying that he needed more time to consult his legal team.
This was after Madonsela had previously written to Zuma outlining the parameters of the investigation. The four-hour meeting ended with Zuma agreeing to file an affidavit, and agreeing to attend a further meeting with the Public Protector on 10 October. Needless to say, no affidavit was forthcoming, and no meeting took place. Instead Zuma, together with Des van Rooyen and Mosebenzi Zwane, filed a last-minute application to interdict Madonsela from releasing the “State of Capture Report” on the basis that the Public Protector had not talked to him or asked him questions.
Zuma withdrew this application when it was due to be heard in court on 2 November 2016, paving the way for the release of the report later that day. This was quite a momentous day in Pretoria: Pravin Gordhan, Oupa Magashula and Ivan Pillay were due to face fraud and corruption charges in the Pretoria Magistrates’ court in relation to the pension payout to Pillay but the matter was also withdrawn at the eleventh hour; and the Save South Africa campaign held a mass rally at St Albans Cathedral against State Capture and corruption.
The release of the State of Capture Report by the Office of the Public Protector (Busisiwe Mkhwebane was then in office) was accompanied by an audio transcript of Madonsela’s meeting with Zuma on 6 October in which Zuma’s lies were exposed – he had been asked questions by Madonsela and given an opportunity to respond. He opted not to do so.
Fours years later, and Zuma has still not answered any of these questions. And there does not appear to be much chance that he will do so anytime soon. The ‘Stalingrad strategy’ that he deployed to great effect in delaying the fraud, corruption and racketeering charges in relation to the arms deal and his relationship with Schabir Shaik and Thales, is being regurgitated in respect of the State Capture Commission of Inquiry.
When he appeared before Deputy Chief Justice Zondo in July 2019, Zuma used the occasion to spout various conspiracy theories, displaying a detailed recollection of things alleged to have happened decades ago. He even went as far as to label some of his former Ministers spies. When questioned by evidence leader Paul Pretorius, however, his intelligence-trained memory appeared to conveniently desert him.
Zuma objected to the manner in which he was being questioned by Pretorius, saying it amounted to cross-examination. He also vehemently denied the existence of the phenomenon of State Capture. In a throwback to his engagement with Thuli Madonsela, Zuma’s testimony at the Commission was abruptly halted, with arrangements to be made for his return. These arrangements never materialised due to his ill-health, the need to prepare for his criminal trial in the Arms Deal/Thales matter, the changing of lawyers requiring them to familiarise themselves with the issues, and so on. These protracted delays resulted in Zondo issuing a subpoena to Zuma to appear before him from 16-20 November 2020.
In another segment of his playbook with the former Public Protector (where he filed for an interdict), Zuma has now filed an application for the recusal of Deputy Chief Justice Zondo from hearing his evidence, on the basis that he is not impartial. This is the issue that will now dominate proceedings on Monday.
Zuma’s legal team had indicated several weeks ago that they would bring such a recusal application, yet they left it until the eve of the hearing before actually tabling it. This was after correspondence from the Commission seeking clarity that the former President would indeed honour the subpoena. The replies from Zuma’s lawyers were inconclusive, and perhaps deliberately evasive.
Despite repeatedly saying that he is willing to cooperate with the Commission, Zuma has failed to submit responses to allegations made against him by other witnesses. In his recusal application he simply says that the rules permit him not to respond, and he sees no reason to respond to lies and fabrications. In adopting this strategy, he is usurping the role of the Deputy Chief Justice who is the person with the authority to determine the truth or otherwise of evidence before him.
In my view the 100-page recusal application is flimsy, contradictory and self-serving, and Zondo is likely to dismiss it. But what then?
Zuma will in all likelihood seek to review Zondo’s decision in the courts, and going on past practice this will take us through the High Court, Supreme Court of Appeal and ultimately the Constitutional Court. That will inevitably take some time and will certainly not be concluded before the Commission concludes its work in March 2021.
Zuma would therefore have achieved his objective of not testifying meaningfully before the Commission and answering allegations levelled against him by 34 witnesses, so far. The incumbent President has indicated that he is willing to testify before Zondo, although no date has yet been fixed for this. If Cyril Ramaphosa is going to testify, as he should, given his role as Deputy President in Zuma’s Cabinet, there is no reason for Zuma not to do so.
The Stalingrad strategy succeeded in the past because of the compliance, if not connivance, of the National Prosecuting Authority (NPA), and in particular Mokotedi Mpshe and Shaun Abrahams.
While Zuma might avoid the Zondo Commission, it is to be hoped that he will not evade accountability forever. The recalibrated Hawks, NPA and its Investigating Directorate will have to ensure that, should there be sufficient evidence, criminal charges are brought against the former President. He will then finally have to answer before a court of law. DM
Lawson Naidoo is the Executive Secretary of the Council for the Advancement of the South African Constitution (CASAC).