Judge Raymond Zondo has instructed the legal team at the Commission of Inquiry into State Capture to bring contempt of court charges against former president Jacob Zuma in the Constitutional Court after he failed to appear before the inquiry despite being summonsed.
Zuma has been implicated in State Capture by more than 40 witnesses in three years of evidence heard by the commission. He was due to answer at this week’s hearings but failed to appear for the second time this year.
The court ruled in January that Zuma was compelled to appear and testify before the commission, but he issued a seven-page statement on social media instead, saying he was being subjected to a witch-hunt and that he would not obey “their law”.
“The commission will make an application to the Constitutional Court seeking an order that Mr Zuma is guilty of contempt of court, then it is up to that court to decide what to do. It can impose a term of imprisonment or a fine. The commission will approach the Constitutional Court and ask it to impose a term of imprisonment. It will be up to the court to decide what is appropriate,” said Zondo.
He said Zuma’s failure to appear was very serious – especially as a former head of state who had taken an oath of office to uphold the Constitution. He said Zuma had fled the commission on 19 November and then failed to appear when summonsed in January. On his third strike of defiance against the commission, the mild-mannered deputy chief justice took no prisoners. He lectured Zuma from his commission bench on the rule of law and about all being equal before the law.
“It is a pity Mr Zuma has decided not to appear before the commission today in defiance of a summons. That it was done by a former president of the country who took an oath to uphold the Constitution is an even greater pity.
“The commission did not rush to issue summons, run to the Constitutional Court to get an order compelling him to appear. The commission did so when it was clear that he really was not prepared to comply with the summons.
“The Constitutional Court has made it clear in its judgment that a witness summonsed is not just… present, they must testify and answer questions and can’t leave without being excused by the chairperson even when reminded it was not up to him to just up and leave,” said Zondo.
Zuma’s actions risked eroding the rule of law if allowed to stand, said Zondo.
“Summonses get issued every day, and if the message that gets sent out is that people can disregard summonses and court orders issued every day and defy those with impunity, there will be very little [left of the law],” he said Zondo.
He said the former president did not have his set of laws.
“Our Constitution tells us we are all equal before the law. We are all subject to the Constitution and the law, and we are all required to obey the courts’ orders. We are bound [by the law] whether you like it or not. There should be no two legal systems regarding these rules. There should be no rules for some and other rules for others. We are all subject to the same laws.”
Zondo said Zuma’s legal team chose not to oppose the Constitutional Court application made by the commission to compel the former head of state to appear before it even though they had been given a copy of the legal papers ahead of the hearing.
The commission’s secretary, Itumeleng Mosala, had said in his papers before the Constitutional Court that the fact that Zuma had approached the same court for the right to bring a recusal application against Zondo before it was not a ground in law for him not to appear on a different summons.
”If they thought that was not correct in law, they could have contested. They chose not to contest that or to participate in those proceedings,” said Zondo, who repeated the Constitutional Court’s finding that witnesses before his commission did not have a right to silence since that was a privilege in criminal proceedings. Zuma had the privilege against self-incrimination. “They [Zuma’s lawyers] knew this was an issue to be raised. If they had a case to the contrary, it was up to them to place their arguments before the Constitutional Court. They chose not to do so.”
Earlier, Zondo noted that Zuma has repeatedly said that no witnesses had implicated him in State Capture. The judge wondered aloud why then the former president was worried about self-incrimination.
“The commission views Mr Zuma’s actions in a very serious light. He has no valid or sound reason not to appear,” said Zondo before he adjourned proceedings.
The State Capture Inquiry is supposed to conclude its hearings by the end of March and report to President Cyril Ramaphosa by the end of June. The application for contempt of court order against Zuma and a request for a prison term to be imposed on him may delay its conclusion.
Ramaphosa will lead an ANC delegation before the commission, possibly in March. DM
See report by Ferial Haffajee from earlier on Monday here.