The proceedings before the Zondo Commission are producing both predictable and surprising outcomes. The predictable is in the evidence provided by a series of witnesses, all of whom have, in effect, confirmed the preliminary findings of Public Protector Thuli Madonsela as contained in her report on state capture. The public value of the commission in this connection is self-evident: the entire country is now learning of the extent of the rot to the foundations of constitutional democracy that took place over the past decade of Zuma rule.
To those who now try to argue that the fight against corruption is but a crude attack on ‘black excellence’, it is black South Africans, in the main, who have courageously stood up to inform the country of how the state was captured at the expense of reconstruction in favour of millions of unemployed, homeless and starving South Africans. After all the billions stolen by this predatory elite is money that should have been used to transform the lives of the previously and sadly still presently disadvantaged. The evidence reveals further that, contrary to populist rhetoric, it was not the constitution but political predation that has been at the core of the reasons why so little has changed for so many over the past 20 years.
What is surprising is the tactics now employed by Jacob Zuma and unfortunately – although for different reasons – by the evidence leaders of the Zondo Commission. Zuma, by way of his legal team, has announced that he does not wish to cross-examine any witnesses who have testified to date, presumably because he (Zuma ) has no wish to testify himself.
Well this is surprising conduct in that there is already significant evidence of his presence at the Gupta compound and his role in Gupta activity that, if correct, constitutes proof of state capture in which he was involved.
Although a commission is not a criminal court, failure to put up a different version, can lead the commission to draw adverse inferences concerning Zuma’s culpability in state capture.
Although delivered in the context of a criminal trial the following passage from the Supreme Court of Appeal judgment in S v Boesak is relevant:
“But one of the main and acknowledged instances where it can be said that a prima facie case becomes conclusive in the absence of rebuttal, is where it lies exclusively within the power of the other party to show what the true facts were and he or she fails to give an acceptable explanation.’’
Those parties who have been implicated like Zuma can try to avoid the proceedings and in the absence of a subpoena may remain silent. But that means that when a witness claims to have been in a meeting with, for example Zuma, if that version is not contested, the Boesak dictum may well come into play.
And that brings us to the Guptas. Understandably, they have escaped from South Africa and have no intention of returning. Hence they made an offer to testify by video link before Deputy Chief Justice Zondo. It is an offer that should not be refused. With modern technology, the use of video conferencing in criminal trials is becoming commonplace. It is a technology that has been used in South Africa and has hardly been found wanting in relation to determining credibility by way of the witness’s demeanour.
If the Guptas have made the offer, the commission should accept it without demur save for one requirement: an official from the commission must be present in the room where a Gupta will testify by way of a video link to ensure that the witness is afforded no outside assistance in the presentation of his evidence. It would be looking a legal gift horse in the mouth to refuse this offer.
Needless to say it may be an offer that the Guptas have no intention of implementing but then it is a case of calling their bluff and for the evidence leaders to urge the commission to draw the obvious inference consequent upon a Gupta refusal to testify even by way of video link.
In this way the commission will be seen to have been meticulous in its willingness to accommodate the Guptas. To the argument that a judicial commission should not be seen to be accommodating fugitives from justice by accepting their offer, the short answer is that the ability to cross-examine witnesses against whom a mountain of damning evidence has been produced is manifestly in the public interest. In addition it will increase the audience watching proceedings by many millions.
It is an offer that should be accepted. It will be fascinating to see whether, on any basis, a family which allegedly was at the centre of the parallel state will attempt a credible rebuttal. DM