There can be no doubt, irrespective of what the future holds, that Thuli Madonsela’s interventions in relation to the complaints of State Capture she fielded from the Jesuits and the DA back in 2016 have done the country a power of good.

The pertinent questions posed by her to ex-president Jacob Zuma shortly before her term of office as Public Protector expired in October 2016 remain unanswered due to ducking and diving on his part. He is under subpoena to appear at the Zondo Commission of Inquiry on 16 November, but the ducking and diving continue.

It is likely that on that day, or shortly before it, Zuma’s legal team will formally ask the chair of the commission, Deputy Chief Justice Raymond Zondo, to recuse himself. It remains to be seen what grounds are advanced in support of a case that must demonstrate a reasonable apprehension of bias by Zondo against Zuma. The well-worn victim card, used so often by Zuma, is unlikely to impress, but has already been flashed.

The pre-existing relationships of Zuma’s wife’s sister, Zuma himself and the Guptas as financiers of legal work allegedly (and illegally) done by Zondo for Zuma in 2007 have yet to see the light of day in affidavit form. Zondo has been a judge for more than 20 years; judges do not do paid legal work for anyone. If it is true that he did work for Zuma as recently as 2007 (a big year in Zuma’s life with his triumph at Polokwane crowning it), he ought not to grace the Bench. It must be assumed that the judge denies this allegation as he has not dealt with it yet.

The love child with the sister of Zuma’s wife is a risible basis for raising bias now; particularly as this information was known all along and was never raised previously. This situation, of Zuma’s own making, is what lawyers call a waiver of any right which may exist to raise the point.

Zuma’s further difficulty is that when he announced the commission in January 2018 he knew about both matters he now wishes to raise against Zondo and chose to keep them in his back pocket, presumably saving them for a rainy day. He obviously forecasts rain on 16 November, hence the filibustering and legal posturing.

Any persons under subpoena are obliged to appear unless they can show “sufficient cause” for not appearing. The onus of proving that the pending recusal proceedings amount to “sufficient cause” is on Zuma in terms of section 6 of the Commissions Act of 1947.

The work of the commission cannot be completed properly without answers to the questions avoided with the assistance of Zuma’s attorney, Michael Hulley, in 2016. If Zondo is so persuaded, he could recuse himself, thus bringing to an abrupt end the work of the evidence leaders, the investigators and the commission itself. Starting again before a different commissioner is possible, but expensive. The record of the evidence led so far could be used in the fresh proceedings. The costs involved may not be as great as those in the existing commission because its work is now available, whereas it was the task of the existing evidence leaders and investigators to start from scratch to assemble the information already placed and to be placed before the commission.

Depending on the cogency of the evidence Zuma produces in support of the recusal application, it appears most unlikely that it will succeed. Zuma will, if he runs true to his “Stalingrad strategy” form, instruct his lawyers to take the refusal of the application for recusal on review, and if the review fails he will surely appeal that decision. He will seek to interdict the continuation of the commission pending final determination of his legal challenge(s).

Doing so will take the commission way beyond the March 2021 deadline for its completion. The deadline is not, however, set in stone. The pending review or appeal proceedings could be used as a reason for asking for an extension in time. The courts could also be encouraged to give the review and appeals precedence on the roll for hearing so that the matter finds its way through the legal system with greater speed than is the norm.

Assuming that a review of the refusal to recuse is the likely next step in the saga, it will be interesting to see who opposes and whether costs will be sought by Zuma against Zondo in the review. If costs are sought, Zondo would be fully justified in breaking with the tradition that the officer who refuses to recuse himself simply abides by the decision of the court. Some who do abide, like the Farlam commission, file affidavits correcting factual errors in founding papers without actually descending into the arena. Clearly, only Zondo himself can deal with the extraneous matters of his alleged moonlighting and the love child.

The minister of justice, whose department foots the bill for the commission, is likely to oppose, the commission itself (as against the commissioner) could do so, while the Jesuits and DA could cogently argue that they have sufficient legal interest in the matter to oppose or at least intervene as interested parties. Anyone else who has an issue not raised by the other parties involved in the judicial review could apply to be admitted as a friend of the court to make the point not raised owing to the public interest nature of the matter.

It is to be hoped that the recusal matter and any possible review can be finalised (on appeal, if necessary) with the minimum of delay. If, as is likely, the court finds that the delay in bringing the recusal application non-suits Zuma, the issue is crisp, clear and of a legal nature. It is not beyond the wit of court managers in SA to propel so narrow a point through the system without taking years to do so.

That, however, is not the last card Zuma will play. He has long warned that he has reservations about the legality of the nomination of Zondo by the Chief Justice at the instance of the Public Protector.

The constitutional power and function to appoint commissioners is that of the president. If, as in this case, the president is unable to appoint (due to the conflict arising from his alleged role in State Capture) the Constitution makes provision in section 90 for an acting president to fulfil the duties of the president who is “unable to fulfil the duties of president”. Four possible office bearers may act as president:

• The deputy president;
• A minister designated by the president;
•  A minister designated by other members of Cabinet; or
• The speaker of the National Assembly, until it designates one of its other members.

If Zuma takes this point, it will be met with arguments around the delay in raising it, the proper interpretation of section 90, and the fact that Zuma himself determined the scope of the mandate of the commission and announced its establishment in January 2018. There will be litigation, an appeal and possibly further appeals, giving rise to more delays that suit the Stalingrad strategy perfectly.

State Capture, the subject matter of the commission’s inquiries, has nevertheless already been torpedoed below the waterline. The Guptas have fled, the new breed of “covidpreneurs” have been labelled as hyenas by President Cyril Ramaphosa and have been exposed in swift investigations by the Special Investigating Unit under the leadership of advocate Andy Mothibi. The genie is out of the bottle, the Asset Forfeiture Unit in the NPA is gearing up to rake back loot and arrests are being made.

Best of all, the NEC of the ANC has resolved to instruct Cabinet to establish a new stand-alone independent agency of a permanent nature to “deal with” corruption urgently and without fear or favour. The resolution was taken after all the bad press the ANC has received due to the work of the commission.

Worst of all, the Cabinet, despite the express urgency impressed upon it by the NEC, appears to have done nothing to establish the new agency. The lack of political will to move rapidly will doubtless become an election issue to the detriment of the prospects of the ANC and its allies in upcoming elections.

It needs to be borne in mind that any commission of inquiry of the kind in question is no more than a tool of the executive branch of government, mandated to investigate a complex issue, establish the facts and make recommendations. The findings of fact of a commission bind no one; its recommendations may or may not be accepted. Its investigations can be either superficial and unfocused (as occurred in the Arms Deal inquiry) or thorough and careful (as demonstrated in the Marikana commission).

Were the Commission of Inquiry into State Capture to recommend multiple prosecutions, that would not make them unfold. Were it to finger cadre deployment in the public administration and state-owned enterprises as a cause of State Capture and an illegal, unconstitutional practice that should end, that might not happen. Were it to recommend the establishment of the type of body the NEC appears to have in mind, a new Chapter 9 Integrity Commission to prevent, combat, investigate and prosecute grand corruption involving (say) R5-million or more, that should happen, but won’t if the political will to act urgently to counter corruption is not generated by the activities of the voters of SA.

Voting for parties who allow corruption with impunity to continue in the face of what is already on record in the State Capture commission is the equivalent of turkeys voting for Christmas. DM