Deputy Chief Justice Raymond Zondo dismissed former president Jacob Zuma’s recusal application on the grounds that Zuma failed to meet the test for a reasonable apprehension of bias. The decision came as no surprise. Previously, Professor Pierre de Vos, a constitutional law expert, set out why the application had little prospect of success.

Zuma’s lawyer indicated shortly before the Zondo Commission took a tea break on Thursday that they would excuse themselves as Zuma wanted to lodge a complaint with the Judicial Service Commission against Zondo on him being “a judge and a witness” in the recusal application by the former president.

Zuma had been summoned to appear before the commission between 16 and 20 November to respond to allegations that emerged during the testimony of several witnesses. Zuma was supposed to take the stand after the ruling on his application and answer questions about various matters which the commission is investigating.

When the commission resumed after about an hour, Zondo announced that Zuma had left without his permission and that he regarded it as “a very serious matter”. Zondo then adjourned the hearing to reflect on the matter.

Zuma tried a similar tactic in the case of the Hefer Commission of Inquiry, but this time the implicit refusal to give evidence might backfire.

The background to the Hefer Commission of Inquiry is as follows: Zuma and Shabir Shaik were investigated for corruption in the Arms Deal. The charges involved bribes Zuma allegedly solicited from a French arms dealer with the aid of his “financial adviser” Shaik.

In August 2003, the erstwhile justice minister, Penuell Maduna, exerted pressure on advocate Bulelani Ngcuka, the national director of public prosecutions at the time, to make a public statement that Zuma would not be prosecuted despite a prima facie case against him. Reliable sources suggested that the “preferential treatment” of Zuma was due to political intervention by the then president, Thabo Mbeki, due to the implications for the ANC.

When Ngcuka proceeded with the corruption trial against Shaik, two close associates of Zuma and Shaik leaked allegations to a newspaper that Ngcuka was “a former apartheid spy”. The persons concerned were Mo Shaik, the brother of Shabir, and Mac Maharaj, both closely associated with Zuma and ANC intelligence structures during the struggle.

In September 2003, Mbeki appointed the Hefer Commission of Inquiry to investigate the allegations and the fitness of Ngcuka to hold office.

In a terse stand-off with Judge Joos Hefer, Zuma refused to testify before the commission. In the report, issued in January 2004, Justice Hefer made scathing findings about the credibility of the spurious allegations and exonerated Ngcuka from all blame.

Here are some excerpts from the report that specifically relate to Zuma’s refusal to give evidence before the commission:

[33] According to the article in City Press referred to earlier, the operations of the intelligence unit under Mr Shaik whose task it was to root out government agents in the ANC, were supervised by the present Deputy President – then Chief of Intelligence of the organisation – and it thus appeared to me initially that Mr Zuma’s evidence would be required. In addition, by the time of the appointment of the commission a series of press and other public reports had appeared from which it could be gathered that Mr Zuma was not pleased with the way in which Mr Ngcuka had dealt with an investigation into his possible involvement in transactions allegedly relating to the so-called “arms deal.”

[34] Anticipating that he could assist in my inquiry into the 1989 investigation and expecting that he would at least welcome an opportunity to air his apparent grievance, I caused a letter to be written to Mr Zuma on 16 October 2003 informing him that I was “anxious to know whether you have any information that may be of assistance to the Commission having regard to its terms of reference and, if so, whether you are willing to provide such information by testifying before the Commission.”

[35] The reply dated 22 October 2003 was as follows:

The letter addressed to myself by the secretary of the Commission and dated 16 October 2003 refers…

“With regard to invitation for me to assist the Commission, I would like to indicate that when I was deployed by the ANC as Chief of Intelligence, I was tasked by my organisation, the ANC, to undertake this most sensitive duty. The information of various categories that I dealt with was the property of the ANC. I, as an individual, had no right or authority then, and still have no right, to discuss such matters outside the ANC. I therefore regret that I will not be of any assistance to the Commission without the permission or instruction of my organisation.”

[36] On 28 October 2003 I responded as follows:

“Thank you for your letter dated 22 October 2003.

When I read the letter it occurred to me that you may have overlooked my extended terms of reference which require me to investigate whether Mr Ngcuka or Minister Maduna misused the prosecuting authority.

Judging by what has been reported in the media you are not happy with the treatment you received from Mr Ngcuka in the very recent past and it occurred to me that you might want to air your apparent grievance in the Commission.

If you decide to do so please ask your secretary to arrange a suitable date with Mr Bacon, the secretary of the commission.”

[37] I received the following reply dated 7 November 2003:

“I refer to your letter dated 28 October 2003.

I have noted the extended terms of reference of the Commission and fully understand their implication. However, with due respect, I must re-iterate that for reasons stated in my previous letter to the Commission, I remain unable to participate.”

[38] The reasons advanced in the letter of 22 October 2003 for Mr Zuma’s reluctance to share his knowledge of the 1989 investigation with the commission were, of course, patently insufficient to justify a decision not to call him as a witness. However, I decided to withhold a subpoena until I had heard Mr Shaik’s evidence. When this gentleman later testified that Mr Zuma had merely received a report of the 1989 investigation, I thought that it would not be necessary to call Mr Zuma as a witness. But I became dubious when Mr Ngcuka’s counsel suggested in cross-examining Mr Shaik that the alleged 1989 investigation had in fact never occurred. For this reason I wrote to Mr Zuma on 24 November 2003:

“I have noted your indication that you do not wish to testify before the commission. However, certain suggestions in the cross-examination of Mr Moe Shaik have convinced me that your evidence is necessary. Will you please inform the secretary of the commission today of the day during the current week on which you will be available to testify in Bloemfontein. I make this request because I would like to avoid issuing a subpoena.”

This letter was faxed through during the forenoon of 24 November 2003. However, later that same day, after I had ascertained from Mr Ngcuka’s counsel that he would not persist in the suggestion that the 1989 investigation had never taken place, I sent a further facsimile to Mr Zuma. It read as follows:

“Kindly be advised that the suggestions in cross-examination referred to in my facsimile earlier today have been withdrawn. My request that you should indicate when you would be available to testify accordingly falls away.”

…

[43] On 8 December I replied as follows to the letters quoted in the previous paragraph:

“Judging by your letters of 27 November 2003 and 5 December 2003 you are under the impression that I professed to list your reasons for not wanting to testify before the commission when I announced my decision not to call you. This is not what I did. The reasons which you advanced did not satisfy me that you would be entitled to refuse your testimony. I decided not to call you, not for those reasons, but for the ones stated when I announced my decision and thus the record requires no correction.”

[44] I have revealed the correspondence I had with the Deputy President because, as appears from paragraph [42], he has in effect requested this, and because it calls for the following observations:

(a) In expressing his dissatisfaction with the reasons that I advanced for not calling him, Mr Zuma lost sight of the fact that I recorded my own reasons for my decision and not the reasons for his reluctance to appear. As mentioned earlier, his reasons were insufficient to justify a decision not to issue a subpoena. There was no misunderstanding on my part. My reasons for not calling him were exactly those recorded viz (i) the fact that he could not contribute meaningfully to the inquiry into the spying allegations, and (ii) that he did not wish to pursue his grievance about the alleged misuse of Mr Ngcuka’s office in the commission. He decided to take his complaint to the Public Protector and it was not for me to persuade or compel him to use the commission as his forum.

(b) In the same breath I must draw attention to the concluding remark in Mr Zuma’s facsimile of 25 November 2002 quoted in paragraph [39] which seems to be an indication that he might not be averse to ignoring a subpoena. All I wish to say is that it would be a sad day if, for fear of incurring the wrath of a political organisation to which he belongs, the holder of one of the highest offices of State were to consider ignoring a subpoena issued by a commission appointed by the President under a power vested in him by the Constitution.

***

Despite the findings, Zuma went ahead to lay a complaint with the Public Protector in May 2004 about the way the prosecuting authority dealt with the allegations of corruption related to the Arms Deal.

In the current stand-off with Justice Zondo, Zuma apparently wants to lodge a complaint with the Judicial Service Commission regarding Zondo’s handling of the recusal application and also take the refusal of the application on judicial review. 

However, advocate Paul Pretorius, the head of the commission’s legal team, indicated that proceedings should continue notwithstanding a review, and Zuma would be in violation of his summons if he unilaterally withdrew. DM