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Zuma must be treated like any other citizen despite his Stalingrad legal tactics

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

So the expected took place. Jacob Zuma never had any intention of appearing before the Zondo Commission and providing his side of the story regarding his alleged role in State Capture.

Notwithstanding the breathless praise that some showered on the performance of his advocate, Muzi Sikhakhane, SC, the submissions made in support of a recusal of the chair, Deputy Chief Justice Raymond Zondo, were devoid of any legal substance. To suggest that courts make up the test as they go along is to conveniently elide over the numerous cases where judges do recuse themselves. It is to be naïve about the strategy that has not changed since the initial charges flowing from the Arms Deal.

The test set out in the President of SA v Sarfu some 20 years ago for recusal is clear:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

The test is not what Zuma may apprehend. It is not based on fake news, ungrounded conspiracy theories or the paranoia that one individual may feel. It is based on objective evidence that would cause a reasonable person to consider that a fair hearing will not be conducted because the judicial officer is incapable of bringing an impartial mind to bear.

So, what evidence was produced to justify a reasonable apprehension in this case? None is the answer.

Take the alleged friendship between the two men. In the first place, one would think that the converse argument was more plausible – that the rest of the country may have reason to believe that a friendship would skew the mind of the judicial officer in favour of the witness. At least in his application to have judges of the Constitutional Court recuse themselves in the Sarfu case that is exactly what Louis Luyt argued; the judges would be favourable to President Nelson Mandela as they were his friends. That this was a doomed application only illustrates how legally skeletal was Zuma’s argument. And then, of course, for three years Zuma never raised the issue even though he constituted the commission following the decision of the Chief Justice to appoint Justice Zondo as the chair.

There is a possible explanation: Zuma sought to suck the Deputy Chief Justice into a dispute about their alleged friendship, and from the inevitable evidential difference employ that as a further legal strategy to bolster further legal challenges, including reporting the judge to the Judicial Service Commission. This may be a plausible explication of the Zuma plan in that the rest of the arguments raised concerning alleged bias were so thin. They did not take account of the inquisitorial nature of the proceedings of a commission or they sought to find nefarious motives in the line-up of witnesses, which arrangements of convenience had no basis to sustain a reasonable inference that supported the Zuma case.

The South African media consistently showers praise on any lawyer who appears on television with nary a thought as to the forensic quality thereof. It is about time that media reportage was based on knowledge of practice so that when lawyers fail to interrogate what is meant by a plea of self-incrimination or stray far and wide from legal principle, the public is properly informed.

And, as expected, Zuma has stuck a thumb in the air to the commission and will doubtless seek to review the decision in the high court so that further levels of appeal will be available thereafter. The danger here is that a court may be inclined to consider punitive cost orders even against the lawyers if it agrees that there is no merit in the review application. 

If the rule of law applies in this country and no one is beyond the law, then the commission has only one legal option. In terms of section 6 of the Commissions Act, “Any person summoned to attend and give evidence… before a commission who, without sufficient cause (the onus of proof whereof shall rest upon him) fails to attend at the time and place specified in the summons, or to remain in attendance until the conclusion of the enquiry or until he is excused by the chairman of the commission from further attendance… shall be guilty of an offence and liable on conviction to a fine not exceeding fifty pounds or to imprisonment for a period not exceeding six months, or to both such fine and imprisonment.”

This is the only legal avenue open and it is a clear one. Zuma appears to have breached this section and thus stands to be charged. Agreed, there may be political sensitivity to invoking the section, but it is the mandated legal avenue. And if Zuma can be immunised from prosecution, so can any witness who refuses to attend the commission in future. For this reason either Zuma is treated like any other citizen or his Stalingrad legal tactics would have successfully placed him above the law. Down that road lies constitutional degradation. DM

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  • Wendy Dewberry says:

    The thing about the law, it seems to me as a layperson, is that while your defining explanations of how the law should work, it’s become astonishing how malleable it turns out to be. It seems that despite the expectations of outcomes that sound legal practice intends, one can never really estimate the ducks and dives in the road ahead. We wait and see and Iv trained my poor heart to stop getting so shocked

  • Carsten Rasch says:

    If Zondo does not issue that warrant, I’d be inclined to think they ARE friends, after all.

  • Kanu Sukha says:

    Wendy’s observations are correct. To me as a layperson, the serious question I have is whether those representing a client (lawyers/advocates) are at liberty to make any kind of fanciful claims or insinuations without being taken to task ? Is/are there no consequence/s to trying to ‘defeat the ends of justice’ by such persons ? e.g. Being sanctioned or having the your license to ‘practice’ (lying) suspended/removed ? Is this not a case of lawyers/advocates being above the law ? We live in interesting times – especially when you observe the current shananigans in the ‘greatest’ s…hole country called the USA ! There Trump is determined to make Julian Assange look like an angel !

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