Opinionista Omphemetse S Sibanda 31 January 2021

When silence is not golden: The Tom-and-Jerry ConCourt machinations of Zuma’s lawyers are Mickey Mouse

It has been a revelation throughout the Zondo Commission how many lawyers did not mind having their integrity compromised through their defence tactics, encouraging their clients to violate the law. The Zuma lawyers, for example, knew what the law is and ought to be with regard to testifying before the commission and the legitimacy of a summons issued by the commission.

Omphemetse S Sibanda

Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Silence – the least semantically determinate linguistic element – will not be used as an impediment to extract the truth and corroboration at the Zondo Commission, according to the Constitutional Court’s latest unanimous judgment by Justice Chris Jafta in the case of the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma (CCT 295/20) [2021] ZACC 2 (28 January 2021).

The judgment is more like a parent reminding children that the right to silence is counterintuitive and difficult to reconcile with lay morality [see para 93]. The writing was clearly on the wall about which way the court would rule. “It is not every commission of inquiry that serves ‘a deeper public purpose’… Ordinarily, a commission that was established to gather information does not need coercive powers to force individuals to furnish it with information. But if it is a fact-finding commission, it may be necessary for it to compel witnesses to testify or produce documentary evidence,” said Jafta [para 6.].

To the former president, Mr Jacob Gedleyihlekisa Zuma, the apex court had a simple message: “In our system, no one is above the law. Even those who had the privilege of making laws are bound to respect and comply with those laws. For as long as they are in force, laws must be obeyed.” [para 87]. Some high-profile individuals decided that it does not apply to them because they are special citizens. We have individuals in South Africa who, like Mike Huckabee, the conservative commentator and former governor of Arkansas in the US, believe that doing the simplest act of abiding by the law for those in the executive branch of the government is tantamount to the executive emasculating itself.

The court’s judgment is more than a confirmation of the principle that no one is above the law. The judgment must be read in context and also has significant implications to the understanding of the work of the commission, including individuals who are key to the commission as witnesses and whose absence from the commission will make its report partly flawed or seem as lacking legitimacy. 

With respect to Mr Zuma, the court made it very clear why his appearance before the commission is important by reminding us of the commission’s terms of reference: “These terms of reference place the former President at the centre of the investigation. They seek to establish whether he abdicated his constitutional power to appoint Cabinet members to a private family and whether he had acted unlawfully. These are all matters of public concern as defined above and some of them fall particularly within the personal knowledge of the ex-President,” said the Court [para 21].

Jafta went further to remind us that “sight must not be lost of the fact that it was he who was the subject of the investigation and who drew up the terms of reference that placed him at the heart of the investigation. Some of those matters may not be properly investigated without his participation” [para 22].

The court implored Mr Zuma to respect the commission. “The respondent’s conduct in defying the process lawfully issued under the authority of the law is antithetical to our constitutional order,” noted Jafta [para 87] in a statement that reminds me of my previous observations on this platform (see here and here).

President Zuma and his legal defence at the commission, led by Adv Muzi Sikhakhane, have been openly hostile to the Zondo Commission and to judicial constraints in a manner that is unprecedented. If we rewind the Zuma vs the Commission tape backwards, we can confirm that Sikhakhane did not make his comments encouraging Mr Zuma to walk away from the Commission proceedings casually and in secret. He did that openly on the grandest stages of them all: television. 

Further, the Zuma legal representation has mounted one objection after the other and frustrated the process of their client having his day in the commission sooner. The Constitutional Court correctly noted that the Zuma attorneys made several promises and some were never honoured. The Constitutional Court also noted that dealing with Mr Zuma and his lawyers has been like being in a contract with a person who never had the intention of honouring the terms and conditions of the contract from its inception. [para 60]. It has been a series of cat-and-mouse – or should I rather say “Tom and Jerry”? – episodes unfolding between Zuma and the commission.  

The court’s judgment has strengthened the hand of Deputy Justice Zondo and the commission. It is now up to the commission to use the arsenal it has in its possession and deal decisively with every witness, irrespective of the status and role they play in society. 

Witnesses such as Dudu Myeni, for example, seem to have taken their cue from powerful recalcitrant witnesses and presented themselves as hostile witnesses before the commission. In fact, there has been a flurry of witnesses before the commission with belligerent attitudes and without significant rebuke or consequences. These witnesses took a populist stance at the commission and displayed a general attitude against and in defiance of judicial processes.

Deputy Justice Raymond Zondo and the commission did not escape chastisement by the Constitutional Court. Justice Jafta noted that “the Commission did not pursue and ripen it for hearing diligently”. [para 62]. This is a very strong statement from the apex court directed at a commission led by the Deputy Chief Justice of the country.

In brief, the court is of the view that the commission has been derelict in its performance: “The question that arises is whether the current situation in which the Commission finds itself would have arisen if it had timeously invoked its powers of compulsion”, asked Jafta [para 59].

This is a rebuke of Deputy Chief Justice Zondo from his own peers and fellow justices on the bench of the Constitutional Court, for failing to use the legal resources at his disposal to rein in ex-President Zuma.

Another rebuke worth mentioning from the Constitutional Court is the suggestion that the commission had not been frank in the whole saga, and that it ignored the red flags of trouble coming with Zuma, because the “red lights started flashing in July 2019 when the respondent unilaterally decided to withdraw from further attendance” and when Zuma “made it plain that he will not participate in the hearings unless the Chairperson recused himself. This was a build-up to what happened in November 2020,” said Judge Jafta [para 66]. Interestingly, Justice Jafta described the Commission’s conduct as “maladroit” [para 67].

The commission has itself to blame for the disrespect it is getting from witnesses – mostly politicians. The Constitutional Court went an extra mile to give the parties to the case a textbook introduction and interpretation of the legislative framework for the establishment of commissions, which dates back to 1947. An important observation by Justice Jafta is that section 3 of the Commissions Act of 1947 vests commissions with wide powers. The powers are equal to those enjoyed by the High Court “with regard to summoning witnesses; taking their evidence under oath or affirmation and demanding the production of documents and other objects which constitute evidentiary material. Section 3(2) authorises the secretary of a commission to issue a summons which must be in the form prescribed by the commission’s Chairperson” [para 11].

The commission’s lawyers have been found equally complicit in enabling the belligerent behaviour of Zuma and his lawyers, and of other witnesses: “But for reasons that are not apparent from the record, the Commission’s lawyers, rather than following the Commissions Act and seeking that a summons is issued, chose to give notice to the respondent, advising him that they contemplate making an application for authorisation of a summons by the Chairperson,” noted the court [para 43].

But who knows? Anything is possible: we could be pleasantly surprised by the former president attending the commission and answering questions fully and truthfully – we could see obstructive participation and dilatory behaviour unfolding right before our eyes. This judgment is not the end of clumsy arguments from layers before the commission trying to get their clients to keep mum.

“As to why it did not follow the law in relation to issuing summons, we are not told,” said Judge Jafta [para 62]. Whatever the reasoning behind this “I beg you to testify approach”, some damage has been done to the credibility and ability of the commission to discharge its obligation, and there is an immediate need to restore the lost credibility.

What is clear from this judgment is that Mr Zuma and his lawyers received preferential treatment, and were treated like special cases and royalty by the commission’s lawyers [see para 61]. The commission seems to have walked on eggshells when it came to Zuma.  

Though this case was decided against Zuma, its import is of general application to all the witnesses called or those the commission wishes to call. One hopes that moving forward the commission will deal decisively with any recalcitrant witness. Professor Itumeleng Mosala, as the secretary of the commission, now has his hand strengthened by this judgment to issue summons to whoever without having to seek their permission to be served. “Nor is the witness to be summoned entitled to a hearing or an opportunity to make representations before the summons is issued,” said Justice Jafta [para 12]. 

The commission in terms of the Commissions Act is bestowed with enormous powers to call and compel witnesses to appear before it, either by a summons issued by the commission’s secretary or a directive from Deputy Justice Zondo himself as empowered by Regulation 106. “While section 3 of the Commissions Act empowers the Commission’s secretary to issue a summons for attendance at a hearing by witnesses, regulation 10(6) bestows the power upon the Chairperson to secure the same attendance by means of a direction”, noted the court [para 26].

We must not forget that the commission is dealing with matters or allegations of public concern, as noted by Justice Jafta [para 19]. I found the following observation by Justice Jafta very instructive in our determination of the value of the work of the Zondo Commission:

“It must be plainly stated that the allegations investigated by the Commission are extremely serious. If established, they would constitute a huge threat to our nascent and fledgeling democracy. It is in the interests of all South Africans, the respondent included, that these allegations are put to rest once and for all. It is only the Commission which may determine if there is any credence in them or to clear the names of those implicated from culpability” [para 70].

Corruption and corrupt practices, the capture of state institutions and extralegal deconstruction of state institutions by outside forces or private individuals is a matter of public concern. Therefore, witnesses must not be allowed to parade themselves before the commission as heroes and heroines or fight party-political battles using the commission as a platform instead of responding to questions addressing matters of public concern.

Justice Jafta raises a concern about the commission’s lack of appreciation that “it had limited time within which to conduct hearings” and proceeded to play on a merry-go-round with Zuma and his attorneys. This lack of appreciation of time will come to haunt the commission when it applies for an extension to wrap up its work. It would seem that some of the time lost was as a result of the indecisiveness of the commission, including its failure to “follow the law in relation to issuing summons”.

I do not think that the Zuma vs Commission war is over by any means, despite the fact that the Zuma camp has no other court to run to as the Constitutional Court was a court of last resort with regard to him being compelled to testify. 

This judgment has, in my view, placed the commission and Deputy Justice Zondo in a corner as far as discharging its duty without fear or favour is concerned. The court made it clear that silence in settings such as the Zondo Commission is not as necessary as in those where the accused is threatened with jail time. Silence from witnesses at the Zondo Commission is not acceptable and should not be allowed if there are well-grounded suspicions and allegations.

The distinction made by the court with regard to the exercise of the right to silence in criminal proceedings vis-à-vis civil proceedings is very important; every legal practitioner worth his or her salt in South Africa ought to know the difference [See para 90-93]. The right to remain silent is one of the cardinal principles of criminal jurisprudence in South Africa. This right is a widely recognised principle in the criminal justice system.

In the context of the Zondo Commission, what we have seen is lawyers for the witnesses and witnesses alike abusing the import of that right.

Some practitioners may argue that the Constitutional Court got it wrong and that it displayed at best an ambivalent and at worst an aggressively hostile approach towards the exercise of the right to silence. That said, it will be a clear act of misconduct by any legal practitioner to direct a witness to remain silent. Remaining silent in the face of even a non-accusatory statement is an adoptive admission.

More disadvantageous is when the innocuous statement turns out to have an incriminatory implication. Chinua Achebe once said that “one of the truest tests of integrity is its blunt refusal to be compromised.”

It has been such an exciting revelation throughout the Zondo Commission how many lawyers did not mind having their integrity compromised through their defence tactics, and encouraging their clients to violate the law. The Zuma lawyers, for example, knew what the law is and ought to be with regard to testifying before the commission and the legitimacy of a summons issued by the commission. Those who have been arguing against testifying and claiming the right to remain silent were just playing politics.

I do not think that the Zuma vs Commission war is over by any means, despite the fact that the Zuma camp has no other court to run to as the Constitutional Court was a court of last resort with regard to him being compelled to testify. 

But who knows? Anything is possible: we could be pleasantly surprised by the former president attending the commission and answering questions fully and truthfully – we could see obstructive participation and dilatory behaviour unfolding right before our eyes. This judgment is not the end of clumsy arguments from layers before the commission trying to get their clients to keep mum.

We have seen Mr Zuma challenging the legality of the commission which he himself established in terms of section 84(2)(f) of the Constitution, thus delaying his appearance before the commission. On the other hand, the commission cannot force Mr Zuma to appear when he takes ill. That will not be in the spirit of ubuntu, so some sympathisers will argue.

I am not saying Zuma will defy the judicial authority of both the Constitutional Court and the commission moving forward. But, I am sceptical that the Tom-and-Jerry episodes are over. DM

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  • Well, it’s not for the constitutional court to pronounce on the politics of things, but you might expect DM to do so. Zondo has to walk a fine line since it would suit many including Zuma to de-legitimise the commission. “Anti-revolutionary”, “a puppet of WMC” and etc. So I can see why Zondo would want to be cautious in how the commission works, and especially to avoid looking like he has pre-judged Zuma as guilty (of anything)

  • he has just announced he is not going
    Apartheid State, he is a victim, will go to prison for his beliefs
    Cue, demonstrations , cause general shit and get the pot boiling.

  • Thank you, professor, for an incisive look at the ‘other’ side of the coin – which is to say the Commission’s culpability in encouraging the delinquent behaviour by some (a few) of those before the commission. Regarding the inexcusable (or is it deplorable?) behaviour of some legal practitioners at the commission (and other instances) is there no ‘code of conduct’ they need to subscribe to… and what are the consequences (if any) for failing to do so ? Clearly, a message needs to go out that ‘grandstanding’ of the kind we have seen at this commission and some courts of law is not acceptable … and will not be tolerated. If there are no ‘consequences’, there will be those with a proclivity for it to continue doing so. One assumes it is in the interest of building their personal ‘brand’. It is worth noting that some commentators continue to mention ‘guilt’ or otherwise at this commission, even though a commission is not able to make such finding … and leaves it to a court to make such finding .

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