Legal game plan: the lengths Jacob Zuma will go to evade the Zondo commission of inquiry

One week before he was forced to resign as president of South Africa, Jacob Zuma promulgated the regulations of the Commission of Inquiry into State Capture. Ironically, regulation 8(1) states that no person appearing before the Commission may refuse to answer any question on any grounds other than that the information is privileged. However, the regulations do not provide for any sanction for refusing to answer questions.

Section 8(2) of the original regulations sought to protect implicated individuals from prosecution for any wrongdoing exposed before the Commission. The original section stated that the testimony of witnesses, and any evidence “regarding any fact or information that comes to light in consequence of such testimony” would not be admissible in a criminal trial. 

This regulation was amended in March 2018 – after Cyril Ramaphosa became president – to limit its scope. But the section still protects witnesses as it prohibits self-incriminating answers or statements given by a witness before the Commission to be used against that witness in a criminal trial. This means that if Zuma incriminated himself in his testimony before the Commission, this testimony could not be used against him in a criminal trial. All other evidence gathered by the Commission could, however, be used against Zuma in criminal proceedings.

This provision is necessitated by section 35(3)(h) of the Constitution, which states that every accused person has a right to a fair trial, “which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings”. The section only applies to accused persons in criminal trials, not to other hearings such as Commissions of Inquiry. However, one could argue that forcing someone to testify before the Commission and then allowing this testimony to be used in his or her criminal trial would nevertheless limit this right of an accused person to remain silent during his or her criminal trial. Section 8(2) of the regulations were thus promulgated to prevent an infringement of section 35(3)(h) of the Constitution. 

Testifying before the Commission may well be politically damaging to Zuma (especially if he remains as evasive, forgetful and conspiracy-minded as during his previous outing before the Commission), but it would not directly expose him to criminal prosecution. Far more worrying for Zuma and his legal team must be the recent amendment to the regulations that allows the Commission to share evidence it had gathered with any state law enforcement agency. In theory, at least, this amendment will make it easier for the Hawks to build prosecutable cases against people implicated in corruption and other crimes associated with State Capture.

Despite the fact that the most recent amendment does not change the legal position of witnesses incriminating themselves before the Commission, Zuma’s lawyer, Eric Mabuza, curiously said last week that Zuma had “raised a concern regarding the implications” of this amendment, and that Zuma “is seeking legal advice on the implications thereof on his further participation”. 

This statement is curious for two reasons. First, the statement contains an implicit admission that Zuma is worried that he may face criminal prosecution, based on the evidence gathered by the Zondo Commission. This contradicts Zuma’s oft-repeated claim that he has not been implicated before the Zondo Commission. Second, as the amendment does not change the legal position of a witness giving self-incriminating evidence before the Commission, Mabuza’s suggestion that there is a link between the recent amendment and his clients rights as a witness, is at best misleading. Zuma’s rights as a witness remain protected in the same manner it has been since March 2018.

However, Zuma faces another problem, as section 6(2) of the Commissions Act states that any person who gives false evidence before a commission on any matter, “knowing such evidence to be false or not knowing or believing it to be true” would be guilty of a criminal offence and could be sentenced to up to 12 months in prison. It is probably because of this provision that so many witnesses implicated in wrongdoing develop amnesia when testifying before the Commission. If one does not testify at all, one cannot give false evidence, and one would therefore be protected from possible criminal prosecution in terms of section 6(2).

Zuma’s lawyers have two options remaining open to them to protect him from having to counter the evidence of his alleged wrongdoing, provided by several other witnesses before the Commission. 

First, they can opt for the Stalingrad option and challenge the constitutionality of the regulation that requires a witness to answer questions. While I suspect that – given the safeguards provided in the current regulations – such a challenge may not succeed, a legal challenge would help Zuma to run out the clock on the Zondo Commission, as the Commission must conclude its work within the next seven months. Such a move would, however, raise questions why the regulation is only being challenged now when it came into effect in March 2018.

Second, Zuma may defy a summons to testify, claiming – as he has often done in the past – that he is a victim of a conspiracy, and/or he is being treated unfairly, and/or his dignity is being infringed, or that he is sick or otherwise engaged. Such a move may be unwise as section 6(1) of the Commissions Act states that any person summoned to attend and give evidence before the commission who:  “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, or having attended, refuses to be sworn or to make affirmation as a witness after he has been required by the chairman of the commission to do so or, having been sworn or having made affirmation, fails to answer fully and satisfactorily any question lawfully put to him, or fails to produce any book, document or object in his possession or custody or under his control, which he has been summoned to produce, shall be guilty of an offence.”

The section does allow a witness not to heed a summons if he or she has “sufficient cause” not to do so, but the witness bears the onus of proof to convince the Commission that he or she had sufficient cause not to attend. Preparing for your criminal trial would not be sufficient cause to refuse to attend. Being busy with other engagements would also not be helpful. Pressing medical reasons may constitute “sufficient cause”, but Zuma would have to produce credible evidence that his medical situation is serious enough to warrant it. In other words, former president Zuma will not be able to escape criminal sanction for a failure to heed a summons, based on flimsy or politically convenient excuses. An excuse would have to be based on real evidence.

The failure of Zuma to testify before the Commission may, of course, lead to adverse findings being made against him in the Commission’s final report. The Commission is not a criminal court, and the ordinary rules of evidence do not strictly apply, so there would be nothing wrong with Deputy Chief Justice Zondo relying on the evidence of other witnesses before him to draw conclusions about Zuma’s alleged involvement in corruption and State Capture. But even if this was a criminal trial, the failure of an accused person to testify in his or her own defence might backfire badly against the accused.

This is so, because in S v Boesak, the Constitutional Court, considering the right in section 35(3)(h) of the Constitution to remain silent, held that where there is credible evidence against the accused in a criminal trial: “calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence.”

At face value, it may, therefore, not be in Zuma’s best interest to avoid testifying before the Commission. However, given the overtly political manner in which Zuma and his lawyers have engaged with the Commission, it may well be that their goal is not to counter the evidence implicating Zuma in corruption, but rather to try and discredit the Commission and any adverse findings it may make against him. This they have been doing by arguing that the Commission – by acceding to most but not all of Zuma’s demands and manoeuvres – is treating Zuma unfairly, and trampling on his rights. 

Whether this strategy will be successful remains to be seen. DM