Zuma lays into ‘unkind’ Zondo, questions existence of State Capture, calls commission unconstitutional

16 Nov 2020

Former president Jacob Zuma has filed a 102-page affidavit, taking a shotgun approach by not only asking Deputy Chief Justice Raymond Zondo to recuse himself, but again questioning the constitutionality of the Commission of Inquiry into Allegations of State Capture.

While Jacob Zuma is expected to heed Deputy Chief Justice Raymond Zondo’s call to attend the Commission of Inquiry into State Capture later in November, the former president has nevertheless filed papers seeking the recusal of Justice Zondo.

Apart from this, Zuma, now Accused No 1 in the Arms Deal matter, which should be heard in the Pietermaritzburg High Court in December, has accused former Public Protector Thuli Madonsela, the North Gauteng High Court as well as Chief Justice Mogoeng Mogoeng of acting unconstitutionally.

In his affidavit, Zuma said Madonsela had rushed her investigation “into the Gupta family in the affairs of state” and had made many “inconclusive findings” in her 2016 report.

“However, given that her term was coming to an end, she saw it fit to direct that further investigations be conducted on her speculative findings on the existence of State Capture, my role therein and that of the Guptas,” Zuma complained.

The appointment of a chairperson to preside over the commission of inquiry was allocated to the Chief Justice, “an executive function that has, to my knowledge, never been performed by the Chief Justice”, Zuma said.

Zuma, who has been placed at the centre of industrial-scale corruption during his term of office, maintains that the remedial action of the former Public Protector, as well as a court order confirming this, “violate the doctrine of separation of powers”.

Madonsela’s direction, that the Chief Justice select the judge who would chair the commission of inquiry, was “irrational” as there “was no reason to suggest that a judge, selected by me, would not be independent or impartial”, said the former president.

“I viewed the remedial action as an affront to the independence of our judges. Unfortunately, not even the judges agreed with me that they are independent, regardless of who appoints them,” Zuma accused.

Zuma has been subpoenaed to appear before the commision from 16-20 November after several no-shows and public statements criticising the commission.

On 10 November, the former president filed the affidavit, which takes a broad swipe at everything and everyone from Madonsela to the North Gauteng High Court, from Zondo to the motives of those who have testified so far.

From alleging that witnesses including Pravin Gordhan, Mcebisi Jonas, Nhlanhla Nene, Barbara Hogan, Fikile Mbalula, Themba Maseko, Ngoako Ramatlhodi and Trevor Manuel had been “fetched” to testify against him, Zuma also accused the Deputy Chief Justice of revealing his alleged “bias” in public comments he has made.

Those who had testified against him, the former president said, were “aggrieved that I fired or reshuffled them” and were “politically hostile”.

“It appears to me what the Commission did was to identify and fetch, and interview persons who could implicate me in some wrongdoing.”

Zuma said this was “the first act of bias”.

The list of witnesses, alleged Zuma, was identified by the commission because the witnesses “would attempt to implicate me or the ANC in some fraudulent and corrupt activities to sustain the narrative that the nine years that I served this country as President were wasted years characterised by State Capture, fraud and corruption”.

He added that “if State Capture exists, it would be important to solicit the views of a wide range of Cabinet members and other officials (government and state-owned entities) during my tenure and not merely those who are still aggrieved that I fired or reshuffled them”.

The commission, Zuma said, had not revealed how it had “objectively identified selective witnesses” and Zondo had “already formed a view that there was State Capture of which I was part, and that I have a case to answer in this regard”.

The witnesses he named had given testimony to the commission as they had had “political ambitions and interests” and had “bad-mouthed” Zuma’s term as head of state “to advance their political narratives”.

This, said Zuma, had been designed to “delegitimise the leadership of the government of the time”.

“I am not unaware that the idea of a commission was merely part of an orchestrated campaign to oust me as Head of State as soon as I resigned,” Zuma asserted.

The commission, he raged, was “turned” into an “expensive witch-hunt seeking to find me guilty”.

Witnesses, he charged, had lied about him, and the commission had been “designed to implicate me in something or at least to create some justification for calling me to testify with the hope to humiliate me”.

It is obvious that this was based on the assumption that a judge selected by me would either be partial or perceived as biased. Clearly, impartiality was at the heart of these decisions.

Zondo had made “unkind public comments” which, Zuma said, betrayed “a mind that is biased or at least enthused to publicly demonstrate that he holds no brief for me”.

The former president added that he was not being called to the commission “as a witness” but as an “implicated person”.

“The carefully selected witnesses were to give evidence to sustain the Public Protector’s theory of State Capture,” he alleged.

In his affidavit, Zuma set out his understanding of the genesis of the commission as well as “the manner in which it was established”.

He revealed he had had doubts about the constitutionality of the commission from the start as well as the “appropriateness” of the appointment of Deputy Chief Justice Zondo to chair it.

He said that recusals were not fully developed in South African jurisprudence and that he was calling for Zondo to step down as he had made comments “prejudicial to me and my family”.

While some might argue that he should have raised his objections about the legality of the commission and the appointment of Zondo earlier, Zuma said he had in fact done so.

He said that in any event the remedial action by Madonsela had precluded him from playing a role in the selection of the judge who would chair the commission.

“I had to establish a commission not on the basis of my own decision as president but as directed by the Public Protector and thereafter the court [North Gauteng High Court],” said Zuma.

The stated reason for excluding him from the selection, he fulminated, “was that I was allegedly conflicted to exercise the full extent of the constitutional power to establish a commission of inquiry”.

“It is obvious that this was based on the assumption that a judge selected by me would either be partial or perceived as biased. Clearly, impartiality was at the heart of these decisions.”

This point was important in the context of the matter, he said, “where all of a sudden there may be a view that impartiality is not required when a judge is presiding over a commission of inquiry”.

Zondo ought to have declined to chair the commission, said Zuma.

Apart from his “personal relationship” with Zondo, Zuma said he had consulted with Zondo’s former legal firm in the past and that Zondo had had a relationship with his soon-to-be ex-wife Tobeka Madiba’s sister.

Zondo had also “made comments whose effect is the suggestion that I am already guilty of the offence of State Capture”, said Zuma.

From the onset, I was concerned about the legality of aforementioned remedial action of the Public Protector.

He accused the Deputy Chief Justice of doubting his bona fides when Zondo, on two occasions, had questioned Zuma’s statement that he had not been able to attend hearings because he had travelled to seek medical attention.

The commission had “vacillated” between two positions, saying, on the one hand, that he should not receive “special treatment”, while, on the other hand, had “sought to reserve public statements for me”.

“No other witness has had their subpoena publicly announced through media statements by the Chairperson,” he complained.

Zuma said he had, at the start, challenged the lawfulness of Madonsela’s remedial action but this had been dismissed by the North Gauteng High Court.

Zuma Affidavit

His lawyers had advised him that Madonsela had “no powers to issue directives against the judiciary” and more importantly that she had directed Chief Justice Mogoeng Mogoeng “to assume executive positions not contemplated by the Constitution”.

“I was surprised that the Chief Justice was willing to comply with this remedial action and court order,” said Zuma.

He said that when he had “recognised the seriousness of the issues” in Madonsela’s report he had had no objection to the appointment of a commission of inquiry, per se.

“From the onset, I was concerned about the legality of aforementioned remedial action of the Public Protector.”

His view, which had been confirmed by legal advice, he said, “was that the Public Protector had no power to issue a remedial action in breach of the principle of the separation of powers”.

Madonsela had allocated to the Chief Justice, said Zuma, “a function that has, to my knowledge, never been performed” by the Chief Justice.

Zuma said that in his appeal of the Gauteng High Court’s confirmation of Madonsela’s remedial action, he had raised the issue that the “Constitution vests the power to appoint a commission of inquiry with the president”.

“I contended that only the President could lawfully exercise power to appoint or establish a commission of inquiry,” and that Madonsela’s directing of the Chief Justice to select a judge to chair this was “unconstitutional”.

“I was surprised that the Chief Justice was willing to comply with this remedial action and court order,” said Zuma.

He said he viewed Madonsela’s remedial action “as an affront to the independence of judges”.

Had I been free to speak about the selection of the judge to preside over the commission of inquiry, I would have disclosed my close relationship with him, which would threaten the very impartiality requested by the remedial action.

Zuma said he had met with the Chief Justice to request him to select a judge that he [Zuma] would appoint to preside over the commission of inquiry.

“During November 2017, in the Durban Presidential Official Residence, I held a meeting with the Chief Justice for the purpose of complying with the remedial action of the Public Protector.”

No sooner had Mogoeng provided Zuma with the name of Judge Siraj Desai, “than he came back the following day or two advising me that he had changed his mind and would no longer be selecting Judge Desai”.

“I made no comment on his selection of Deputy Chief Justice Zondo as I was mindful that any comment could be construed as an attempt to undermine the remedial action by the PP and court order,” said Zuma.

Mogoeng had not provided any reason Judge Desai had become unavailable.

“Had I been free to speak about the selection of the judge to preside over the commission of inquiry, I would have disclosed my close relationship with him, which would threaten the very impartiality requested by the remedial action,” said Zuma.

Had he expressed a view about Mogoeng’s selection of Zondo, “I ran the risk of being accused of interfering with the powers bestowed on the Chief Justice by the Public Protector through the North Gauteng High Court”.

These are all matters that have been resolved in the courts, but which Zuma insists on rehashing.

He said there would have been a “public outcry” had he spoken out and, “I was going to be portrayed as seeking to influence the process. Accordingly, even if I harboured serious reservations about the suitability of Deputy Chief Justice Zondo, my ability to raise any concern I might have had was constrained by the remedial action and the court order.”

Zuma said that he had had a “relatively close personal relationship” with Zondo and it was one that he “continued to have” during his tenure as a judge.

While they had encountered each other in various social settings and had discussed politics over the years,“I remained guarded in the manner in which I interacted with him”.

This had not been a conscious decision and Zuma said he had never sought any special favours.

Zondo’s decision to issue a media statement on 29 October setting out his previous relationship with Zuma’s wife’s sister was an “ill advised, pre-emptive stunt” which had resulted in “the media” condemning Zuma.

A letter from the commission dated 3 November and addressed to Zuma was a “veiled threat to approach the Constitutional Court” to enforce the summons issued by the commission.

Zuma said that Zondo had demonstrated that his mind “is not open but made up”.

“He also does not appreciate the value of my election not to contest the allegations that are made against me, which I believe do not implicate me in fraud or corruption at all.” DM

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