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The hearing for the challenge of Supreme Court Vice President (DCJ) Raymond Zondo as chairman of the state capture commission had a distinctly Trumpian touch. Victimization, conspiracy theories and ‘alternative facts’ made an appearance at the hearing that clearly focused on the former president’s personal feelings and fears. And, like Donald Trump’s bogus claims about his electoral victory, the former president’s arguments appeared more aimed at delegitimizing the commission and any findings it makes, than winning a legal battle.
I write this while we await DCJ Raymond Zondo’s decision on whether to recuse himself as chairman of the state capture commission.
While I don’t know how Zondo will rule, the law and the facts don’t seem to favor Jacob Zuma.
Perhaps this is why Zuma’s defender, Muzi Sikhakhane, cleverly attempted to reframe the request as a judgment on the very existence of state capture, suggesting that the commission’s “passive acceptance” of the “state capture narrative” was at the heart of Zuma’s concerns.
Walking a careful line between deference and condescension towards DCJ Zondo, Zuma’s legal representative also planted the seed in the minds of those observing the process at home, that the impeachment process itself was somewhat suspect.
His assertion that the jurisprudence applicable to recusal requests was “unreliable” and “intellectually dishonest”, since the judges went so far as to determine what criteria should be used to decide whether to recuse, was legal nonsense (the commission is obliged by the Precedent of the Constitutional Court on the matter), but may have provided preventively a political explanation for the possible rejection of the request for disqualification. (I do not express an opinion on whether this was intentional or not.)
It was an exceptional performance from a talented speaker, but, in my opinion, it failed to fully hide the weaknesses of the legal arguments and the uncertainty of some of the factual statements on which the request is based.
It should be remembered that the challenge test is strict.
The Constitutional Court summarized the evidence as follows in President of the Republic of South Africa and others against South African Rugby Football Union and others:
“The question is whether a reasonable, objective and informed person, based on the correct facts, would reasonably understand that the judge has not had or will not have an impartial mind to influence the adjudication of the case, that is, a mind open to persuasion. for the evidence and the attorneys’ presentations. “
The Constitutional Court also indicated in South African Commercial Catering and Allied Workers Union and Others v. Irvin & Johnson Limited Seafoods Division Fish Processing that in the recusal requests there is a rebuttable presumption that the judicial officials are impartial.
It is the recusal applicant (in this case, Jacob Zuma) “who has the responsibility to rebut the presumption of judicial impartiality”, and the presumption “is not easily dislodged. It requires ‘convincing’ or ‘convincing’ evidence to be rebutted” .
What is required of a president is not “absolute neutrality” (something that, in any case, is impossible), but impartiality; the “quality of the open-minded disposition to persuasion … through evidence and attorney presentations.”
Demanding absolute neutrality would make it impossible for presidents to do their jobs. For example, absolute neutrality would require a presiding judge to respond identically to a witness who claims the earth is flat and one who correctly claims that it is round.
It would also mean that a disqualification could be based on an argument that a president was more courteous to one witness than to another (as Jacob Zuma did in his request for disqualification), something that a reasonable person would not normally take as evidence that the president did not. has an open mind.
While the evidence remains the same, regardless of whether the request for disqualification is for a judge presiding over a court of law or for a judge presiding over a commission of inquiry, it is applied differently because a commission is inquisitorial in nature and it is not done in the contradictory way familiar to us from court proceedings. In a contradictory process, the parties are adversaries who present their respective cases under strict procedural rules.
The presiding judge acts as an impartial and mostly passive arbitrator.
The assumption is that opponents dispute it in court, in a process governed by various procedural rules, and that the truth will emerge from this contest, allowing the impartial presiding officer to make a final decision for one party or the other.
Therefore, presidents should be careful not to act in a way that gives an undue advantage to one or the other party, as this can, in extreme cases, lead to a reasonable apprehension of bias on their part.
Before an investigation commission, after an inquisitorial process, this concern does not arise. Commission staff act as investigators who are actively involved in the investigation to try to find out the truth. The presiding judge plays an active role in this process and has a duty to evaluate the evidence, question witnesses, and direct investigators on what additional information is needed to arrive at the truth.
This requires the presiding judge to make a preliminary assessment of the evidence, keeping an open mind, always with a view to establishing the truth, wherever it leads.
Provided the judge does not exclude or ignore relevant evidence that may contradict a preliminary opinion (as did Judge Seriti in the Arms Deal Investigation), and is eager to discover the truth based on available facts, a reasonable apprehension of bias will suffice. not arise.
In light of the applicable law explained above, former President Zuma’s request for the recusal of DCJ Zondo must overcome several obstacles.
First, Zuma has to convince DCJ Zondo that his (Zuma’s) personal beliefs that the commission is part of an unexplained and unsubstantiated conspiracy against him, and that Zondo does not have an open mind, are reasonable beliefs that a person reasonable could have.
Allegations that Zondo treated some witnesses more politely than others; that he did not challenge the testimony of all witnesses with equal vigor; and that he was somehow cruel to Zuma, seems to be aimed at showing that Zondo lacked absolute neutrality, which (as I noted above) is not the legal standard for disqualification in South Africa.
Therefore, it would not be enough to argue that Zuma is not comfortable testifying, as Zuma’s attorney did on Monday, and that Zondo has a duty to create an environment in which Zuma is comfortable to testify.
Second, some of the factual allegations presented in the challenge request are not true, or are highly controversial or irrelevant.
The claim that the commission carefully selected witnesses to “support the theory of the state’s capture of the former Public Protector” is not supported by the facts.
The commission called more than 200 witnesses, including many witnesses (such as Duduzane Zuma and Dudu Myeni) who do not accept that Zuma was involved in the state capture.
The claim that Zuma has always been willing to cooperate with the commission and has always been willing to testify is difficult to square with the fact that Zuma has failed to comply with various directives issued by the commission, and that he withdrew from his hearing. previous. when the leaders of the evidence started asking tough questions.
Some other claims made in Zuma’s request are, to say the least, bizarre in a way that Donald Trump would admire.
For example, when Pravin Gordhan did not attend the hearing in which he would have been questioned by the legal representative of former SARS commissioner Tom Moyane, Zondo expressed his displeasure with Gordhan in no uncertain terms and complained: “I am not happy.”
A reasonable person is likely to see this as proof of Zondo’s impartiality. But in a grand attempt at gaslighting, Zuma suggested in his request, with no supporting evidence, that it was merely an attempt by Zondo to “look impatient.”
But in my opinion, the main difficulty with the request is that the factual allegations made to support the challenge appear to be intended to meet a challenge test that does not exist.
Allegations that Zondo treated some witnesses more politely than others; that he did not challenge the testimony of all witnesses with equal vigor; and that he was somehow cruel to Zuma, seems to be aimed at showing that Zondo lacked absolute neutrality, which (as I noted above) is not the legal standard for disqualification in South Africa.
Ironically, a fairly compelling legal argument could have been made earlier that the commission was illegally established. But this argument is no longer available to Zuma.
As I said earlier (see here Y here) it is possible that the corrective action of the Public Protector who instructed Zuma to appoint a commission of inquiry and required the Chief Justice to elect the judge to preside over it, was unconstitutional.
However, these arguments were not only rejected by the Superior Court, the court also converted the Public Protector’s corrective action into a court order.
While another court may have reversed this ruling on appeal, the appeal on the merits of the case was dropped after Zuma resigned as president, meaning the court order now stands and must be obeyed.
In his request for recusal, Zuma again raised the possibility that the commission’s appointment was unconstitutional.
As the court order that established the commission was not appealed, this argument does not appear to have any legal value to assess the challenge.
But it does reinforce the political argument behind the entire request for Zuma’s disqualification, namely that the commission was illegally established and illegitimate, and is part of a vast conspiracy against Zuma, driven by all-powerful agents (including the services of local intelligence workers working with the US and perhaps members of the judiciary).
Regardless of what DCJ Zondo decides on Wednesday, Zuma is likely to continue to move forward with this argument, as it is your best bet to delegitimize the commission and the findings it is likely to make. DM
