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The appearance or non-appearance of Jacob Zuma in the State Capture Investigation Commission on Monday, November 16, is just the latest twist in a saga that dates back, at least in part, to March 2016.
In March 2016, three complainants asked the Public Protector to investigate “Alleged misconduct and unethical conduct of the president and other state officials in relation to the alleged improper relationships and involvement of the Gupta family in the removal and appointment of ministers and directors of State-owned Entities (SOEs) that resulted in improper adjudication and possibly corrupt state contracts and profits for the Gupta family companies “.
Then the public protector, Thuli Madonsela, managed to obtain an interview with then-President Zuma on October 6, 2016, less than two weeks before she finalized her report and left office. With her attorney, Michael Hulley in tow, Zuma declined and did not respond to any of the questions Madonsela wanted to raise, saying she needed more time to consult her legal team.
This was after Madonsela had previously written to Zuma outlining the parameters of the investigation. The four-hour meeting ended when Zuma agreed to submit an affidavit and agreed to attend a new meeting with the Public Protector on October 10. Needless to say, no affidavits were received and no meetings were held. Instead, Zuma, along with Des van Rooyen and Mosebenzi Zwane, filed a last minute request to prevent Madonsela from releasing the “Capture Status Report” on the grounds that the Public Protector had not spoken to him or asked him questions.
Zuma withdrew this request when it was due to be heard in court on November 2, 2016, paving the way for the report to be released that same day. This was quite a momentous day in Pretoria: Pravin Gordhan, Oupa Magashula and Ivan Pillay were facing charges of fraud and corruption in the Pretoria magistrates court in connection with the payment of the pension to Pillay, but the matter was also dropped last. time; and the Save South Africa campaign held a massive demonstration in St Albans Cathedral against state capture and corruption.
The release of the Report on the Status of Capture by the Office of the Public Protector (Busisiwe Mkhwebane was then in office) was accompanied by an audio transcript of Madonsela’s meeting with Zuma on October 6 in which the Zuma’s lies: Madonsela had been asked questions and given a chance to answer. He chose not to.
Four years later, and Zuma still hasn’t answered any of these questions. And there doesn’t seem to be much of a chance that it will soon. The ‘Stalingrad strategy’ that he deployed to great effect to delay charges of fraud, corruption and extortion in relation to the arms business and his relationship with Schabir Shaik and Thales, is being regurgitated with respect to the Commission of Inquiry into Capture of the State.
When he appeared before Supreme Court Vice President Zondo in July 2019, Zuma used the occasion to unleash various conspiracy theories, displaying a detailed recollection of things that supposedly happened decades ago. He even labeled some of his former ministers as spies. However, when he was questioned by the leader of the evidence Paul Pretorius, his intelligence-trained memory seemed to conveniently abandon him.
Zuma objected to the way Pretorius was questioning him, saying it amounted to cross-examination. He also vehemently denied the existence of the phenomenon of state capture. In a throwback to her engagement to Thuli Madonsela, Zuma’s testimony at the Commission was abruptly stopped and arrangements were made for her return. These arrangements never materialized due to their poor health, the need to prepare for their criminal trial in Arms Deal / Thales, the change of attorneys that forced them to familiarize themselves with the issues, etc. These lengthy delays resulted in Zondo issuing a subpoena for Zuma to appear before him from November 16-20, 2020.
In another segment of his playbook with the former Public Protector (where he requested an injunction), Zuma now filed a request that Supreme Court Vice President Zondo not listen to his evidence, on the grounds that it is not impartial. This is the subject that will now dominate the proceedings on Monday.
Zuma’s legal team had indicated several weeks ago that they would file such a disqualification request, but they left it until the eve of the hearing before filing it. This was after the Commission’s correspondence asking for clarification that the former president would honor the summons. The responses from Zuma’s attorneys were inconclusive and perhaps deliberately evasive.
Despite repeatedly saying that he is willing to cooperate with the Commission, Zuma has not responded to allegations made against him by other witnesses. In his request for disqualification, he simply says that the rules allow him not to respond and he sees no reason to respond to lies and fabrications. By adopting this strategy, you are usurping the role of the Vice President of the Supreme Court, who is the person with the authority to determine the truth or not of the evidence before him.
In my opinion, the 100-page recusal request is flimsy, contradictory and selfish, and is likely to be scrapped by Zondo. But then what?
It is highly likely that Zuma will seek to review Zondo’s decision in court, and following past practice, this will lead us through the Superior Court, the Supreme Court of Appeals, and ultimately the Constitutional Court. That will inevitably take some time and certainly will not be concluded before the Commission concludes its work in March 2021.
Therefore, Zuma would have achieved his objective of not meaningfully testifying before the Commission and responding to the allegations made against him by 34 witnesses, thus far. The incumbent president has indicated that he is willing to testify before Zondo, although a date has not yet been set for this. If Cyril Ramaphosa is to testify, as he should, given his role as vice president in Zuma’s cabinet, there is no reason for Zuma not to.
The Stalingrad strategy was successful in the past due to compliance, if not collusion, with the National Tax Authority (NPA), and in particular with Mokotedi Mpshe and Shaun Abrahams.
While Zuma might avoid the Zondo Commission, hopefully he won’t shirk responsibility forever. The recalibrated Hawks, NPA and their Directorate of Investigation will need to ensure that, if there is sufficient evidence, criminal charges are brought against the former president. Then you will finally have to answer in a court of law. DM
Lawson Naidoo is the Executive Secretary of the South African Constitution Advancement Council (CASAC).
