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Former South African President Jacob Zuma, left, and Supreme Court Vice President Raymond Zondo. (Photo: EPA-EFE / Rogan Ward / Pool | Images by Gallo / Financial Mail / Freddy Mavunda)
Jacob Zuma has been delayed and avoided participating in the State Capture investigation at all times. The former president does not oppose the Constitutional Court’s attempt to force him to appear and answer questions, but time is on his side even if the country’s highest court intervenes.
The State Capture investigation has lost five weeks of the scheduled hearing time because former President Jacob Zuma “did not appear before the Commission or refused to appear before the Commission,” according to an affidavit presented by Investigation Secretary Itumeleng. Mosala to the Constitutional Court.
That doesn’t include the week that passed in November 2020 in Zuma’s request for Supreme Court Vice President Raymond Zondo to recuse himself, which Zondo denied.
Zondo first invited Zuma to testify in 2018. The former president appeared for a few days in July 2019 and described a conspiracy against him before withdrawing from the proceedings during questioning of trial leaders.
Zuma has not complied with Zondo’s instructions to submit affidavits on certain testimony, has not chosen to respond to any rule 3.3 notices, describing the evidence implicating him, and has not requested to question a single witness.
On Monday, Zuma indicated that he would not oppose the Constitutional Court’s request for the investigation to force him to adhere to the subpoenas and appear and answer questions in the commission in January and February 2021.
Time is on his side, even if there is an order from the Constitutional Court, and it appears that Zuma will continue to question the legitimacy of the investigation and will continue to obstruct his work, refusing to respond to the at least 36 witnesses who have implicated him in allegations of state capture.
“Our client, President JG Zuma, has indicated to us that he will not participate at all in these proceedings,” was all that Zuma’s attorney, Eric Mabuza, wrote to the Clerk of the Constitutional Court on Monday, the deadline for submitting his response. to the investigation request.
Mabuza did not reply to Daily maverick requests for comment, but his letter to the court could itself be construed as a slight. Parties to court proceedings would normally respond formally with a notice of intent to oppose the request or abide by the court’s decision.
Zuma’s son Duduzane Zuma, who has appeared on the commission and is implicated in corruption allegations involving the Gupta family, tweeted: “As a family, we have decided that Baba should not participate in this factional and prejudice commission. Until concrete evidence is presented to the state capture commission, this, meanwhile, remains a waste of time and gossip. We don’t have time for ‘rumors’ ”.
The State Capture investigation approached the Constitutional Court after Zuma left the hearings on November 19, 2020 without permission after Zondo denied his request for disqualification. It is a crime for witnesses to leave investigative commissions without permission and Zuma appeared on a subpoena. Since then, the commission has filed criminal charges.
In his affidavit before the Constitutional Court, Mosala said that Zuma “never intended to testify and be examined under oath, as required by the subpoena. It would appear that Mr. Zuma only intended to attend the hearing on his request to disqualify the President and, if determined against him, make the review decision and refuse to appear as a witness, testify and be questioned accordingly. with the subpoena. “
The commission has asked the supreme court for an order declaring that Zuma is obligated to comply with subpoenas to appear in January and February 2021, testify and answer questions asked. He also wants an order declaring his decision to drop the investigation in November illegal.
The Constitutional Court must hear the case virtually on December 29.
The commission’s attorneys will need to convince the court that the matter is within their exclusive jurisdiction or that direct access should be granted.
It maintains that only the Constitutional Court can determine whether a president has breached a constitutional obligation, and that responsibility can apply to former presidents, since accountability, by definition, is retrospective.
The commission called the matter “extraordinary” and said the issues had constitutional implications such as the country’s ability to meet its socioeconomic rights obligations, given the impact of corruption and fraud, as well as equality before the law, and a commission of inquiry. ability to deal with recalcitrant witnesses by issuing subpoenas.
Noting the investigation deadline of March 31, 2021 to complete its work, Mosala told the court: “Therefore, realistically, the only time remaining for the hearing of Mr. Zuma’s evidence is between January and February 2021 “.
The court request details Zuma’s various reasons for delaying his appearances on the commission or failing to appear. He has been ill, worried about the criminal case against him in the Pietermaritzburg High Court and has changed legal team.
A statement issued by Zuma’s personal foundation after it left the investigation without permission accused the investigation of being irregular, manipulated and illegal, which the commission told the court was further proof that it had no intention of cooperating.
Zuma never raised the arguments in his request to disqualify Zondo, which was filed at the last minute, another common delaying strategy.
University of Pretoria public law professor Koos Malan said he was intrigued by the Constitutional Court’s request for the investigation, as Zondo has clear powers to issue subpoenas, which must be met, otherwise it must be issued. an arrest warrant.
He suggested that any related legal issues would normally be decided in the higher court.
“If Zuma ignores a properly served subpoena, an arrest warrant can be issued to ensure his presence and cooperation,” Malan said.
“This, in my opinion, is what Judge Zondo should have done when Zuma left without permission.”
That recourse is clear in the law and the commission had approached the Constitutional Court with a “moot point,” Malan said, making it understandable why Zuma’s lawyers did not oppose the matter.
One of the reasons the commission turned to the Constitutional Court, he said, was that it believed Zuma would adhere to a ruling from the country’s highest court.
It’s clear that Zondo is looking for an authority other than the police to force Zuma to show up and answer questions, trying to exhaust all options before it comes to whether SAPS officers could arrest the former president and what kind of social unrest and political it could provoke.
Even if the commission succeeds in the Constitutional Court, Zuma has options. You could claim that you cannot show up due to illness or you may simply not show up on the scheduled dates, January 18-22 and February 15-19, 2021.
So far, the commission has issued 2,526 subpoenas, according to Masola, and 99 witnesses have turned up as a result. It is unclear how many of them could have been forced to submit affidavits, but the commission does not appear to have gone to court or requested an arrest warrant for other recalcitrant witnesses.
Zuma’s lawyer, Muzi Sikhakhane SC, has suggested that the former president “would exercise his right to say nothing” if forced to testify. Witnesses can invoke the right not to self-incriminate, but that does not amount to the right to remain silent.
If Zuma claims the right not to incriminate himself, Zondo must decide whether there are reasonable grounds of real and appreciable danger to the witness with respect to each question that the former president chooses not to answer.
During the testimony of former SAA president Dudu Myeni, Zondo was reluctant to intervene when he claimed the right not to incriminate himself, even when he refused to answer basic questions.
Malan said that if “the fear of self-incrimination appears to be unfounded, the witness may be forced to respond and may be imprisoned as a recalcitrant witness to ensure cooperation.” DM
