The former president’s son, Duduzane Zuma, is not willing to appear before the commission of inquiry into state capture as long as he is facing criminal charges, the commission heard on Thursday.
The commission is chaired by Deputy Chief Justice Raymond Zondo.
Zuma’s lawyer, Advocate Dawie Joubert SC, argued before the commission why his client should be granted to cross-examine witnesses who have implicated his client in their testimonies and why he should not be required to appear before the commission himself.
Joubert also represents Gupta patriarch, Ajay, and his brother, Rajesh. Of Zuma, Joubert said “he stands on a somewhat different footing” because of the parallel criminal charges against him.
In July, Zuma was released on R100 000 bail after briefly appearing in the Specialised Commercial Crime Court in Johannesburg on charges of corruption. The case has been postponed to January 24 2019.
The charges against Zuma were in connection with his alleged role in coordinating a clandestine meeting in 2015 between former deputy finance minister Mcebisi Jonas and Ajay Gupta, during which Jonas was allegedly offered a R600-million bribe and a position in then president Jacob Zuma’s Cabinet.
Jonas detailed this encounter in his testimony before the commission last month.
Duduzane Zuma was charged with contravening the Prevention and Combating of Corrupt Activities Act.
Zuma had been overseas since February, but when his brother, Vusi Nhlakanipho Zuma, died of lupus, Duduzane returned to the country to attend his funeral.
Furthermore, earlier in July, Zuma received a summons to appear in the Randburg Magistrate’s Court on two charges of culpable homicide. The charges related to a car crash in February 2014 during which he rear-ended a taxi after losing control of his Porsche on the Grayston Drive off-ramp on the M1, north of Johannesburg. One woman died instantly and three others were injured.
The case in the magistrate’s court was postponed to October.
On Thursday, Joubert conceded that, as per the rules of the commission, no evidence heard by the commission shall be admissible in any criminal proceedings. But, he added, implicated parties cannot also be exonerated on the evidence they give.
Joubert said that his client has been disappointed at the “unfair treatment” he has received in the decision to lay charges against him. Zuma is thus not willing to give his own testimony as long as he faces criminal charges, Joubert said.
Joubert added that this stance might change if his client were subpoenaed by the commission,.
Zondo is tasked with either granting or denying leave to cross examine. According to the commission’s regulations, “there is no right to cross-examine a witness before the commission but the chairperson may permit cross-examination should he deem it necessary and in the best interests of the work of the commission to do so”.
As the chair of the commission, Zondo is also expected to make a decision on whether or not to attach conditions to leave to cross-examine. Last week Advocate Vincent Maleka SC, of the commission’s legal team, argued that Zondo ought to impose conditions on the privilege to cross-examine witnesses that would require implicated persons to take the witness stand themselves.
Maleka urged Zondo to consider that the “privilege [to cross examine] comes along with some responsibility and the responsibility is to undertake to testify orally under oath and that they too become subjected to cross-examination”.
“There can be no doubt about the desirability that if people are going to cross-examine they should really be prepared to take the witness stand and give evidence … But whether or not this goes as far as to compel that they must make that choice upfront. I am not sure, it might be something that needs argument,” Zondo responded.
Zondo might thus refuse leave to cross-examine a witness if an implicated person is not prepared to testify and be subjected to cross-examination.
He responded to Zuma’s unwillingness to undertake to give his own testimony by pointing out that he had already submitted an affidavit to the commission recounting his version of events.
Zondo added that the life of this commission would be significantly extended, if it is expected to wait for Zuma’s criminal trial to be finalised before he submits himself to testify.