Deputy Chief Justice Raymond Zondo’s younger brother, advocate Mxolisi Zondo, is named in the evidence of former Independent Police Investigative Directorate (Ipid) head Robert McBride, the Zondo commission of inquiry into state capture heard on Friday.
Head of the commission’s legal team, Paul Pretorius SC, began Friday’s proceedings by raising a possible conflict of interest which may arise as the deputy chief justice hears evidence relating to the alleged capture of the criminal justice cluster.
Pretorius indicated that the younger Zondo is named by McBride in relation to a disciplinary hearing he chaired. McBride’s evidence is an opinion relating to Mxolisi Zondo’s conduct during the course of the hearing, Pretorius said.
It is understood that Mxolisi presided over former Hawks boss Shadrack Sibiya’s disciplinary hearing in 2015. The hearing dealt with the accusation that Sibiya planned and executed the 2010 operation that led to the alleged unlawful renditions of Zimbabwean nationals.
Sibiya was fired as a result of the disciplinary inquiry’s recommendations.
Pretorius indicated that Matthew Sesoko, Ipid’s head of investigations, has been notified of the potential conflict. Sesoko was accused of altering the report into Zimbabwe renditions investigation.
Sesoko signed off on the final report exonerating former Hawks head Anwa Dramat and Sibiya from involvement in the renditions scandal. He was reportedly dismissed at Mxolisi’s recommendation.
Sesoko was also criminally charged for fraud and defeating the ends of justice. The criminal charges were withdrawn in November 2016 and Sesoko was reinstated.
Pretorius revealed on Friday that none of those notified of the potential conflict raised an objection to the deputy chief justice hearing McBride’s evidence relating to the disciplinary inquiry chaired by his younger brother. “From those directly involved, there is no issue raised,” he said.
According to Pretorius, McBride has indicated he has “full trust and confidence” in Zondo’s objectivity in chairing the commission. “The issue of conflict does not really arise,” Pretorius added.
Mxolisi has not applied to cross-examine McBride, Pretorius said.
On whether Zondo should recuse himself from hearing McBride’s evidence, Pretorius explained that the commission’s chair does not have the power to substitute himself.
He called the issue at stake “a collateral issue”, adding that it may be found that it is not central to the commission’s terms of reference.
Pretorius said the legal team’s proposal is that Zondo hears the evidence but makes no findings on it yet.
Zondo noted that President Cyril Ramaphosa has the power to amend the commission’s terms of reference “in such a way that I don’t deal with that issue”.
“It may well be that consideration should be given whether there is any role that should be played by the president with regard to this issue,” Zondo said.
“The [former] public protector [Thuli Madonsela] did not say anything about other members being appointed,” Zondo added, noting that the commission arose from the remedial action recommended by the ‘State of Capture’ report.
Zondo also noted the commission’s “very limited time to complete its work”. The commission’s deadline is March 2019. McBride’s evidence has been delayed owing to two applications for postponement by the commission’s legal team.
“It may be that one should look at a practical way of dealing with this,” Zondo said.