Zuma trips up over SOE interference claims

Former president Jacob Zuma. (Simon Maina/AFP/Getty Images)

Former president Jacob Zuma. (Simon Maina/AFP/Getty Images)

NEWS ANALYSIS

In the first days of Jacob Zuma’s appearance before the Zondo commission of inquiry into state capture, the former president was in control.

He had managed to tell his story of a decades-old conspiracy against him and to sidestep allegations that he colluded with the Gupta family, claiming he could not remember the details of the first years of his presidency.

The frequent clearing of his throat, accompanied by the phrase “I do not recall”, became an expected gesture.

But, on the third day, Zuma’s strategy unravelled when he was confronted with the damning evidence of former public enterprises minister Barbara Hogan, who accused him of meddling in the appointment of senior executives at state-owned entities (SOEs).

On Wednesday, proceedings were cut short when Zuma’s counsel, Muzi Sikhakhane SC, halted proceedings. Sikhakhane complained his client had been invited to the commission — chaired by Deputy Chief Justice Raymond Zondo — under “false pretences”.

The head of the commission’s legal team, Paul Pretorius SC, had been questioning Zuma on Hogan’s evidence relating to Transnet, which at the end of February 2009 found itself without a chief executive.

Broadly, Hogan’s evidence deals with her allegation that Zuma interfered in the appointment of senior executives to state-owned entities, including Transnet, Eskom and South African Forestry Companies Limited.

The details of her evidence paint a picture of a president flouting process, and Zuma failing to answer to it would make him appear, at best, incompetent; at worst, guilty.

Hogan’s testimony is crucial — she testified about how Zuma was adamant that he wanted Siyabonga Gama to take up the post of Transnet chief executive after the departure of Maria Ramos, even though there were allegations of misconduct against him. Zuma eventually axed Hogan and replaced her with Malusi Gigaba, who appointed state-capture accused Brian Molefe as Transnet’s chief executive.

Zuma complained that he was being cross-examined.

“I have a problem because I am being made to go through the details that are the details of the officials,” he said when the commission reconvened after the lunch break on Wednesday.

During her appearance before the commission in November last year, Hogan said the matter of appointing Ramos’s successor “became the site of an ugly, protracted battle between President Zuma and I”.

According to Hogan, Zuma insisted on the appointment of Gama to the position, despite a decision by the Transnet board that he was an inappropriate candidate.

READ MORE: Zuma’s next hurdle — Barbara Hogan

It had emerged at the time that there had been allegations of misconduct against Gama regarding procurement irregularities.
These related to a R847-million tender in 2007 to supply 50 “like-new” diesel locomotives, which was overseen by Gama.

Hogan recalled a meeting with Zuma during which the former president allegedly said that no appointment whatsoever was to be made at Transnet until Gama’s disciplinary process was concluded.

On Wednesday, Zuma disputed this allegation. “It couldn’t be like that. We don’t work like that. As I said, there is a process that determines who becomes the winning candidate … I would not have said this. Not at all,” he said.

Zondo interjected: “Well, I just want to say, this is one of those parts of her [Hogan’s] statement, where it is quite important that your answer be the answer that is really to the best of your recollection. Because the way that she has put it is quite emphatic.

“So it is important to distinguish between you ‘don’t recall’ and ‘I didn’t say it’ and ‘I couldn’t have said it’.”

In saying this, Zondo indicated to Zuma that he had seen through the witness’s strategy to avoid giving his own version of his encounters with Hogan and others.

READ MORE: ‘I did not push for Gama at Transnet’ — Zuma

Earlier in the week, the former president seemed to use lapses in his memory to avoid giving his version of the allegations made by former government spokesperson Themba Maseko and former ANC MP Vytjie Mentor.

But on Wednesday “I do not recall” was replaced with a new refrain: “I could not have said this.”

Zuma’s strategy has been not to give his side of the state capture story. This is the reason why, despite being named more than any other person at the Zondo commission, he has never applied to cross-examine a witness.

Zondo has stuck closely to the commission’s rules by consistently saying that, if someone wants to grill one of his witnesses, they will have to put up their own versions for public scrutiny.

This is the major cause of the impasse between the commission and Zuma’s legal team. Zuma has not submitted his own statement to the commission so, in the view of his legal team, he cannot be cross-examined.

Zuma did not appear at the commission on Thursday as scheduled, to allow his legal team and the commission’s legal team to thrash this out. The implication of this is that, when Zuma does return to give evidence on Friday, it is unlikely he will have the time to be questioned on damning allegations by other key witnesses, including former finance minister Nhlanhla Nene and Public Enterprises Minister Pravin Gordhan.

The interruption allows Zuma to avoid (and perhaps evade entirely) contradicting himself on what has been his position so far — that he could not have interfered with the appointments of executives because the buck stopped at the Cabinet.

“The allegation that is put forward by the minister [Hogan] is that I interfered. I don’t know what that means. I don’t know,” Zuma said on Wednesday.

He later added: “These matters, where you take the decision, it is in the Cabinet.”

But Zuma can push this contention only so far. Because Hogan’s allegation against the former president is not only that he backed Gama, but that he also prevented the Transnet board’s views on the matter from ever reaching the Cabinet — putting the entity in jeopardy by prolonging its leadership crisis for almost two years.

Hogan submitted into evidence two letters she had written to Zuma, one in August 2009 and the other in September 2010, asking the then president to expedite the submission of two different memorandums on the Transnet appointment to Cabinet.

The first memorandum, which outlined the reasons for the board’s decision to exclude Gama as a candidate, was withdrawn by Zuma, Hogan alleged.

On Wednesday, Zuma said he had received and read the memorandum, but noted: “There were so many memorandums. If they come like this, unless there is a problem … generally, it is just a formality.” He later added that he did not remember the fate of this particular memorandum.

Zondo intervened, asking: “In the presidency, will there be any records of correspondence, if for example … you did respond?”

Zuma said he would not have written to the minister directly, “unless the matter is more serious”.

According to Hogan, Zuma never responded to her second letter. She was axed shortly after sending it.

Pretorius did not have a chance to put to Zuma Hogan’s allegation that he scuppered the Transnet board’s attempts to present its candidates to the Cabinet.

He did, however, manage to quiz the former president about his understanding of protocol in making appointments.

Although Pretorius may now never get there, his aim in this regard is clear: to establish whether protocol and Zuma’s interpretation of that protocol are aligned.

Zondo put the commission’s legal team’s line of questioning in focus earlier in the hearing.

“You can have a law that says this. And you can have people who are supposed to apply that process having a different understanding. And the question is aimed at establishing what his understanding was of the process,” he said.

The commission’s efforts to establish Zuma’s version of how appointments happened could leave the former president exposed.

Because, if Hogan is to be believed, Zuma’s understanding of how things should have been done and how they were actually done during his time as president may well be at odds.

Sarah Smit

Sarah Smit

Sarah Smit is a general news reporter at the Mail & Guardian. She covers topics relating to labour, corruption and the law. Read more from Sarah Smit

    Client Media Releases

    Eminent scientist recognised for his research in breastfeeding
    Supersonic scores another ISP win
    M&As create strategic options