Former president Jacob Zuma. (Simon Maina/AFP/Getty Images)
NEWS ANALYSIS
Former president Jacob Zuma’s strategy to sidestep claims he meddled in the appointment of senior executives at state-owned entities threatened to unravel when he was confronted with former public enterprises minister Barbara Hogan’s damning evidence.
The third day of Zuma’s testimony before the Zondo commission of inquiry into allegations of state capture was cut short when his senior counsel, Muzi Sikhakhane, halted proceedings. Sikhakhane complained his client had been invited to the commission — chaired by Deputy Chief Justice Raymond Zondo —under “false pretences”.
Sikhakhane’s objection came after the former president complained that he was being cross-examined on the fine details of Hogan’s evidence before the Zondo commission.
“I have a problem because I am being made to go through the details, that are the details of the officials. And expected to remember every other detail on the work that is generally done by the DGs [directors general] and the officials … I have a problem,” Zuma said when the commission reconvened after the lunch break.
“Because I am not an officer or a Cabinet secretary, those who take minutes etcetera. The manner in which I am being asked questions, on the details that I can’t even remember properly … Now naturally this will have its own result.”
Zuma hinted at the “result” of his failing to recall his encounters with Hogan and the correspondences between the two of them about the appointment of a new chief executive for Transnet — one of South Africa’s most crucial state-owned entities.
But Zuma never quite said it: the details of Hogan’s evidence paints a picture of a president flouting process, and Zuma failing to present his own version of these events would make him appear, at best, incompetent, and at worst, guilty.
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 (Safcol).
On Wednesday, the head of the commission’s legal team, Paul Pretorius SC, questioned Zuma on Transnet, which at the end of February 2009 found itself without a chief executive when Maria Ramos resigned.
The matter of appointing Ramos’s successor “became the site of an ugly protracted battle between President Zuma and I, in which he thwarted all the legal and legitimate procedures that I took to obtain Cabinet approval for any appointments whatsoever to Transnet, including the appointment of a CEO”, Hogan said during her appearance before the commission in November last year.
According to Hogan, Zuma insisted on the appointment of Transnet executive Siyabonga Gama to the position, despite a decision by the board that he was an inappropriate candidate.
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 over.
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’.”
Zondo, in saying this, 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.
On Monday and Tuesday, the former president used 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 would not have said this.”
Zuma’s strategy has always been not to give his side of the state capture story. It 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 too cannot be cross-examined.
Zuma will 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, if Zuma does return to give evidence on Friday, it is unlikely he will have the time to be questioned on the allegations by other 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 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. Because the president talks to his ministers about the work that they do,” Zuma said on Wednesday.
He later added: “These matters, where you take the decision, it is in the Cabinet. In the Cabinet, all members including the president has the right to express their views. In the Cabinet.”
But the problem with Zuma’s continued emphasis of this position is that 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 Cabinet — putting the entity in jeopardy by prolonging its leadership crisis until the appointment of Brian Molefe, almost two years after Ramos had left.
Hogan submitted into evidence two letters she had written to Zuma, one in August 2009 and the other in September 2010, asking that the then president to expedite the submission 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 received and read the memorandum, but said: “It was just a report like all other reports.”
“There were so many memorandums. If they come like this, unless there is a problem … generally it is just a formality,” he later said, adding 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. In October 2010, Hogan was dismissed from her position and replaced by Malusi Gigaba.
Pretorius did not have a chance to put Hogan’s allegation that he scuppered the Transnet board’s attempts to present its candidates to Cabinet to Zuma. He did however manage to quiz the former president about his understanding of protocol in making appointments.
Though now Pretorius may never get there, his aim in this regard is clear: To establish whether or not 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 in response to another complaint by Sikhakhane.
The commission’s efforts to establish Zuma’s version of how appointments of officials to state-owned entities 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 may well be at odds.