/ 23 November 2020

Zondo tightens his grip with criminal complaint against Zuma

Jacob Zuma now faces prosecution for 12 counts of fraud
Former president Jacob Zuma. (Gulshan Khan/Getty Images)

The Zondo Commission will lay a criminal complaint against Jacob Zuma for his absconding from the inquiry’s proceedings while he was still under a summons. Another summons will also be issued to the former president compelling him to appear before the commission — chaired by Deputy Chief Justice Raymond Zondo — at a later date. 

This is after Zuma’s failed bid to have Zondo recuse himself ended with the commission’s star witness leaving its Johannesburg venue last Thursday without permission.

On Monday, Zondo opened proceedings with a statement on the matter. Since Zuma and his legal team cut and ran last week, many commentators have speculated about the consequences and whether Zondo would take a hard line against the former president’s behaviour. 

Zondo said Zuma’s decision to leave Thursday’s hearing while he was still under a summons is “a serious matter”.

It has been more than a year since Zuma last gave evidence at the commission, which is mandated to investigate allegations of corruption and state capture during his tenure as president. With only a month left for the commission to hear evidence, time is running out to get Zuma’s version of events on record.

“It impacts on the integrity of the commission, the role of law and public accountability … The rule of law and public accountability are values that are fundamental to our constitutional order. Also, our constitution promises all of us that we are all equal before the law,” Zondo said on Monday.

Zondo added that if summoned witnesses were allowed to come and go as they pleased, the commission would no longer be able to operate.

“It is quite important, for the proper functioning of this commission, that Mr Zuma’s conduct be dealt with in the manner in which our law provides it should be dealt with.”

The secretary of the commission will thus lay a criminal complaint with the police, who will investigate Zuma’s conduct.

Constitutional Court application

On top of issuing a second summons to the former president, the commission’s secretary has also been instructed to make an application to the Constitutional Court to make an order compelling Zuma to comply with the summons.

The application will also seek an order requiring Zuma to furnish the commission with additional affidavits. 

Last week, Zuma’s legal counsel, Muzi Sikhakhane SC, made it clear that his client would not take the commission’s persistence to have him give evidence lying down. 

Sikhakhane said they would be taking Zondo’s decision not to recuse himself on review. He also announced that his client has instructed him to lodge a complaint to the Judicial Service Commission about Zondo.

The complaint, Sikhakhane said, will relate to Zondo having acted as both a witness and a judge in the adjudicating the recusal application. 

Zuma’s application for Zondo’s recusal was largely based on his view that the two were friends — a view that the commission’s chairperson has firmly disputed.

Last Monday, Zondo read out a statement before the recusal application, detailing the background of his relationship with Zuma.

Zondo said he had known Zuma since the early 1990s, when he was in private practice as a lawyer in Durban and Zuma was a leader of the ANC in KwaZulu-Natal. He said his work was connected to the ANC, of which he was a supporter.

“Although Mr Zuma and I have a cordial relationship … Mr Zuma’s statement that we are friends is not accurate,” he said.

After legal representations were made by Sikhakhane and head of the commission’s legal team, Paul Pretorius SC, it was expected that Zondo would make his ruling on the recusal application last Wednesday. However, Zondo’s ruling was postponed after Zuma submitted a 13-page affidavit responding to the chairperson’s statement.

In the affidavit, Zuma doubled down on his claims that the pair had been friends and accused Zondo of omitting relevant information about the nature of their relationship. “The chairperson is being less than candid in his recollection of facts in his statement,” the affidavit reads.

Zuma also notes that, in placing his statement on record, Zondo “opened himself up to becoming a judge in the determination of factual disputes relating to his own statement”.

“I am further advised that it is a trite principle of law that a judge cannot sit in his own case or in the adjudication of factual disputes arising from his own statement of facts judged against allegations raising disputes with his statement.”