Deputy Chief Justice Raymond Zondo looked grave, disbelieving and as if on the verge of tears at midday on Thursday 19 November 2020, when he announced that former president Jacob Zuma had absconded from the commission of inquiry into state capture without his permission.
“He [Zuma] has left today without asking me to be excused,” the shell-shocked Zondo said, describing what could result in further charges against the former president as “a serious matter”. Zuma already had to be issued with a summons to make this reappearance, which came after his obstructionist and amnesiac testimony in July last year and several months of ghosting Zondo in between.
Cynics may have suggested that the commission chairperson’s palpable distress proved the argument of Zuma’s legal team in mid-November. They said the two were indeed friends and that this bias should cause Zondo to recuse himself from deciding matters related to Zuma or his family.
But Zuma has made an apparent habit of getting his bit in before abandoning “friends” and lovers. His trail of abandonment includes disgruntled KwaZulu-Natal businesspeople ditched in favour of the Gupta family and a jilted princess from eSwatini who was hospitalised for depression after hearing that Zuma had married another before her, despite a lobola down payment made years previously. Using people and casting them aside when they no longer prove useful appears to be the former president’s trademark.
Zondo had rejected Zuma’s application that he recuse himself earlier that morning. He then returned after the tea adjournment about 45 minutes later than scheduled, to deliver the incredulous news that the former president had done a runner.
In his ruling on Zuma’s recusal application, Zondo rejected various claims and corrected “misrepresentations” that Zuma made in his initial affidavit. These included that Zondo had called a press conference in which he sought to “portray” the former president as “uncooperative and belligerent in the eyes of the public”. Zondo clarified that after months of unsuccessfully trying to bring the former president back to the commission, he had made comments regarding Zuma’s non-appearance but had never called a press conference.
Zuma also alleged that because of their “historical, personal, family and professional relations”, Zondo “seeks to target him for public humiliation”. He said that while still a lawyer in the 1990s, Zondo had a relationship with the sister of one of Zuma’s future wives, Thobeka Madiba. Thobeka would have been a child at that stage. He said this meant there was a beef between them as the now estranged Madiba-Zuma was seeking to make the former president her former husband, too. But the deputy chief justice dismissed this out of hand.
Zuma’s lawyer, advocate Muzi Sikhakhane, argued that the judge “failed” to believe that Zuma had been seeking medical treatment when he refused to attend the commission as scheduled earlier this year. But “there is absolutely no evidence in the papers supporting this allegation against the chairperson”, Zondo ruled.
Too late to complain
Zondo said that if Zuma had had concerns about his inability to exercise an open mind as chairperson of the commission, this should have been raised with Chief Justice Mogoeng Mogoeng three years ago, when Zondo was chosen for the role. Instead, Zuma remained silent and appointed Zondo.
Zuma claimed that Zondo’s handling of witnesses and the comments he made to them about their testimony – more than 30 have implicated Zuma in wrongdoing related to everything from Cabinet appointments to tender corruption – indicated his bias against the former president. Zuma alleged that it was “commonplace for the commission to parade a certain [anti-Zuma] narrative”.
“The applicant expects me to be very passive when asking questions … I do not agree,” Zondo said, reasserting his right to test evidence and seek clarity from witnesses as long as he affords Zuma a proper opportunity to respond to the allegations against him. Which he has done. Several times. Zuma consistently dodged these overtures to return to the commission and respond, and failed to file even a responding affidavit to the allegations despite agreeing to do so in July 2019.
In dismissing Zuma’s recusal application, Zondo relied on the Constitutional Court’s seminal decision in President of the Republic of South Africa vs South African Rugby Football Union (Sarfu) from the late 1990s.
The matter, which sets the bar for proving a reasonable apprehension of bias that would lead to the recusal of a judicial officer, also outlines the elements of judicial impartiality in the new constitutional order. It has proved the seed from which the court’s separation of powers jurisprudence, designed to protect judicial independence, has flowered.
In that matter, then Sarfu president Louis Luyt took then South African president Nelson Mandela to court after the latter had set up a commission of inquiry to investigate claims of racism, nepotism and graft in rugby. Luyt challenged the commission being set up and was successful when his application was heard in the Pretoria high court by Judge William de Villiers.
When the decision was appealed in the Constitutional Court, Luyt had applied for several of the sitting justices, including the court’s president, Arthur Chaskalson, deputy president Pius Langa, Albie Sachs and Johann Kriegler to recuse themselves on the grounds that they all had previous relationships either with Mandela or the ANC. The application was dismissed in a strongly worded judgment and overturned all De Villiers’ findings, including that Mandela had been an unreliable witness.
Described by the state in court papers as “a judge of the old order who was reputed to be one of its most ardent supporters”, De Villiers was opposed to the Pretoria Bar admitting black counsel, including future deputy chief justice Dikgang Moseneke, while an advocate in the late 1970s and early 1980s.
De Villiers went to extraordinarily self-aggrandising lengths during that hearing, making the unprecedented move of calling Mandela to testify and then finding against his reliability as a witness. This was seen as a reactionary move by the last vestiges of the old guard to denigrate and undermine the authority of South Africa’s first democratically elected president.
The first sitting president of a democracy summoned to explain his executive action before a court of law, Mandela complied and took the witness stand. It was a move applauded across the world as a sign of his respect for the rule of law, recognition of the primacy of the Constitution and acknowledgement of the respect the judiciary must be awarded in a democracy such as South Africa’s.
Mandela’s actions were those of a true democrat who knew that whatever the motivation of individuals, the institutions that uphold democracy are fragile things and must always be respected and protected.
They are a far cry from the utter contempt Zuma’s desertion from the commission demonstrated for the rule of law and for ordinary South Africans demanding accountability and answers as to how their country was sold to a network of politically connected families such as the Magashules, the Guptas and the Zumas.
Zuma’s actions, however, were an affirmation of the kind of person he is: someone interested in nothing more than self-preservation, self-enrichment and self-aggrandisement. He is bereft of democratic impulses, small or grand, and of any vision other than his own venal survival.
This article was first published on New Frame