The Zondo commission has filed an urgent Constitutional Court application for an order compelling former president Jacob Zuma to testify before it and forged an argument as to why the matter falls within the court’s exclusive jurisdiction.
If the bid for direct access succeeds, it will avoid a detour through the high court and the almost inevitable appeal Zuma would launch from there as the commission watches the clock tick on its lifespan.
The application begs an order that Zuma be forced to appear before the state capture inquiry for 10 full days in January and February and that on the stand he may not resort to silence, save for invoking the right not to incriminate himself.
Filed on Thursday in the name of the commission’s secretary, Itumeleng Mosala, it asks the court not only to order Zuma to respect the latest summons served on him but to rule that absconding from the commission on November 19 and failing to appear before it the following day was unlawful.
Zuma and his legal counsel, Muzi Sikhakhane SC, walked out of the inquiry on 19 November after Zondo dismissed their application for his recusal.
The court papers, a fresh summons served on him last week in Nkandla and instructions for Mosala to lay criminal charges with the police and refer the matter to the National Prosecuting Authority constitute the line in the sand drawn by Deputy Judge President Raymond Zondo.
The application seeks to lay the terms of how Zuma will appear to testify promptly at 10am every day from January 18 to 22 and again from February 15 to 19.
It asks that he be warned not to leave a sitting of the inquiry without Zondo’s permission, and to file outstanding affidavits, demanded in August and September, by no later than January 10.
The commission’s approach is punitive not only in seeking legal condemnation of Zuma’s theatrics on November 19 in terms of section 3 (1) of the Commissions Act but in asking that he be made to pay the costs of its application.
For the sake of urgency, the application asks that he be given five days to file a notice of intention to oppose.
Legal opinion has, for the past fortnight, been divided on whether Zondo’s direct
approach to the Constitutional Court, with a brief to advocate Tembeka Ngcukaitobi, will succeed because many did not see a firm argument for exclusive jurisdiction.
It has been understood in part as a strategy to save time because Zuma’s history of exhausting every legal avenue of delay meant he would probably appeal any high court ruling.
But the application makes a case for direct access by arguing that section 167 (4) is explicit that only the Constitutional Court may determine whether the president of the country has failed to exercise his duties.
It then asks for a declaration in terms of section 172 (1) (a) that Zuma is bound to testify and answer allegations that he failed in his constitutional obligations.
Section 83 obliges the president to uphold the Constitution and the laws of the land while section 182 (1) (c) speaks to the reach of the investigative powers of the public protector, which formed the founding brief of the commission in that Thuli Madonsela ordered remedial action that “specifically required the investigation of Mr Zuma’s compliance with his duties”.
Moreover, Madonsela had exceptionally directed that the chief justice, and not the president, appoint the head of the commission, Mosala says in an accompanying affidavit.
“This shows the intensity of the political issues involved in this case, and justifies the exclusive nature of the jurisdiction of this court,” he argues.
Mosala says it is his understanding that Zuma’s constitutional duty to account for the exercise of his presidential powers did not end the day he left office. He notes that more than 30 witnesses had made allegations that Zuma needed to answer.
To avoid a repeat of any of the creative evasion seen from Zuma in the past two years, Mosala is asking the court for a blanket order that he comply with any new directives it may issue in future.
Sikhakhane had threatened, as he argued for Zondo’s recusal, that such was his client’s real and reasonable fear that he would come to the commission like a lamb to the “slaughterhouse”, that should he be forced to appear before the deputy chief justice, he would remain silent on the witness stand.
The application explicitly deals with this too.
“The respondent shall answer any questions put to him by the evidence leader(s) and the chairperson of the commission, subject to the privilege against self-incrimination, and may not rely on the right to remain silent.”
Zondo lamented in October that it had been a case of “damned if you do, damned if you don’t” to bring Zuma to cooperate with the commission probing the scandals that came to define his nine years in power.
Zuma ignored invitations to testify because he had not been summoned, only to signal that he would find legal grounds not to comply with a summons, he said.
In the court papers, Mosala accuses Zuma of attacking the commission and frustrating not only its work but the ability of the country “to know what, if anything, happened to funds” that were meant to be used to honour socioeconomic rights enshrined in the Bill of Rights.
A constitutional court order would mean the end of such equivocation. Defying it would put Zuma in contempt of court and under threat of arrest. It is Zondo’s legal end game and will leave Zuma, his supporters and those implicated in state capture to increasingly play fast and loose at imputing political motive to the commission.