The Zondo commission has not filed a fresh criminal charge against former president Jacob Zuma for refusing to take the stand this week, suggesting that he has forced a legal stalemate, at least temporarily,
This comes at the same time that former Eskom chief executive Brian Molefe subverted the state capture narrative to implicate President Cyril Ramaphosa.
The Hawks confirmed this week, without naming Zuma, that they have taken over the investigation into the contempt charge laid against “a prominent witness” summoned by the commission. The docket was handed to the Directorate for Priority Crimes Investigation on December 8, a day after commission secretary Itumeleng Mosala opened a case against Zuma at the Hillbrow police station.
Contempt charges are hardly the sole domain of the Hawks. Still, a source explained that the docket was transferred because of the serious nature of the allegations that Zuma was meant to answer if he took the stand for five days this week, and again from 15 to 19 February as per the summons issued.
“The contempt charge cannot be seen in isolation when what is under investigation is allegation of grand-scale corruption,” a source said.
The Hawks and Zuma’s lawyers confirmed that no second charge had been added since Zuma, in a lawyer’s letter to the commission on Friday, said he would not come to give evidence pending two court decisions relating to his eventual testimony.
The first is the Pretoria high court’s ruling on his review application of Zondo’s refusal to recuse himself. No hearing has been set. The application was filed in December, shortly after the Zondo commission launched an application to the Constitutional Court for an order compelling Zuma to comply with the summons and moreover not to remain silent when he takes the stand.
Despite the commission’s plea for urgency, the apex court has yet to rule on the unusual application that sought to make the case for direct access on the basis that the Constitutional Court has exclusive jurisdiction to decide whether a president complied with his constitutional duties.
According to Zuma’s attorney, Eric Mabuza, the summons compelling Zuma to appear, especially before the Constitutional Court delivered judgment, cannot be legally enforced. He added that the commission had not responded to their letter and the Hawks have not approached Zuma either.
From the Zuma camp’s view, the former president is resting comfortably on the assumption that not much will come of the case because he can argue that he had in good faith acted on the advice of his lawyers when he left the sitting of the commission where Deputy Chief Justice Raymond Zondo dismissed the application that he recuse himself.
But theirs is also a political calculation on residual support for Zuma and the spectacle that might ensue if the former head of state were called to a charge office or if prosecutors asked for a warrant for his arrest.
The commission’s complaint flows from the Commissions Act of 1947, which provides for a fine or imprisonment of up to six months if a witness shows contempt by flouting a summons.
It will be up to state prosecutors to decide what penalty to seek from a court and, to date, the Hawks have not referred the matter to the National Prosecuting Authority.
Sources close to Zuma claim his exit from the commission was not as dramatic or trenchant as it looked on television because it was followed by a long and fairly cordial meeting with Zondo in chambers.
At that meeting, it is understood that Zuma offered to meet Zondo privately to discuss the allegations against him, as well as to respond to these at length in writing.
The court’s silence thus far and how Zuma took advantage of it to legitimise further stonewalling, was but part of a torrid week for Zondo.
On Friday, as Zuma’s letter landed and just before he had to go into isolation because a staff member tested positive for Covid-19, Brian Molefe delivered a statement casting President Cyril Ramaphosa not only as central to state capture but as the man who broke the ANC.
The former Eskom boss’s monologue was fine political theatre and opened a new front in hostilities in the ANC. It puts Ramaphosa on the defensive against ANC secretary general Ace Magashule and Zuma’s common strategy of politically undermining corruption charges, future and present, stemming from the state capture scandal.
But if Zuma’s intransigence now recalls that of early 2018 when he dragged out one-on-one talks with Ramaphosa on his resignation to the extent that the State of the Nation address was delayed, his is a supporting role in the current power struggle.
Only the genuinely naive can think that Zuma is ever going to take the commission into his confidence and Zondo’s task may simply be to prove, as his counsel argued before the Constitutional Court, that he “bent over backwards” and exhausted all avenues to make it happen.