Fraser earlier this week took care to make public a nine-page objection he filed to the presidential panel appointed to assist in narrowing down the list of nominees to replace Mogoeng Mogoeng, who retired on 11 October.
Fraser accused Zondo of blatant bias in his chairing of the eponymous commission of inquiry to allegations of state capture, and said this meant that he lacked the independence for the role of chief justice. He complained that Zondo allowed at least 10 witnesses to impugn him without affording him a chance to respond to their allegations.
But Zondo said this was not true. Moreover, it was not how the commission functioned.
Franser’s lawyers were well aware that all he had to do, as an implicated person, was file an application to testify in response. This he did not do, the deputy chief justice said.
“In terms of rule 3.3. of the rules of the commission, any person who is implicated by a witness in the commission and who wishes to testify and defend himself or herself against allegations or evidence of wrongdoing is required to apply to the commission for leave to give evidence and that application is decided by the chairperson,” Zondo said in a statement.
“Mr Fraser has never submitted an application to the commission for leave to give evidence.”
Fraser, who went from spy boss in the Zuma administration to director general of correctional services in that of President Cyril Ramaphosa, suggested that Zondo had erred by not inviting him to testify, and had done so on the basis of bias.
Zondo said even if Fraser did not know the rules, he had legal representatives who did.
“It is to be noted that Mr Fraser is legally represented by lawyers who are familiar with the rules of the commission. If Mr Fraser wanted to testify, he needed to comply with the rules that govern the position of persons who want to testify to defend themselves against witnesses who have implicated them,” Zondo said.
In his missive to the panel advising Ramaphosa, Fraser asserted the contrary.
“Deputy Chief Justice Zondo made sure that I neither present my version, nor get an opportunity to cross examine those he called to testify against me. No independent-minded judge would act in this manner,” he said.
Fraser is seen as a key ally of Ramaphosa’s predecessor. The commission earlier this year heard extraordinary evidence implicating him in the subversion of the State Security Agency to serve the former president’s political and private agenda.
Witnesses testified before the Zondo commission that the abuse of intelligence structures under Zuma, with Fraser at the helm, extended to bribing members of the judiciary and media, and cost the state billions of rands.