/ 16 November 2020

Legal bias doctrine basis of Zuma’s recusal application to Zondo

Another recent example of political amnesia took place when Zuma testified — if it could be called that— at the Zondo Commission.
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. (Wikus de Wet/Pool/Reuters)

The test for the “reasonable apprehension of bias” doctrine took centre stage in Jacob Zuma’s application for Deputy Chief Justice Raymond Zondo to recuse himself for the former president’s evidence because of a “reasonable apprehension of bias”.

This comes as Zondo announced at the end of a gruelling Monday of arguments that he would use the night to decide which arguments won favour with him. 

Advocate Muzi Sikhakhane said Zuma’s invitation to the commission was akin to being led into a slaughterhouse. 

“Reduced to its essential elements, this application seeks to persuade you … to look honestly and sincerely at some of the comments [you have made]. We contend to you that they would frighten a litigant that is sitting in front of you.

“I’m appealing to your psyche; I’m appealing to your honesty about” what he labelled Zondo’s “errors”.

Sikhakhane argued that some of the comments Zondo had made to “sweetheart witnesses” had spooked Zuma into believing he would not receive a fair hearing when he gave evidence at the commission.

The “sweetheart witnesses” included former ANC MP Vytjie Mentor, former minister of finance Nhlanhla Nene, former minister of public enterprises Barbara Hogan and current Public Enterprises Minister Pravin Gordhan

Sikhakhane said they were sweetheart witnesses because they advanced an alleged narrative that “everything wrong in this country was caused by Mr Zuma”, including that the former president was responsible for the political term “state capture”, which Sikhakhane said had no basis in law.  

Advocate Paul Pretorius, one of the commission’s evidence leaders, hit back at Zuma’s application, saying it was “not clear what the application was and what the application was not”.

Pretorius said Sikhakhane had not alleged whether Zondo would be averse to persuasion or that the chairperson would not be open-minded, which the evidence leader argued was the correct test for the “apprehension of bias” argument. 

“The test is: has or will your [Zondo’s] conduct show that you cannot bring an impartial mind to bear to the process?” Pretorius asked.

Pretorius asserted that Zuma did not take the opportunity to cross-examine people who had implicated him at the commission. He added that Zuma refused to respond to specific allegations because he felt that he was not implicated. 

“Chair, we have searched in vain for any display of hostility, as alleged, towards Mr Zuma in any public comment that you might have made. There is no unkind public comment that you have made,” Pretorius said. 

The day ended with a heated reply by Sikhakhane, who said Pretorius “patronised and offended” him in the manner in which he responded to the application, including an alleged sarcastic remark Pretorius made about Zuma fearing findings against him.
Pretorius said that was the real reason for the recusal application.

“[Pretorius] says sarcastically, ‘Maybe Zuma has a reasonable apprehension that there may be findings against him.’ 

“Chair, that is just an insult and unfair because it questions Mr Zuma’s bona fides for no reason,” Sikhakhane said.  

In closing, Zondo said: “I’m going to use the evening to consider all the submissions that have been made by both sides. The idea will be to try and arrive at a decision as soon as possible.”

He said he would like to deliver his decision by Tuesday at 10am, but, should he not arrive at a decision by then, he would still arrive at the said time to give a way forward on when he is expected to make his ruling.