If Zuma’s legal team does not challenge the ruling, a summons to compel the commission’s star witness to give further evidence will stand.
It has been more than a year since Zuma last gave evidence at the commission, which is mandated to investigate allegations of corruption and state capture during his tenure as president. With only a month left for the commission to hear evidence, time is running out to get Zuma’s version of events on record.
However, after Zondo delivered his ruling, Zuma’s counsel, Muzi Sikhakhane SC, announced the former president and his legal team would be excusing themselves “right now”.
“The instruction is to review your decision that you have just made, when you finally give us a copy. And we will take it from there.”
Sikhakhane also announced that his client has instructed him to lodge a complaint to the Judicial Service Commission about Zondo “in respect of the issue … you have made yourself a witness and a judge”.
Zuma’s application for Zondo’s recusal was based, largely, on his view that the two were friends — a view that the commission’s chairperson has firmly disputed.
On Monday, Zondo read out a statement before the recusal application, detailing the background of his relationship with Zuma, and how the former president had no influence on appointment as a judge.
Zondo said he had known Zuma since the early 1990s, when he was in private practice as a lawyer in Durban and Zuma was a leader of the ANC in KwaZulu-Natal. He said his work was connected with the ANC, of which he was a supporter.
“Although Mr Zuma and I have a cordial relationship … Mr Zuma’s statement that we are friends is not accurate,” he said.
After legal representations were made by Sikhakhane and head of the commission’s legal team, Paul Pretorius SC, it was expected that Zondo would make his ruling on the recusal application on Wednesday. However, Zondo’s ruling was postponed after Zuma submitted a 13-page affidavit responding to the chairperson’s statement.
In the affidavit, Zuma doubled down on his claims that the pair had been friends and accused Zondo of omitting relevant information about the nature of their relationship. “The chairperson is being less than candid in his recollection of facts in his statement,” the affidavit reads.
Zuma also notes that in placing his statement on record, Zondo “opened himself up to becoming a judge in the determination of factual disputes relating to his own statement”.
“I am further advised that it is a trite principle of law that a judge cannot sit in his own case or in the adjudication of factual disputes arising from his own statement of facts judged against allegations raising disputes with his statement.”
This appears to be the basis for Zuma’s next challenge to Zondo’s credibility as the chairperson of the commission and the reason for the former president’s decision to excuse himself.
But Pretorius intervened before Zuma could leave Thursday’s hearing. If the former president does decide to leave, he would be acting in defiance of the summons, Pretorius said.
“The position is simply: the summons stands. It is not, with respect to my learned friend, open to the applicant to ‘excuse himself’. The proper application of the law demands that you make a decision about the continuance of proceedings.”
However, when the commission returned from a tea adjournment, Zuma had left anyway. This, Zondo said, is “a serious matter”.
“It is a pity that he has elected to leave without asking for permission,” he noted.
A solemn Zondo added that the commission will reflect on the matter and that it would continue its work.