Former president Jacob Zuma has told the Zondo commission that he will not appear to testify before it on Monday, arguing that it cannot enforce the summons served on him while the Constitutional Court has yet to rule on an order compelling him to heed it.
“We remind the commission that it deemed appropriate to approach the Constitutional Court on an extremely urgent basis to compel president Zuma to comply with the very same summons that the commission now wants to enforce and to forego some of his most fundamental rights,” his lawyers wrote in a letter to commission secretary Itumeleng Mosala. “The commission must, therefore, await the outcome of the decision of the Constitutional Court.”
On Monday, Mosala had sent Zuma and his attorney, Eric Mabuza, a written reminder that he was due to take the stand for all of next week and an additional five days from February 19 and was obliged to do so even in the absence of a court ruling.
In December, the summons served on Zuma was binding, regardless of whether the Constitutional Court had by next week granted the commission the order it sought and defying it would therefore constitute a criminal offence, he warned.
But Mabuza contested this.
“We respectfully disagree with the commission’s view that president Zuma is obliged to appear on 18-22 January 2021 on the basis set out in your letter,” he wrote.
Mabuza argues that the commission was disingenuous in seeking a court order and then proceeding before a ruling had been handed down, even though the court application went well beyond seeking to enforce a summons, because it also begged an order barring Zuma from remaining silent on the witness stand, save for invoking the limited legal privilege of not incriminating himself.
Hence, important legal rights were at stake, and the court process must be allowed to take its course.
“It is, therefore, obvious that before any suggestion can be made about the appearance of president Zuma, the commission must await the decision of the Constitutional Court which has a bearing on president Zuma’s appearance,” Mabuza wrote.
Mabuza also argued that the commission must wait for the outcome of the former president’s bid to overturn Deputy Chief Justice Raymond Zondo’s dismissal of his application for him to recuse himself from hearing Zuma’s testimony.
“In the circumstances, the summons purporting to compel president Zuma to appear before his review is finally determined and even before the Constitutional Court has delivered judgment on the question of his constitutional rights cannot be legally enforced at this stage,” Mabuza said.
For the commission to proceed to enforce its summons against Zuma, would not only confirm his perception of “clear bias” on Zondo’s part, but mean that it was undermining a pending judgment from the apex court “in pursuance of president Zuma”.
Zuma did not oppose the commission’s application on December 3, a fortnight after he walked out of the sitting in which Zondo dismissed his application for recusal.
But it has been widely expected that after more than two years of stonewalling, the former president would not oblige the commission and take the stand on Monday.
So far, more than 30 witnesses before the commission have implicated him in state capture.
This week, a former acting director general of the department of public enterprises, testified that she received an extraordinary phone call from Zuma in 2015 ordering her to instruct the chairman of Eskom to postpone a board meeting.
Yet Zuma has not complied with a single directive to file an affidavit and has ignored 36 rule 3.3 notices asking him to respond to the evidence against him.
After Zuma’s walkout on November 19, Zondo instructed the commission to file criminal charges against him for breaching a summons by leaving a sitting without being excused.
With Zuma now signalling that he will disregard another summons, the commission chairman now faces the fraught decision of whether to call for a warrant for his arrest to be issued.
Commentators have said Zuma’s strategy is clearly one of flouting the legal process to better drag his battle with the commission to the political terrain, in part by impugning the integrity of the chairman and his brief.
The Constitutional Court heard the commission’s application on December 29.