ANC deputy secretary general Jessie Duarte advised former president Jacob Zuma not to attend the state capture commission chaired by deputy chief justice Raymond Zondo. In an explosive leaked recording, which Mail & Guardian has received, Duarte alleged that the ANC was aware of flaws within the judiciary and the Zondo commission.
Duarte has refused to comment on the recording, which she confirmed was a record of a closed ANC top six meeting with the former head of state.
Responding to the M&G’s questions, Duarte said, “It is a meeting closed with Comrade Zuma and I am not validating leaks. This is a disgrace.”
Duarte, who has in the past made statements against the judiciary, was speaking during a top six meeting with the former president in March. The group scheduled a meeting with the former president in an attempt to persuade him to attend the commission.
Zuma could face jail time after he refused to obey a Constitutional Court order to testify at the commission.
In the recording, Duarte asks Zuma if he would be prepared to attend the commission if another judge replaced Zondo, adding that the top six could approach Chief Justice Mogoeng Mogoeng with that option.
“Going to the commission under Zondo, personally I believe that is absolutely not a good thing for comrade Zuma to do, given the personal historical antagonism that exists between them and the unfortunate way in which Judge Zondo presented himself after he presided over his own case of bias and also made statements about ‘he’s not my friend’,” Duarte said in the recording.
“It does not go well for judges to go into a granular kind of detail. Would it serve any purpose if Zuma did go there and there was a very antagonistic way of the judge dealing with Zuma or vice versa?” she said.
On 9 April, the chief justice wrote to Zuma to ask that he submit suggestions as to what kind of sanction he should face for defying the Constitutional Court’s order that he testify at the commission.
The former president has until Wednesday, 14 April to make his submission.
Zuma has previously described the commission as a wastefully expensive and inefficient exercise that sought to make him the scapegoat for delays of its own making.
The commission went to court in December to compel Zuma to testify and submitted a detailed timeline of how he frustrated its attempts to bring him to respond to evidence implicating him in state capture.
The commission took the action after Zuma walked out of the sitting in which his application for Zondo’s recusal was dismissed.
Zuma reiterated that he was prepared to go to prison rather than bow to a court system he believed to be biased.
“What is concerning is that comrade Zuma articulates flaws that we have in the judiciary very, very well. It’s not like we can’t see what’s wrong with Zondo … It has turned into a courtroom. It’s no longer a commission. They have almost a prosecutorial attitude towards people who come to give evidence,” Duarte argues in the leaked recording.
She made the example of former MP Vincent Smith, whom she described as her “good friend”. Smith faces corruption and fraud charges related to benefits he received from state capture-accused company Bosasa.
Duarte said she pushed Smith into attending the commission and “a week later he is slapped with a criminal court case, so I think there are those issues which need to be examined and looked at”.
In February, Duarte wrote an opinion piece in the Daily Maverick criticising the commission, saying that testimonies heard at the Zondo commission displayed a serious lack of appreciation of the role party caucuses played within a democracy such as South Africa’s.
Duarte, who later apologised for the article, now suggests that the top six need to discuss whether or not transformation in the judiciary has taken place.
“Why is it that whenever we go to the North Gauteng high court we know that we will lose the case? It’s almost a given that if we go to Dunstan Mlambo we will lose a case. It’s almost a given that if [Judge President John] Hlophe in the Western Cape listens to a matter, the ANC will come out better. It shouldn’t be like that. It should be a judiciary that does not have a sisterhood and brotherhood in any political party. I think there is a need, as comrade Zuma says, the judiciary needs a different set or principles that it [has] at the present time,” she said.
This week, the Judicial Conduct Tribunal found Hlophe guilty of gross misconduct. Hlophe was found to have breached the constitution by trying to influence two Constitutional Court justices to rule in the favour of the former president in the Zuma/Thint corruption matter.
Duarte goes on to say that she was greatly disappointed by Mogoeng, who she claims behaves “as if there is no understanding of the constitution of the Republic of South Africa”.
In the recording, Duarte said Mogoeng was the “chief justice of people across the board” including “a minority of those who are not Christian”.
“He cannot change the nature of the state from its secular perspective,”’ she said.
Both the apartheid regime and Nazi Germany had “attached” society to Christianity with “disastrous consequences”, she asserted.
“Every regime attached to religion is a disaster and we know that throughout the globe,” she said.
The Judicial Conduct Committee found Mogoeng guilty of misconduct for wilfully wading into political controversy with remarks questioning South Africa’s foreign policy on Israel and ordered him to issue a written apology.
In its finding, the committee held that Mogoeng had contravened five articles of the Judicial Code of Conduct, with the initial remarks and his subsequent statement declaring that he would rather “perish” than apologise for what he said.
In the webinar hosted by The Jerusalem Post last year, Mogoeng said he believed South Africa would do well to consider adopting a more objective stance on Israel and the Israeli-Palestinian conflict and ventured that “hatred” of the Jewish state could “attract unprecedented curses upon our nation”.