Acting Chief Justice Raymond Zondo said on Friday that he held no political bias but knew when asked to head the state capture inquiry that he would make many enemies yet he still accepted without hesitation.
Zondo added that if, on the evidence, he needed to make findings against President Cyril Ramaphosa in the third and final instalment of his report on state capture, he would do so without fear that this may harm his prospects of being named by the president as chief justice.
“I am not pro anybody, I am not anti anybody,” Zondo replied when pressed in his interview with the Judicial Service Commission (JSC) about objections to his candidacy for the post, including one from former director general of intelligence Arthur Fraser.
“Of course through this commission I have made a lot of enemies for myself but it is not as if I did not know that taking this job would land me in that kind of situation, I knew.”
Zondo noted that he took the decision, independently, to call Ramaphosa to testify before the commission because he was deputy president of the country and the ruling party in the period when the abuses the inquiry probed happened.
He said he then made an appointment with Ramaphosa “as a matter of courtesy to say that is the view that I have taken”.
“He did not take long when we had that meeting to agree. He did not give me any problems … and he came.”
Zondo shared an anecdote about how former chief justice Mogoeng Mogoeng asked him to lead the commission, after former public protector Thuli Madonsela directed that it should be chaired by someone chosen with the input of the head of the judiciary.
Zondo and Mogoeng had made a number of calls to retired judges and they were either not available or not comfortable with the offer.
He was in Mogoeng’s office when the chief justice was on a call to yet another retired judge and he realised from the tone of the conversation, that he too might not agree. It dawned on him that Mogoeng may ask him next and that he should have an answer ready by the time the chief justice got off the line.
“He said: ‘What about you?’… I had no hesitation in accepting the responsibility. I realised how it might be difficult to find somebody who would accept this responsibility. I was number two in the judiciary, there was no way I could run away from the responsibility.
“I knew it had to be done. If I made enemies for myself in trying to help the country, so be it.”
Professor Engela Schlemmer said she felt a certain uneasiness at the thought that Zondo chaired a commission that has to decide on the credibility of Ramaphosa’s testimony “and also whether he is guilty of certain actions that are not appropriate”.
“The same president that you have to decide upon is the person who may be appointing you if you were to be appointed as the chief justice. The other thing that comes into play is that the report is not finished yet.”
Zondo replied that Ramaphosa’s testimony would have to be assessed like that of any other witness, adding that he had not as yet considered most of the evidence the president gave.
“I will have to make findings. But with this job, you have to do the job, make the findings you make, accept that you may make enemies but also accept that you may make findings against anybody, including the president,” he said.
“So if there is enough evidence that justifies a finding against the president, that finding will be made. But no finding will be made against the president if there is no evidence that justifies it. Just as with regard to former president Zuma, when I’ve made any finding against him, I have done so when there is evidence, but where there is no evidence, I will not make any finding against president Zuma.”
Zondo, in both the first and second parts of his report, implicated Zuma in state capture, and in the second recommended that he face prosecution for his role in the “unjustifiable” reinstatement of discredited executive Siyabonga Gama at Transnet.
“I will not make a finding against anybody where there is no evidence, but I will make a finding against anybody if the evidence justifies it. And if I must suffer any consequences for that, that is fine,” he insisted.
Schlemmer asked whether Zondo meant that the commission should not read anything into the fact that the final part of the report that will include his observations on Ramaphosa’s testimony was not complete yet.
“I don’t know what you have in mind, but the idea was to complete the report by the end of December, the entire report. That was in plan, it was only when it transpired that it was impossible to complete the entire report by the end of December, that I then decided let me rather do it in parts.”
He said he decided to break the report into parts, and deliver the first instalment at the end of last year because he thought “the country would be up in arms” if he did not release anything by the end of December.
The same question was later repeated by Economic Freedom Fighters leader Julius Malema. Zondo stuck to his answer.
He said fears that his legal challenges to the report would unduly interfere with his work if he were appointed chief justice were exaggerated. It was entirely possible, he said, that he might not oppose all challenges but in some instances file notice that he would abide by the court’s decision.
He also pointed out that review applications were normally decided by courts on affidavit, without hearing oral evidence.
The interview became more testy and political in tone when several commissioners, including Malema, questioned him at length about Fraser’s claims that he was treated unfairly by the commission. Zondo repeated that when the commission sought to engage Fraser regarding his requests, he never replied.
The acting JSC chairman and supreme court of appeal judge president, Xola Petse, asked Malema to soften the tone of his voice, at which Malema raised it more and Petse asked him to stop shouting.
If much about the interview was dominated by questions on Zondo’s chairing of the commission, members of the JSC also dwelt on his recent condemnation of Tourism Minister Lindiwe Sisulu’s attack on judges as “mentally colonised”.
Several asked why Zondo did not simply issue a statement. He said that he had planned to do so, but after a few drafts at a time when he was rushed because of the commission’s pressures, he thought it would be quicker to simply speak on the matter.
He added that he deliberately confined himself to the parts of her op-ed article that were insulting to the bench, and did not pronounce on the rest, and felt he did so without attacking her in turn.
“I did not insult her back.”
On sensitive cases, he said he believed it was the duty of judges in leadership positions to hear those rather than pass them on to colleagues.
“If there is a case to be heard in your court which could produce an unpopular decision … you take it, as a leader. You don’t leave it to somebody else.”
On Thursday, the commission’s interview with Gauteng Judge President Dunstan Mlambo descended into politicking when commissioners, including Malema, first hammered on perceptions that he was biased in favour of Ramaphosa.
Mlambo calmly denied the allegation, and he did the same when Malema and JSC spokesman Dali Mpofu raised unsubstantiated allegations of sexual harassment against him.
“There is no substance to that rumour,” he said, adding that he considered it insidious and poisonous gossip and felt pained that it had been raised in the interview.
Petse later ruled that the questions on the subject would be expunged from the record because it was procedurally unfair. No charge of nature has been laid against Mlambo.
Zondo was the fourth and last candidate to be interviewed, following that of Mlambo, the supreme court of appeal judge president, Mandisa Maya, and constitutional court colleague Mbuyiseli Madlanga.