/ 18 November 2020

Eusebius McKaiser: Zuma’s recusal case is utterly unconvincing

Graphic Ca Eusebius Zuma Twitter
(Graphic: John McCann/M&G)

There is no compelling legal reason for Deputy Chief Justice Raymond Zondo to recuse himself and, frankly, former president Jacob Zuma’s legal team secretly knows this. Zuma’s aim is not to get Zondo, in fact, to recuse himself. Zuma’s aim is to disrupt the state capture commission’s timeline so that it becomes impossible for the commission to faithfully complete its work within the allotted time.

One indication that this is the motive here is the fact that advocate Muzi Sikhakhane has already indicated that he will take Zondo’s decision on judicial review if he were to decide to not recuse himself. 

How can Sikhakhane be so sure that the legal rationale for not recusing himself will be inherently flawed and unconvincing? He should at least have pretended to be open to a well-grounded legal decision. You do not appeal a ruling that goes against you just because you do not like the outcome and its implications. Good lawyers pretend to take on review only decisions that are poorly grounded in law (as opposed to decisions that are inconvenient for one’s client). 

What this reveals is that Zuma’s team is engaged in stalling tactics rather than being motivated by some deep commitment to fairness in the legal adjudication of the issues before Zondo.

Now, given that Zuma and his team are simply engaged in trickery, it is hard to take seriously the actual arguments they have constructed for why Zondo should recuse himself. Nevertheless, let us put motive and strategy aside, and impute, for the sake of complete analysis, goodwill to Zuma. Let’s assume he is sincere in his belief that the commission’s processes are fundamentally designed to topple him politically, and he sincerely believes, furthermore, that Zondo has already revealed bias towards him — Zuma — that meets the legal threshold for recusal. 

What facts, and what legal arguments, have Zuma’s team offered to sustain these claims? And did they offer putative facts and legal arguments that hold up to critical scrutiny for purposes of determining whether Zondo should then recuse himself?

‘Reasonable’ apprehension of bias

I am afraid the case constructed by Zuma’s lawyers is not compelling at all. The first difficulty is the standard they must meet of what constitutes a “reasonable” apprehension of bias. So, on the one hand, Zuma’s team is surely right that the standard is not a degree of external objectivity that requires actual bias to be proven. 

“Perceived fairness” is an elementary jurisprudential value that goes to the heart of legitimacy and, in a derivative manner, in part also to the heart of legal and quasi-legal processes that are free of bias. In other words, the commission must actually be fair and also be seen and experienced as such.

But here is the snag for Zuma and Sikhakhane, which they pay little attention to in the affidavit. “Perceived fairness” also does not mean “What I, Jacob Zuma, wholly subjectively and without need of factual proof, feel right now.” That level of subjectivity would make it impossible for any judicial officer to reasonably demand of someone accusing them of bias to offer facts in support of their “apprehension” of bias. 

In reality, the process is inter-subjective, even if that is not the kind of concept that our judicial officers use. What I mean by it is that, although  Zuma does not need to prove actual bias, there must be some evidential basis for the more subjective assertion that he is not being treated fairly by Zondo. So what evidence is adduced in the papers and orally in support of such a conclusion?

Nothing. Quite literally nothing. It is embarrassing just how much his legal team grasps at straws. In his affidavit, the former president accuses Zondo of being too polite towards witnesses such as former minister Barbara Hogan. Within a few sentences we go from textual evidence of Zondo being very courteous to grand claims about a conspiracy against Zuma on the part of Zondo. 

But the major premise for this latter assertion of bias and political conspiracy is the mere fact that the chair of the commission is courteous. It is such a flimsy premise on which to build a serious legal argument that I wondered whether the most senior members of the legal team had seen the final copy of this affidavit before giving it their honest approval.

I struggle to see how the excellent Sikhakhane could genuinely have approved of these arguments as legally cogent. I know him. I respect him. He is smart, experienced and one of our best legal minds. This application is not the finest moment in his legal career by a long shot.

Internal inconsistencies

Then there is the legal confusion of the status of the proceedings. Zuma’s team contradicts itself in this regard. On the one hand, they complain at numerous places in the affidavit that their client is being treated like an accused in a criminal trial. Yet they also demand, towards the end of the affidavit, that their client be presumed to be innocent. So, they smuggle in the very language of a criminal trial after denouncing the commission for precisely doing that.

This is an internal inconsistency: either Zuma is experienced by him and his team as being on trial or they are not experiencing the commission as a trial. They flip between positions depending on what legal point they wish to get away with, with no regard for overall inconsistencies across their legal arguments. But let us be kind and, between friends, say that this type of argumentation inconsistency is not fatal. Is Zuma’s team correct in asserting that he is being treated like a presumed criminal?

That is a factual question that must be settled with a comprehensive textual analysis of the audio of hundreds of hours of commission inquiry that is already recorded. What Zuma’s team does is to selectively take a couple of quotes that constitute not even 1% of the record and infer that Zuma is being viewed as a presumed criminal by Zondo. 

If this were handed in by the lawyers as a draft LLM thesis, a supervisor would send them back to the drawing board, after scolding them for engaging in confirmation bias. It is glaringly obvious that the record of proceedings is deeper and wider than Zuma’s affidavit implies, and a more accurate and evidence-sensitive evaluation of what that record reveals about Zondo’s attitude towards Zuma is required.

Not only that, but even the confirmation bias is poorly executed. These proceedings are aimed at finding the truth. They are inquisitorial. Sometimes the judge will think aloud, in an exploratory manner, as he plays with various interpretations of what is unfolding in front of him. We cannot presume to know what the final factual findings and conclusions will be some time next year just because, say, last year Zondo said “It seems to me …” Here too, the logical leaps from the legal team are cringeworthy.

The role of the commission 

Lastly, this commission cannot find Zuma guilty of a crime. It is just not that kind of process. Sikhakhane knows this. Although he is correct that this does not mean that normative principles from good legal adjudication methods can be ignored by the commission, we should also reflect on the obvious limitations of what this commission, by legal design, can achieve. 

If, in the worst case for Zuma, Zondo suggests that there is a prima facie case of criminality for him to answer that the National Prosecuting Authority should consider instituting, Zuma will still be presumed innocent because no court of law would have found him guilty of breaking the law. The commission, in a sense, is at best a precursor to actual full-fledged legal adjudication processes and in those forums all of Zuma’s constitutional rights will be and are reserved. 

So, there is nothing that Zuma loses by co-operating fully now, abandoning the recusal application, and waiting to see what findings Zondo makes, and on what basis, when the work of the commission is wrapped up. Only then should his legal team consider their options. Not now.

The ultimate irony, therefore, is that Zuma is the one who has made up his mind prematurely about Zondo. But we do not yet know what Zondo, on a balance of probabilities after sifting through the evidence, thinks of the nexus factual and legal questions and issues before him. However, just because Zuma feels that Zondo does not like him does not mean that in law Zondo has a duty to recuse himself. 

I have no doubt that Zuma’s legal team secretly knows all of this, but are going through the motions of delaying the inevitable because their client is determined to derail the work of this commission and they are not pushing back because “lawyers take instructions” from their clients. (Pass me the salt, please?)