South Africa: ConCourt rules Jacob Zuma must appear and answer questions at Zondo Commission

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The Constitutional Court ruled on Thursday, Former president Jacob Zuma must comply with directives and summonses issued by the State Capture Commission and appear to answer to the serious allegations against him.

Handing down the order, Justice Chris Jafta said, Mr Jacob Gedleyihlekisa Zuma is directed to appear and give evidence before the commission on dates determined by it. Zuma does not have a right to remain silent in front of commission chairperson, Deputy Chief Justice Raymond Zondo. This right is available to arrested and accused persons and not to witnesses.

Zuma, however, is entitled to privileges under the Commissions Act that give witnesses the right to not incriminate themselves. Witnesses cannot be compelled to answer a question that will expose them to a criminal charge, but they must provide sufficient grounds to claim that right.

The commission approached the Constitutional Court in December 2020 after Zuma left proceedings without permission in November when Zondo denied his application for the chairperson to recuse himself. Zuma did not oppose the court application and was ordered to pay the commission’s legal costs.

Reading the brief judgment, Jafta was critical of the commission for failing to use its powers and getting itself into a situation where it needed to approach the country’s highest court to force Zuma to attend, almost three years after it began its work.

The commission argued that it should be granted direct access to the court rather than going through the high court and potentially the Supreme Court of Appeals because that drawn-out process would only be resolved after its deadline had expired.

Jafta said, quite clearly, the commission is to blame for the situation it found itself in.

The commission had issued 2,526 summonses to witnesses but appeared to treat Zuma with kid gloves. While Zondo had tried to get Zuma to appear before the commission from its inception, in December 2019 he issued a notice to authorise the commission’s secretary to issue Zuma a summons, despite the secretary already having the power to do so.

Jafta said, needless to say, this was completely unnecessary. Having chosen this route, which was opposed by the former president, the commission failed to take steps timeously to ripen that application for hearing.

The commission could have issued Zuma a summons much earlier, as it did with other witnesses.

“Jafta said, no reason was furnished for this favourable treatment to the former president. The commission was alive to the fact that the Constitution demands equal treatment of witnesses under the law. Had the commission involved its powers of compulsion quite early, the circumstances of urgency would not have arisen here.

The Constitutional Court decided to grant the commission direct access due to the nature of the allegations, which include Zuma surrendering his constitutional powers to private individuals.

Jafta said, the allegations investigated are so serious that, if established, a huge threat to this country’s fledgling democracy would have occurred. It is in the interest of all South Africans, the former president included, that these allegations be put to rest once and for all.

Noting the irony that it was Zuma who established the State Capture Commission, Jafta criticised the former president for failing to comply with its directives and summonses, which are provided for under the Constitution.

The former president’s conduct is a direct breach of the rule of law which forms part of that Constitution. In our system, no one is above the law. Even those who had the privilege of making laws are bound to respect and comply with those laws. For as long as they are in operation laws must be obeyed.

Zuma’s lawyers have argued he is not required to appear before the commission while his high court application to overturn Zondo’s recusal decision is pending. The most recent summonses issued to Zuma required him to appear at the commission from 18 to 22 January and from 15 to 19 February 2020.