Yet another Stalingrad? Zuma unveils his latest weapon in his war with Zondo

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Damned if he does and damned if he doesn’t.

State capture commission chairperson Raymond Zondo finds himself in a tight corner on the application for his recusal brought by former president Jacob Zuma.

If he grants the application, it creates a legal quagmire about who gets to replace him and who gets to appoint the replacement.

And if he does not grant it, he may have to issue the final report of the commission without Zuma’s version — opening it up for judicial review, which Zuma’s legal team revealed was an option if they did not get their way.

This emerged on Monday during arguments for and against the application.

But both parties — Zuma’s legal team and the commission’s legal team — agree that the former president is a central figure to the commission’s terms of reference and his version not being heard would render the whole exercise pointless.

On the offensive on Monday was Zuma’s counsel, advocate Muzi Sikhakhane, who argued his client believed that Zondo had a “reasonable apprehension of bias”.

This belief, Sikhakhane charged, was supported by Zondo’s comments that appear to hype up witnesses giving testimony against Zuma.

But in defence, the leader of the commission’s legal team, advocate Paul Pretorius, dismissed this charge as misplaced.

Pretorius countered that it was well within the duties of the commission chairperson to comment on testimony given by witnesses to satisfy himself.

Muzi Sikhakhane complained the commission had deliberately lined up witnesses that are anti-Zuma at its early stages to set a tone against the former president.

Zondo commenting on witnesses viewed to be against Zuma, said Pretorius, did not mean he was unable to balance their evidence with contradictory evidence brought by witnesses deemed to be pro-Zuma.

On the score of witnesses, Sikhakhane complained the commission had deliberately lined up witnesses that were anti-Zuma at its early stages to set a tone against the former president.

To back up his claim, he selected nine witnesses – Pravin Gordhan, Mcebisi Jonas, Nhlanhla Nene, Ngoako Ramathlodi, Vytjie Mentor, Trevor Manuel, Barbara Hogan, Themba Maseko and Fikile Mbalula – who have testified at the commission.

“You are a very powerful man sitting there. Once you put a proposition and they assume the chairperson is with me here, that witness will lurch to what they think is your predisposition,” said Sikhakhane.

“When you put that proposition, you plant in the mind of the witness an understanding that here is the inclination of the chairperson.”

Pretorius said this argument does not hold water to demonstrate reasonable apprehension that Zondo was biased.

In any case, Pretorius went on, it was disingenuous of Zuma’s lawyers to handpick Zondo’s comments on nine witnesses when 257 witnesses had testified.

Of these, some witnesses were viewed to be pro-Zuma, he said.

“[Out of] all 257 witnesses, it could not possibly be said they were all called according to a predetermined plan or project,” said Pretorius.

“What is worth noting is that among those 257 witnesses that have been called is the son of the former president, Duduzane Zuma, and Dudu Myeni and others (Nomvula Mokonyane, Des van Rooyen and Mosebenzi Zwane) who clearly do not fall into the category of witnesses that has been put before you.”

Sikhakhane further argued Zuma was still of the firm belief that the commission was used as a political tool used to “bury” him.

Out of all 257 witnesses, it could not be possiblly said that they were all called according to a predetermined plan or project.

With its formation as per remedial action of former public protector Thuli Madonsela mandated to investigate whether the Gupta family had captured the Zuma administration, Sikhakhane said it would be disastrous for the commission to conclude oral hearings without hearing those two parties.

“The central issues in your terms of reference is the Guptas. You will finish this report with no version of the Guptas. Without the version of such people, it weakens the commission,” said Sikhakhane.

“Without Mr Zuma giving a version, it may not assist the commission going forward. If you blow us today, what happens? Even if we lose, we will review and will go as far as wherever.”

Pretorius said Zuma cannot claim he was not afforded an opportunity to have his side of the story heard, as he had on numerous occasions ignored the invitation to state his version on witnesses that implicated him.

Moreover, Zondo had on several occasions appealed to the public with information to assist to come forward, a call which many ignored, including Zuma.

According to Pretorius, Zuma’s motive to seek the recusal of the chairperson was motivated by his fear there would be adverse findings against him.

Sikhakhane appeared irked by this submission: “He says we are peddling political conspiracies, it is not true.

“Mr Pretorius exposes what sits in his head, he says sarcastically ‘maybe Zuma has reasonable apprehension that there may be findings against him’ and, chair, that is just an insult and unfair because it questions Mr Zuma’s bona fides for no reason.

“I can see he (Pretorius) wants to take the Stalingrad approach but let him do it, we will see who wins.”

Zondo said he was likely to rule on the application at the start of the proceedings on Tuesday morning at 10am.