Sunday Morning Assessment

State capture inquiry: ConCourt cuts Jacob Zuma's Zondo options

31 January 2021 - 00:00 By Franny Rabkin
The Constitutional Court took a dim view of the commission's argument on why it had to come directly to the highest court, saying the urgency was the result of the commission's own "blunders".
The Constitutional Court took a dim view of the commission's argument on why it had to come directly to the highest court, saying the urgency was the result of the commission's own "blunders".
Image: Alaister Russell/Sunday Times

If former president Jacob Zuma wants to avoid answering questions from the state capture commission, this week's judgment from the Constitutional Court has left him fast running out of options.

The unanimous judgment written by justice Chris Jafta ordered him to "obey all summons and directives lawfully issued". Not only must he come, he must answer questions. The court declared that Zuma does not have the right to remain silent. He may, however, exercise the privilege against self-incrimination and refuse to answer questions that may incriminate him.

As an escape hatch, this may be something in law, but politically it is cold comfort for the former president. The court has clarified that the president may not - as former SAA chair Dudu Miyeni did - trot out in perfunctory fashion a refusal to answer "in case I incriminate myself".

The judgment said witnesses must "demonstrate" how an answer would breach the privilege. "Privilege against self-incrimination is not there for the taking by witnesses". They must also specify which crime they may be implicating themselves in.

The judgment also removed from the former president's potential arsenal some legal arguments that he might have made to the commission for why any future summons or directive is unlawful, which, even if they would ultimately have failed, could still have delayed things.

Arguments that could delay things are the last thing the commission needs. It is still racing against the clock, with an end-March deadline to deliver its report to President Cyril Ramaphosa. Though the commission announced it would apply for an extension, that application, though imminent, is yet to be made.

But if Zuma's lawyers wanted to argue that he was being treated procedurally unfairly by the commission, they would bump up against a judgment that says yes, Zuma was treated differently to other witnesses - but in a way that is more favourable.

The Constitutional Court took a dim view of the commission's argument on why it had to come directly to the highest court, saying the urgency was the result of the commission's own "blunders". The summons was issued much later than it should have been as "red lights started flashing in July 2019" already, said Jafta. He added that the commission also did not explain why - unlike the other 2,526 summonses issued - in Zuma's case there had to be a whole application process for his summons.

But this unequal treatment tilted in Zuma's favour: "Despite the constitutional injunction of equal protection and benefit of the law, of which the commission was aware, for reasons that have not been explained the commission treated the respondent differently and with what I would call a measure of deference," said Jafta.

Zuma's legal team will also be hard pressed to protest - as they have done elsewhere - that it is untrue that Zuma was ducking and diving from the commission. After detailing the facts about how and when and how often the commission invited, wrote to and finally summoned the former president, the judgment in no uncertain terms found that Zuma's conduct was "antithetical to our constitutional order".

Even if Zuma's version of the facts is different to what was put before the Constitutional Court, it will not help him. He had the opportunity to contradict the commission's version but chose not to participate in the Constitutional Court case. Jafta said "the facts as set out in the commission's papers are not disputed and as a result they will be taken as correct".

Similarly, it is not open to Zuma to argue before the commission that his pending review of Zondo's refusal to recuse himself suspends any obligation to appear and testify. That issue was raised in the Constitutional Court, and he chose not to oppose the case.

So what options are left for the former president? He could come and answer questions. He has, after all, said "I have nothing to fear. Nor is there any real evidence implicating me in fraud or corruption." If this is true, it should not matter how brutal a cross-examination is. When a person is telling the truth - especially with the whole nation watching - it is really only in movies that they can be dribbled by clever lawyering.

Zuma could be ill or give some other justifiable excuse under the Commissions Act. This may delay things. He has been summoned to appear on February 15-19. But if he is ill this time, or has some other "sufficient cause" to not obey this summons, the order applies to any lawful summons or directive. Any future summons or directive - such as the two already issued by Zondo to answer allegations on affidavit, which Zuma is yet to do - will be shored up by an order by the highest court.

Then there is the unlawful route. If he defies the summons, by not turning up or turning up and refusing to answer, the commission will have two options: it may once again lay a criminal complaint against Zuma - this time for breach of the summons and also for breach of a court order. This would involve a prosecution by the National Prosecuting Authority (cue years of intervening litigation if the other prosecution Zuma faces is anything to go by).

But the Constitutional Court's order has given the commission a further option, albeit a drastic one: if the commission has the stomach for such a fight, or the time, it may go straight back to court and ask for it to hold Zuma in contempt. It may even ask a court to order that he be put in prison for a certain period, which period can immediately be cut short if he appears and testifies at the commission.

In the 2006 Fakie case at the Supreme Court of Appeal - litigation over the arms deal - justice Edwin Cameron said "the power to imprison for coercive and non-punitive purposes is an extraordinary one", granted to the courts in civil cases "because of the broader public interest in obedience to its orders, since disregard sullies the authority of the courts and detracts from the rule of law".

In order to succeed with this option, Zuma's defiance would have to be both wilful and in bad faith, and the commission would need to prove its case beyond a reasonable doubt.


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