Zuma should appear before Zondo despite his review application – commission lawyers

Former president Jacob Zuma’s decision not to participate “at all” in the state capture inquiry’s Constitutional Court bid to force him to appear and answer questions in January and February 2021 is “yet a further instance of Mr Zuma’s refusal to account for his unlawful conduct”.

This is according to the commission’s lawyers in heads of argument filed in court this week.

In a letter sent to the Constitutional Court’s acting registrar on Monday, Zuma’s attorney, Eric Mabuza, said the former president’s legal team had been “instructed” that he “will not be participating in these proceedings at all”, News24 reported.

This means the inquiry application will not be opposed.

But because Zuma has not opposed the relief the commission seeks, lawyers will argue in court the former president was obliged to appear and give evidence in accordance with the fresh summons, regardless of his review application, challenging Deputy Chief Justice Raymond Zondo’s refusal to recuse himself.

Since the commission commenced its hearings in August 2018, it made every effort for Zuma to furnish his version of events on affidavit and to appear before it, reads the court papers.

It said:

Mr Zuma is not only avoiding giving evidence at the Commission but is actively attacking the legitimacy and credibility of the Commission, its Chairperson and its work. This requires urgent intervention by the Court, to authoritatively countermand the negative impact of these attacks and protect the integrity and legitimacy of the Commission.

Zuma’s advocate, Muzi Sikhakhane, previously suggested that, should he be forced to appear before Zondo, he would exercise his right to remain silent.

But the inquiry wants the highest court in the land to order that Zuma “may not rely on the right to remain silent”.

In his heads of argument on behalf of the commission, advocate Tembeka Ngcukaitobi said:

The right to remain silent that Mr Zuma threatens to invoke is only available to an arrested person or accused person in criminal proceedings, under section 35(1)(a) and 35(3)(h) of the Constitution. Neither of these provisions apply to Mr Zuma when he appears at the Commission.

President Zuma is thus a compellable witness and does not have a right to remain silent before the Commission.

Although he retains his privilege against self-incrimination, he cannot rely on this privilege to resist appearing as a witness or to refuse to answer at all.

Ngcukaitobi also said the court should take a “dim view” of Zuma’s response when he said he will not be participating in these proceedings.

He said there was no good reason why the commission, which relies on public funds to do its work, should pay the costs of this application.

He also said the former president “either does not appreciate the duty to account, imposed on all public office-holders, including the President of the Republic, or he simply does not care to comply with that duty. Whichever it is, this Court’s intervention is evidently required”.

The case is due to be heard via a virtual hearing on 29 December 2020.

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