Zuma’s latest antics won’t deter Zondo

If Zuma thought his dramatic exit from proceedings last Thursday had thrown the Commission of Inquiry into State Capture off his trail, he was wrong.

Not only did Deputy Chief Justice Raymond Zondo – who is chairing the commission – on Monday announce plans to open a criminal case against Zuma in response to the former president’s latest chicanery, he also indicated that the commission was still vying to get him on the stand.

READ MORE: Zondo to lay criminal charge against Zuma

And this time, Zondo and his team are hoping to get the Constitutional Court (ConCourt) in their corner.

Zondo, during his announcement on Monday morning, highlighted that at the time Zuma left proceedings without permission – during a tea break on Thursday – there was a valid and binding summons for his appearance in place and that this was a “serious matter”.

“It impacts on the integrity of the commission, the rule of law and public accountability. And in this regard it is important we all remember the matters which this commission is investigating and on which it seeks to question Mr Zuma are matters that happened largely when Mr Zuma was president of the republic and had an obligation to account for what was happening during his presidency,” he said.

Zondo pointed out Zuma’s conduct could send the “wrong message” to other witnesses – “that witnesses who have been summoned can come and go as they please before the commission”.

“If that were to happen, this commission would not be able to operate,” he said. “It is therefore quite important for the proper functioning of this commission that Mr Zuma’s conduct be dealt with in a manner in which our law provides it should be dealt with.”

In the interim, Zondo also said the commission would be setting new dates for Zuma to appear before him to testify and issuing a new summons – and that it would be approaching the ConCourt for an urgent order compelling him to comply.

Legal experts and analysts suggested it would be difficult for Zuma to mount a defence to the criminal case.

The Commissions Act makes it a criminal offence – punishable by a fine and/or up to six months in prison – for witnesses who, like Zuma, have been summonsed, to leave proceedings without being excused by the commission chair.

Constitutional law expert Pierre de Vos explained that if Zuma could show he had “sufficient cause” to leave proceedings, he would – in theory – be able to avoid conviction.

But De Vos said this would be difficult to show in the current circumstances.

Paul Hoffmann, who heads up anti-corruption lobby group Accountability Now, agreed.

Zuma ditched proceedings last Thursday in the shadow of a bruising ruling from Zondo dismissing the former president’s application for his recusal as commission chair. Prior to his departure, Zuma had – through his lawyer Muzi Sikhakhane – indicated his plans to launch a review of Zondo’s decision and Hoffman speculated his defence would centre on this.

“His problem is that the law does not simply require that a review be commenced,” he said. “What is required is an interim interdict.”

And further Hoffman thought it was unlikely a court would issue such an interdict in this case. He said Zuma would have to show he would suffer irreparable harm otherwise.

“The idea that irreparable harm can be caused to Zuma by giving evidence is problematic because this is a commission of inquiry he’s trying to stop, not a criminal or civil case,” Hoffman said.

Of the commission’s plans to approach the ConCourt directly for its backing, both De Vos and Hoffmann questioned whether this would prove successful, with most cases having to go to the High Court first.

De Vos said the commission would have to show this was an exceptional case. He suggested, though, it could be argued Zuma had “a tendency to delay” and that a High Court ruling could end up being subject to a lengthy appeal process.

And Hoffman said were the commission to be unsuccessful at the ConCourt, it could in any case still turn to the High Court.

But he said were the ConCourt to hear the case, Zondo – who sits as a justice of the ConCourt – would not preside over it.

He said Chief Justice Mogeong Mogoeng, who selected Zondo as commission chair, would likely also have to recuse himself.

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