Zuma’s antics at Zondo commission could see him end up in cuffs

Jacob Zuma’s dramatic exit from the state capture commission of inquiry on Thursday morning may have been no more than a pyrrhic victory for him, with the former president now facing the possibility of arrest.

Despite his advocate, Muzi Sikhakhane SC, having insisted they were not “walking out” but rather “excusing” themselves, the Commissions Act doesn’t allow for either.

It gives a commission the same powers to summons witnesses as the courts, which the state capture commission used to subpoena Zuma – who has been heavily implicated during proceedings – after a series of no-shows.

The act makes it a criminal offence – punishable by a fine and / or up to six months in prison – for witnesses who leave proceedings without being excused by the commission chair. In terms of the act, anyone who “wilfully interrupts the proceedings of a commission or who wilfully hinders or obstructs a commission in the performance of its functions,” is also guilty of an offence and liable for the same punishment.

Legal experts and analysts say Deputy Chief Justice Raymond Zondo is now at liberty to have the police arrest Zuma and drag him to the stand.

“The deputy chief justice can ask for a warrant to be issued and Zuma brought before the commission to give evidence,” the Council for the Advancement of the South African Constitution’s (Casac’s) executive secretary, Lawson Naidoo, said on Thursday – adding that criminal charges could also be brought against him.

Zuma ditched proceedings during the tea break, in the shadow of a bruising ruling from Zondo, which dismissed the former president’s application for his recusal as commission chair.

Zuma had argued they were friends – a claim Zondo has vehemently denied – and that there was a reasonable apprehension of bias on his part. But Zondo ultimately found they did not have the kind of relationship that would disqualify the deputy chief justice from chairing the commission.

Sikhakhane had indicated his instructions were to launch a review of Zondo’s decision – as well as level a complaint against him with the Judicial Services Committee (JSC) – and that they would be “excusing” themselves from proceedings. But evidence leader and advocate Paul Pretorius SC had also indicated he wanted to argue for Zuma to take the stand, and Zondo had been expected to pronounce on a way forward after tea.

This was, however, not to be. Zuma, it would appear, took matters into his own hands.

The move has clearly raised Zondo’s ire.

“Mr Zuma had been issued with a summons to be here from Monday to tomorrow unless he was excused by me,” he said, the anger visible on his face.

“He has left today without asking me to be excused. This is a serious matter”.

Proceedings were adjourned to next week, with Zondo saying the commission would “reflect” on matters.

According to advocate Paul Hoffman SC, who heads up anti-corruption pressure group Accountability Now, the existence of a pending review application did not on its own entitle Zuma to walk out of a commission or excuse him from proceedings.

“If the commissioner insists he remain in attendance and answer questions, then his remedy is to seek an interdict preventing the continuation of his examination and attendance, pending the outcome of the review,” Hoffman said.

But as it stood, he said, Zuma had been duly summoned to appear before the commission and was now in contempt.

Of the pending review application, constitutional law expert Pierre de Vos said it would likely see Zuma approach the high court now, but that if he was unsuccessful he could still turn to the Supreme Court of Appeal and that if he was again unsuccessful he could then approach the Constitutional Court.

De Vos said Zuma could try and approach the Constitutional Court directly – which would speed things up – but was doubtful he would be successful.

“The Zuma strategy is really about trying to delay too,” he added. “So that likely wouldn’t suit him”.

In the meantime, though, De Vos also said Zuma could – in principle – still be forced to testify in parallel to a review application.

“Nothing bars the commission from issuing another summons,” he said – adding, though, Zuma would also still have options open to him – like filing for an interdict – in that case.

He said a JSC complaint against Zondo would have no bearing on the commission’s work and that the grounds of the complaint in question – that, according to Sikhakhane, Zondo had become “a judge in your own matter” – were “nonsense”.

“A recusal application – by its nature – legally requires the judge hearing the matter to make the decision,” De Vos said.

Zuma’s lawyer, Eric Mabuza, was not available for comment.

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