UPDATE 3 – Zuma alleges Zondo has created persecutory environment

The commission of inquiry into state capture would collapse if Jacob Zuma forced the recusal of Judge Raymond Zondo, evidence leader Paul Pretorius has said.

CAPE TOWN – The commission of inquiry into state capture would collapse if Jacob Zuma forced the recusal of Judge Raymond Zondo, evidence leader Paul Pretorius countered on Monday in reply to strenuous argument from the former president’s lawyer.

“It would in fact mean the collapse of the commission,” Pretorius warned as he mulled over the practical implications of Zuma’s application.

Zondo agreed that it would be “problematic” as he would then be bound by the findings of whoever replaced him when the terms of reference of the commission probing the sprawling rent-seeking scandal bound him to deliver findings at the end of its work.

The exchange followed submissions by Muzi Sikhakhane SC for Zuma that Zondo had asked leading questions of witnesses that gave rise to a reasonable fear on the former president’s part that he had been found guilty in advance.

The former president was justified that he would be “coming to a slaughterhouse” should he take the stand.

The list of witnesses who have appeared before the commission – from former ministers Barbara Hogan and Trevor Manuel to MP Vytjie Mentor and government spokesperson Themba Maseko – had cemented this perception, he said.

Pretorius to this replied that Zondo had merely called those whose evidence informed a report by former public protector Thuli Madonsela that ordered a commission of inquiry be set up to probe the state capture phenomenon.

He said there was no reasonable apprehension of bias on Zondo’s part and instead Zuma’s application was driven by a fear that inquiry may reach adverse findings against him.

“It is difficult not to conclude that the real reason he has an apprehension is that there might be findings against him,” he said.

The day’s proceedings began with Zondo reading a statement in which he outlined his every past interaction with the former president.

At times looking pained, he refuted the former president’s contention that they had close personal relationship and were “friends”.

“That is not accurate,” Zondo said as he enumerated the times over the past two and a half decades that the pair’s paths had crossed at state functions, the funeral of one of Zuma’s wives and a meeting at his legal practice in 1996.

He questioned why Zuma had never previously sought his recusal from the bench in any of the matters embroiling the former head of state.

Zuma moved for Zondo’s recusal as head of the commission after the judge, clearly exasperated with his refusal to testify before the body, issued summons on October 9 for him to appear.

Sikhakhane said he was not accusing Zondo of being partial or lacking integrity.

Instead, he said he needed to criticise the deputy judge president for, through his comments in commission sittings at times, contributing to a perception that has gained public traction that Zuma is the politician responsible for the corruption and disarray besetting South Africa.

The former president, who was present at the hearing, was reasonably justified to be “fearful” of appearing in a forum that had reinforced perception that he belonged in prison, Sikhakhane continued.

“You may have created an environment that enforces in his mind, reasonably so, that this forum is an extension of the narrative about him that everything that went wrong in South Africa is attributable to him,” he said.

He ventured that it was expected of presiding officers to remain impassive even when listening to harrowing testimony about the rape of a toddler.

Sikhakhane said the fact that two courts had barred Zuma from fulfilling his normal presidential duty, as set out in the Constitution, of appointing the head of a commission of inquiry after Madonsela called for one, had already created the breeding grounds for the former president’s fears.

Returning to Zondo’s handling of witnesses, he said questions posed by the deputy chief justice appeared designed to arrive at a particular conclusion that paint Zuma as guilty.

He singled out a question Zondo had put to former public enterprises minister Hogan about executive interference at Eskom.

Zondo interjected to say that he had posed the question to establish whether the impression Hogan’s statement created was indeed what she was inferring.

But Sikhakhane insisted that the remark suggested a particular mindset.

“It is a mind that is inclined to agree with a particular witness about another who is not there.

“I’m asking you to do something very difficult – it is difficult for me, it is difficult for you – in the heat of things and in the outrage you feel because you are a human, is not because you are a bad person, but there is a line you cross.”

The judge countered that Sikhakhane should consider that perhaps he had merely indicated a provisional acceptance of the testimony of a particular witness “until I hear the other side, until I hear what has happened”.

He added that if he had wanted to reach an unfair conclusion, he would not have gone to great lengths to bring Zuma to testify.

Sikhakhane said Zuma had never intended to defy the commission and refuse to appear, casting this as another false perception about him. However, he implied that if Zuma were forced to appear before Zondo he might invoke his right to remain silent.

Zondo in late October issued an extraordinary statement in which he revealed that in the 1990s he had a child with the sister of Thobeka Madiba, one of Zuma’s wives, but said this did not disqualify him from presiding over his testimony.

– African News Agency (ANA); Editing by Yaron Blecher