It was a polite but tense stand-off between former president Jacob Zuma’s legal team and chairperson of the commission of inquiry into state capture, Deputy Chief Justice Raymond Zondo.
Advocate Muzi Sikhakhane, who leads Zuma’s legal team, retained an air of respect for Zondo in his application by his client for Zondo to recuse himself.
But Sikhakhane informed the chairperson that should his team not be successful in its quest to have him recuse himself then they would appeal the matter and prolong proceedings.
“Even if we do lose, we will ‘review you’ and take the matter further” said Sikhakhane who also suggested that another alternative would be – should the former president be forced to testify before Zondo – for his client to exercise his right to remain silent.
These ultimatums were given by Sikhakhane as he made submissions by Zuma as to why Zondo should recuse himself.
The former president’s legal team made three fundamental legal arguments as to why Zondo ought to step aside and have another judge lead the proceedings.
Sikhakhane argued that his client was being charged with a non-existent crime.
“This commission was instituted to probe a crime that is not in any of the legal statutes of our country. State capture”, argued Sikhakhane, “is actually a political concept formulated by political opponents and my client is yet charged with this non-existent crime”.
He went on to argue “the commission lined up proponents of this concept called state capture. That selection by the commission for the first 18 months of its sitting then lining up such witnesses that have credence that this version that there was state capture has been accepted”.
Sikhakhane said the witnesses initially lined up were treated as “sweethearts” of the commission. Their setting of the tone – of there being an existence of this “still questionable charge of state capture” – greatly biased Zuma.
Zondo asked whether Zuma really had a leg to stand on to argue that the witnesses lined up in the beginning had an axe to grind if he, under the commission’s statute, had the opportunity to cross-examine the same witnesses and prove their inaccuracies.
Sikhakhane responded that, be that as it may, lining up witnesses for 18 months that pushed a certain narrative had been detrimental to his client, whether he or not he could cross-examine the witnesses.
The former president’s legal team also questioned why “serious allegations” of various conspiracies raised by Zuma at his previous appearance last year – without providing any detail or evidence – had not been accepted, taken seriously or undergone further investigation by the commission.
Sikhakhane also argued that his client was also perturbed by comments made by Zondo.
He singled out comments made by the chairperson during the appearances of former minister of public enterprises Barbara Hogan, saying Zondo was not supposed to make “certain propositions” to any witness as this ran the risk of witnesses altering their testimony in an attempt to please him.
Sikhakhane also added that “the chairperson partiality was more evident during Minister Pravin Gordhan’s testimony” and accused Zondo of making biased sentiments that to the normal citizens seemingly suggested bias.
According to Zuma’s lawyer, the commission was now an extension of the narrative that “everything that went wrong in the country is as a result of Zuma”.
Sikhakhane appealed to Zondo to “self-reflect” on comments he had made about Zuma when witnesses testified against the former president and “check whether, given the hostile environment for a witness, his demeanour and comments [were fair]. He [Zuma] sits here as an accused.”
He added that human beings were “not good at self reflection...”
Although Zondo is still to hear arguments by the commission’s legal team, Sikhakhane has indicated that he did not “trust” case law when it came to judges recusing themselves.
As a result, Sikhakhane has indicated that should their application fail they would seek to have it reviewed – a move that could lead to the commissions having to make its findings without submissions from the Gupta family or Zuma.
“The report by the commission might be good but it will be weakened through not having submissions from the Guptas that is going to be the case.
“It will also be weakened if we do not hear from Zuma because he does not trust the environment at the commission,” added Sikhakhane, who accused the commission of treating his client as an accused not a witness.
Initially, the proceedings kicked off with Zondo reading into record a statement he made in response to allegations raised in an affidavit filed last week by Zuma in support of his application for Zondo’s recusal.
In the affidavit, Zuma has claimed that he and Zondo had a personal relationship that had since escalated into a familial relationship and that the pair had visited each other and met at social events.
Zondo clarified that this relationship only extended to a “cordial relationship” and not a friendship. He also indicated that his visits to Zuma’s place of residence were work-related and disputed ever discussing how he being elevated to the bench would affect his relationship with Zuma, as was previously claimed by Zuma.