The fight to have former president Jacob Zuma appear before the Zondo commission of inquiry into state capture will play itself out at the Constitutional Court on Tuesday.
The urgent court application was submitted by the Zondo commission after Zuma last month walked out of a sitting of the commission when he was still under summons.
The commission has also applied to have Zuma’s leaving the hearing without permission to be declared unlawful and in breach of the Commissions Act.
“Before this court, the commission submits that a person who has been summoned to appear as a witness has a legal duty to comply with the terms of the summons, including subjecting themselves to examination,” read the statement from the commission.
It also said that although Zuma has a privilege against self-incrimination, he cannot rely on this privilege to resist appearing as a witness, nor to refuse to answer all questions put to him.
“The commission submits that Mr Zuma’s review application of the recusal application’s dismissal has no bearing on Mr Zuma’s duty to give evidence at the commission,” it argued.
Meanwhile, the Council for the Advancement of the South African Constitution (Casac) has applied to be amicus curiae in the case, in favour of the commission’s position that when appearing before the commission and after he has taken an oath or affirmation, Zuma shall answer any questions put to him by the evidence leader and the chairperson of the commission.
Casac urged the court to compel any witness appearing before the commission to remember that they are lawfully obligated to answer all questions put to them; and “the privilege against self-incrimination or right to remain silent cannot be understood to mean that a witness may decline to answer a question put to them during the commission”.
“The regulations and rules governing the commission protect the rights of persons who may become or are accused persons. Their testimony before the commission, where they are compelled to fully and satisfactorily answer all questions put to them, is inadmissible against them in any subsequent criminal proceedings (other than for perjury or failing to fully and satisfactorily answer a question). This ensures that the fact-finding function of a commission of inquiry is fulfilled, without harming the rights of any person in future criminal proceedings.”
Advocate Vuyani Ngalwana has also applied to be amicus curiae, arguing that he seeks to complement, not oppose, the commission’s application.
If granted permission, Ngalwana will ask the Constitutional Court to “take into account the deeper public purpose of the commission by extending some of the relief sought in respect of Zuma to other members of his cabinet, senior government officials and Eskom chief executive”.
President Cyril Ramaphosa is among those Ngalwana wants held accountable.
“The former president [Zuma] must be held accountable for his role as head of government insofar as that role falls within the commission’s terms of reference that he devised. About that, counsel for the commission is absolutely correct. Equally, the former president’s fellow travellers must be held to account for their roles in conduct that falls within the commission’s terms of reference.
“Those fellow travellers include President Cyril Ramaphosa, who was deputy president in Zuma’s cabinet since May 2014, leader of Zuma’s government business in terms of the Constitution, and chair of Zuma’s interministerial committee since August 2016, which was ‘responsible for overseeing the stabilisation and reform of state-owned entities’ during the period when the Gupta family is alleged to have engaged in ‘state capture’ of state-owned entities and organs of state in South Africa,” reads the submission.
Ngalwana said that other key evidence leaders included Public Enterprises Minister Pravin Gordhan, who served as finance minister from May 2009 until May 2014 and again from December 2015 until March 2017.
He also mentioned Transport Minister Fikile Mbalula, who served in Zuma’s cabinet as minister of sports and recreation from November 2010 until March 2017, and as police minister from March 2017 until February 2018.
“The chair of the commission has himself lamented the fact that many ministers in Mr Zuma’s cabinet have not voluntarily come forward to share their evidence with the commission on matters that fall within the commission’s terms of reference,” Ngalwana said.