The Council for the Advancement of the SA Constitution (Casac) has applied to the Constitutional Court to join as “friend of the court” in the Zondo commission’s application to order former president Jacob Zuma to comply with a new summons to appear and give evidence early next year.
Casac intends to argue in favour of the commission’s position that Zuma should answer any questions put to him by the evidence leader and the chairperson Deputy Chief Justice Raymond Zondo, “subject to the privilege against self-incrimination, and may not rely on the right to remain silent”.
Having seen how hostile a witness can be – during former SAA chairperson, Dudu Myeni’s testimony in last month – Casac, through its executive secretary, Lawson Naidoo, lodged the urgent application on Friday.
In its application, the civil society organisation argues that the highest court in the land should rule that witnesses before the commission are lawfully obliged to answer questions as outlined by the commission’s terms of reference.
Naidoo refers to section 3(4) of the Commissions Act, 1947 (Act No. 8 of 1947) which states: “A self-incriminating answer or a statement given by a witness before the commission shall not be admissible as evidence against that person in any criminal proceedings brought against that person instituted in any court ..”
He argues that “the privilege against self-incrimination or right to remain silent cannot, therefore, be understood to mean that a witness may decline to answer a question put to them during the commission”, as they are duly protected by the commission’s own rules and regulations.
He urges the court to compel any witnesses 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,” Naidoo argues.
Casac brought the application in terms of rule 10(4) of the Constitutional Court Rules, 2003 which allows any person interested in any matter before a court to seek written consent from the parties in the matter, who in this case are the commission’s secretariat and Zuma, to be admitted as “a friend of the court”.
The secretariat has already approached the court seeking that it compel Zuma to appear before the commission after the former president walked out of the proceedings without permission from Zondo.
Naidoo argues that Casac’s “friend of the court” application ought to be granted as the commission’s secretariat has already consented.
“Prior to bringing this application, our attorneys addressed correspondence to the parties on December 15, in which they sought their written consent for Casac’s admission as amicus curiae [by no later than 11am on December 17).”
They had received the consent via telephone on December 15.
“The attorneys for the respondent, Jacob Gedleyihlekisa Zuma did not respond to the aforementioned correspondence from our attorneys,” he said, adding that their failure to respond was not unexpected as Zuma’s legal team had already written to the court indicating that their client was unwilling to participate in the commission’s proceedings.
Naidoo said as a result of this, the court should grant his organisation’s application.