*This article was updated on Sunday (November 15) at 23:38 to include the opposing affidavit by commission secretary Itumeleng Mosala below.
In a last-ditch attempt to not appear before the Zondo commission as mandated by a summons issued by commission chairperson Deputy Chief Justice Raymond Zondo, former president Jacob Zuma’s legal team has lodged an application to have Zondo recuse himself as commission chair.
In an affidavit delivered to the commission on Thursday, in support of Zuma’s application for Zondo to recuse himself from “presiding over those issues that pertain to me and my family”, Zuma’s legal team said the deputy chief justice had a “predisposition” against the former president and was determined to find him guilty regardless of the facts.
They argued that “Zondo ought to have declined to chair the commission, whose terms of reference indicate that I was to be the main implicated person”.
In the affidavit, dated November 10, Zuma argues that his reasons for applying for Zondo to recuse himself include the fact that “in my absence, the chairperson has made several comments whose effect is the suggestion that I am already guilty of the offence of state capture”.
“The chairperson has singled me out for public announcements, by addressing issues relating to me through the media. I am the only witness in respect to whom many press statements have been issued by the chairperson.”
According to the lengthy affidavit, Zondo “clearly doubts” his “bona fides”, as Zuma argues that “on two occasions” the chairperson “questioned or doubted” submissions that he had indeed travelled to seek medical attention in Cuba.
The former president also accused the commission’s evidence leaders of bias in the manner they went about identifying witnesses, saying they “intended to call only witnesses who are members from his cabinet that implicate him”.
Zuma also argues that his “close personal relation” with Zondo, which has now turned familial, should have been enough for the latter to recuse himself from the onset.
“My relationship with the deputy chief justice dates back to the early 1990s, when he was an attorney and partner at the firm known as Mathe-Zondo Attorneys in Durban.”
Zuma says he “interacted” with Zondo and his legal partner seeking legal advice, and during this period developed “a good relationship with the deputy chief justice and constantly consulted him on various professional matters”.
According to Zuma, this professional relationship evolved into a personal one, with he and Zondo constantly meeting at “social occasions and public gatherings that were organised by government”.
He then details how he meet Thobeka Madiba. Zondo had a child with her sister, thus turning their relation from personal to being family.
Zuma alleged that, as a result of this close relationship, Zondo has visited his house on many occasions.
He also recalls an instance when Zondo was elevated to the bench and how at that point they “discussed whether our personal relationship would jeopardise his judicial career”.
The application comes as Zuma is supposed to appear before Zondo on Monday, after the former president was summoned to appear at the commission from November 16 to 20.
Commission secretary Itumeleng Mosala initially wrote to Zuma’s lawyer, advocate Eric Mabuza, asking Mabuza whether his high-profile client would honour the scheduled appearance.
What did not sit well with Zuma’s legal team was that Mosala opened his letter by issuing them an ultimatum that Mabuza ought to inform the commission no later than 12 noon on November 12 2020 whether Zuma would come to the commission.
Mosala appeared to have written following Zuma’s legal team not giving the commission a definitive response as to whether he would willingly present himself before the commission.
“If I receive a response that does not inform the commission that your client will comply with the summons, I will assume that your client does not intend to comply with the summons,” Mosala wrote to Mabuza.
He also reminded Zuma’s legal team that its client had not lodged a formal request to seek Zondo’s recusal as had previously indicated by the team, and as such could not merely unavail himself.
“The commission has noted that, to date, your client has not lodged his application for the chairperson’s recusal, which he indicated more than five weeks ago that he would be lodging. Your client should have long lodged his application if he persists in his request for the chairperson to recuse himself.
“I take this opportunity to warn your client that, even if his legal team plans to move his application for the chairperson’s recusal, that will not be a valid reason for him not to comply with the summons on November 16 2020. He is required to be in compliance with the summons as his legal team moves whatever application it may be instructed to move on his behalf. The commission has considered it important to make this clear ahead of Monday, November 16 2020,” wrote Mosala.
An incensed Mabuza hit back, informing Mosala that he had no right or powers to warn him or his client of anything pertaining to his appearance.
“We take strong exception to the condescending tone of your letter and your attempt to bully us or [former] president Zuma. Your conduct is completely unnecessary and uncalled for.
“The deputy chief justice has never treated us with the disrespect you show us. If anything, your conduct will only serve to harden attitudes in this delicate matter,” Mabuza said in response.
The Zondo commission on Friday then sent out a media statement informing the general public that Zuma’s legal team had since lodged a formal application for Zondo to recuse himself.
The commission indicated that Zuma had initially indicated that he would appear before the commission and even made attempts to do so via video link. The former president had since lodged the application that would now be heard on Monday.
Update: Responding affidavit
On Sunday, Mosala's opposing affidavit to Zuma's request for Zondo's recusal stated that “quite simply, no basis has been shown for the recusal of the chair”.
Mosala makes the case that Zuma has been ducking and diving the commission's notices after they were sent to him due to him being implicated in evidence heard by the commission. “From as early as August 27 2018" until his first appearance at the commission in July 2019, 16 notices were sent to Zuma and his lawyers.
“Each notice afforded the applicant an opportunity to engage with the commission ... he elected not to do.”
Mosala then notes that from the day he appeared until November 13 this year, 19 other notices were delivered to Zuma, again “the applicant elected not to engage”.
He also sets down five dates to which Zuma was “invited and directed to appear before the commission” but failed to do so.
Two more notices were sent on August 28 and September 11, both of which were not complied with nor any explanation given as to why there was a failure to do so.
Mosala also makes the point that the term of the commission ends on March 31 next year and that Zuma's basis for the chair's recusal on grounds of bias was first made in May 2019 but that no attempt to clarify the alleged bias was forthcoming. Zuma should have raised those complaints of bias as soon as the facts were known to him, Mosala asserts.
“The unreasonable delay on the part the applicant [Zuma] and his conduct to date is inconsistent with a reasonable apprehension of bias.”
Mosala states that “the precise nature and degree of recusal required is far from clear” and that it is "untenable”.
The commission secretary adds that if there was a conflict of interest it should have been made clear long before the commission even existed considering Zondo presided as a Constitutional Court judge in at least eight cases where Zuma was a party to.
Mosala also states that the former president “repeatedly says that the versions [presented to him] are contrary to the true facts, but he himself provides no account of the facts or a contradictory version”. This is in relation to the perceived bias that Zuma says he faces at the hands of the chair and the commission, who he believes has already accused him.
“A reasonable observer might conclude that he is determined not to answer, and has made up his mind not to answer, despite his protestations that he wants to assist the commission.”
The commission will sit to hear Zuma's recusal application on Monday from 10am.
Meanwhile, the Ahmed Kathrada Foundation and 27 other organisations that include Right2Know, the SA Council of Churches, OUTA, Corruption Watch and Equal Education have said in a statement that “the buck must stop somewhere”.
“As a former president, who presided over an era of state capture, Zuma should account to the public about what he did or did not do to prevent the capture of the state by business and political elites.”
They say it is “shocking” that people think Zondo has an obsession with Zuma because, the fact is, that Zondo has heard testimony which implicates Zuma.
“We do not want to hear conspiracy theories. Instead, we hope that he will take the nation into confidence and tell us how and why things went so badly wrong under his leadership.”
- Muhammad Hussain