Former president Jacob Zuma must honour the summons and directives to appear before the Zondo commission and give evidence before on dates determined, the Constitutional Court ruled on Thursday.
Zuma was also slapped with punitive costs and must pay the commission’s legal costs, including those of the two lawyers.
In a judgment delivered by Justice Chris Jafta, the apex court judges granted the state capture commission direct access to present its case against Zuma before them. They dismissed the application of amicus curiae – friend of the court – by Advocate Vuyani Ngalwana, who had pressed for President Cyril Ramaphosa to be included among those called to testify before the commission to answer for his alleged role in state capture.
However, the court accepted similar applications by civil society groups, the Council for the Advancement of the Constitution and the Helen Suzman Foundation.
Among the arguments by the civil society groups were that Zuma should not be allowed to claim the right to remain silent and the court agreed. But Zuma was entitled to claim privilege against self incrimination.
Justice Jafta said none of the witnesses before the commission had a right to remain silent, and the privilege was only reserved for people under arrest. But a witness cannot give an incriminating answer, the judge said.
“The witness must claim the privilege by demonstrating how the answer will be in breach of the privilege. It is not there for the taking, but it must be informed by sufficient grounds,” he said.
However, the court chastised the commission for failing to use its powers effectively, and committing “blunders” along the way.
It is ironic that Zuma created the commission himself, said Jafta. “It is therefore unacceptable that he is the one who frustrates its investigation.”
He said Zuma’s conduct was in contravention of the Constitution and the rule of law, and “in our system no one is above the law and even those who have the privilege to make the laws are bound by them for as long as they are in operation”.
“The commission is to blame for the situation it found itself in. The commission blundered but direct access is granted,” said Jafta.
He said the court was persuaded by the argument that it was in the public interest for Zuma to testify at the commission because the former president was firmly placed at the centre of investigations by the allegations that he may have allowed the interests of private individuals to influence his executive decisions.
“The allegations are serious and it is in the interest of all South Africans and Zuma that the allegations should be put to rest,” Jafta said.