Deputy chief justice, and chairperson of the Judicial Commission of Inquiry into Allegations of State Capture, Judge Raymond Zondo, moved closer to finalising his eagerly-awaited report on the commission hearings that spanned over three years.
On Wednesday, he cleared an outstanding matter when he dismissed the application of former state security director-general Arthur Fraser to cross-examine witnesses who had implicated him for abuse of power. After repeatedly seeking extensions, Zondo now has a month, until January 1 2022, to deliver his report to President Cyril Ramaphosa.
Fraser had made an application to cross-examine several witnesses, including ambassador Mzuvukile Maqetuka, former head of domestic intelligence Gibson Njenje, former intelligence head Moe Shaik, Sydney Mufamadi and State Security Agency (SSA) acting director-general Loyiso Jafta.
In October, Fraser claimed in a letter that he had never been given a chance to give evidence before Zondo to defend himself against witnesses who had implicated him at the commission.
In a two-hour long judgment, Zondo said it was important to have regard for Fraser’s application, which consisted of a founding affidavit as well as two unsigned statements and his own application relating to the documents he was supposed to get from the SSA.
“The statements were not under oath, but the applicant indicated that they were not signed because he was waiting for the documents from the SSA to complete his statement once he received them,” said the judge, and added that Fraser had argued that two of the witnesses had implicated him in four broad areas, but had not specified that in the relevant parts of their respective affidavits.
“He said the allegation that the 2006 National Intelligence Agency (NIA) principal network was a corruption scheme was what implicated him. He said they also implicated him in the centralisation of power in relation to the 2006 NIA strategic plan vision 2035. He further alleged that they implicated him in governance matters during his tenure.” Zondo said Fraser had dismissed the allegations as utterly without merit.
“What the applicant did not do in his leave to cross-examine the four witnesses is take each one’s affidavit and tell the commission which paragraphs the witnesses implicated him in and by what statement or evidence. He did not deal with that. That is what would be required and it is well known by legal practitioners that you do so when responding to an affidavit.”
He further said: “You identify paragraphs that are important or disputed or the paragraphs on which you have something to say, particularly on those you dispute, and you say what parts of those paragraphs you dispute completely, what parts you admit, what parts you qualify or what parts you require context for. So, what he has done is simple to say that is the broad area in which these witnesses implicated me.”
Zondo said Fraser has on his own admission said that his version is incomplete without the documents that he ought to have obtained from the SSA.
Zondo said it was clear that they had agreed as to what needed to happen and that included compliance with chapter 24 of the regulations of SSA.
He said there was no explanation as to why he had not pursued the documents, even when the SSA had undertaken to give them to him. He argued that the commission had also given him time to secure those documents, but he had failed to do so.
“The applicant’s application stands to be dismissed and it is so dismissed,” he said.
Zondo added that one would have thought anyone who was genuine about giving evidence or being able to get a date or days to cross-examined witnesses who had implicated him would do everything in his power to expedite the matter and keep the Commission informed of how the process of obtaining the documents was progressing, but Fraser had failed to do so.
“By the end of May 2021, the applicant had not told the commission anything. By mid-June the applicant had still not told the commission anything. When the commission wrote to him via his attorney, he did not respond; only the attorney responded. By the end of July 2021, the applicant had still not told the commission was happening. Indeed, even now the applicant hasn’t told the commission what happened to the execution of the agreement that he and the SSA had reached, as recorded in his replying affidavit in response to the answering affidavit,” the judge said.