Jacob Zuma’s dramatic exit from the Commission of Inquiry into State Capture yesterday may have been a pyrrhic victory for him as he faces possible arrest.
Despite his advocate, Muzi Sikhakhane, having insisted they were not “walking out”, but rather “excusing” themselves, the Commissions Act does not allow for either. It gives a commission the same powers to summons witnesses as the courts, which the commission used to subpoena Zuma after a series of no-shows.
The Act makes it a criminal offence, punishable by a fine and/ or up to six months in prison, for those witnesses to leave proceedings without being excused by the commission chair. In terms of the Act, anyone who “wilfully interrupts the proceedings of a commission or who wilfully hinders or obstructs a commission in the performance of its functions” is also guilty of an offence and liable for the same punishment.
Legal experts and analysts said yesterday commission chair Deputy Chief Justice Raymond Zondo was now at liberty to have the police arrest Zuma and drag him to the stand.
“[Zondo] can ask for a warrant to be issued and [ have] Zuma brought before the commission to give evidence,” the Council for the Advancement of the
South African Constitution’s executive secretary Lawson Naidoo said, adding criminal charges could also be brought against him.
Zuma ditched proceedings during tea yesterday morning in the shadow of a ruling from Zondo dismissing Zuma’s application for his recusal as commission chair. Zuma had argued they were friends – a claim Zondo vehemently denied – and that there was a reasonable apprehension of bias on his part.
However, Zondo found they did not have the kind of relationship that would disqualify him from chairing the commission.
Sikhakhane indicated his instructions were to launch a review of Zondo’s decision and to lodge a complaint against him with the Judicial Services Committee and that they would be “excusing” themselves from proceedings.
This clearly raised Zondo’s ire. “Mr Zuma had been issued with a summons to be here from Monday to tomorrow unless he was excused by me,” he said yesterday, visibly angry. “He has left today without asking me to be excused. This is a serious matter.”
Proceedings were adjourned to next week and Zondo said the commission would “reflect” on matters.
Advocate Paul Hoff man, who heads anticorruption group Accountability Now, said a pending review application did not entitle Zuma to walk out of the commission, or excuse himself from proceedings. “If the commissioner insists he remains in attendance and answer questions, then his remedy is to seek an interdict preventing the continuation of his examination and attendance, pending the outcome of the review,” he said.
Zuma had been summonsed to appear before the commission and was now in contempt.
Of the pending review application, constitutional law expert Pierre de Vos said Zuma would likely approach the high court. If he was unsuccessful, he could still turn to the Supreme Court of Appeal and if he was again unsuccessful, he could approach the Constitutional Court.
De Vos said Zuma could try and approach the Constitutional Court directly, which would speed it up, but doubted he would succeed. “The Zuma strategy is really about trying to delay,” he added. “So that likely wouldn’t suit him.”
In the meantime, though, De Vos also said Zuma could – in principle – be forced to testify in parallel to a review application. “Nothing bars the commission from issuing another summons.”
He said a JSC complaint against Zondo would have no bearing on the commission’s work and that the grounds of it – that, according to Sikhakhane, Zondo had become “a judge in your own matter” – were “nonsense”.
Zuma’s lawyer, Eric Mabuza, was not available for comment.
The Zuma strategy is really about trying to delay.