In the game of chicken being played out between Jacob Zuma and Deputy Chief Justice Zondo before the State Capture Commission, it is likely the Commission will lose.
Without Zuma’s participation in the inquiry, state capture cannot be properly investigated. Alas, he will not participate. The Commission can do little to make him do so. They could have done much more.
The Commission was appointed by then-President Zuma to investigate and establish (among other things) whether Zuma had any role in alleged offers of cabinet positions by the Gupta family, and whether Zuma or members of his cabinet had facilitated the unlawful awarding of state tenders to benefit the Guptas or any other entity. The purpose was nominally to investigate and reveal the truth to a concerned South African public.
The President was sufficiently confident that he could control proceedings that he established the Commission with terms of reference placing him at the centre of the investigation. Zuma invited it to establish whether he had abdicated his constitutional power to the Guptas, and whether he acted unlawfully.
If the allegations are proved, his conduct would constitute a subversion of South Africa’s constitutional order, and criminal conduct.
However, after Zuma was deposed as President, he lost the power to reject the findings and recommendations of the Commission. His approach changed entirely. He questioned the lawfulness of the establishment of the Commission he himself had established, and claimed that Zondo - whom Zuma had appointed- was biased.
He refused to participate in hearings unless Zondo recused himself. The Commission had the power to compel him to testify, or to go to prison if he did not. From July 2019 to October 2020, it dilly-dallied.
When the Commission finally exercised its coercive power, the end of the Commission’s lifespan (31 March 2021) was in sight, and with it any hope of Zuma’s participation in establishing the truth. Zuma needed only to run down the clock.
The need for coercion was apparent by July 2019; when he appeared before the Commission to “give his side of the story”. He stated that allegations against him were the culmination of an anti-Zuma narrative spanning 30 years, involving spies who had testified about him and foreign intelligence agencies. When questioning was directed to the issues that the Commission had been mandated to investigate, Zuma’s counsel stated that he would no longer participate in the proceedings because he had been brought to the Commission under false pretences.
The Commission had the power to compel ex-President Zuma to testify then, using its power under the Commissions Act and under the very regulations created by President Zuma. Had they done so, Zuma would have faced jail time eighteen months ago, as he does now. Instead, the Commission waited till October 2020 to summons Zuma. Despite the Constitutional Court ordering him to obey the summons, he has refused. He has traded this act of constitutional subversion, for which the going rate is a six-months sentence and a fine, for the catastrophe which would befall him if he testified.
Zuma’s contempt of court proceeding has raised a political furore, with the spectre of youthful ”veterans” threatening to defend Zuma to the last. Conceivably, Zuma might march down to prison with a mass of adoring supporters and then work the prison system, leaving by the back door almost immediately, as is not uncommon with so brief a sentence. And the Commission’s term will expire with the truth unlearned.
All of this could have been concluded a year ago, when the Commission still had a lifespan in which to benefit from the discomfort such proceedings could cause Zuma. A second summons could have been issued with the further threat it would have entailed. The Commission’s deference to Zuma has made it all too easy for him to play for time. And we shall never know the truth, or even whether we could have learned it.
* Donen SC is a legal practitioner and listed counsel of the International Criminal Court.
** The views expressed here are not necessarily those of IOL.