Johannesburg - Former president Jacob Zuma told Justice Raymond Zondo in Chambers before walking away that he was willing to give his version of events, but only in writing because didn’t want to be humiliated by evidence leader advocate Paul Pretorius, sources said.
They told the Sunday Independent this week that Zuma told Zondo shortly before staging a walkout in November last year that he would not appear before him unless he was allowed to make written submissions answering specific questions in line with the state capture commission of inquiry’s identified areas of interest.
The sources, who are familiar with what transpired between Zuma, Zondo and their respective legal teams during the lunch-time break during the former president’s last appearance in Joburg, claimed that the deputy chief justice was amenable to the idea but Pretorius refused.
They added that Zuma had made it clear that he was prepared to face the consequences rather than appear before Zondo and risk being humiliated.
This emerged after Zuma’s legal team, Mabuza Attorneys issued a statement last week reiterating that he would not appear before the commission.
This was revealed in a letter submitted to the state capture inquiry’s secretary, Professor Itumeleng Mosala, responding to his initial letter a few days ago that aimed to remind Zuma of his appearance on Monday this week.
In the letter, Zuma’s lawyers reminded the commision of their application to the Constitutional Court “on an extremely urgent basis to compel (former) President Zuma to comply with the very same summons that the commission now wants to enforce and to forego some of his most fundamental rights.”
A source said Zuma was determined to go to jail rather than appear before Zondo. “You know you can’t force him, especially when you start thinking that you can force him. He is so determined. He’s not scared. He’s brave.”
According to another source, Zuma informed Zondo before walking away that he would take further part in the proceedings only in writing and after being provided with written questions.
“That’s one of the things that we told Zondo, and he knows it; we told him in Chambers. Even that whole thing that we walked out, it was disingenuous because we spoke to him in Chambers for an hour. We told him we are leaving.
“He was begging us, literally begging us, saying: ‘Please, what will people say when you walk out? They will say we are fighting. I don’t want to fight.’ He was so happy that JZ went there. He said that was something, and he is very appreciative that he came on his own.’
So the whole thing ... he wanted us to save him.”
The source added: “We made him an offer. We said put aside these problems. Ask us questions in writing, give us a list of questions of your areas of interest, and we will answer you in writing. If you are not happy with our answers, we can arrange a meeting that is recorded. If they want to video tape they can do that, for history, and he can clarify any issue. What we will never do is to allow JZ to go there and Pretorius says: ‘Turn to page 7, turn to page 8, is this your signature?’
“To parade him, because what is the key thing? Is it getting his side of the story or is it parading him? That’s also one of the options: we can send them our submissions in writing, answering all their questions. It’s about getting to the truth – not about making Pretorius or (Kate) Hofmeyr shine and build a career around JZ. If we go there and keep quiet, you and I will never know what happened; we will never know his side of the story. What is the benefit for the country?”
The sources said that, in response, Zondo told Zuma that they should first wait for the outcome of his recusal application.
“Basically, let me tell you, Zondo was happy with that but it’s Pretorius who was not happy. In the end we will get to that, because JZ is keen to put his side of the story, but not as a caricature. That’s not how you deal with leaders. What’s the difference if we go and book a conference room in a hotel and JZ sits and answers questions in a relaxed environment?
“The other thing is that he’s old. You can’t put him in a six-hour session. It would be irresponsible of us to do that because after four hours he may get tired. It means if we take him there, we must sit for two hours every day.”
Commission spokesperson Reverend Mbuyiselo Stemela failed to respond to the Sunday Independent’s questions after promising to process the inquiry and revert. Pretorius could not be reached for comment.
On November 23, Zondo announced that the commission would lay criminal charges against Zuma for walking away without his permission.
"Given the seriousness of Mr Zuma's conduct and the impact that his conduct may have on the work of the commission and the need to ensure that we give effect to the constitutional provisions that everyone is equal before the law, I have decided to request the secretary of the commission to lay criminal complaint with the South African Police against Mr Zuma so the police can investigate his conduct and this regard.
“The secretary would make available to the police all information relevant, as well as make information available to the National Prosecuting Authority," said Zondo at the time.”
However, the sources claimed that this was a sign that Zondo had run out of options. “They are desperate. They ran to the Concourt, hoping that the Concourt was going to rubbish JZ. They miscalculated. They wanted the Concourt to compel him to appear and they wanted a judgment by the 10th. So, the Concourt scuppered that.
They also wanted Concourt to tell JZ that he has no right to remain silent, and that one they are likely to win. The Concourt is likely to say we must appear when we are called. But it’s not that straight-foward. Assuming they get that order that we must appear. There is still a review that JZ has launched against Zondo and the Concourt will not have decided that review because it was not before the Concourt. That is in Pretoria,” said one of the sources.
“The Concourt must pronounce on that because they said they wanted the Concourt to say we have no right to remain silent. We can’t go there until we know that, if we go there, what are our rights. So that’s one of the big problems that they have. Even if they get an order that we appear and we go there, and keep quiet, what will they do because the right to remain silent is different from Dudu Myeni’s privilege because privilege is when you refuse to answer specific questions. The right to silence is when you get there, you fold your arms and they say, what’s your name, you refuse to answer. Of course you can understand that is a big Constitutional issue, whether you can force someone to talk.”
The drama started when Zondo dismissed Zuma's application for his recusal on November 19, saying the former president failed to meet the test for a reasonable ap In response,
Zuma’s lawyer, adv Muzi Sikhakhane said: “We will have to excuse ourselves right now. The instruction is to review your decision [when] you finally give us a copy (of the judgement). The issues are not common cause. "We will complain to the JSC (Judicial Services Commission) because you have made yourself a witness and a judge," said Sikhakhane.
For his part Pretorius, the head of the Commission's legal team, insisted that the summons was still valid and Zuma was obligated to take the stand at the commission.
"It is not up to the applicant to simply excuse himself, it's your decision”, Pretorius told Zondo.
He added: "Notwithstanding the decision to review, the proceedings must continue. If they are excusing themselves from proceedings, Zuma is acting in defiance of the summons and unlawfully. It is up to you, chair, to decide whether the proceedings continue or are stayed pending.
After a short break, Zuma did not return to the commission.
"It is a pity that he has elected to leave without asking for permission. This is a serious matter," said Zondo.