The State Capture Commission on Monday heard arguments about what constitutes bias. The commission was hearing the recusal application brought by former President Jacob Zuma against Deputy Chief Justice Raymond Zondo.
In his application, Zuma has claimed that he and Zondo are friends, a claim rejected by Zondo. Zuma has also claimed that he would not receive a fair hearing given Zondo’s statements and conduct with regards to earlier witnesses.
Deputy Chief Justice Raymond Zondo rejects Zuma’s claims
In an opening statement at the State Capture Commission, Deputy Chief Justice Raymond Zondo said while relations between him and former President Jacob Zuma have been cordial over the years, they are not friends, as Zuma has stated.
Adv Muzi Sikhakhane explains Zuma’s reasons for requesting Zondo’s recusal
“Mr Zuma has never been to any of the houses I have lived with my family since the early 1990s and I have never invited him. He only met my wife at the opening of Parliament and other government functions. He has also not been to any of the houses that I have lived in Gauteng over the last 24/25 years since my appointment as a judge in 1997. Mr Zuma and I do not socialise and have never socialised together. I accept that there are functions, special government functions that he attended and I attended and that on such occasions we greeted each other and would have brief conversations.”
Zondo pointed out that he has presided over a number of cases concerning Zuma in the past.
State Capture Inquiry, 16 November 2020
“From November 2011 to May 2012, when I was an acting Justice of the Constitutional Court, and in the last 8 years, since my appointment as Justice of the Constitutional Court, I have sat in a number of matters, which involved Mr Zuma as president in which the court has given judgments, sometimes against him and sometimes in his favour and Mr Zuma has never complained in all those years that I had a close relationship with him that disqualified me from sitting in matters in which he was involved.”
Zuma’s lawyer Muzi Sikhakhane said that the selection of witnesses, particularly at the commencement of the inquiry, was concerning. He said this suggested that the commission is a political project with former ministers Pravin Gordhan, Mcebisi Jonas, Trevor Manuel and Ngoako Ramathlodi having an axe to grind with Zuma.
“This commission lined them up in a way that was unintellectual, that would not have encouraged debate about this difficult subject. So, my client sitting at home having been head of state listening to witnesses, most of whom have an axe to grind with him either because he fired them or did not intervene in some HR issues they were involved in. Truly, that selection created the impression that a particular version had been accepted.”
Sikhakhane said that Zuma had not been treated fairly by the commission, with serious claims of the political conspiracy he testified about being ignored or ridiculed. However, evidence leader Paul Pretorius challenged the recusal application, saying Zuma’s claims do not pass the test of bias as they make no allegation of actual bias against their client by Zondo, and do not allege that Zondo has made up his mind on testimony already heard.
State Capture Inquiry, 16 November 2020 Part 2
“The claim before you, Chair, is not that the chairperson’s mind is made up and not open to persuasion, it has not been said to you, chair, that what you have said is not open to being persuaded that you can change your mind. In that case, the test for recusal is not met in that case there is no ground for the reasonable apprehension of bias, but merely, an apprehension by the applicant that adverse findings can be made against him.”
Zondo pointed out that his recusal would result in the collapse of the commission as he is its sole chairperson. He suggested that perhaps Zuma should take the commission’s findings on review should he be aggrieved.
For his part, Sikhakhane has said it is not his client’s aim to dismantle the commission and said that a solution needs to be found that creates an environment within which Zuma can testify without being made to feel that he is an accused person.
The application hearing continues on Tuesday with Zondo expected to make a decision following arguments.
