Former president Jacob Zuma has approached the Pretoria high court for an order setting aside the appointment of Deputy Chief Justice Raymond Zondo, in January 2018, to chair the inquiry into state capture.
He also asks the court to order President Cyril Ramaphosa to appoint somebody else to head the commission, arguing that it was crucial that state capture be probed in an impartial manner.
This is part of the relief Zuma seeks in an application filed in December as an amendment to one he filed in the middle of 2021. In Zuma’s initial approach to the court, he asked it to set aside Zondo’s dismissal of his application before the commission, in late 2020, that the judge recuse himself from hearing his testimony or that of his family to the commission of inquiry into state capture.
As part of the amended motion, Zuma is also asking that the court declare null and void any “rulings, decisions and directives” Zondo made pertaining to himself and his family.
Further to this point, Zuma also asks that Zondo’s decision to approach the Constitutional Court for an order compelling him to testify before the commission was in breach of the Commissions Act and, hence, unconstitutional.
He argues that no commission of inquiry has ever sought direct recourse to the highest court in the country to enforce the Act, and claims this meant that he was “deprived of equality before the law”.
The commission secured the order, and Zuma’s defiance of it then prompted the commission to return to the Constitutional Court to seek an order that he was in contempt of court, which led to him being sentenced to 15 months in prison.
He was jailed in early July, but released on medical parole in September by then director general of correctional services Arthur Fraser.
On December 15, days after Zuma signed the affidavit attached to his amended application, the Pretoria high court ruled Fraser’s decision to grant him medical parole unlawful and ordered that he return to prison to serve the remainder of his sentence.
Zuma is appealing that ruling, hence, it is suspended until the Supreme Court of Appeal pronounces on the matter.
The former president’s amended application asking that Zondo’s appointment be set aside and someone else be appointed in his stead has baffled lawyers because it is now academic. Zondo released the first of his three-part report on state capture earlier this month.
It mentions Zuma more than 90 times and concludes that in the case of the South African Revenue Service, the then president was central to an unnecessary and ruinous restructuring of the entity carried out under Tom Moyane as commissioner.
In his papers, the former president argues Zondo was not fit to receive or assess the evidence he gave to the commission.
But a legal source said Zuma’s application cannot work as a pre-emptive strike against the report by including any findings implicating him in corruption in the directives of the commission he wants the court to nullify.
Zuma’s application revives his long-standing claim that Zondo’s appointment flouted section 84 of the constitution.
He, of course, appointed Zondo himself in the dying days of his presidency, after the Pretoria high court ordered him to appoint a commission within 30 days to be presided over by then chief justice Mogoeng Mogoeng.
Zuma had unsuccessfully challenged then public protector Thuli Madonsela’s directive that he appoint a commission of inquiry but that the person to head it be chosen not by the president, because he was conflicted, but by the head of the judiciary.
His review bid was memorably termed “reckless” by Judge Dunstan Mlambo.
In his papers, Zuma said he had wished initially to confine himself to challenging Zondo’s refusal to recuse himself from hearing his testimony to the commission, but that, “given my subsequent experience with the commission of inquiry, I am forced to seek direct orders relating to whether the chairperson was lawfully appointed in terms of the constitution”.
He adds that he feels Zondo was biassed and persecuted him unfairly, a refrain he has maintained for more than a year as his stated reason for refusing to co-operate with the commission and defying the Constitutional Court.
“Why I now seek to attack his appointment is because of his conduct towards me after I sought to secure his recusal,” Zuma says, adding this ultimately resulted in his imprisonment and that, even if he only spent two months in jail, “I continue to serve my sentence though now on medical parole”.
He insists that Zondo was “entirely lacking the standard of impartiality of a judge and the chairperson of a commission of inquiry”.
The commission has not formally filed papers in reply to the amended application.