By: Sello Theletsane
Former President Jacob Zuma has branded the Zondo Commission report “unlawful and highly irrational”.
Speaking through a media briefing hosted by Jacob Zuma Foundation on Saturday. Zuma said the report of Chief Justice Raymond Zondo “who in almost four and half years dismally failed to find evidence beyond innuendo and conjecture to prove that he (Zuma) had abdicated his executive authority to the Guptas and was thus “captured” by them”.
“Instead, Justice Zondo dabbled into areas best suited to be dealt with by either the Directorate for Priority Crime Investigations, (HAWKS) or the newly established Investigative Directorate within the National Prosecuting Authority.”
“Given that it’s almost half a decade since this investigation began, the Foundation deemed it appropriate to quickly remind South Africans of the pertinent history around this Inquiry and put it into the correct context.”
The foundation said: “The Constitution of South Africa on section 84 on Powers and functions of President is unambiguous on 84(2)(f) that “The President is responsible for appointing commissions of inquiry”.
“There is nothing in the Constitution of the Republic of South Africa that gives a Chief Justice a role to select the Chairperson of the Commission. But the law was broken right in front of our eyes.”
“His Excellency President Zuma was reduced to a clerical function of appointing Justice Zondo who was selected by the then Chief Justice. The jury is still out as to why the initially chosen Chair of the Commission, Justice Desai was mysteriously changed on the day of the appointment. In summary, we hold the view that given the unlawfulness of how this Inquiry was set up, it cannot be that its findings and recommendations are lawful. The report is therefore a classical case of the fruits of a poisoned tree.”
“To say Chief Justice Zondo is unworthy of being called a judge would be a serious understatement. Chief Justice Zondo fails the most basic of the tests even for the most junior judge. No self-respecting judge worthy of that title sits in a case where he/she is directly affected and demonstrably conflicted in order to settle personal scores.”
Added the foundation: “Even during his recent media conference when he was handing over the report to the equally conflicted president who is under investigations by the Hawks and Public Protector amongst others, he failed to show remorse when responding to journalists’ questions whether when looking back he would do anything differently.”
“The record will show that during the deliberations in the Commission, Justice Zondo like all other witnesses, deposed to an affidavit where he denied his subsequently well-established proximity to and relationship with President Zuma. Justice Zondo’s affidavit was made in response and in rebuttal to the statement by President Zuma that they were previously friends.”
“Justice Zondo deliberated on the two affidavits and decided to dismiss the submission of President Zuma in favour of his own affidavit. If that is not a travesty of justice by the now most senior judge in South Africa then we don’t know the meaning of that term.”
“Without digressing, it is worth mentioning that before the Judicial Service Commission (JSC), Justice Zondo contradicted his statement about his proximity to President Zuma.”
“In response to a question about his political meddling, he tried to justify his reason for the visit but instead, what we remember is that he said, “I knew him, it might have been more than 20 years.”
“He also miraculously “could not remember” what they discussed when they met more than once in hotels in KwaZulu-Natal.”
“It didn’t end there. President Zuma, a citizen who fought for the democracy of this country, again asked Justice Zondo to recuse himself, so that a neutral person could receive his submission. No, was the answer.”
“The South African media and judiciary instead entrenched the false narrative that President Zuma, by insisting on an unbiased decision-maker, was “refusing” to go to the Commission. For this, he was jailed without a trial at the instigation of the so-called Zondo Commission.”
The foundation asked: “Why would President Zuma, a law-abiding citizen who has been willingly attending courts, including criminal courts, for almost 20 years suddenly and for no reason “refuse” to attend a toothless inquiry investigating a phantom thing called “state capture”?”
“In a further act of bullying and abuse of power, Justice Zondo who also at the time was the Deputy Chief Justice, complained to his subordinates at the Constitutional Court, who also failed to direct him to the rules of his own commission which would have told him to complain to the police or approach a lower Court.”
“Instead, he approached the Constitutional Court directly and urgently in 2020 under the false pretences that the Commission was left with only two months to finish its work. Two years thereafter the Commission was still continuing and even unlawfully issued its final report after the date determined by the court for its expiry.”
“It was therefore Zondo who acted in contempt of court. History will show that all this resulted in President Zuma being the first and only South African citizen who is a victim of Constitutional Court-ordered incarceration and imprisonment or detention without a trial or even the opportunity to plead “Guilty” or “Not Guilty”. “
“He will also go down as the only prisoner who never had the opportunity to mitigate and appeal his sentence. This is what the media and apartheid apologists called the best display of “equality before the law.”
“President Zuma was and continues to be selectively illtreated by the legal system of South Africa. It would be wrong to upgrade our legal system into a justice system. There is still no fair justice system in South Africa. We are yet to see and experience the blind justice system for which people like President Zuma sacrificed so much, including long-term imprisonment in Robben Island and life itself.”
“Turning to the unlawful report of the unlawful Commission, it is predictably full of gossip, innuendo, and conjecture. It is very short on concrete evidence.”
The foundation said It was not clear what exactly did Justice Zondo and his team do, “almost half a decade and R2-bn later”.
The foundation said Zondo had simply passed the buck to the NPA to do the investigations which it was mandated to do.
The foundation said Zondo’s report “is characterised by bias in favour of the faction that is supportive of President Ramaphosa”.
“Chief justice Zondo himself could not hold back his political and factional support for President Ramaphosa.”
The foundation accused Zondo of praising Ramaphosa for taking over from President Zuma “and by default impugned the integrity of Dr. Nkosazana Dlamini Zuma and all those who voted for her by adding that “more damage could have been done to the National Treasury” had she won at NASREC”.
“On what basis, and on which evidence or submission made at the Commission did Chief Justice Zondo conclude basically that DR NDZ would have done the damage he imagined?”
“What kind of a judge is this? This was a gratuitous insult not only to a candidate who narrowly “lost” by a mere 179 votes but to hundreds of thousands of ANC members who supported her candidacy for President of the ANC and the country.”
The foundation said unlike Zondo, the country will never know what a missed opportunity Dlamini-Zuma’s presidency would have been for the majority of black South Africans.
The foundation said “following further reckless and irresponsible comments by Chief Justice Zondo, President Zuma has briefed his legal team, among other things, to report Chief Justice Zondo to the Judicial Service Commission within the next week or two”.
“Specifically, the JSC will be asked to investigate the grossly unlawful comments by Chief Justice Zondo who took it upon himself to comment on matters pending before the Courts.”
“Chief Justice Zondo is on record saying “Mr Fraser who was National Commissioner for Correctional Services, granted him (Zuma) medical parole under questionable circumstances.”
“The specific issue of whether the granting of parole was appropriate
or “questionable” is to be heard in the Supreme Court of Appeal on 15 August 2022 to the full knowledge of Justice Zondo.”
“Thereafter and irrespective of the outcome, the matter is most likely to end up in the Constitutional Court presided over by Zondo himself.”
“As the Foundation we are totally convinced that the Chief Justice was giving a coded message to the Supreme Court of Appeal to rule in a manner that would confirm what he has unilaterally declared as “questionable circumstances”.
“We however hope that this time the SCA will not allow itself to be bullied into unlawful and unconstitutional conduct.”
The foundation said the JSC would also be asked to investigate the “unwarranted insults by the Chief Justice to President Zuma and the people of South Africa”.
“Further to political meddling, Chief Justice Zondo decided to extend his scope of work and propose a system of how South Africans should elect their President. In his utterances which were not informed by any submissions to the Commission, he discouraged the party system and instead he pronounced in support of a system where the President is directly elected.”
The foundation said Zuma had also instructed his legal team to accelerate the ongoing review of Justice Zondo’s refusal to recuse himself.
“He has also asked the legal team to look into reviewing the so-called Zondo Commission Report in so far as it refers to him. Given all his transgressions and displays of incompetence, the foundation has also separately instructed its own lawyers to look into the possibility of challenging the unlawful appointment of Justice Zondo as the Chief Justice of South Africa in spite of his dismal performance at the JSC interviews as observed by millions of South Africans on national television. “
The foundation said an announcement in this regard would be made in due course.
“Given his bias towards the current President of the ANC, who is the first President of the ANC to drop electoral support below 50%, it’s not clear whether he is forecasting a poor election result for the ANC under his messiah President Ramaphosa in 2024 if he gets re-elected or is he trying to prepare South Africans not to vote for the ANC given the woes facing his favourite?”
“Perhaps he fears that a faction hostile to his favourite might emerge.”
“Chief Justice Mogoeng was recently, rightly or wrongly, punished for his utterances which were deemed to stray beyond the restrictions of his judicial office into the political arena, the same should happen to Chief Justice Zondo.”
The foundation said H.E President Zuma had briefed his lawyers to ask the JSC to consider appropriate sanctions for Zondo, “not only for his irresponsible and highly inappropriate political and factional utterances but also clearly for putting the judiciary into disrepute”.
“Beyond that Chief Justice Zondo also ventured to insult President Zuma
directly and even mentioned his name as a person basically not worthy of having been twice voted for by millions of South Africans in successive democratic elections.”
“Such hatred for another human being by a sitting judge calls for all-around condemnation. His conduct only serves to vindicate the position adopted by President Zuma that he could never receive justice in the hands of someone who harbours such deep-seated resentment towards him and his supporters in the ANC and society at large.”
The foundation said it was of the view that “it was condescending in the extreme for Chief Justice Zondo to think that simply because he personally does not highly rate president Zuma, a political view to which he is entitled as an individual, it must therefore follow that the people of South Africa would be putting themselves at risk if they elected “someone like President Zuma”, a freedom fighter who is the last President of the ANC to win electoral support of more than 60%”.
“Chief Justice Zondo is basically finding fault with 60% of the electorate that voted for the ANC knowing that His Excellency President Zuma was facing trumped-up charges.”
The foundation said Zuma would be requiring the courts and the JSC to separately give a serious look into “the following five acts of illegality, breaches of the constitution and the applicable Judicial Code of Conduct”
1. The exact nature of the historical relationship between Pres Zuma and Justice Zondo.
2. The refusal by Justice Zondo to recuse himself when he was reasonably requested to do so
3. The political and factional remarks made by Justice Zondo about the outcomes of the ANC National Conference held at NASREC in 2017.
4. The gratuitous insults and political references and politically poisoned references to President Zuma in respect of the proposed change of electoral system; and
5. Most seriously, the flagrant abuse of power by Justice Zondo in his irrational and insensitive remarks that the parole decision which was made at the recommendation of medical experts, and in view of Pres Zuma’s ill health was “questionable”.
“By doing so, Justice Zondo was once again seeking to influence the outcome of a pending court decision. Reliance will be placed on the following compulsory provisions of the Judicial Code of Conduct; discharge of judicial office, not comment publicly on the merits of any case pending before, or determined by, that Judge or any other court”.
“Article 11 (a) of the Code prescribes that “A judge must, save in the
3.12. Article 12 (b) of the Code prescribes that “ a judge must not unless it is necessary for the discharge of judicial office, become involved in any political controversy or activity”
3.13. Article 12 (d) of the Code prescribes that “use or lend the prestige of the judicial office to advance the private interests of the judge or others.”
