An acting High Court Judge may have ‘thrown a spanner’ in the works of South Africa’s Deputy Chief Justice Raymond Zondo in his state capture commission probe into corruption.
Acting Judge Vuyani Ngalwana has used a little-considered element of the terms of Zondo’s commission – which has already faced challenges from those not wanting to testify before it, including most recently from former president Jacob Zuma – to ‘request’ the commission to examine President Cyril Ramaphosa and key members of former president Zuma’s then cabinet.
The acting judge’s rationale in formal papers put to the commission is that Ramaphosa – along with some key allies — be called to testify about what they knew while Zuma and his cohorts were allegedly engaged in mass thievery of state coffers.
The request has been made in terms of a provision in which “any person” who thinks “a particular witness” should appear before the commission, may request the commission to hear such testimony if considered likely to have “value”.
His grounds for calling Ramaphosa are that as Zuma’s deputy for nine years, along with others serving in Ramaphosa’s current cabinet — such as key ‘clean-up’ minister Pravin Gordhan — are best placed to speak to what they knew while Zuma was allegedly allowing widespread corruption.
The request places Zondo in an unenviable position regarding his commission’s credibility, given that on its back rests much of Ramaphosa’s bid to clean up both the ruling party and its corrupt ‘deployees’ in government positions.
Tension between Gordhan and Zondo is evident as the latter berated the minister for putting other matters before his testimony. This potentially puts both Ramaphosa and Gordhan on the spot.
If Zondo grants the request, Ramaphosa will be hard-pressed to say he, and others, “knew nothing”.
Earlier this month, Zuma was summoned before Zondo for what was to be five days of testimony.
That move to force Zuma to testify followed several prior failures to show up – ostensibly due to illness or due to changes in his legal team.
This time Zuma appeared as ordered, only for his legal team to argue for Zondo’s recusal on grounds of both being ‘friends’ with Zuma and allegedly being biased against the former president.
Zondo gave the recusal application more than two days of thought before rejecting it.
That triggered Zuma’s walk-out on the commission and subsequent forwarding by Zondo to police and prosecution authorities of charges related to contempt and failure by the former president to honour the summons.
Acted outside the law
In walking out, Zuma has manifestly acted outside the law and likely, therefore, faces fines and jail time.
Ramaphosa cannot afford to do like Zuma. His only hope of avoiding a very difficult and politically problematic experience before the commission is for Zondo to use the discretion he has been given to call witnesses, or not, as he sees fit, notwithstanding the acting judge’s powerful request.
Part of Zondo’s problem in rejecting the request is that the acting judge is also on the High Court bench and Zondo cannot ignore him without appearing biased.
The acting judge has also cited other parties who, strictly speaking, should also be testifying, given that there are reasonable grounds to believe they may be able to throw additional light on state capture processes and where monies went and under who’s oversight.
In support of his application to have certain evidence led at the commission, Ngalwana declares that he is “currently acting as a Judge of the High Court of South Africa, North Gauteng, Pretoria”.
“I have chaired the General Council of the Bar of South Africa. I am also a Fellow of the Africa Leadership Initiative and fellow of the Aspen Global Leadership Network,” he adds, driving home his credentials.
“I take leadership seriously and subscribe to the shrill impatient call of leadership — ‘If not me, then who?’”. It is this call that I answer when I see what I consider a leadership vacuum characterised by the most obvious questions of accountability not being asked at the right forum.”
The acting judge, ostensibly taking a neutral position, says he is not now, nor has he ever been, a member of any political party and has “openly divulged the political parties for which I have voted in the past”.
“I currently have no political affiliation to any political party or a section or faction within any political party. My loyalty lies with the Constitution and not natural persons (personalities).”
The acting judge, making Zondo’s potential to refuse the request all the harder, adds that “as a citizen as I believe it to be in the national interest for someone” to make the request.
“I do so because, in my assessment, the country is going to ruins while organs of state established to protect and promote the Constitution fail to ask critical questions of people who seem protected from scrutiny and who have much to answer for,” he adds.
Given more time, Zondo may have been forced to accede to the request.
The commission has been running since August 2018 and has only until end March next year to wrap up all testimony and produce a report.
Consequently, Ramaphosa – along with those named for questioning – may be saved by Zondo’s time limit, whereby he can argue that the witnesses to date, and those few still outstanding, including Zuma himself, are all the commission can handle in the time available.
Even so, and with questions still being asked about who funded Ramaphosa’s 2017 bid for the top job in the ANC, what he knew of Zuma’s alleged misconduct is a political and legal quagmire into which he is very unlikely to want to step.
It remains for Zondo to rule on the ‘request’.
Put on the horns of a dilemma by this ‘last minute’ development, Zondo will have a tricky legal road to walk if he is going to decline the request in a way that does not leave him open to the obvious accusations of bias, perceived or otherwise, as already made by Zuma and others in Zuma’s camp.
Without clarity on the issues raised, “South Africans with the good of the country at heart cannot move forward with a clear conscience that corruption is a thing of the past, and that the serving President is free from the influences of big business”, says Ngalwana, alluding to allegations that Ramaphosa, in his turn, has been ‘captured’ by business interests.
The acting judge concludes with what amounts to an ultimatum in the form of an open threat of further legal action, possibly a review of Zondo’s findings, if the judge does not explain in writing a refusal to accede to the ‘request’. ■