Former president Jacob Zuma made another dramatic appearance before the commission of inquiry into state capture yesterday. Much of yesterday's proceedings, however, centered around arguments by Zuma's lawyer, Adv Muzi Sikhakhane, in the application for the recusal of Deputy Chief Justice Raymond Zondo.
Sikhakhane raised several issues with Zondo and the commission, spending the first day recounting details of witnesses that came before the inquiry to support Zuma's claims of perceived bias against him.
Here are the key takeaways from the first day:
Lining up witnesses to suit a narrative:
Sikhakhane said the commission's order of witnesses some two years ago was concerning as it elevated “star witnesses” who presented Zuma as a villain, while they portrayed themselves as saints. Among these witnesses were former finance ministers Pravin Gordhan, Trevor Manuel and Nhlanhla Nene, former deputy finance minister Mcebisi Jonas, and minister Fikile Mbalula and former minister Ngoako Ramathlodi.
"They come here to paint a particular narrative about Mr Zuma. The commission could have gone to different people... they (witnesses) didn't line themselves up," Sikhakhane argued.
Head of the commission's legal team, adv Paul Pretorius, disputed that the line-up of witnesses was meant to push a certain narrative, arguing that Zondo had invited Zuma for his version as far back as in 2018.
They come here to paint a particular narrative about Mr Zuma. The commission could have gone to different people... they (witnesses) didn't line themselves up
Zondo comments show bias:
Sikhakhane argued that comments made by Zondo to some of the witnesses, including Gordhan and former minister Barbara Hogan showed that he believed their version and was aligned to it.
During Hogan's testimony, Zondo remarked:“It seems to me what you were told on the phone by the former president [Zuma] amounted to saying [Jacob] Maroga was going to continue as Eskom CEO and there is nothing that was going to be done about it — as far as the president was concerned, about the board's view that he had offered to resign and they had accepted that."
Sikhakhane said Zondo’s comments were feeding into that “narrative” that Zuma had interfered unduly in the running of state-owned companies. Sikhakhane said this was tantamount to Zondo lobbying Hogan towards a particular view. But Zondo disputed this.
Sikhakhane accused Zondo of having been very welcoming and polite to Gordhan and accepted his testimony as the gospel truth. Zondo disagreed, saying provisionally accepting one witness' testimony did not mean he was unable to change his mind once a different version is presented. Sikhakhane said Zondo hyped up versions of earlier witnesses, and that his commentary on their testimonies painted a picture of accepting theirs as true before hearing contradictory versions.
Pretorius, however, said Zondo was guided by the terms of reference of the commission and argued Zuma's argument on a "select exchanges" between Zuma and other witnesses showed lack of appreciation of the duties Zondo had as the chairperson of the commission.
He said Zondo needed to interrogate witnesses and that did not mean he would not accept another contradictory version when presented with it.
Zondo’s powerful position
Sikhakhane said Zondo was in a powerful position as commission chair and that his comments could be viewed differently by witnesses who were accused at a particular time he makes comments that appear to be against them. “You are a very powerful man sitting there. Once you put a proposition and they assume the chair is with me here, that witness will lurch to what they say is your predisposition,” he said.
Pretorius argued that it was in the nature of Zondo’s job as the chair of the commission to engage witnesses. He argued that it showed “lack of appreciation in the duties of the chairperson. It’s your (Zondo's) job to interrogate to understand. You can never be silent…"
Zuma treated like an accused:
Sikhakhane argued that when Zuma had indicated that he was sick, the commission did not believe him and showed that it believed a narrative that Zuma did not want to appear before the commission. To illustrate his point, Sikhakhane said a doctor's note was required from Zuma to prove that he was sick.
Pretorius argued that reasons for Zuma to believe that Zondo may find against him are not informed by anything that Zondo may have said or commented on at the commission.
Zuma wants a correct environment:
Sikhakhane said by asking Zondo to recuse himself, they were seeking to "correct an environment that was started" by Zondo's comments.
He said Zuma wanted to give South Africans his version but felt the environment that Zondo had created needed to be corrected.
Pretorius argued that the commission needed to be careful in how it handled Zuma's matter to avoid treating witnesses differently. He said they should avoid creating "all sorts of problems" for themselves in future. Pretorius said there was no evidence presented by Zuma which illustrated any biasness from Zondo.
Proving judge's bias a tall order, experts say
Former president Jacob Zuma's application for Zondo needs to meet the highest standards set by the Constitutional Court.
Wits University's Professor Stephen Tuson said the standard for recusal was very high and that a proper approach was formulated by a Constitutional Court ruling in a matter involving the SA Rugby Football Union.
"It's called the double reasonability test with the first half of the test meaning that a reasonable person would believe that a judge is biased and that belief must also be based on reasonable facts," Tuson said.
He said the burden of proof that the judge was biased and appeared to be biased lied with Zuma.
Constitutional law expert Pierre de Vos said Zuma's arguments were not "legally persuasive"
"I think it was not very legally persuasive because the standard for recusal is very high. You have to basically prove that a reasonable person believes that deputy chief justice is not capable of having an open mind," De Vos said.
He said he would be very surprised if a recusal would be granted.
"A reasonable person is also not the person that's asking for a recusal and it is also not helpful to say a person asking for a recusal is fearful that an adverse finding will be made against him as that happens all the time. So you have show more," De Vos said.
You take me a pic, you gotta talk to me' - Zuma
The former president, who showed little emotion during the proceedings at the State Capture Commission of Inquiry, was however in high spirits during the breaks.
While walking out of the old City of Joburg council chambers in Braamfontein during the lunch break on day one of his appearance, Zuma was his charming self as he lowered his face mask to chat and joke with two female photojournalists.
Zuma seemed to be in high spirits, stopping for a few second to chat to the photographers: "Uma izintombi zingishuta izithombe, ngikhuluma nazo, ngikhulume nawe (When I'm being taken pictures by ladies, I speak to them, should I speak to you?)," he said before giggling and walking out with his entourage in tow.
When Zuma left after adjournment in the afternoon, he asked the same photographer: "Are you still waiting for me?" He then laughed once more before walking out.
Outside, a small group of members of Umkhonto wesizwe Military Veterans Association (MKMVA) dressed in military uniforms gathered outside in song and dance to show support him support.
Despite their small number, they sang struggle songs with Zuma's name, one of their songs had lyrics which asked: "What has Zuma done?"
They formed a guard of honour while waiting for him to leave. Among those present at the commission to show Zuma support was former North West premier Supra Mahumapelo.
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