Judge Raymond Zondo opened Friday morning’s proceedings stating that at that point, he did not know what was going to happen. He had not been informed of the discussions that took place between the commission’s legal team and former president Jacob Zuma’s legal team the previous day.
The position of the commission’s legal team, as expounded by evidence leader advocate Paul Pretorius during the course of the morning, is paraphrased below:
- The legal team will exercise all its powers and all the duties of the commission, as delegated to them as contemplated in the act, regulations and rules.
- It is placed on record that the chair has the discretion to call witnesses to give oral evidence, and that Zuma responded to an invitation to appear.
- No witness may refuse to answer a question.
- Rule 3.2 of the Rules Governing Proceedings of the commission provides that the commission’s legal team may put questions to a witness, which may include leading questions, to assist the commission in assessing the truthfulness of the evidence of a witness.
- The legal team has not made, and will not make, any concessions in relation to the rules.
- All witnesses are entitled to fairness and fair procedures.
- Zuma is being questioned to elicit his response, in full detail, in respect of the matters raised by nine witnesses in their statements implicating him. Which have been furnished to him.
- Cross-examination, and the need to cross-examine, will be addressed in terms of the rules when it arises.
- The legal team deny that Zuma’s procedural objections and complaints are valid. His rights and the integrity of the commission will be fully safeguarded by adhering to the regulations and rules.
- The legal team will not deviate from the act, regulations and rules, which they are obliged to follow and enforce.
Advocate Muzi Sikhakhane SC, counsel for Zuma, said that he will start at “the end”, and inform the commission that they will no longer participate in the proceedings. His reasons included an allegation that Zuma had been invited to the commission under “no rules”.
Sikhakhane alleged that a crisis has been created because the evidence leader does not know what rules he is following.
In the interests of brevity, I summarise Sikhakhane’s views, objections and further allegations made during the course of the morning:
- Zuma is being subjected to relentless cross-examination.
- There are serious procedural deficiencies.
- “Chair – quite frankly – this is a joke. This witness is placed here where there are no rules.” This was in regard to the commission writing to Zuma asking if he was going to apply to cross-examine Agrizzi.
- Zuma is being treated from the beginning as if he has been accused.
- Every person selected from government had a grievance against him.
- The commission cannot assume who is guilty and who is innocent.A legal process must be cleansed from influence from outside.
- The nine witnesses who had implicated Zuma (Barbara Hogan, Nhlanhla Nene, Ngoako Ramatlhodi, Pravin Gordhan, Fikile Mbalula, Vytjie Mentor, Angelo Agrizzi, and Themba Maseko, had a grievance against him.
- Zuma has not been treated with respect.
Sikhakhane wrapped up by saying that they will explore the option of going to court. The commission has become a political process. The left hand does not know what the right hand is doing.
Judge Zondo made it clear that it was his decision to invite Zuma to the commission. This was an opportunity for him to tell his side of the story, and to enable Zondo and the evidence leader to put questions to him. Zuma accepted the invitation. The alternative was for the commission to subpoena Zuma.
It is to be noted that Zuma has not yet furnished the commission with an affidavit, nor has he applied to cross-examine any witnesses.
Zondo suggested a discussion in his chambers, where “there may be room to find a way”.
Sikhakhane was in no rush to go to chambers – he accused Pretorius of being patronising, and of boasting about his powers. He further accused the commission’s legal team of being incompetent, twice, and then withdrew that remark and said they were inefficient. He begged Zondo to investigate whether his left hand (the legal team) was acting in good faith, without influence, and whether this treatment of witnesses was intended, or a mistake.
Surprisingly, a way was found. It was agreed that the commission’s legal team will provide Zuma’s legal representatives with a document – indicating the sections from witness testimonies where Zuma will be required to provide his side of the story.
Has Zuma been given special concessions? Or, is Judge Zondo being shrewd? His conciliatory approach is making absolutely sure that Zuma will ultimately be compelled to deny or refute previous allegations by witnesses.
Zuma has not been precluded from testifying, he may have more time to ponder the matters on which he will be questioned, and discuss with his attorneys and counsel his response, but he will ultimately be required to present himself to the commission. If he refuses, the law requires that he be subpoenaed, and compelled to answer questions.