What does it mean that DCJ Zondo stands accused of bias?

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By: Clyde Ramalaine

-Is Zondo above the political temptations of a next career step? –

August 20 will mark two years since the State of Capture Commission (SoCC) had its first official hearing. The SoCC as led by Deputy Chief Justice Zondo is already on its second extension and is yet to establish the state of capture as advanced by the propagators of the dogma of state capture. We know that the Commission by September 2019 has already cost taxpayers R356m it, therefore, can be accepted that by the end of its final report, an amount of R800m to R1bn will not be far-fetched.

Last week the State of Capture Commission continued with hearing evidence on the Passenger Rail Company (PRASA). It once again heard evidence from former Chairperson of PRASA, Pope Molefe who appeared for his record sixth time before the Commission.  Increasingly it becomes clear that Molefe is a critical if not the key witness on the claim of PRASA and state capture. Molefe last week also dragged the former ANC top six [Zuma, Ramaphosa, Mbete, Mantashe, Mkhize and  Duarte] into the fray as having collectively turned a deaf ear when he approached them on the corruption at PRASA. The commission among others heard of property deals of the former CEO Lucky Montana.

Following the events of this week, Montana who in June and July 2019  offered to appear before the Commission,  penned a stinging letter to the Chair of the Commission in which he directly accuses Zondo of being biased and detailing a made-up mind on some who are mentioned before this commission. Montana in his own words, “However, your conduct during the current PRASA hearings has changed my view. Your unfortunate statements during the testimony of Popo Molefe and Martha Ngoye, and your terrible treatment of Mr Louis Green are the last straw for me. You and Mr Soni tried so very hard to force Mr Green to say what you wanted to hear, and not the truth. I take my hat to this old man for the courage to stand up to one of the most powerful men in our country. It finally dawned on me during Louis Green’s testimony that you, Deputy Chief Justice, had lost your sense of fairness and deep commitment to justice. I kept asking myself whether this man would be the next Chief Justice of South Africa. [sic]
Montana attaching an earlier penned referenced letter, reminded Zondo that he on a previous occasion had written to the Commission to convey his, ‘various concerns, in particular the issue of the Commission’s investigative and legal teams’ bias conduct in this matter. This is in regard to their attempts to curtail the full extent of my evidence from my draft submission and protect certain individuals and companies (I attach letter for ease of reference).” [sic]

He then goes on to assert that while he had understood bias as limited to the investigating and legal teams of the commission respectfully, he now concludes this observation of bias,   “…is rooted at the very top of the Commission. It is clear to me that the Commission wants to cherry-pick what it wishes to hear and has a perceived outcome of the matter relating to PRASA.” He continues, “I did not mind watching the performance of Popo Molefe, Martha Ngoye, Fanie Dingiswayo and Clint Oellermann telling lies and misleading the Commission. I was not bothered because I knew that my chance would come to present my version supported by facts. However, you have made unfortunate and reckless comments during their evidence. Your demeanour, cynical laughter and perceived hero-worship of Mr Popo Molefe leaves much to be desired. Clearly, at this juncture, there is no doubt that you are fostering bias and you are not impartial to the hearing.”

To corroborate his challenge with the conduct of Zondo, Montana asserts, “There are at least a minimum of twenty instances where you have made unfounded comments which tells me that you are not committed to hearing the facts or the truth. You have praised persons who are the actual culprits which lead to the demise of PRASA yet you and your investigative team under Clint Oellermann will not entertain evidence to illustrate the guilt of these individuals.

Montana makes a categorical and very troublesome summation on the attitude of Zondo in saying, “One can only surmise from the questions which you ask the witnesses, that you have already passed judgment in this matter, without hearing the full extent of evidence. From what I stated above, I have come to the conclusion that I was wrong about your character and integrity. Under your watch, this Commission is turning into a farce and is not dignified because you seem to be impervious to the truth.’’ [sic]

Since the Montana letter, there are at least two groups of South African minds. Naturally, some would dismiss Montana’s complaint as the voice of the guilty. For them, Montana’s letter attests the cries of the accused seeking to deflect his guilt in hoping to escape by rendering the entire Commission into question.  On the other hand, some see Montana as courageous and communicating their long-held reservations of the commission for its political pliant nature.  In Montana, these have found a noble voice who is not unwilling to appear but have reservations on the fairness of the Commission as a lived experience for some. These two minds define South Africans in their thinking on the subject of the SoCC, its chairperson, investigative team, legal team, witnesses and those mentioned before it.

It is easy to argue the two different and opposing minds defining South Africans in their thinking is normal for any society, however, South Africa is not a normal society. The State of Capture Commission is not a normal process and event, but a particular Commission informed by terms and references that while legal is fraught with inter and intra-party politics. The politics of agendas that chronicle narratives since state capture is a useful tool for some in the body politic of SA.

State Capture the DA political campaign

Proving state capture, which is considered an orchestrated form of corruption that is linked directly to the former president as its central focus, derives from the Democratic Alliance’s 2009 ‘3-C political campaign’. The 3C’s of cadre deployment, corruption and capture was a neatly crafted plan to be deployed in periodic settings showing the ANC as wholly inept, rotten in corruption thus unfit to lead SA. As previously stated, this campaign needed a constitutional Chapter 9 institution to give it a legal footing and it found such a friend in the former Public Protector Thuli Madonsela whose last report solidified the DA campaign into an official report of claims of State Capture. The genesis of this Commission is nothing but the report of the outgoing Public Protector and that context can never be overstated.

State Capture the factionalised convenient political ANC Campaign

If Capture was an official DA campaign against the ANC with Jacob Zuma as its core focus, it in 2017 found mileage and usefulness in the factionalised organisation of the ANC.  State Capture also became an internal ANC campaign driven by some to accuse others while exonerating themselves. It defined the central theme of the campaign of the current President of the ANC and SA when he mounted his now-infamous R1bn CR17 campaign for ANC high office. The entire campaign of Ramaphosa given its opaqueness in policy position and its lack of ideological substance,  was premised on the notion of state capture as its weapon and a means to an end. Every single speech delivered by Ramaphosa from his 2017 campaign for ANC high office included the subject of state capture.

Interestingly both Democratic Alliance and  Ramaphosa prove congruent in the interest of findings against Zuma on state capture.  While State Capture lays bare the fissures in a factionalised ANC, it is also a useful means to accuse some when it seeks to exonerate others in the now known media script of natural ‘demons’ and ‘angels’ in reference to politicians.

State capture for political players be they in blue DA or black, green and gold ANC colours compels the Commission to conclude with specific findings and outcomes.  Ramaphosa nailed his colours to the mast a long time ago when he in the narrowness of self-interest, desperate to untie himself from Zuma, could politically eulogise his predecessor with a narrative of nine-wasted-years.

2021 will bring a new chief justice, and Ramaphosa will have the final say.

Yet state capture beyond DA and ANC party politics details a wider circumference including personal career politics. It’s a year before the current Chief Justice Mogoeng Mogoeng’s 7-year tenure is concluding and a new CJ will be appointed. Mogoeng is currently taking much flak for his public religious views as expressed in a religious meeting on Israel. Mogoeng was vocal on the R1bn CR17 campaign when he in his 2019 Mandela-Lecture,  made it clear nobody gives you R10 million and expect nothing. Mogoeng with this statement directly questioned the innocence of Ramaphosa since big money made huge contributions to his CR17 campaign. We all know how Ramaphosa until now has gone to all lengths to protect the identities of those who funded his campaign. Ramaphosa, therefore, could be silently praying that Mogoeng’s time is up since he needs someone more aligned to him and his political agenda.

This brings DCJ Raymond Zondo to the centre of possibilities of becoming the next Chief Justice. In this sense, the biggest assignment Zondo hitherto had was presiding over the commission.  In a big sense, this commission and its outcomes is his resume and also his golden key to the proverbial corner office. Zondo will be remembered for his role in this commission and his report will determine his future. Meaning Zondo has more than material interest to make a set of findings, not in the basic sense of what commissions normally of this type conclude, but cognisant and aligned to the political agenda of a president who will ultimately decide his next career step. It could be expected that Zondo make findings that will answer political interests and chief among those are the interests of a sitting president who has made state capture his mantra.

You will recall that Ramaphosa spoke of state capture in frames of such certainty when not a single case in this regard was yet entertained in any court of law. He spoke on the prevalence of state capture when Zondo was begging South Africans to come forward to testify. Shall we forget how annoyed Ramaphosa was that the NPA and Hawks according to him [despite his apparent constitutional and legal background of how justice functions] have done nothing in arresting the accused? This growing obsession to conclude in findings against some in the act of state capture is more than significant for Ramaphosa.  I almost want to venture to say, the interest he holds long eclipsed that of the DA, since the DA got what they wanted – a Zuma removed from office by the ANC.

As is normal in SA, the President [Ramaphosa] in this instance,  ultimately will decide the successor of Mogoeng and the man with more than a foot in the door is Raymond Zondo. Zondo, therefore, must just deliver on the proverbial goods. The delivery of outcomes may also constitute findings against some that in ANC organisational setting are considered already guilty as portrayed by the media crafted narrative of ANC ‘demons’’.

Issue of Conflict for Ramaphosa

As alluded to earlier Ramaphosa has been using the “state capture” commission as a battering ram against his political opponents but it appears, he may find himself in the dock along with his erstwhile political enemies.  The question is whether Ramaphosa will use his  Presidential powers to reject any adverse findings of the commission against him and his former top six friends.

There is a much more serious issue of conflict for Ramaphosa as well. Recommendations of a commission of inquiry are to be accepted or rejected by the President and they must also satisfy all the PAJA (Promotion of Administrative Justice Act) requirements of fair procedure requirements.  Ramaphosa has now been implicated in corruption, since he is accused by Molefe of being one of the “top six” ANC officials who turned a deaf ear and blind eye to Molefe’s entreaties for assistance to combat corruption at PRASA.

The commission at operational level must uphold constitutional principles.

Another conundrum apparent from the operations of the Zondo Commission is the failure to uphold the constitutional principles of presumption of innocence against parties in respect to whom untested and unproven allegations have been made. In S v Naude [1975] 2 All SA 244 (A) the court held that a person retains his/her right against self-incrimination during the questioning procedure of a commission of inquiry.  This right exists only in respect of specific incriminating questions and a person cannot simply refuse altogether to give evidence.

Zondo’s actions in respect to Molefe’s testimony indicates that he seeks to do more than just unearth evidence – he has swallowed holus-bolus all the evidence given by Molefe and those the latter condemned stand as guilty.  Based on the Constitutional Court’s judgment in Ferreira v Levin NO the privilege against self-incrimination is very broad and applies not only to arrested and detained persons, and may be applied in other situations, such as questioning before another organ of state.  Persons who doubt Zondo’s impartiality and persons already accused of criminal acts of corruption may justifiably invoke the privilege if summoned to appear before Zondo.

What Montana accuses Zondo of constitutes critical items for consideration.

Section 34 of the Constitution would be violated if Commissioners such as Zondo are given a mandate to pronounce persons guilty of misconduct, criminal or otherwise, without observing the rules of natural justice, and then have the executive make adverse decisions against individuals on the basis of such a commission’s findings.

Zondo stands accused of not being impartial, meaning he has a predetermined mind on some. Zondo stands accused of permitting evidence against some without back-up documentation. Zondo stands accused of having turned the process into a farce and impervious to the truth.  Zondo is blamed for being complicit to fulfilling a political agenda to deliver the proverbial heads on a platter of some. Zondo stands accused of not being fair thus not working for justice.

These accusations while to be tested still remain serious allegations and cannot just be fixed by a press statement from the DCJ.  He must accept that perceptions on his conduct in the hearings leave some in mistrust of his ethic to work for fairness in which justice remains a non-negotiable principle.

What to make of the fact that Montana calls to question the jurisprudence of potentially the next chief justice in his current role as one batting for specific political interest? Is Zondo therefore, conscious of what he is expected to deliver on for the man who will decide his next career? Montana having cited the incidents of perceived bias on the part of the Zondo, will get his chance to refute the allegations as levelled by among others Molefe and others. He will certainly have his moment to state why he holds such strong and challenging views of discomfort with the chair of the Commission. Yet such appearance must take place in a constitutional guaranteed safe space of justice where Zondo affords equality, appetite and interest as he exhibited in the Molefe witness.

Both the President and Zondo are bound by the principle that the exercise of their powers must not infringe any provision of the Bill of Rights; the exercise of the powers is also clearly constrained by the principle of legality and, as is implicit in the Constitution, the President must act in good faith and must not misconstrue the powers. The Constitutional Court stated in the SARFU case that the President’s exercise of his powers “must not infringe any provisions of the Bill of Rights” and this means that he is obligated to consider and reject the aspects of the Zondo report for its non-compliance with the Bill of Rights and natural justice.

We hold the hope that Zondo will answer to these serious allegations that renders him questionable in motive, derelict in justice pursuit and plausibly complicit in a political agenda that stands to directly benefit him. That answer, unfortunately, cannot be the usual press-statement.