FINAL STATEMENT ON CONSTITUTIONAL COURT DECISION COMPELLING ME TO APPEAR BEFORE THE COMMISSION OF INQUIRY INTO STATE ALLEGATIONS OF STATE CAPTURE AND MY REFUSAL TO APPEAR BEFORE THE ZONDO COMMISSION
15 FEBRUARY 2021
1 On 1 February 2021 I issued a statement in which I set out my position and attitude towards what I referred to as an unprecedented decision of the Constitutional Court, which effectively stripped me off my constitutional right as a citizen and created, as some of our courts have been doing to me, jurisprudence that only applies to Jacob Gedleyihlekisa Zuma.
2. I took this extra-ordinary step not to undermine the Constitution but to vindicate it, in the face of what I view as a few in the judiciary that have long left their constitutional station to join political battles. I took it after my observation that there are some concerning tendencies slowly manifesting in the judicial system that we should all fear. It is my political stance and mine alone.
3. Today, unprovoked, Deputy Chief Justice Zondo decided to propagate some political propaganda against me. In my absence he and Pretorius SC decided
on what they have always sought to do, turn all the narratives against me into evidence. In his long-prepared speech, Pretorius SC presented what Deputy Chief Justice Zondo literally called evidence against me. Realizing that they had forfeited the opportunity to present the evidence to me, they did what has become their hallmark at the Commission in making submissions to each other and playing politics to influence public opinion.
4. That Deputy Chief Justice Zondo could mislead to the nation is something that should concern us all. In justifying his position earlier, he stated that it was my legal team that said I would come and exercise my right to silence. Those who know the truth will know that when my legal team made this reference, it was in the context of an example and suggestion of how a more responsible way forward could be found.
5. His conduct today fortifies my resolve and belief that he has always sought to prejudice me. In what seemed like Pretorius SC's closing argument, it appeared that the script thereof was already written for the report of the Commission. In his typical approach, he smuggled new allegations about me that were obviously intended to ambush me. He has prejudiced my children, my family as he presented his version that he always sought to place in Commission's report.
6. The Deputy Chief Justice concluded by saying my contempt constitute grounds for him to approach to the Constitutional Court to seek a sentence. Ofcourse he will get it. I am not certain that ordinarily that is how contempt proceedings would commence, but I have accepted that Deputy Chief Justice Zondo and due process and the law are estranged.
7. Now that it seems that my role in the Commission has come to an end, I wait to face the sentence to be issued by the Constitutional Court. Accordingly, I stand by my statement of 1 February 2021 and no amount of intimidation or blackmail will change my position as I firmly believe that we should never allow for the establishment of a judiciary in which justice, fairness and due process are discretionary and are exclusively preserved for certain litigants and not others.
8. Many in our society have watched this form of judicial abuse but choose to look the other way merely because of their antipathy towards me. They choose to lay the blame at my doorstep and fail to confront head-on the judicial crisis that is unfolding in our country.
9. The Zondo Commission has today again showed how it is short of the attributes necessary to conduct an independent, fair and impartial investigation or hearings that involve me or that contradict their script on state capture. Judge Zondo has today again displayed questionable judicial integrity, independence and open-mindedness required in an investigation of this magnitude.
Upon being advised by my legal team in open proceedings that it would have been more prudent to have more than one person preside over a commission of this nature, Judge Zondo answered that he could not do this since he risked a dissenting voice when the report is written. What judge says this as a reason and justification not to be assisted in such a mammoth task? What type of society accepts such an explanation from a Deputy Chief Justice who sits in the apex court with ten other judges in order to enrich, sometimes by dissent, the quality of judgments?
10. What society looks the other way when a judge adjudicates a matter involving his own disputed facts? What judicial system tolerates a judge admitting that he concealed a fact in his statement relating to whether he had ever met with me during my tenure as President? I invite all of those who care to look closely at my replying affidavit in the recusal application as well as the Deputy Chief Justice's delayed admission that his statement had not been accurate. Indeed, as this admission stared us in the face, all looked the other way in their consistent attempts to conceal or downplay the obvious errors of the Chairperson of the Commission.
11. Although my statement was a response to the judgment of the Constitutional Court, my reservations about the Commission and its lawfulness are well recorded. I stand by my reservations and that the Commission was conceptualized as part of the campaign and sponsored multi-sectoral collaboration to remove me from office. Faced with this obvious unlawful appointment of the Commission, the Chief Justice endorsed it. Later, and indeed unsurprisingly, Judge President Mlambo also endorsed this unprecedented breach of the principle of separation of powers between the executive and the judiciary. No matter how long we deny it or ignore it, the illegality of that decision to allocate to the judiciary a constitutional function of the President will stubbornly stare us in the face.
12. The Commission approached the Constitutional Court in total disregard of the fact that I was taking its ruling on the recusal application on review. This calculated stratagem was to frustrate my chances of even challenging their subpoenas in our courts. The Commission obviously ran to seek a licence to act with impunity. I still persist that there was no basis or dispute necessitating the Commission to approach the Constitutional Court and that there was no factual basis for presumption that I would defy the subpoena. I have already presented myself to the Commission on two occasions when called upon to do so.
13. Fed with absolute lies, the Constitutional Court assumed that I or my legal team had threatened that I would defy or refuse to answer. You only have to peruse the records of the date of the recusal application to know that my legal team was at pains to suggest a responsible way forward. The submission by the Commission that a threat was made that I would defy or refuse to answer is a blatant falsehood fabricated on behalf of the Commission and entertained by the judges of the Constitutional Court.
14. My lawyers, as a courtesy, advised the Constitutional Court that I would not participate in the proceedings. The judges of the Constitutional Court concluded that my election not to waste their time deserves a cost order against me. It has become common place for some of our courts to make these costs orders against me in order to diminish my constitutional right to approach courts.
15. It was submitted on behalf of the Commission, something it seem to have been accepted by the Constitutional Court that; I am "accused No 1" at the Commission. Labelling me in this fashion is deeply offensive to me but is also clear evidence that the Commission treats me as an accused, not a witness.
16. The Constitutional Court went further, accepting as a fact, the Commission's submissions that I had a constitutional duty to account to it (for the wrongdoing). I have followed the evidence of many witnesses at the Commission, including those alleged to have implicated me and elected that none of them had any case of substance against me. However, the Commission sought to deliver me at all costs and in this endeavour is prepared to break every rule of justice and fairness.
17. It is that type of judicial conduct that I protest against, not our law or our Constitution. It is not the authority of the Constitutional Court that I reject, but its abuse by a few judges. It is not our law that I defy, but a few lawless judges who have left their constitutional post for political expediency. I respect the law and have subjected myself even to its abuse for the past 20 years. I have presented myself to the Zondo Commission twice and therefore the was no factual justification for the order given by the Constitutional Court. None whatsoever.
18. I protest against those in the judiciary that have become an extension of political forces that seek to destroy and control our country. I seek no special treatment from the judiciary. I ask them to remain true only to their oath of office and their duty to treat everyone as equal before the law. I do not ask them or any of them or you to develop any affection for me. I only seek to vindicate what we fought for so that even when society is in turmoil, as it will from time to time, we will have a judiciary that refuses to join the lynching mobs.
19. As it has become common place in our country in cases that relate to me, my statement has been met with the bigotry that has become the hallmark of our sponsored opinion makers. Instead of pausing to consider whether the so-called constitutional crisis may be emerging from the conduct of some of our courts themselves, the debate has been conducted in the usual binary, simplistic and biased terms, seeking to shield what I regard as a few in the judiciary that have forsaken their oath of office to "...uphold and protect the Constitution and the human rights entrenched in it, and will administers justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law."
20. I do so not to undermine the Constitution or the law, but to express my own protest about those in the judiciary that have turned their back on their fundamental task in society. I take this stance because I believe that judges should never become agents of ruling classes in society.
21. So, I take this stance not because I refuse to accept that my Presidency like any other was not perfect, but because we continue to allow some in the judiciary to create jurisprudence and legal inconsistencies that only apply to me. To date, nothing has been said about Judge President Mlambo's contradictory rulings on the powers and remedies of the Office of the Public Protector, not because none can see the contradictions, but because they care less about the Constitution than they do about seeing me lynched and punished.
None can claim not to see that the recent judgment of the Constitutional Court is a travesty of justice. That we accept a judgment based on mere conjecture and speculation about my future conduct is a betrayal of the Constitution that many refuse to confront as they scapegoat me for every malady in society.
22. The debate has tended to focus on me, with many suggesting that I regard myself as above the law or that I do not recognize our Constitution and our law. They know as well as I do, that is not the case. Some have argued that if I do not appear before the Zondo Commission I must be jailed or stripped of presidential benefits or pension. Well, for the record, I am the one that suggested that I do not mind defending myself against the sanction that accompanies my principled stance. Secondly, it should naturally please them that, should I fail to defend myself before the relevant contempt forum, I will face jail term.
23. The suggestion that I would be enticed with pension and benefits to abandon my principled stance against what I see as bias by a few in the judiciary, can only come from people who believe that money can buy everything. When I joined the ANC and fought for democracy, I did not do so for money and benefits. This, to me, is a foreign tendency to some of us who have been freedom fighters.
24. I am grateful however, to many comrades, who have sought to hear my side of the story and have understood my frustration. I am grateful for their support and their courage to stand with me rather than to appease, at my expense, those who seek to control our economy, judiciary and our country.
25. Some in our so called intelligentsia have become blinded by their prejudice towards me, they agree that the court my take away my right to remain silent, yet they fail to recognize that the Zondo Commission has already extended this right to at least three witnesses that appeared before it. Where is the consistency in this approach?
26. I demand no more than justice, fairness and impartiality, all of which are attributes we should not have to remind some of our judges to possess. They promised the country they possessed these attributes the day they applied for judicial office and took their oath of office. We should not have to remind some of them of this.
27. If we paused, in any case that involves me, and asked whether many of the decisions taken, and attitudes adopted are not merely driven by the antipathy towards me. What legacy are some of our judges leaving for future generations?
28. When Judge President Mlambo can flip flop on the same principle simply to punish me, what kind of judges do we have? What justice are we serving and what law will be followed when I am long gone. I know that instead of confronting these questions I am raising, many will resort to sarcasm, and seek a response that blames me. In any event, that is what has led us to this point. The failure to see our law beyond one individual we seek to punish.
29. We sit with some judges who have assisted the incumbent President to hide from society what on the face of it seem to be bribes obtained in order to win an internal ANC election. We sit with some judges who sealed those records simply because such records may reveal that some of them, while presiding in our courts, have had their hands filled with the proverbial 30 pieces of silver.
30. I repeat, it is not the law against which I protest, as I refuse to subject myself to Zondo Commission. I protest against our black, red and green robes, dressing up some individuals that have long betrayed the Constitution and their oath of office. It is those who allow it and look the other way that must do some reflection. You do not have to like me to do this reflection. It is a choice we must make because this country and our law will and must outlive Jacob Zuma.
31. Finally, I restate that my statement is no breach of the law. It is a protest against some in the judiciary that have sold their souls and departed from their oath of office. It is my respect for the law that obliges me to reject the abuse of law and judicial office for political purposes. The law I respect, its abuse I will not.
32. I restate that my review of the recusal ruling remains undetermined and this is part of my reservation about presenting myself to the very presiding officer whose decision I am taking on review. I have no doubt that I will lose it like many other cases. Be that as it may, I am entitled to have it determined or at least recognized.
33. Ordinarily I should have the faith to approach the Chairperson of the Commission or our courts to seek whatever remedy would stay the proceedings until my review is determined. However, the antipathy of some of the courts and the Commission towards me has made it futile for me to exercise my constitutionally guaranteed access to courts. Not only will I be dismissed, but I will also be punished with punitive costs for approaching the courts.
34. I am in the process of revising all matters I have before our courts, except the criminal matter, as it has become clear to me that I will never get justice before some of the current crop of our judges in their quest to raise their hands to seek political acceptance at my expense. I have observed in hearings how some of our judges have directed their antipathy towards my counsel in hearings and am grateful that my legal team, under testing circumstances have kept their professional composure.
35. I am aware that that our judiciary and magistracy have a number of men and women of integrity, many of whom are shunned when matters are allocated. I respect them and must not be understood not to recognize them or that I am painting all of them with the same brush. Unfortunately, many of them, for their refusal to be part of the syndicate or to forsake their oath of office, they will never be allocated matters wherein pre-determined outcomes are demanded.
36. I respect our citizens and our law. History will soon reveal that it is only some in our courts that have been captured to serve political ends and to undermine the Constitution, which is the supreme law of the land. I will not join those who seek to do this.
37. As you sharpen your pens to condemn me, I reiterate that I stand by my earlier statement and will not appear before a process that is not impartial. I stand by the decision not to forsake the law and our Constitution. I choose to protest in order to restore our constitutionally enshrined principle of an independent judiciary.
JACOB GEDLEYIHLEKISA ZUMA