The Constitutional Court orders former President Zuma to appear and give evidence before the Zondo Commission

29 January 2021

On 28 January 2021, the Constitutional Court handed down judgment in the matter between the Secretary of the State Capture Commission and Mr. Jacob Zuma, the former President of the Republic of South Africa.

The Secretary of the Commission launched an urgent application for direct access to the Constitutional Court following Mr. Zuma’s walk out from the Commission in November last year.   The Secretary of the Commission sought various orders aimed at ensuring that Mr. Zuma complies with the Commission’s summonses and directives by appearing before the Commission and satisfactorily answering any questions put to him.

The HSF acted as amicus curiae in the case. It made submissions before the Constitutional Court concerning Mr. Zuma’s clear and unambiguous statutory duty to comply with the summonses and directives of the Commission. The HSF contended that these statutory duties are informed by the constitutional principle of equality before the law and the values of accountability and the rule of law, which permit no exceptions or exemptions from the coercive powers of the Commission.

The HSF also made submissions on the public’s right to truth concerning serious allegations of state capture, corruption and fraud, derived from the Constitution read with customary international law.

The Constitutional Court held that persons upon whom summonses are served are obliged in terms of the applicable legislative and regulatory scheme to appear before the Commission and answer questions put to them. It further emphasised that a failure to comply with the summonses and directives of the Commission is a criminal offence. The Court accordingly ordered Mr. Zuma to obey all summonses and directives lawfully issued by the Commission and directed Mr. Zuma to appear and give evidence before the Commission on dates determined by it.

The Court recognised that the Commission’s terms of reference place Mr. Zuma at the centre of the Commission’s investigation and that some matters may not be properly investigated without his participation. The Court expressed great disapprobation for Mr. Zuma’s conduct in defying the summonses and directives of the Commission. The Court described Mr. Zuma’s conduct, which has frustrated the investigation of the Commission, as “antithetical to our constitutional order” and a breach of the rule of law. In reaching the conclusion that Mr. Zuma is not exempt from the coercive powers of the Commission, the Court emphasised that no one is above the law.  

The Constitutional Court also clarified the rights of witnesses appearing before commissions of inquiry. It held that witnesses do not have the right to remain silent. But do enjoy the privilege against self-incrimination. However, the Court made it clear that the privilege against self-incrimination is “not there for the taking by witnesses”. The Court specified that there must be sufficient grounds that in answering a question, the witness will incriminate himself or herself, and that the burden of proof in this regard lies on the witness.  

The Constitutional Court also ordered Mr. Zuma to pay the costs of the Commission even though he elected not to participate in the proceedings. It held that the costs order was justified by Mr. Zuma’s “reprehensible conduct”, which forced the Commission to approach and seek relief from the Constitutional Court.

The HSF welcomes the judgment and order of the Constitutional Court, which it believes will significantly strengthen the hand of the Commission.

The HSF’s written submissions can be found here.

The Constitutional Court’s judgment can be found here.

Issued by Chris Pieters on behalf of HSF, 29 January 2021