Zuma Foundation's Mzwanele Manyi accuses commission of ‘deliberate delay strategy' in case challenging Zondo's appointment

The State Capture commission is preparing to oppose former president Jacob Zuma’s revived bid to have Acting Chief Justice Raymond Zondo’s appointment as chairperson of the commission set aside, commission spokesperson Rev Mbuyiselo Stemela told Daily Maverick on Thursday.

The civil matter, which was resurrected last month, has been sitting in a quasi-legal limbo at the Pretoria high court since December 2020, with each side blaming the other for delays in getting the matter into a courtroom.

Key to Zuma’s challenge is that if he is successful, he wants it ruled that all the findings made against him by the State Capture commission are dismissed.

While the commission has said that Zuma caused the delay in the matter, the spokesperson for Zuma’s eponymous foundation, Mzwanele Manyi, told Daily Maverick that it was the commission that had deliberately stalled in delivering the record of proceedings to the Registrar of the High Court.

“[Zuma] is now proceeding with what he was doing. It was delayed because we were waiting for the commission to comment, and the commission then commented and then after that, we had to take into account the comments to supplement that affidavit. Had Zondo responded timeously, this would have been long done. It’s a process that requires both sides to make submissions before progress is made, so maybe Zondo, understanding how the justice system works, he just delayed it so that [the media] could [say things like the matter is now] moot and academic,” Manyi said. 

Since Zuma launched the application in December 2020, much has transpired. He was found to be in contempt of court by the Constitutional Court for failing to appear before the commission despite a subpoena. And in July, he was imprisoned at Estcourt Correctional Facility, with subsequent riots and looting ostensibly carried out in his name in KwaZulu-Natal and Gauteng, resulting in R50-billion in damages and likely long-term economic consequences.

Zuma was released in September 2021 on medical parole grounds, but in December 2021 the Pretoria High Court overturned the decision, calling it “unlawful”. The former president is appealing against this ruling. 

If Zuma is successful with his application to have Zondo removed, he also wants the Constitutional Court verdict and his sentence overturned. 

He is serving the remainder of his 15-month sentence while on medical parole at his Nkandla home. 

Manyi continued in his interview with Daily Maverick: “We will work according to how justice should work. At the end, people that understand justice will know that this thing was wrong in the first place and therefore, at the end of the day, it’s not just academic, it could also mean fruits of the poisoned tree. So it can also have an impact on how people view the final report.” 

The commission and Zondo not “timeously” responding to Zuma had been a “deliberate strategy all along”, said Manyi, “to get to this point of making it ‘academic’ ”.  

But as Stemela told Daily Maverick: “After Mr Zuma had launched his review application [in December 2020], the Commission was required to deliver the record of the proceedings relating to the recusal application to the Registrar of the High Court. For many months after the Commission had delivered the record, Mr Zuma failed to deliver a supplementary affidavit or indicate if he was not going to deliver one. He only delivered one in December last year.” 

The commission would “soon be preparing an answering affidavit to oppose the review application”, Stemela said. The affidavit would be posted on the commission’s website.

Manyi said the foundation was “very confident” that Zuma had a “very solid case” that would bring “balance” to the matter.  

“At least there will be a side that says there was an injustice all the way through, including court processes that were just overlooked by other courts, which means this has been a persecution perpetrated at the most serious levels in the country.”

Zuma contends that Zondo’s appointment to lead the almost billion-rand, three-year commission — which Zuma was compelled to establish — is unconstitutional, thus his not appearing to answer questions about State Capture was not unlawful. He is challenging the lawfulness of the “directives, rulings and decisions” made about him and his family in the commission’s final report. 

As he does in all his legal applications, Zuma says that he has no problem with being investigated for corruption, but it must be done by someone who is worthy and hasn’t displayed the alleged bias Zondo has.

He says in his supplementary affidavit: “I do not wish to be understood to be against any investigation of corruption including that which implicates me. I am against that being done for political expediency by one of the highest judicial officers on the terms of an unlawful appointment.

“I believe that my grounds for the recusal of the chairperson on the basis of bias include that he… appeared to have accepted the political narrative powered by a faction in my political party, the ANC, that he endorsed readily as legitimate evidence that I promoted state capture and corruption.

“I believe that the chairperson targeted me and it came to me as no surprise that he was bold enough to disregard the fundamentals of his judicial office and to violate his own oath of office to perpetrate a grave injustice on me. What he did after I failed to appear before the commission amounts to an abuse of judicial power which could only happen because he misunderstands the lawfulness of his appointment.”

Zuma is asking that President Cyril Ramaphosa appoint a new chairman to lead the commission, despite it having finished its sittings and already having released part one of its three-part report into the looting of the state.

According to Dan Mafora of the Council for the Advancement of the South African Constitution, Zuma’s late revival of the issue was “a naked attempt to discredit Zondo and to sow doubt in the minds of people”. 

“I think that is all this is. I don’t think he has any hope of succeeding in court, but he needs this in the public so that… his supporters and his allies in the party know, and to be mindful to use the same strategy to discredit Zondo for whatever findings he makes in the report about [Zuma], about his family, about people who implicate him indirectly,” Mafora told Daily Maverick. DM