In the Constitutional Court of South Africa

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 295/20

In the matter between:

SECRETARY OF THE JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE Applicant

and

JACOB GEDLEYIHLEKISA ZUMA Respondent

APPLICANT’S HEADS OF ARGUMENT

Table of Contents

INTRODUCTION ...... 1

JURISDICTION ...... 6

Exclusive Jurisdiction ...... 6

Direct Access ...... 11

THE ALLEGATIONS OF ABUSES OF POWER AND BREACH OF CONSTITUTIONAL DUTY BY MR ZUMA ...... 15

THE MATERIAL FACTS ...... 30

THE COMMISSION OF INQUIRY AS AN ACCOUNTABILITY MECHANISM ...... 38

THE DUTY TO ANSWER QUESTIONS AT THE COMMISSION ...... 40

MR ZUMA’S REVIEW OF THE RECUSAL DECISION HAS NO BEARING ON HIS DUTY TO GIVE EVIDENCE AT THE COMMISSION ...... 43

THE RELIEF SOUGHT ...... 47

INTRODUCTION

1. This application is fundamentally about the enforcement of the constitutional

principle and duty of accountability.1

2. The applicant approaches this Court for an order compelling Mr Zuma to account

to the public, through the Judicial Commission of Inquiry into Allegations of State

Capture, Corruption and Fraud in the Public Sector including Organs of State

(“the Commission”), for the exercise of his public powers and performance of his

constitutional obligations when he served as the President of the Republic.

3. Mr Zuma has defied the Commission and refused to cooperate with its inquiry,

notwithstanding that his personal role in allegedly committing or facilitating acts of

state capture, corruption and fraud are central to the Commission’s inquiry.2

4. For a prolonged period, Mr Zuma has delayed giving evidence to the Commission

and repeatedly failed to make good on undertakings that he would do so.3 The

matter came to a head in the week of 16 November 2020, when Mr Zuma refused

to remain in attendance and give evidence at the Commission, in accordance

with the summons directing him to do so.

5. The Commission has indicated that it will lay criminal charges against Mr Zuma,

as the failure to heed a summons is an offence under the Commissions Act.4 But

1 Enshrined in section 1(d) and 195 of the Constitution, amongst other provisions. 2 Founding affidavit (“FA”) paras 17-18, pp 14-15. The Commission’s terms of reference appear in Annexure IM1 as the schedule to the Proclamation, at pp 78-82. 3 See the history of the Commission’s engagement with Mr Zuma detailed in the founding affidavit at paras 62 to 68 and 71 to 115, pp 37-62. 4 FA para 70, p 46.

that cannot be the end of the matter, as doing so will not effectively remedy the

constitutional violation at issue.

6. Mr Zuma’s defiance of the Commission is a blatant violation of the foundational

constitutional value of accountability, which underpins the rule of law5 and South

Africa’s commitment to democratic government,6 and which is binding on those

that govern. As this Court said in Nkandla –

“One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck. It is against this backdrop that the following remarks must be understood:

“Certain values in the Constitution have been designated as foundational to our democracy. This in turn means that as pillar- stones of this democracy, they must be observed scrupulously. If these values are not observed and their precepts not carried out conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a State predicated on a desire to maintain the rule of law, it is imperative that one and all should be driven by a moral obligation to ensure the continued survival of our democracy.”7

5 Most obviously because the rule of law requires congruence between the laws or the ‘rules as announced’ and conduct or ‘actual administration’: L L Fuller The Morality of Law revised ed (1969) 39, 46–91. 6 The centrality of accountability, together with the related values of responsiveness and openness, in South Africa’s system of democratic government is expressly recognised in section 1(d) of the Constitution, which provides: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: … (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.” 7 Nkandla at para 1, citing Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another 2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC) at para 80.

7. Accountability has at least two aspects. On the one hand, it entails taking

responsibility for, or being held liable for, the exercise of public power. On the

other hand, accountability entails the element of justification, and requires the

responsible office-bearer to explain and give an account of his or her decisions or

actions when called upon to do so. The Commission’s summons of Mr Zuma is

directed at both aspects of the accountability exercise.

7.1. The Commission has called upon Mr Zuma to give an account of his

exercise of power in the highest office in the land and to answer questions

concerning the allegations of his involvement in serious abuses of power.

This is quintessentially an exercise in the ‘justification leg’ of

accountability.

7.2. The Commission’s work is also directed at making findings of wrong-doing

and responsibility, and recommendations on the further steps to be taken

to ensure that persons responsible for abuses of power are indeed held

responsible. This is the ‘liability leg’ of accountability. Findings of wrong-

doing must be based on evidence; the Commission’s insistence that Mr

Zuma attends to give evidence is directed at fulfilling this part of its

mandate too.

8. Even if a criminal penalty were, in due course, to be imposed on Mr Zuma for his

defiance of the Commission’s summons, it could never vindicate the principle of

accountability – on either the justification or the liability leg.

9. Mr Zuma’s refusal to give evidence at the Commission has a further constitutional

dimension given the unusual provenance of the Commission.

9.1. The establishment of the Commission has its origins in the investigation

conducted and report issued by the former Public Protector entitled “State

of Capture”, which was released in October 2016.8 The Public Protector

made prima facie findings of improper and unethical conduct implicating

Mr Zuma, who was the President of the Republic at the time. However,

given the extent of the issues to be traversed and the resources required

to investigate them, the Public Protector was unable to complete her

investigation. Her remedial action accordingly directed the President to

appoint a commission of inquiry to complete this task by investigating “all

the issues using the record of [her] investigation and the report as a

starting point”.9

9.2. The Commission is accordingly mandated by both the Public Protector and

the President, in the exercise of their constitutional powers, to investigate

the matters in its terms of reference in order to promote accountability,

including on the part of the former President. In frustrating the

Commission’s investigation, Mr Zuma is also undermining the exercise

and purpose of the powers under sections 84(2)(f) and 182(1)(c) of the

Constitution.

10. The particular subject-matter of the Commission’s inquiry also informs the nature

of the constitutional violation at issue. The Commission is charged with

investigating allegations of corruption, fraud and serious irregularities in the public

sector. As this Court has repeatedly held, corruption and related offences imperil

the foundations of our constitutional democracy and the ability of the state to fulfil

8 Public Protector State of Capture Report, Report No. 6 of 2016/17 (14 October 2016). 9 Public Protector State of Capture Report at page 354, para 8.6.

the socio-economic rights in the Bill of Rights.10 The mandate of the Commission

thus has serious implications for the constitutional project more broadly, including

the country’s commitment to the Bill of Rights. As the Secretary of the

Commission rightly put it –

“When a former President frustrates the ability of the Commission to

perform its duty to investigate such matters, he is frustrating the ability of

the country to know what, if anything, happened to funds that could have

been used for the fulfilment of socio-economic rights in the Bill of Rights

and its ability to address the scourge of corruption and malfeasance”.11

11. In response to the Commission’s application to this Court, Mr Zuma has again

avoided accountability for his conduct. He has refused to participate in these

proceedings at all, to explain his conduct at the Commission. This, we submit,

compounds the problem and reinforces the need for this Court’s intervention.

10 In South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC), Chaskalson P held for the Court at para 4: “Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms. They were the antithesis of the open, accountable, democratic government required by the Constitution. If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State. In Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC), Ngcobo CJ observed at para 57: “Corruption has become a scourge in our country and it poses a real danger to our developing democracy. It undermines the ability of the government to meet its commitment to fight poverty and to deliver on other social and economic rights guaranteed in our Bill of Rights.” See also paras 175-176 of the majority judgment of Moseneke DCJ and Cameron J, who held: “Endemic corruption threatens the injunction that government must be accountable, responsive and open; that public administration must not only be held to account but must also be governed by high standards of ethics, efficiency and must use public resources in an economic and effective manner. As it serves the public, it must seek to advance development and service to the public…” 11 FA para 35.6, p 26.

12. Mr Zuma either does not appreciate the duty to account imposed on all public

office-holders, including the President of the Republic, or he simply does not care

to comply with that duty. Whichever it is, this Court’s intervention is evidently

required.

JURISDICTION

13. The applicant approaches this Court on the basis that –

13.1. this Court has exclusive jurisdiction to determine the application under

section 167(4)(e) of the Constitution, which states:

“(4) Only the Constitutional Court may—

(e) decide that Parliament or the President has failed to fulfil a constitutional obligation”; and

13.2. granting direct access is in the interests of justice.

14. On either of these grounds, the Court ought to determine the matter.

Exclusive Jurisdiction

15. The test for exclusive jurisdiction under section 167(4)(e) is now fairly well

established.12 It entails the application of the following key principles:

15.1. Section 167(4)(e) applies only where the constitutional obligation that

allegedly has not been fulfilled is one that rests on the President or

12 The test was helpfully restated and applied in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (“Nkandla”) paras 16 to 19.

Parliament; and only where the obligation is of the kind envisaged by

section 167(4)(e). The obligation must be one that is specifically imposed

on the President or Parliament, as opposed to one that is shared with

other organs of state.

15.2. Section 167(4)(e) must be interpreted narrowly, having due regard to the

other provisions of the Constitution, so as not to intrude on the jurisdiction

of the other courts. As this Court recognised in SARFU I, section 167(4)(e)

cannot, therefore, be construed as applying to all questions concerning the

constitutional validity of conduct of the President, as this would be in

conflict with section 172(2)(a) (which empowers the High Court and the

Supreme Court of Appeal to make orders concerning the constitutional

validity of any conduct of the President).13

15.3. Further, having regard to the special role of this Court, the questions to be

determined must have serious political implications, or raise sensitive and

important separation of powers considerations, such as to require this

Court’s determination to maintain comity between the judiciary and the

other branches of government. This point was emphasised in both SARFU

II and Doctors for Life.14 In Doctors for Life, Ngcobo J stated the principle

as follows:

“The principle underlying the exclusive jurisdiction of this Court under section 167(4) is that disputes that involve important

13 President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1998] ZACC 21; 1999 (2) SA 14; 1999 (2) BCLR 175 (CC) (SARFU I) at para 25. See also Van Abo v President of the Republic of South Africa (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) para 35. 14 President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) (SARFU II) at paras 72-73; and Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) paras 22-26.

questions that relate to the sensitive areas of separation of powers must be decided by this Court only. Therefore, the closer the issues to be decided are to the sensitive area of separation of powers, the more likely it is that the issues will fall within section 167(4). It follows that where a dispute will require a court to decide a crucial political question and thus intrude into the domain of Parliament, the dispute will more likely be one for the exclusive jurisdiction of this Court.”15

16. In Nkandla, this Court was called upon to assume exclusive jurisdiction on the

basis of the alleged failure by President Zuma to fulfil his constitutional

obligations under sections 83, 96, 181 and 182 of the Constitution, specifically for

failing to give effect to the Public Protector’s remedial action. The Public

Protector had directed the President to re-pay to the fiscus a portion of the undue

benefits that had accrued to him and his family in the upgrades of his home in

Nkandla.

17. In assessing whether it had exclusive jurisdiction under section 167(4)(e), this

Court recognised the breadth of the language of section 83 of the Constitution,

and the scope of the constitutional obligations it imposed on the President. This

Court accordingly cautioned against the assumption that this Court has exclusive

jurisdiction in respect of every alleged infringement of section 83 (or indeed

section 96). The Court reasoned that:

“…[T]o meet the section 167(4)(e) requirements, conduct by the President himself that tends to show that he personally failed to fulfil a constitutional obligation expressly imposed on him, must still be invoked, to establish the essential link between the more general section 83 obligations and a particular right or definite obligation.”16

18. The Court recognised that the particularity in the obligation required may arise in

the context of a personal failure by the President to comply with the remedial

15 At para 24. 16 Id at para 33. Emphasis added.

action of the Public Protector, with which the President was personally obliged to

comply under section 182(1)(c) of the Constitution.17 The crux of this Court’s

reasoning is at paragraph 35 of the judgment, which reads:

“In this case, the requirement that the President failed to fulfil a constitutional obligation that is expressly imposed on him is best satisfied by reliance on both sections 83(b) and 182(1)(c) of the Constitution. Very much in line with the narrow or restrictive meaning to be given to section 167(4)(e) and mindful of the role that the other courts must also play in the development of our constitutional law, section 182(1)(c) does in this case, impose an actor-specific obligation. Although section 182 leaves it open to the Public Protector to investigate State functionaries in general, in this case, the essential link is established between this section and section 83 by the remedial action actually taken in terms of section 182(1)(c). In the exercise of that constitutional power, the Public Protector acted, not against the Executive or State organs in general, but against the President himself. Compliance was required only from the President. He was the subject of the investigation and is the primary beneficiary of the non- security upgrades and thus the only one required to meet the demands of the constitutionally-sourced remedial action.”18

19. This case, like Nkandla, is an extraordinary one in which alleged violations of the

broadly-stated constitutional obligations of the President are given particularity

and immediate political consequences by the remedial action of the Public

Protector.

20. In this case, it is alleged that President Zuma violated his constitutional

obligations as the President under sections 83(b), 83(c), 96 and the President’s

oath of office in a series of respects reflected in the Public Protector’s report, for

which alleged failures and abuses of power he has failed to account. The Public

Protector’s remedial action is specifically directed at ensuring that Mr Zuma

accounts for his alleged abuse of the President’s office, and at enforcing the

ongoing duty of accountability on the part of those entrusted to govern.

Accordingly, the remedial action in the State of Capture Report specifically

17 Id at paras 34-36, 40. 18 At para 35.

required that President Zuma’s alleged constitutional violations must be

investigated by a presidential commission of inquiry, with investigative capacity

and coercive powers.19

21. As in Nkandla, Mr Zuma is personally frustrating the remedial action of the Public

Protector, by refusing to be examined and to answer the allegations of his alleged

constitutional violations. In doing so, Mr Zuma is infringing section 182(1)(c) of

the Constitution, which is specifically directed at enforcing the constitutional

obligations he held as the President under section 83 (amongst others), as well

as his continuing constitutional obligation of accountability for his exercise of

power as the President. This combination – of specific breach and defiance of

remedial action that is directed at enforcing the President’s constitutional duties –

justifies the activation of this Court’s exclusive jurisdiction.

22. The only difference between what has transpired in this case and what transpired

in the Nkandla matter, is that Mr Zuma is no longer the President of the Republic.

However, since the constitutional obligation at issue is that of accountability –

which, by its very nature, is one that may operate retrospectively in respect of

what has occurred in public office – this is not a material distinction.20

19 See paragraphs 8.6 and 8.7 of the remedial action in the Public Protector’s State of Capture Report, which read: “8.6. The judge to be given the power to appoint his/her own staff and to investigate all the issues using the record of this investigation and the report as a starting point. 8.7. The commission of inquiry to be given powers of evidence collection that are no less than that of the Public Protector.” 20 As is stated at paragraph 26 of the founding affidavit, p 18: “The constitutional obligation of public accountability for conduct in public office is an ongoing one. Mr Zuma’s duty of accountability did not end with the termination of his holding of office as the President, but persists in respect of his conduct and exercise of public power in that office. As the former President, Mr Zuma always has a constitutional obligation to account for his exercise of public power and performance of his constitutional duties in the highest office. By its very nature, the duty of accountability may be backward looking.”

23. In this matter, there is a further dimension which calls for this Court to assume

jurisdiction, and not any other. This stems from the peculiar nature and

composition of the Commission, which raises unique political sensitivities in

resolving the dispute between the Commission and the former President.

Although the Commission is a presidential commission of inquiry established

under section 84(2)(f) of the Constitution, it is peculiarly headed by the Deputy

Chief Justice at the selection of the Chief Justice. This arrangement was required

by the Public Protector to avoid a conflict of interest arising should then President

Zuma select the Chairperson charged with investigating the President’s own

conduct. The composition of the Commission is indicative of the intensity of the

political issues involved in this case, and raises a further dimension in that the

integrity of the Deputy Chief Justice as the Chairperson of the Commission and,

by extension the Chief Justice (as the person responsible for selecting the

Chairperson), is being threatened by Mr Zuma’s conduct.21 This too requires the

intervention of this Court.

Direct Access

24. The applicant has also approached this Court for direct access under section

167(6) of the Constitution, as it requires final relief in a matter of considerable

constitutional and public importance, on an urgent basis.

25. The key principles governing direct access applications are the following:22

21 This is apparent both from the recusal application and the unfounded public attacks against the Commission, made by Mr Zuma’s lawyers and the Jacob Zuma Foundation. In respect of the latter, see the founding affidavit at para 44, p 32 and paras 65-66, p 44. 22 Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) at paras 7-9; Mkontwana v Nelson Mandela Metropolitan Municipality and Another 2005 (1) SA 530 (CC) at para

25.1. The exceptional nature of direct access requires that “compelling reasons”

are given to persuade this Court that it should exercise its discretion to

grant such access in the interests of justice. These reasons must go

beyond the grounds upon which leave is granted in the ordinary course.

25.2. Proof of exceptional circumstances, in the form of sufficient urgency or

public importance and proof of prejudice to the public interest or the ends

of justice and good governance, must be established. A demonstrable

need for certainty and to avoid prolonged litigation will favour granting

direct access.

25.3. The Court will also have regard to the prospects of success and the nature

of the issues in dispute – if they are crisp and defined, do not raise

disputes of fact, and do not require the development of the common law or

customary law, the Court will be more inclined to grant direct access.

26. All of these considerations are met in this case.

26.1. This is undoubtedly an “exceptional case”, and the reasons the

Commission has given for approaching this Court directly are compelling.23

26.2. The relief sought is required to enforce foundational constitutional values,

of which this Court is the ultimate guardian.24 The duty of accountability

looms large in this case. The rule of law and the principle of equality

before the law are also implicated. The former President is no ordinary

11; Mazibuko v Sisulu [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) at para 35-36; Electoral Commission v Mlhope 2016 (5) SA 1 (CC) at para 76. 23 These are detailed in the founding affidavit at paras 35-45, pp 24-32. 24 SARFU II para 72; Doctors for Life para 38.

witness – a sitting President has been described by this Court as a

“constitutional being by design”.25 Mr Zuma is required to answer specific

allegations that he abused the office of the President for the benefit of third

parties and his family, in a commission of inquiry that is directed at

investigating crimes involving the state, including corruption and fraud, that

strike at the heart of our constitutional democracy. Ensuring the

effectiveness of the Commission is manifestly in the public interest.

26.3. The effect of Mr Zuma’s conduct at the Commission is to frustrate the

remedial action of the Public Protector and the order of the High Court,

which confirmed the validity of that remedial action and required its

implementation.26 This is an important constitutional matter that requires

this Court’s intervention.

26.4. Since this matter is unopposed, there are no disputes of fact arising for

this Court to determine.

26.5. The legal issues are relatively straightforward, as they entail the

application of statutory provisions and constitutional duties to the facts.

The meaning of the statutory provisions the applicant relies on has not

been disputed by Mr Zuma in these proceedings, or at any time before.

As the Secretary of the Commission notes in the founding affidavit, Mr

25 Nkandla para 20. 26 President of the Republic of South Africa v Office of the Public Protector and Others 2018 (2) SA 100 (GP) at para 191 (the order).

Zuma has never contested the power of the Commission to summons a

witness under section 3(1) of the Commission Act.27

26.6. To be effective, final relief must be granted as a matter of urgency. The

Commission explains that it must complete its work by 31 March 2021

(although it may seek an extension for the finalisation of its report, it will

not seek an extension for hearing evidence). The only remaining time for

the hearing of Mr Zuma’s evidence is between January and the end of

February 2021. The Commission explains that it is critical to have certainty

as to whether or not Mr Zuma will be compelled to give evidence, in order

for the Commission to plan how to use its remaining time.

26.7. Mr Zuma is not only avoiding giving evidence at the Commission, but is

actively attacking the legitimacy and credibility of the Commission, its

Chairperson and its work. This requires urgent intervention by the Court, to

authoritatively countermand the negative impact of these attacks and

protect the integrity and legitimacy of the Commission.

26.8. Given the unprecedented nature of the Commission and the extraordinary

nature of this matter, it is highly unlikely that any similar matter will arise in

the future. Granting direct access in this case will thus not invite frivolous

direct access applications in future.

27. We submit that on the strength of these considerations, taken together, it is

manifestly in the interests of justice for direct access to be granted.

27 Founding affidavit at para 117, p 63.

28. If the Court is satisfied that direct access should be granted in this case, it need

not decide the question of exclusive jurisdiction.28

THE ALLEGATIONS OF ABUSES OF POWER AND BREACH OF CONSTITUTIONAL

DUTY BY MR ZUMA

29. The Commission is mandated to investigate the Public Protector’s prima facie

findings of unlawful and unethical conduct implicating Mr Zuma when he was the

President of the Republic. In the Public Protector’s State of Capture Report, Adv.

Madonsela did not make firm findings, but made “observations”, implicating Mr

Zuma (at paragraph 7 of her Report) and required their further investigation by a

commission of inquiry. The High Court has described these observations as

“prima facie findings”.29 These include (amongst others):30

29.1. That President Zuma improperly and in violation of the Executive Ethics

Code, allowed members of the Gupta family and his son, to be involved in

the process of removal and appointment of the Minister of Finance in

December 2015 (involving the removal of Minister Nene and appointment

of Mr Des Van Rooyen in his place). The Public Protector observed:

7.1.1 President Zuma was required to select and appoint Ministers lawfully and in compliance with the Executive Ethics Code.

28 This is the approach adopted, for instance, in Mazibuko v Sisulu [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) at para 74 and United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) at para 27. 29 This is the description of the High Court in President of the Republic of South Africa v Office of the Public Protector and Others 2018 (2) SA 100 (GP). The Full Court stated at para 107: “The Public Protector's observations set out in paragraph 7 of the Report constitute prima facie findings that point to serious misconduct or impropriety on the part of the President, the Gupta family and the persons, functionaries and entities referred to in the Report. These observations are supported by a considerable body of corroborative evidence.” 30 State of Capture Report, Report No. 6 of 2016/17 at page 343ff.

7.1.2 It is worrying that the the Gupta family was aware or may have been aware that Minister Nene was removed 6 weeks after Deputy Minister Jonas advised him that he had been allegedly offered a job by the Gupta family in exchange for extending favours to their family business

7.1.3 Equally worrying is that Minister Van Rooyen who replaced Minister Nene can be placed at the Saxonwold area on at least seven occasions including on the day before he was announced as Minister. This looks anomalous given that at the time he was a Member of Parliament based in Cape Town.

7.1.4 Another worrying coincidence is that Minister Nene was removed after Mr Jonas advised him that he was going to be removed

7.1.5 If the Gupta family knew about the intended appointment it would appear that information was shared then in violation of section 2.3(e) of the Executive Ethics Code which prohibits members of the executive from the use of information received in confidence in the course of their duties or otherwise than in connection with the discharge of their duties.

7.1.6 The provision of Section 2.3(c) which prohibits a member of the Executive from acting in a way that is inconsistent with their position. There might even be a violation of Section 2.3(e) of the Executive Ethics Code which prohibits a member of the Executive from using information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties.

7.1.7 In view of the fact that the allegation that was made public included Mr Jonas alleging that the offer for a position of Minister was linked to him being required to extend favours to the Gupta family, failure to verify such allegation may infringe the provisions of Section 34 of Prevention and Combatting of Corrupt Activities Act, 12 of 2004 which places a duty on persons in positions of authority who knows or ought reasonably to have known or suspected that any other person has committed an offence under the Act must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official.

29.2. That President Zuma improperly and in violation of the Executive Ethics

Code, allowed members of the Gupta family and his son, to be involved in

the process of removal and appointment of various members of Cabinet.31

In this regard, the Public Protector referred to–

29.2.1. the allegations of the former ANC Member of Parliament, Ms Vytjie

Mentor, that she was offered the post of Minister for Public Enterprises

by one of the Gupta brothers, in exchange for cancelling the South

African Airways’ route to India, and that President Zuma was present at

the Gupta family’s residence in Saxonwold when the offer was made;32

29.2.2. the allegations of the former Deputy Minister of Finance, Mr Mcebisi

Jonas that he was offered the post of Minister of Finance shortly before

Minister Nene’s firing in 2015 by Mr Ajay Gupta, in exchange for

payment of R600 million and on condition that he worked with the

Gupta family, which offer he refused.33

29.3. That President Zuma improperly and in violation of the Executive Ethics

Code, allowed members of the Gupta family and his son, to be involved in

the process of appointing members of Boards of Directors of State-Owned

Enterprises (SOEs).34 On this issue, the Public Protector referred in

particular to –

29.3.1. the allegations of the former Chief Executive Officer of Government

Communication and Information System, Mr Themba Maseko that Mr

Ajay Gupta pressured him into placing government advertisements in

31 Para 7.2 of the State of Capture Report. 32 See also para 5.15 of the State Capture Report, describing the Public Protector’s interview with Ms Mentor. 33 See also paras 5.17 to 5.19 of the State Capture Report, describing the Public Protector’s interview with Mr Jonas, Mr Nene and Mr Gordhan. 34 Para 7.3 of the State of Capture Report.

the New Age newspaper which was being set up by the Gupta family.

Mr Maseko further alleged that, shortly before his meeting at the Gupta

family’s residence where this pressure was imposed, President Zuma

personally called to ask him to “help” the Gupta family.35 Mr Maseko

also alleged that, when he resisted cooperating, Mr Ajay Gupta

threatened him by saying “I will talk to your seniors in government and

you will be sorted out”, and that he would be replaced by people who

will co-operate;

29.3.2. the allegations that the Eskom Chief Executive Officer, Mr Brian Molefe

had a “cozy relationship” with the Gupta family and the directors of

Tegeta Exploration and Resources, which had sourced major contracts

with Eskom and in which company the Gupta family (through Oakbay

Investments), Mr Zuma’s son, Duduzane Zuma (through Mabengela

Investments) and other associates of the Gupta family held a stake;36

29.3.3. the allegations of former Minister of Public Enterprises, Ms Barbara

Hogan, pertaining inter alia to President Zuma’s and then-ANC

Secretary General Gwede Mantashe’s interest in SOE-Board

appointments, and President Zuma’s obstruction of her performance of

her job as Minister, including that at a certain point he would not even

allow her to appoint a Director General in her Department.37 The Public

Protector observed that “the allegations made by Ms Hogan also

deserve a closer look to the extent that they suggest Executive and

35 See also para 5.20 of the State Capture Report, describing the Public Protector’s interview with Mr Maseko. 36 See also paras 5.4 to 5.6, 5.42 to 5.44, 5.95 to 5.101, 5.111ff of the Report. 37 See also para 5.16 of the State Capture Report, describing the Public Protector’s interview with Ms Hogan.

party interference in the management of SOEs and appointments

thereto”.38

29.4. That President Zuma enabled or turned a blind eye, in violation of the

Executive Ethics Code, to alleged corrupt practices by the Gupta family

and his son in relation to allegedly linking appointments to quid pro quo

conditions.39 The Public Protector emphasised in this regard that there

seemed to be no evidence showing that Mr Jonas’ allegations that he was

offered money and a ministerial post in exchange for favours were ever

investigated by the Executive. 40 She reasoned that if correct, then section

2.3 (c) of the Executive Ethics Code may have been infringed.

29.5. That President Zuma and other Cabinet members improperly interfered in

the relationship between banks and Gupta owned companies thus giving

preferential treatment to such companies on a matter that should have

been handled by independent regulatory bodies.41

29.6. The Public Protector recognised that the following related issues also

required further investigation:

29.6.1. Whether President Zuma improperly and in violation of the Executive

Ethics Code exposed himself to any situation involving the risk of

conflict between his official duties and his private interest or use his

position or information entrusted to him to enrich himself and

38 Para 7.3. 39 Para 7.4 of the Report. 40 This point is repeatedly made by the Public Protector: see, for instance, paras 4 (a) and (b), 6(a) and 7.2 of the Report. 41 Para 7.4 of the Report.

businesses owned by the Gupta family and his son to be given

preferential treatment in the award of state contracts, business

financing and trading licences; and

29.6.2. Whether any one was prejudiced by the conduct of President Zuma.42

30. The Public Protector describes in her report how then-President Zuma failed to

cooperate with her investigation. She describes her engagements with Mr Zuma,

his technical objections and avoidance of responding to the allegations she was

investigating. The Public Protector records that she advised the President that

he was obliged to provide responses as “he is accountable to the people of the

Republic”.43 Nevertheless, she notes (at paragraph 5.28 of the report) that:

“I met with the President on 6 October 2016 to solicit his response to the above allegations. He did not respond to any of my questions.”44

31. The Commission’s Terms of Reference reflect that the Public Protector’s

investigation into abuses of power and breach of duty on the part of Mr Zuma

underpins its mandate.45 The Commission has received evidence in the form of

42 Paras 7.5 and 7.6 of the Report. 43 Para 3.21 of the Report. 44 See also paras 3.20 to 3.41 of the Report. 45 The relevant terms read: “1. The Commission shall inquire into, make findings, report on and make recommendations concerning the following, guided by the Public Protector's state of capture report, the Constitution, relevant legislation, policies, and guidelines, as well as the order of the North Gauteng High Court of 14 December 2017 under case number 91139/2016: 1.1 whether, and to what extent and by whom attempts were made through any form of inducement or for any gain of whatsoever nature to influence members of the National Executive (including Deputy Ministers), office bearers and/or functionaries employed by or office bearers of any state institution or organ of state or directors of the boards of SOE's. In particular, the commission must investigate the veracity of allegations that former Deputy Minister of Finance, Mr Mcebisi Jonas and Ms Mentor were offered Cabinet positions by the Gupta family; 1.2 whether the President had any role in the alleged offers of Cabinet positions to Mr Mcebisi Jonas and Ms Mentor by the Gupta family as alleged;

affidavits and sworn oral testimony from more than thirty witnesses that implicate

Mr Zuma for alleged breaches of his constitutional duties as President of the

Republic.46 The relevant evidence has been presented to Mr Zuma, in the form

1.3 whether the appointment of any member of the National Executive, functionary and /or office bearer was disclosed to the Gupta family or any other unauthorised person before such appointments were formally made and/or announced, and if so, whether the President or any member of the National Executive is responsible for such conduct; 1.4 whether the President or any member of the present or previous members of his National Executive (including Deputy Ministers) or public official or employee of any state owned entities (SOEs) breached or violated the Constitution or any relevant ethical code or legislation by facilitating the unlawful awarding of tenders by SOE's or any organ of state to benefit the Gupta family or any other family, individual or corporate entity doing business with government or any organ of state; … 1.7 whether any member of the National Executive and including Deputy Ministers, unlawfully or corruptly or improperly intervened in the matter of the closing of banking facilities for Gupta owned companies; … 1.9 the nature and extent of corruption, if any, in the awarding of contracts and tenders to companies, business entities or organizations by Government Departments, agencies and entities. In particular, whether any member of the National Executive (including the President), public official, functionary of any organ of state influenced the awarding of tenders to benefit themselves, their families or entities in which they held a personal interest”. (Emphasis added) 46 See the list of Rule 3.3 Notices in Annexure IM11, p 172. The Commission’s Rules were promulgated in the General Notice No 397 of 2018 in the Government Gazette No. 41774 (16 July 2018). Rule 3.3 provides: “3.3 If the Commission’s Legal Team intends to present to the Commission a witness, whose evidence implicates or may implicate another person, it must, through the Secretary of the Commission, notify that person (“implicated person”) in writing within a reasonable time before the witness gives evidence: 3.3.1. that he or she is, or may be, implicated by the witness’s evidence; 3.3.2. in what way he or she is, or may be, implicated and furnish him or her with the witness’s statement or relevant portions of the statement; 3.3.3. of the date when and the venue where the witness will give the evidence; 3.3.4. that he or she may attend the hearing at which the witness gives evidence; 3.3.5. that he or she may be assisted by a legal representative when the witness gives evidence; 3.3.6. that, if he or she wishes: 3.3.6.1. to give evidence himself or herself; 3.3.6.2. to call any witness to give evidence on his or her behalf; or 3.3.6.3. to cross-examine the witness; he or she must, within two weeks from the date of notice, apply in writing to the Commission for leave to do so; and 3.3.7. that the Chairperson will decide the application.”

of Rule 3.3 notices issued to him, inviting him to respond to the allegations.

Some, but not all, of these notices are attached to the founding papers.47 The

same evidence is the subject of the summons the Commission issued to Mr

Zuma in October 2020, and which he defied in the week of 16 November 2020.48

Regulation 10(6) directives have also been issued to Mr Zuma directing him to

respond to some of the allegations on affidavit.49

32. Without purporting to be exhaustive, we highlight some of the allegations that Mr

Zuma has been called on to address and which he has, to date, failed to address

on the merits:50

32.1. Mr Themba Maseko’s allegations that (i) in or about September/ October

2010, Mr Zuma had a telephonic conversation with him in which Mr Zuma

required him to accede to the demands from the Guptas for government

advertising to be placed with their new media company, with the purpose

of benefitting that company without due respect and regard for compliance

with procurement obligations under s 217 of the Constitution and s

53(1)(a) of the Public Finance Management Act, 1999 (“PFMA”); and (ii) in

early 2011, Mr Zuma removed or caused him to be removed from his

47 Annexure IM12, at pp 173ff. 48 The summons is Annexure IM2, pp 84-86. Annexure A to the summons lists the witnesses whose evidence Mr Zuma was called upon to answer at the Commission, under questioning by the Evidence Leaders. 49 The Regulation 10(6) directives are annexures IM7 and IM8 at pp 143-151. Regulation 10.6 provides: “(6) For the purposes of conducting an investigation the Chairperson may direct any person to submit an affidavit or affirmed declaration or to appear before the Commission to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person”. Noncompliance with a regulation 10(6) directive is an offence, under regulation 12(2). 50 Although Mr Zuma appeared at the Commission for examination in July 2019, he did not meaningfully address the merits of the allegations and evidence put to him at the hearing. See founding affidavit para 83, p 50.

position of CEO, of the Government Communication and Information

Service when he refused to accede to the demands of Mr Ajay Gupta.51

32.2. Ms Vytjie Mentor’s allegations that (i) she was removed from the position

of the Chairperson of the Portfolio Committee on Public Enterprises for

refusing to meet with Mr Zuma in China in 2010; (ii) in October 2010, at

the Gupta residence in Saxonwold, Mr Ajay Gupta told her that Mr Zuma

would be reshuffling the Cabinet the following week and offered her the

position as Minister of Public Enterprises if she facilitated the closure of

the SAA-India route; and (iii) when she told Mr Zuma about this

discussion, he did not negate or contradict what she conveyed about her

discussion with Mr Ajay Gupta.52

32.3. Ms Barbara Hogan’s allegations that (i) in and around 2009, Mr Zuma

unlawfully sought to interfere in the management of Eskom by pressurising

her to reinstate Mr Jacob Maroga as the CEO of Eskom, after the Eskom

Board had unanimously decided not to do so; (ii) Mr Zuma unlawfully

sought to interfere in the management of Transnet by insisting on the

appointment of Mr Siyabonga Gama as CEO of Transnet, when the Board

had already nominated an excellent candidate and determined that Mr

Gama was not CEO material and when Mr Gama was facing an inquiry

regarding certain irregularities; and that (iii) Mr Zuma unlawfully prevented

Ms Hogan from nominating the Transnet Board’s chosen candidate for

51 Rule 3.3. Notice issued in respect of Mr Maseko’s evidence, pp 174-175. 52 Rule 3.3. Notice issued in respect of Ms Mentor’s evidence, p 178.

CEO and from designating a new Chairperson to the Transnet Board when

the incumbent’s term had expired.53

32.4. The allegations of the Minister of Public Enterprises and former Minister of

Finance, Mr Pravin Gordhan that –

32.4.1. During November 2011 to December 2015, Mr Zuma initiated and

coordinated the process to procure 9.6GW of nuclear energy from the

Russian Federation without ensuring the conclusion of prior feasibility

studies and finance modelling to ensure affordability, and without

ensuring an open and competitive bidding process, in contravention of

the PFMA; and that Mr Zuma sought and purported to bind the Republic

to a substantial financial obligation under such nuclear build programme

without any prior vote of expenditure by Parliament or budget allocation,

in contravention of the budgeting requirements of the PFMA;

32.4.2. In or around April 2014, Mr Zuma unlawfully sought to execute or cause

to be executed the Petronas transaction without due diligence being

conducted, exposing National Treasury to financial risk in the amount of

R18,6 billion, at an inflated cost of R6 billion.

32.4.3. In and around 2016, Mr Zuma was aware of the refusal by the

Commissioner of the South African Revenue Services (SARS), Mr Tom

Moyane to account to Mr Gordhan as the Minister of Finance, and Mr

Moyane’s campaign to discredit Mr Gordhan and the National Treasury,

and orchestrate a criminal prosecution against Mr Gordhan, and that Mr

Zuma failed to take appropriate action against Mr Moyane and to

53 Rule 3.3. Notice issued in respect of Ms Hogan’s evidence, pp 181-182.

protect Mr Gordhan as a member of his national Executive in the

performance of his duties.54

32.5. Mr Nhlanhla Nene’s and Mr Mcebisi Jonas’ allegations that Mr Zuma

unlawfully sought to pressurise Mr Nene, then the Minister of Finance, to

sign a letter of agreement for the proposed nuclear build programme with

the Russian Federation, and further agreed to proceed with the nuclear

build programme at a Cabinet meeting in December 2015 and permitted

the Department of Energy to issue a Request for Proposals in

circumstances where there was no approved funding model to show

affordability; the programme would have had material and negative

financial consequences for South Africa; and National Treasury had

advised against the programme and raised concerns over its feasibility

and the fiscal implications.55

32.6. The allegations of Mr Mahlodi Sam Muofhe that, in 2014 and 2015, Mr

Zuma took a personal interest in and sought to influence the appointment

of Mr Mzwanele “Jimmy” Manyi as the Director General of the Department

of Mineral Resources, despite the former Minister, Mr Ramatlhodi advising

that Mr Manyi did not have the necessary qualifications for the post.56

32.7. The allegations of General Siphiwe Nyanda and former Minister of

Finance, Mr Trevor Manual that in and around 2011, Mr Zuma was

unlawfully influenced by one of the Gupta brothers in appointing Mr Fikile

54 Rule 3.3. Notice issued in respect of Mr Gordhan’s evidence, pp 186-189. 55 Rule 3.3. Notice issued in respect of Mr Nene’s evidence, pp 192-193; Rule 3.3. Notice issued in respect of Mr Jonas’ evidence, p 220 and affidavit at pp 225-226. 56 Rule 3.3. Notice issued in respect of Mr Muofhe’s evidence, p 197.

Mbalula as Minister of Sports and Recreation, and that Mr Zuma failed to

take any action in response to Mr Mbalula’s allegations that he had been

informed of his pending appointment as the Minister of Sports and

Recreation by Mr Atul Gupta before Mr Zuma had officially announced it.57

32.8. The allegations of former Provincial Head of the Directorate of Priority

Crimes Investigation (the Hawks) in KwaZulu-Natal, Mr Johan Booysen

that (i) Mr Zuma unduly interfered in (i) the investigative independence of

the National Prosecuting Authority (NPA), the Hawks and the South

African Police Services (SAPS); (ii) Mr Zuma unduly declined, delayed or

obstructed recommended prosecutions; (iii) Mr Zuma participated in the

undue persecution of officials of the NPA, the Independent Police

Investigative Directorate (IPID) and the Hawks; and (iv) Mr Zuma

destabilised the NPA, the Hawks and the SAPS.58

32.9. The allegations of the former National Director of Public Prosecutions

(NDPP), Mr Mxolisi Nxasana that Mr Zuma (i) failed to intervene to cause

disciplinary action to be taken against leaders in the NPA, Advocates Jiba,

Mrwebi and Mzinyathi; (ii) took steps to suspend him without adequate

grounds; and (iii) falsely stated under oath the Mr Nxasana had requested

to vacate the office of the NDPP.59

32.10. The allegations of Mr Popo Molefe (the former Chairperson of PRASA)

that Mr Zuma personally sought to intervene to have Mr Lucky Montana

57 Rule 3.3. Notice issued in respect of Mr Nyanda’s evidence, pp 200 & 202; Rule 3.3. Notice issued in respect of Mr Manual’s evidence, p 204 and 206-207. 58 Rule 3.3. Notice issued in respect of Mr Booysen’s evidence, pp 210-211. 59 Rule 3.3. Notice issued in respect of Mr Nxasana’s evidence, p 215.

reinstated as CEO of PRASA, after the Board had decided to accept Mr

Montana’s resignation following a damning report by the erstwhile Public

Protector on maladministration, corruption and impropriety in procurement

and management at PRASA.60

32.11. The allegations of Ms Bongiwe Dube, a former employee at Bosasa, that

Bosasa provided catering for Mr Zuma’s birthday in Pretoria.61

32.12. The allegations of an anonymous witness that Mr Zuma was involved in

the diversion of the proper mandate of the Special Operations Unit of the

State Security Agency and used the Unit for (i) his own private VIP

protection and that of Ms Dudu Myeni, amongst others; and (ii) to provide

parallel technical surveillance counter-measures.62

32.13. The allegations of Mr Brent Simons that during 2014, he personally

witnessed Mr Zuma using his position as President to secure government

contracts for members of his family, in particular funds and contracts from

the National Youth Development Agency, the Government

Communications and Information Service (GCIS) and the Department of

Public Service and Administration.63 Mr Simons also alleges that Minister

Collins Chabane had confided in him that Mr Zuma had instructed him to

remove Mr Themba Maseko as CEO of the GCIS and to replace him with

Mr Mzwanele Jimmy Manyi.

60 Rule 3.3. Notice issued in respect of Mr Popo Molefe’s evidence, p 228, read with affidavit at pp 231-237. 61 Rule 3.3. Notice issued in respect of Ms Dube’s evidence, pp 238-9 and para 5.4 of her affidavit at p 243. 62 Rule 3.3. Notice at p 246 and redacted affidavit at pp 248 to 261. 63 Rule 3.3. Notice issued in respect of Mr Brent’s evidence at pp 262-267.

32.14. The allegations of Mr Abegnigo Hlungwani (Mr Chabane’s private

secretary) that Mr Zuma had instructed Minister Collins Chabane to

remove Mr Themba Maseko as CEO of the GCIS and to replace him with

Mr Mzwanele “Jimmy” Manyi.64

32.15. The allegations of Mr Lizo Gibson Njenje (the former head of domestic

intelligence at the State Security Agency) that Mr Zuma (i) prevented the

State Security Agency from investigating the Gupta family; (ii) assisted Mr

Ajay Gupta in their bid to acquire mineral rights from Kumba and Arcelor

Mittal; (iii) was aware of the meeting between then Minister of Mineral

Resources, Ms Shabangu and Mr Ajay Gupta to fast-track their application

for mineral rights; and (iv) instructed the Minister Cwele (then Minister of

State Security) to instruct Mr Njene to cease the prosecution of Mr Arthur

Fraser, despite a strong case of Mr Fraser’s involvement in the unlawful

Principal Agent Network Programme.65

32.16. The allegations of Mr Riaz “Mo” Shaik (the former head of the State

Security Agency) and Mr Mzuvukile Maqetuka (former head of intelligence

at the State Security Agency) that (i) Mr Zuma prevented the State

Security Agency from investigating the Gupta family, and failed to heed the

advice of senior directors at the Agency with regard to the Guptas and the

negative impact that Mr Zuma’s relationship with them was having on the

country; (ii) Mr Zuma removed the top three executives at the State

Security Agency (Mr Shaik, Mr Njenje and Mr Maqetuka) to protect the

Gupta family, and in so doing, Mr Zuma undermined the agency and

64 Rule 3.3. Notice issued in respect of Mr Hlungwani’s vidence at pp 269-270. 65 Rule 3.3. Notice issued in respect of Mr Njenje’s evidence at pp 273-274.

security of the Republic; and (iii) Mr Zuma offered Mr Shaik an

ambassadorship to Japan to secure his removal from South Africa, and

when this was refused, arranged for the transfer of the Ambassador to

Canada to Japan to arrange for Mr Shaik’s appointment as Ambassador to

Canada.66

33. It is apparent from these allegations that Mr Zuma is accused of the most serious

abuses of power and breach of his constitutional duties as President of the

Republic, including his duty –

33.1. to uphold, defend and respect the Constitution as the supreme law of the

Republic, under section 83(a) of the Constitution;

33.2. to promote unity and that which will advance the Republic, under section

83(b) of the Constitution;

33.3. to act in accordance with the prescribed Code of Ethics for members of

Cabinet, under section 96(1) of the Constitution;

33.4. not to act in any way that is inconsistent with his office as President and

member of Cabinet, or to expose himself to any situation involving the risk

of a conflict between his official responsibilities and private interests, under

section 96(2)(b) of the Constitution;

33.5. not to use his position as President and member of Cabinet, or any

information entrusted to him, to enrich himself or improperly benefit any

other person, under section 96(2)(c) of the Constitution; and

66 Rule 3.3. Notice issued in respect of Mr Shaik’s evidence at pp 276-277; and Mr Maqetuka’s evidence at pp 280-281.

33.6. to act in accordance with his oath of office, under section 87 and Schedule

2 of the Constitution – namely, to “be faithful to the Republic of South

Africa, and [to] obey, observe, uphold and maintain the Constitution and all

other law of the Republic; and … [to] always –

• promote all that will advance the Republic, and oppose all that may harm it;

• protect and promote the rights of all South Africans;

• discharge [his] duties with all [his] strength and talents to the best of [his] knowledge and ability and true to the dictates of [his] conscience;

• do justice to all; and

• devote [himself] to the well-being of the Republic and all of its people.”

34. Mr Zuma must respond to the allegations of his alleged breach of constitutional

duty, and give an account of his conduct as the President of the Republic, when

called upon to do so at a commission of enquiry established for the very purpose

of establishing the truth and enforcing accountability in respect of these alleged

violations.

THE MATERIAL FACTS

35. Since the Commission commenced its hearings in August 2018, every effort has

been made for Mr Zuma to furnish the Commission with his version of events on

affidavit and to appear before the Commission to be questioned on matters that

are the subject of its investigation.

36. These efforts are detailed in the founding affidavit.67 In summary, they entailed

the following:

36.1. In 2018 Mr Zuma was asked to file an affidavit in respect of Ms Mentor and

Mr Maseko’s evidence. Two years later, Mr Zuma has not filed it. Mr

Zuma has never given an explanation for his failure to do so.

36.2. Mr Zuma appeared before the Commission on 15 July 2019 and gave

testimony for two and half days. However, at a stage in his testimony, Mr

Zuma declined to answer further questions and effectively withdrew from

the proceedings. Mr Zuma unreasonably objected to the manner in which

he was being questioned.68

36.3. On 19 July 2019, Mr Zuma and his legal representatives reached an

agreement with the Commission’s legal team with regard to Mr Zuma’s

delivery of affidavits that would address a scheduled list of areas of

interest, which agreement was announced publicly by the Chairperson.

Despite the agreement, and repeated undertakings by Mr Zuma’s legal

representatives that Mr Zuma’s affidavit or affidavits would be delivered,69

Mr Zuma has not delivered an affidavit addressing any of the areas of

interest. Mr Zuma has never furnished the Commission with any

explanation for his failure to honour the agreement.

36.4. At the end of July 2019, the Chairperson directed that Mr Zuma’s

examination was rescheduled to recommence from 14 October to 25

67 Founding affidavit at paras 71 to 115, pp 47-60. 68 Founding affidavit para 83, p 50. 69 See, for instance, the letters in annexures IM22 and IM26, pp 172 and 333-334.

October 2019 and from 11 November to 15 November 2019. Mr Zuma’s

legal representative unreasonably objected to the Chairperson’s ‘unilateral’

set down of these dates. Mr Zuma later advised the Commission that he

could not attend in October 2019 due to Mr Zuma’s scheduled appearance

in the criminal court; and Mr Zuma subsequently declined to attend in

November 2019 for reasons of ill health.

36.5. The Commission then decided to apply to the Chairperson for the issuing

of a summons directing Mr Zuma to appear for examination. That

application was initially scheduled to be heard in January 2020, but had to

be postponed as a result of the belated filing of Mr Zuma’s answer in the

summons application.

36.6. Mr Zuma was served with the Chairperson’s directive of 27 August 2020,

issued under regulation 10(6), requiring him to deliver an affidavit dealing

with the evidence of certain witnesses on or before 18 September 2020.

Mr Zuma has failed to deliver such affidavit to date, notwithstanding that

non-compliance with a regulation 10(6) directive is an offence.70

36.7. Mr Zuma was served with the Chairperson’s directive of 8 September

2020, also issued under regulation 10(6), requiring him to deliver an

affidavit dealing with another witness’s evidence on affidavit on or before

28 September 2020. Mr Zuma has to date failed to furnish the affidavit,

notwithstanding that such non-compliance is an offence.71

70 This directive is annexure IM7, pp 143-146. See regulation 12(2), read with regulation 10(6) of the Commission’s Regulations. 71 This directive is annexure IM8, pp 147-151.

36.8. Mr Zuma has not explained why he did not comply with either of these

binding directives.

36.9. Mr Zuma has declined to respond to any of the thirty-six Rule 3.3 Notices

issued to him, inviting him to respond to the evidence of witnesses at the

Commission that implicates or may implicate him.

37. Mr Zuma’s repeated failure or refusal to co-operate with the Commission made it

necessary to compel his attendance by way of a summons. The Secretary for

the Commission, having obtained authorisation from the Chairperson, issued a

summons against Mr Zuma on 20 October 2020 requiring Mr Zuma to appear

before the Commission on 16 to 20 November 2020 (both dates included) for the

purpose of giving evidence and being questioned on certain matters being

investigated by the Commission. The summons was duly served on Mr Zuma in

accordance with section 3(2) of the Commissions Act 8 of 1947.72

38. On 11 November 2020, on the eve of Mr Zuma’s scheduled appearance to give

evidence, Mr Zuma brought an application for the recusal of the Chairperson.

That application was lodged after the summons to appear had been issued and

served on him;73 more than two years after the Chairperson first invited Mr Zuma

to give evidence; and nearly three years after Mr Zuma (in his capacity as

72 The summons is annexure IM2, pp 83-86. Annexure A to the summons describes the evidence in the form of affidavits or statements of certain witnesses on which Mr Zuma was required to testify and be questioned. 73 The notice of motion in the recusal application was filed with the Commission on 11 November 2020 and the application for the Deputy Chief Justice’s recusal was brought at the commencement of the Commission’s proceedings on 16 November 2020 – the same day Mr Zuma was due to testify in terms of the summons.

President) had appointed the Chairperson, to chair the Commission, on the

selection of the Chief Justice.74

39. On 16 November 2020, Mr Zuma attended the proceedings of the Commission.

Mr Zuma’s legal representatives moved the application for the recusal of the

Chairperson. This took the whole day on 16 November 2020. At the end of

argument, the Chairperson reserved his ruling, the preparation of which took up

the following day. Mr Zuma’s counsel advised the Chairperson that Mr Zuma

wished to attend a funeral on Wednesday, 18 November and requested that Mr

Zuma be excused from attending the Commission the next day. The Chairperson

gave Mr Zuma permission to attend the funeral on the Wednesday but made it

clear that Mr Zuma should return and appear before the Commission on 19

November 2020, when the proceedings would continue.75

40. On Thursday, 19 November 2020, the Chairperson delivered his ruling together

with the reasons in terms of which he dismissed the recusal application.76 Upon

the dismissal of the recusal application, the Head of the Commission’s Legal

Team indicated that they intended to proceed with Mr Zuma’s examination, in

accordance with the summons. However, Mr Zuma’s legal representative, Mr

Sikhakhane informed the Chairperson that Mr Zuma had decided “to excuse

himself” from the proceedings.

41. Mr Zuma’s legal representative further informed the Chairperson that Mr Zuma

intended to take the Chairperson’s decision on the recusal application on review

74 In accordance with the remedial action of the Public Protector in the State of Capture Report, paragraph 8.4. 75 The facts as to what transpired at the Commission in the week of 16 to 20 November 2020 are addressed in the founding affidavit at para 62, pp 37-40. 76 The ruling is annexure IM3, at pp 87ff.

and to file a complaint against the Chairperson with the Judicial Service

Commission on the basis that, by deciding Mr Zuma’s recusal application, the

Chairperson had decided a matter in which he was a party. In response, the

Commission’s legal representative, Mr Pretorius emphasised that Mr Zuma was

under a summons that was valid and binding on him and he could not excuse

himself but needed the Chairperson’s permission to leave. Mr Pretorius made it

clear that if Mr Zuma left the proceedings without the Chairperson’s permission,

that would be a criminal offence.77

42. After these submissions were made, the Chairperson announced that he would

adjourn the proceedings for the tea break. It was clear from what the Chairperson

said that, after the tea break, the proceedings would resume. However Mr Zuma

left the proceedings during the tea break. He did so without requesting to be

excused from the proceedings by the Chairperson. Mr Zuma thus acted in

defiance of the summons issued by the Commission.

43. When the Commission resumed after the tea break, Mr Zuma had left the

proceedings without permission. The Chairperson indicated that Mr Zuma had

left; that he had left without permission; that this was regarded as a serious

matter; and that the Commission would need to reflect further on the matter. The

Chairperson publicly noted that the Commission could not proceed any further

that day or the following day, as it had prepared to conduct Mr Zuma’s

examination which had become impossible. The proceedings were, accordingly,

adjourned shortly after 12h00.

77 The relevant extract of the transcript of 19 November 2020 is annexure “IM4”, pp 117ff.

44. It is clear from what preceded and transpired in the week of 16 November 2020

that, although Mr Zuma attended the proceedings at the Commission, he never

intended to give evidence and be examined under oath, as required under the

summons. Mr Zuma only intended to attend the hearing of his application for the

recusal of the Chairperson and, if determined against him, to take the decision on

review and refuse to take the witness stand, give evidence and be questioned in

compliance with the summons. This appears from the following:

44.1. In the run-up to Mr Zuma’s scheduled appearance at the Commission, the

Commission sought an assurance from Mr Zuma’s attorneys that he would

comply with the summons. Mr Zuma’s attorneys failed to give this

assurance, but accused the Commission of “embarrassing” them by

addressing the question. They avoided answering the question and said

only that Mr Zuma had not indicated that he would defy the summons.78

When the Commission followed up with another letter asking Mr Zuma’s

attorneys to take instructions on whether Mr Zuma was going to comply

with the summons, Mr Zuma’s attorneys still either refused or avoided

answering this simple question.79

44.2. In arguing the recusal application, Mr Zuma’s counsel, Mr Sikhakhane,

advised the Commission that, should the application be dismissed, Mr

Zuma would take the decision on review and would “say nothing” if

compelled to give evidence at the Commission.80

78 See annexure IM5A at p 126. 79 Founding affidavit para 63.1, pp 41-42. 80 The excerpts from the transcript of 16 November 2020 are in annexure IM5B, pp 130ff. The key statements are quoted in the founding affidavit at paras 63.3.1 63.3.3, p 43.

44.3. When the Chairperson dismissed Mr Zuma’s application for his recusal, Mr

Zuma defied the summons and walked out of the Commission’s

proceedings, without the Chairperson’s permission, and never returned.

45. Following Mr Zuma’s departure from the Commission’s proceedings on 19

November 2020, the Jacob Zuma Foundation issued a public statement in which

it stated, amongst other things, that “President Zuma assures us that he would

rather face jail than allow himself to be bullied by an irregular, manipulated and

unlawful process”.81 Mr Zuma has not publicly countermanded the statement of

the Jacob Zuma Foundation, of which he is the founder and patron, and so must

be taken to have fully associated himself with the Foundation’s statement.82 The

Commission invited Mr Zuma to distance himself from the statements of the

Foundation, but he has failed to do so.83

46. Mr Zuma is thus not only avoiding giving evidence at the Commission, but is

actively attacking the legitimacy and credibility of the Commission, its

Chairperson and its work.

47. The Commission has since issued two fresh summonses against Mr Zuma,

requiring his attendance for examination from 18 to 22 January 2021 (both days

inclusive) and 15 to 19 February 2021 (both days inclusive).84 The Commission

asks the Court for orders directing Mr Zuma, inter alia, to comply with these new

summons. As the Secretary has stated, while Mr Zuma has defied the

81 This statement is annexure IM6A, p 138. 82 See also the Foundation’s statement of 23 September 2020 in annexure IM6B at p 140, which is of a similar tenor and tone. 83 See the invitation extended in the founding affidavit at para 65, p 44. 84 These summonses are annexures IM9A and IM9B, pp 152-159 and the returns of service are in annexure IM9C at p 160.

Commission and its Chairperson, the Commission does not believe that Mr Zuma

will defy an order of this Court, directing him to comply with the new summons

and directives of the Chairperson, and to account for his conduct in the highest

office by giving evidence and answering questions put to him concerning the

matters the Commission is investigating.85

THE COMMISSION OF INQUIRY AS AN ACCOUNTABILITY MECHANISM

48. This Court recognised the important public purpose served by commissions of

inquiry in Minister of Police v Premier of the Western Cape and Others.86 That

case concerned a challenge to the constitutional validity of a commission of

inquiry established by the Western Cape Premier (under s 206(5) of the

Constitution) into the state of policing in Khayelitsha. In confirming the validity of

the commission and its coercive powers, Moseneke DCJ emphasised the

“deeper public purpose” that it served. He held:

“In addition to advising the executive, a commission of inquiry serves a deeper public purpose, particularly at times of widespread disquiet and discontent. In the words of Cory J of the Canadian Supreme Court in Phillips v Nova Scotia:87

“One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover ‘the truth’. . . . In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an

85 Founding affidavit para 15, p 13. 86 Minister of Police v Premier of the Western Cape and Others 2014 (1) SA (1) (CC) at para 45. 87 [1995] 2 SCR 97 at 137-8.

excellent means of informing and educating concerned members of the public.”

49. Moseneke DCJ recognised the particular importance of vesting coercive powers

in commissions of inquiry. Moseneke DCJ held that without coercive powers, the

Commission “would be no different from an investigation” and would be unable to

fulfil its mandate.88 It would also undermine the public accountability of those

subject to the commission’s inquiry (in that case, the police), as well as the

provincial government’s performance of its constitutional duty to exercise

oversight over the police and ensure accountability and transparency.89

50. Similar considerations apply, arguably with even greater force, to the present

Commission. Its work is fundamental to ensuring accountability and transparency

in government and state-owned enterprises; for truth-finding on matters of

substantial public interest and concern; and to help to restore public confidence in

the institutions and process of government as a whole.

51. The importance of the value of accountability in government, as a pillar-stone of

South Africa’s democracy, was forcefully stated by this Court in the Nkandla

judgment.90 This Court has also recognised the special role that the Constitution

vests in the Public Protector, to expose prejudice, corruption and abuses of

power, and to enforce accountability and good governance.91 It emphasised the

importance of her office being effectual and her remedial action binding. Those

perceptions must also inform an assessment of the role and importance of the

88 At para 50. 89 At paras 51-52. 90 See para 1 of the Nkandla judgment, quoted above. 91 Nkandla paras 50-56.

work of the Commission, as it was established as an extraordinary remedial

measure required by the Public Protector to achieve her mandate.

52. The establishment and mandate of the Commission is thus pre-eminently an

exercise in constitutional accountability given (i) the special status of this

Commission as a remedial measure taken by the Public Protector, and (ii) its

subject-matter – tasked as it is with investigating allegations of state capture,

corruption and fraud in the highest echelons of government –has a bearing on the

very foundations of our constitutional democracy.

THE DUTY TO ANSWER QUESTIONS AT THE COMMISSION

53. The question whether Mr Zuma has a duty to answer questions put to him at the

Commission, or is entitled to remain silent, arises for determination as Mr Zuma’s

legal representative advised the Commission that this is the course Mr Zuma may

follow should he be compelled to give evidence.92

54. To ensure that the Commission’s summons is effective, and that the Commission

is able to perform its functions when it examines Mr Zuma, the Commission

seeks the order in prayer 4 of its Notice of Motion, namely:

“4. It is ordered that, when appearing before the Commission and after he has taken the oath of office or affirmation, the respondent shall answer any questions put to him by the designated Evidence Leader(s) and the Chairperson of the Commission, subject to the privilege against self- incrimination, and may not rely on the right to remain silent.”

55. Mr Zuma’s duty to answer questions when under examination at the Commission

stems, firstly, from section 3(1) of the Commissions Act 8 of 1947. The

92 See the statements made by Mr Zuma’s counsel at the Commission on 16 November 2020, quoted in the founding affidavit at para 63.3, pp 42-43; and the excerpt of the transcript of the Commission’s proceedings of 16 November 2020 in annexure IM5B, pp 132-137.

Commission’s Terms of Reference make clear that the Commissions Act applies

to it.93 Section 3(1) provides:

“(1) For the purpose of ascertaining any matter relating to the subject of its investigations, a commission shall in the Union have the powers which a Provincial Division of the Supreme Court of South Africa has within its province, to summon witnesses, to cause an oath or affirmation to be administered to them, to examine them, and to call for the production of books, documents and objects.” (Emphasis added.)

56. A person who has been summoned to appear as a witness has a legal duty to

comply with the terms of that summons, including by subjecting themselves to

examination in accordance with the summons. Under section 6(1) of the

Commissions Act, it is an offence for a summoned person to fail, without

sufficient cause (the onus of proof whereof rests upon that person), to attend at

the time and place specified in the summons.

57. The Regulations governing the Commission further specify the powers of the

Commission and the duty to answer questions under examination.94 Regulation

8(1) provides that –

“(1) No person appearing before the Commission may refuse to answer any question on any grounds other than those contemplated in section 3(4) of the Commissions Act, 1947 (Act No. 8 of 1947)”.

58. Regulation 12(2) (as amended)95 creates a corresponding offence for

non-compliance with regulation 8(1):

“(2) Any person who—

93 Paragraph 4 of the Terms of Reference: annexure IM1, p 81. 94 The Regulations were promulgated in Government Notice No. 105, Government Gazette No. 41436 (9 February 2018), and are amended by Proclamation No. 8 of 2018 in Government Gazette No. 41522 (21 March 2018); Proclamation No. 1 of 2020 in Government Gazette No. 42947 (10 January 2020); Proclamation No. 8 of 2020, in Government Gazette No. 42994 (4 February 2020); and Proclamation No. 24 of 2020 in Government Gazette No. 43563 (28 July 2020). 95 In Proclamation No. 8 of 2020, Government Gazette No. 42994 of 4 February 2020.

(a) appears before the Commission and refuses or fails, on any grounds other than those contemplated in section 3(4) of the Commissions Act, 1947, to answer or to answer fully and satisfactorily, any question lawfully put to him or her;

…

is guilty of an offence and liable on conviction—

(i) in the case of an offence referred to in paragraph (a), (c), (d) or (e), to a fine, or to imprisonment for a period not exceeding 12 months.”

59. The right to remain silent that Mr Zuma threatens to invoke is only available to an

arrested person or accused person in criminal proceedings, under section

35(1)(a) and 35(3)(h) of the Constitution. Neither of these provisions apply to Mr

Zuma when he appears at the Commission.

60. President Zuma is thus a compellable witness and does not have a right to

remain silent before the Commission. Although he retains his privilege against

self-incrimination,96 he cannot rely on this privilege to resist appearing as a

witness or to refuse to answer at all (i.e. to remain silent). Rather, the privilege

96 Under section 3(4) of the Commissions Act, read with Regulation 8(1). Section 3(4) provides: (4) Any person who has been summoned to attend any sitting of a commission as a witness or who has given evidence before a commission shall be entitled to the same witness fees from public funds, as if he had been summoned to attend or had given evidence at a criminal trial in a superior court held at the place of such sitting, and in connection with the giving of any evidence or the production of any book or document before a commission, the law relating to privilege as applicable to a witness giving evidence or summoned to produce a book or document in such a court, shall apply.” (Emphasis added.) In addition, Regulation 8(2) provides a form of “direct use immunity” to witnesses who give incriminating evidence before the Commission, rending such evidence inadmissible in subsequent criminal proceedings against them. It should be noted, however, that this protection does not extend so far as to prevent law enforcement agencies from using this information for investigative purposes. The information may also be used to prosecute other implicated or accused persons. Regulation 8(2) provides: “(2) No evidence regarding questions and answers contemplated in sub-regulation (1), and no evidence regarding any fact or information that comes to light in consequence of any such questions or answers, shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned is charged with an offence in terms of section 6 of the Commissions Act, 1947 (Act No. 8 of 1947), or regulation 12.”

must be claimed in respect of each question97 and the judicial officer, before

allowing the claim of privilege, must satisfy himself that “there is reasonable

ground to apprehend danger to the witness from his being compelled to

answer”.98 This danger must be “real and appreciable and not of an imaginary

and unsubstantial character”.99

MR ZUMA’S REVIEW OF THE RECUSAL DECISION HAS NO BEARING ON HIS

DUTY TO GIVE EVIDENCE AT THE COMMISSION

61. Mr Zuma has instituted an application in the High Court to review the

Chairperson’s decision to dismiss Mr Zuma’s application for his recusal. We

attach a copy of the Notice of Motion to these submissions, marked “A”, which

was filed and served on 15 December 2020. Mr Zuma’s review application has

no bearing on Mr Zuma’s duty to give evidence at the Commission. No prayer for

a stay of the Commission’s proceedings is sought in Mr Zuma’s Notice of Motion,

and a stay of incomplete proceedings to allow for in media res appeals or reviews

is not available as a matter of right.

62. A court will only permit such interruption of incomplete proceedings in “very rare

cases”100 where it is shown that “grave injustice”,101 “a gross irregularity”102 or

“such serious prejudice as would result in a miscarriage of justice” would result.103

There are several reasons for this: it is desirable that the actual merits should be

97 R v Kuyper 1915 TPD 308 at 316. 98 R v Boyes (1861) 1 B & S 311 at 330, 121 ER 730 at 738. 99 S v Carneson 1962 (3) SA437 (T) at 439H. 100 This is the language used in Maswanganyi v Road Accident Fund 2019 (5) SA 407 (SCA) at para 21. 101 Wahlhaus & others v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD). 102 R v Marais 1959 (1) SA 98 (T). 103 Id.

speedily disposed of, and that appeals or reviews are not decided piecemeal;

redress by means of review or appeal will ordinarily be available at the conclusion

of the proceedings (so there can accordingly be no miscarriage of justice or

abuse of process of the court if the ordinary procedure is followed); and

impartiality in adjudication is presumed.

63. The general rule and its rationale was recently reiterated by the Supreme Court

of Appeal in Maswanganyi v Road Accident Fund, where the Supreme Court of

Appeal held:

“[21] … The authorities are clear that it is only in very rare circumstances that a court will review a decision, or allow an appeal before the proceedings have been terminated. As Howie P stated in S v Western Areas Ltd:

‘Long experience has taught that in general it is in the interests of justice that an appeal await the completion of a case whether civil or criminal. Resort to a higher Court during proceedings can result in delay, fragmentation of the process, determination of issues based on an inadequate record and the expenditure of time and effort on issues which may not have arisen had the process been left to run its ordinary course.’

[22] Even where there is a power of review, as is the case with uncompleted proceedings in a magistrates’ court, there is long-standing authority that such proceedings will not ordinarily be reviewed by the High Court until they have run their full course, at which stage an appeal or review may be brought. In Ismail and Others v Additional Magistrate, Wynberg and Another, applying the decision in Wahlhaus, the following was stated:

‘(I)t is not every failure of justice which would amount to a gross irregularity justifying interference before conviction. . . . (W)here the error relied upon is no more than a wrong decision, the practical effect of allowing an interlocutory remedial procedure would be to bring the . . . decision under appeal at a stage when no appeal lies.’”104

104 Citing S v Western Areas Ltd 2005 (5) SA 214 (SCA); Walhaus and Another v The Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD) and Ismail & others v Additional Magistrate, Wynberg & Another 1963 (1) SA 1 (A). See also for a discussion of the principles and authorities: Motata vs Nair NO and Another 2009 (1) SACR 263 (TPD), per Hancke and Pickering JJ, paras 9-10.

64. The general rule applies equally in cases where an application for recusal has

been refused, and where that refusal is sought to be reviewed or appealed before

the merits of the matter are disposed of. This Court made the position clear in

SA Commercial Catering & Allied Workers Union v Irvin & Johnson Ltd, where

Cameron AJ (as he then was) held:

“… An applicant for recusal cannot be said to be ‘entitled’ to prosecute an appeal immediately. Two considerations suggest the contrary. First, though there is some early authority that a decision by an applicant for recusal to proceed with the merits of the matter instead of insisting on challenging the refusal to recuse by way of appeal may constitute a waiver of the recusal objection, it is clear from subsequent authority that waiver in these circumstances occurs only if it is unambiguous. The recusal point unless so abandoned therefore remains good for a later appeal. There can accordingly be no question of an ‘entitlement’ to proceed immediately.

Second, a court that has dismissed a challenge to its composition has ruled that it is properly constituted. In these circumstances, the Labour Appeal Court had the power to regulate its own proceedings, including the power to direct that the party whose challenge has been dismissed should proceed with the merits of the matter before it. Generally considerations point strongly against piecemeal appeals, though the matter remains overridingly one of convenience. Whether a court that has dismissed a recusal application permits the applicants to bring appeal proceedings first will depend on a range of factors. These include the nature of the matter, the nature of the objection to the court's composition, the prospects of success in the recusal, and, in the case of an appellate Court, the length of the record. The decision on these factors lies with the court itself. The applicants were therefore not entitled to proceed as of right with the application for leave to appeal.”105

65. In Take and Save Trading CC, Harms JA (writing for a unanimous Supreme

Court of Appeal) emphasised that “an appeal in medias res in the event of a

refusal to recuse, although legally permissible, is not available as a matter of right

and it is usually not the route to follow because the balance of convenience more

often than not requires that the case be brought to a conclusion at the first level

105 SA Commercial Catering & Allied Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC) para 4-5.

and the whole case then be appealed.”106 The unlikelihood of an appeal in media

res being permitted, on a balance of convenience, was underscored in R v Silber,

where the Appellate Division observed:

“Neither counsel has been able to find any reported case in which an application for recusal has been made in the course of a trial on the ground that the judicial officer has shown bias by his conduct of the proceedings. And this is not surprising, since the ordinary way of meeting any apparent bias shown by the court in its conduct of the proceedings would be by challenging his eventual decision in an appeal or review. Bias, as it is used in this connection, is something quite different from a state of inclination towards one side in the litigation caused by the evidence and the argument, and it is difficult to suppose that any lawyer could believe that recusal might be based upon a mere indication, before the pronouncement of judgment, that the court thinks that at that stage one or the other party has the better prospects of success.”107

66. In addition, Mr Zuma has not opposed the relief the Commission seeks in this

Court, to compel Mr Zuma to attend at the Commission and give evidence in

January and February 2021, in accordance with the fresh summons issued to

him. Those summonses have been validly issued and served,108 and are binding

on Mr Zuma. That is not contested in these proceedings.

67. Mr Zuma is, accordingly, obliged to appear at the Commission and give evidence

in accordance with the fresh summons, regardless of his review of the

Chairperson’s dismissal of the recusal application.

106 Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) at para 4. 107 R v Silber 1952 (2) SA 475 (A) at 481C-H. 108 FA para 69, p 46 and annexures IM9A, 9B and 9C, pp 152 to 163.

THE RELIEF SOUGHT

68. The Commission seeks declaratory orders (in prayer 2 of the Notice of Motion)

and mandatory relief (in prayers 3 to 7).

69. The declaratory orders in prayer 2 serve a two-fold purpose:

69.1. Prayers 2.1 and 2.2 are directed at ensuring that there can be no doubt as

to what Mr Zuma’s constitutional and statutory obligations are in respect of

his appearance and examination at the Commission, notwithstanding Mr

Zuma’s review of the Chairperson’s decision on recusal.

69.2. Prayers 2.3 and 2.4 are required under s 172(1)(a) of the Constitution, as

Mr Zuma’s conduct in taking leave of the Commission on 19 November

2020 without the Chairperson’s permission and in not complying with the

Commission’s summons is unlawful and inconsistent with the Constitution.

70. The mandatory orders in prayers 3 to 7 are directed at securing Mr Zuma’s

responsiveness, which is required without delay. These orders are required to

effectively remedy the constitutional wrong, which is an essential component of a

just and equitable order under section 172(2)(b) of the Constitution.109

71. Given the history of Mr Zuma’s non-compliance with the Commission’s directions

and his repeated avoidance of giving evidence and being examined, even despite

undertaking to the Commission that he would do so, the Commission has a well-

109 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) para 69; Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and Another [2019] ZACC 30; 2019 (11) BCLR 1358 (CC) ; 2019 (6) SA 597 (CC) paras 48, 65-66.

founded concern that Mr Zuma will continue to avoid to account, unless he is

expressly directed by this Court to do so.

72. For this reason, the Commission requires the mandatory orders directing –

72.1. Mr Zuma to comply with the fresh summons by requiring Mr Zuma to

appear at the Commission and to remain in attendance unless excused by

the Chairperson, for examination at the Commission on 18 to 21 January

2021 and on 15 to 19 February 2021 (prayers 3 and 5);

72.2. Mr Zuma to answer questions put to him, subject only to the privilege

against self-incrimination, and not a right to remain silent (prayer 4); and

72.3. the directions issued by the Chairperson under regulation 10(6) that Mr

Zuma furnish his versions and responses to certain witnesses on affidavit

by no later than 10 January 2021 (prayer 6).

73. To avoid the need for the Commission to have to approach this Court again, the

Commission also seeks the order in prayer 7, directing Mr Zuma to comply with

any directives the Chairperson may validly issue in the future against Mr Zuma in

respect of matters being investigated by the Commission.

74. All the requirements for the mandatory relief are met, namely: a clear right; an

injury to the right actually committed or reasonably apprehended; and the lack of

a suitable alternative remedy.

74.1. The Commission has a clear right to require the appearance and

examination under oath of any person; to require a person under

examination to answer questions put to him (subject only to the privilege

against self-incrimination); and to direct any person to submit an affidavit,

on any matter being investigated for the purposes of its investigations.

74.2. These rights are vested under section 3(1) of the Commissions Act and

regulations 8, 10(6) and 12 of the Commission’s Regulations.

74.3. In respect of the former President of the Republic, the Commission’s

statutory rights to summons and examine are bolstered by the

constitutional obligation of accountability that remains binding on Mr Zuma,

to account for his alleged abuses of power and breaches of constitutional

duty in office of the President.

74.4. Mr Zuma has injured and threatened the aforesaid rights by failing to

comply with the previous summons and the Chairperson’s directions under

regulation 10(6), and by intimating that should he be compelled to give

evidence he will “say nothing”.

74.5. There is no suitable alternative remedy available. No other remedy will

secure Mr Zuma’s compliance with the fresh summons and directions

issued by the Chairperson for submission of affidavits before the

Commission’s term expires.

75. The applicant accordingly prays for an order in terms of the Notice of Motion.

Since Mr Zuma has not opposed this application, the applicant does not persist in

seeking punitive costs, but it does persist in seeking costs against Mr Zuma. This

application has had to be brought at the taxpayer’s expense as a result of Mr

Zuma’s continued breach of his duty to be accountable and his blatant violation of

the law in defying the Commission’s summons. Mr Zuma’s response to this

application – by addressing a letter to the Registrar advising that he would not participate in these proceedings at all – is yet a further instance of Mr Zuma’s refusal to account for his unlawful conduct. The court should take a dim view of this response. There is no good reason why the Commission, which relies on public funds to do its work, should pay the costs of this application.

T Ngcukaitobi SC

J Bleazard

Applicant’s counsel

Chambers, 18 December 2020

TABLE OF AUTHORITIES

CASES:

Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC)

Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC)

Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (“Nkandla”)

Electoral Commission v Mlhope 2016 (5) SA 1 (CC)

Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)

Ismail & others v Additional Magistrate, Wynberg & Another 1963 (1) SA 1 (A)

Maswanganyi v Road Accident Fund 2019 (5) SA 407 (SCA)

Mazibuko v Sisulu [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC)

Minister of Police v Premier of the Western Cape and Others 2014 (1) SA (1) (CC)

Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bisset and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC for Local Government & Housing in the Province of Gauteng & Others 2005 (1) SA 530 (CC)

Motata vs Nair NO and Another 2009 (1) SACR 263 (TPD)

Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and Another [2019] ZACC 30; 2019 (11) BCLR 1358 (CC) ; 2019 (6) SA 597 (CC) President of the Republic of South Africa v Office of the Public Protector and Others 2018 (2) SA 100 (GP)

President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1998] ZACC 21; 1999 (2) SA 14; 1999 (2) BCLR 175 (CC) (SARFU I) President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) (SARFU II)

R v Boyes (1861) 1 B & S 311 at 330, 121 ER 730

R v Kuyper 1915 TPD 308

R v Marais 1959 (1) SA 98 (T)

R v Silber 1952 (2) SA 475 (A)

S v Carneson 1962 (3) SA437 (T)

S v Western Areas Ltd 2005 (5) SA 214 (SCA)

SA Commercial Catering & Allied Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC)

South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC)

Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA)

United Democratic Movement v Speaker of the National Assembly and Others (CCT89/17) [2017] ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC)

Van Abo v President of the Republic of South Africa (CCT 67/08) [2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC) Wahlhaus & others v Additional Magistrate, Johannesburg & Another 1959 (3) SA 113 (AD)

LEGISLATION:

Commissions Act No. 8 of 1947

Regulations of the Judicial Commission of Inquiry into allegations of state capture, corruption and fraud in the Public Sector including Organs of State, Government Notice No. 105, Government Gazette No. 41436 (9 February 2018)

Amendments to the aforesaid Regulations, in:

- Proclamation No. 8 of 2018 in Government Gazette No. 41522 (21 March 2018);

- Proclamation No. 1 of 2020 in Government Gazette No. 42947 (10 January 2020);

- Proclamation No. 8 of 2020, in Government Gazette No. 42994 (4 February 2020); and

- Proclamation No. 24 of 2020 in Government Gazette No. 43563 (28 July 2020).

OTHER:

L L Fuller The Morality of Law revised ed (1969)

Public Protector State of Capture Report No. 6 of 2016/17 (14 October 2016)

"A"

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 295/20

In the matter between:

SECRETARY OF THE JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR, INCLUDING ORGANS OF STATE Applicant and

JACOB GEDLEYIHLEKISA ZUMA Respondent and

COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION First Amicus Curiae

ADVOCATE VUYANI NGALWANA SC Second Amicus Curiae

THE HELEN SUZMAN FOUNDATION Third Amicus Curiae

FILING SHEET – HEADS OF ARGUMENT OF THE COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION AS AMICUS CURIAE

PRESENTED HEREWITH FOR SERVICE AND FILING: Heads of Argument of the

Council for the Advancement of the South African Constitution ("CASAC") as Amicus

Curiae.

1 DATED at SANDTON on this the 24th day of DECEMBER 2020.

______WERKSMANS ATTORNEYS Attorneys for CASAC in the Application for Admission as an Amicus Curiae The Central, 96 Rivonia Road Sandton, 2196 Tel: (011) 535 8199 Fax: (011) 535 8623 Email: [email protected] Ref: Mr D Singo / PROB9999.723

TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT

AND TO: STATE ATTORNEY, JOHANNESBURG Applicant's Attorneys 95 Albertina Sisulu Road 10th Floor, North State Building Johannesburg Per: Mr Johan van Schalkwyk Mobile: +27 71 401 6235 Ref: 1544/18/P45 Email: [email protected] Email: [email protected] SERVICE BY EMAIL

AND TO: MABUZA ATTORNEYS Respondent's Attorneys 1st Floor 83 Central Street Houghton, 2198 Johannesburg Ref: Mr ET Mabuza / Mr RN Baloyi / Ms Z Longwe Email: [email protected] SERVICE BY EMAIL

2 AND TO: ADVOCATE VUYANI NGALWANA SC Applicant for Admission as an Amicus Curiae 1st Floor, 82 Maude Street Sandton Johannesburg Tel: 082 328 9420 Fax: (011) 268 0470 Email: [email protected] Ref: Adv Vuyani Ngalwana SC SERVICE BY EMAIL

AND TO: WEBBER WENTZEL Attorneys for the Helen Suzman Foundation in the Application for Admission as Amicus Curiae 90 Rivonia Road Sandton Johannesburg 2196 Tel: (011) 530 5867 Fax: (011) 530 6867 Email: [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Ref: V Movshovich / P Dela / D Cron / D Rafferty / M Kruger SERVICE BY EMAIL

3 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 295/20

In the matter between

SECRETARY OF THE JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR, INCLUDING ORGANS OF STATE Applicant and

JACOB GEDLEYIHLEKISA ZUMA Respondent

COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION Amicus Curiae

HEADS OF ARGUMENT

COUNCIL FOR THE ADVANCEMENT OF THE SOUTH AFRICAN CONSTITUTION AS AMICUS CURIAE

TABLE OF CONTENTS

INTRODUCTION ...... 3

CASAC’S INTEREST AND ROLE AS AN AMICUS CURIAE ...... 4

NATURE AND PURPOSE OF A JUDICIAL COMMISSION OF INQUIRY ...... 5

THERE IS NO PRIVILEGE AGAINST SELF-INCRIMINATION OR RIGHT TO

SILENCE IN A JUDICIAL COMMISSION OF INQUIRY ...... 9

The Constitution ...... 9

The Commissions Act ...... 11

The Commission’s Regulations ...... 15

The Commission’s Rules ...... 17

The Correct Legal Approach ...... 17

PRAYER 4 OF THE NOTICE OF MOTION ...... 19

TABLE OF AUTHORITIES ...... 23

2 INTRODUCTION

1. On 16 November 2020, during an appearance that gave rise to these proceedings,

counsel for former President Jacob Zuma (“Mr Zuma”) indicated to the Judicial

Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in

the Public Sector, including Organs of State (“Commission”) that Mr Zuma would

“exercise his right to say nothing” and that his counsel would “bring him here and

tell him to sit there and say nothing” if he were compelled to testify at the

Commission.1

2. The Council for the Advancement of the South African Constitution (“CASAC”)

seeks to participate in these proceedings to make one simple submission: our law

does not permit Mr Zuma to “sit there and say nothing” because no witness before

a commission of inquiry has a “right to say nothing” at a commission of inquiry.

3. No witness before a commission of inquiry has a “right to say nothing” because

every witness before a commission of inquiry has an obligation to “to answer fully

and satisfactorily any question lawfully put to him” and may only refuse to answer

a question if it is subject to a privilege other than the privilege against self-

incrimination (such as legal professional privilege).2

4. Only an arrested person or an accused person during a criminal trial has a “right

to say nothing”.

1 Applicant’s Founding Affidavit p 043 paras 63.3.1 and 63.3.2 referring to Annexure IM5B p 63 lines 11-20 and p 85 line 24 to p 86 line 2 2 Sections 3(4) and 6(1) of the Commissions Act, No 8 of 1947 (“Commissions Act”)

3 5. The constitutional rights of an arrested or accused person are protected because

any testimony they may have given before a commission of inquiry is inadmissible

in their criminal trial. The only exception is if they are on trial for failing to (i) appear,

(ii) remain in attendance when required to do so, (iii) be sworn or make affirmation,

(iv) answer fully and satisfactorily, or (v) produce a book, document or object at the

commission of inquiry. 3

6. As a result, Mr Zuma, or any other witness summoned to appear before the

Commission, must fully and satisfactorily answer every question put to them, and

may not rely on either the privilege against self-incrimination or the right to silence

to refuse to do so.

CASAC’S INTEREST AND ROLE AS AN AMICUS CURIAE

7. CASAC applied for admission to these proceedings and no opposition to that

application was received.4 The interest and basis on which CASAC qualifies for

admission in these proceedings as an amicus curiae is set out in its application for

that admission to which the Court is respectfully referred, and those submissions

are not repeated here.

8. CASAC was directed to submit its written submissions by not later than 28

December 2020; these are those submissions.5

3 Section 6(1) of the Commissions Act 4 See application for admission as amicus curiae dated 18 December 2020 5 Prayer 3 in the Notice of Motion

4 9. CASAC addresses the following topics in these heads of argument:

9.1. The nature and purpose of a judicial commission of inquiry;

9.2. The reasons why there is no privilege against self-incrimination or right to

silence in a commission of inquiry; and

9.3. The appropriate formulation of prayer 4 in the Notice of Motion as a result.

NATURE AND PURPOSE OF A JUDICIAL COMMISSION OF INQUIRY

10. A judicial commission of inquiry is a vehicle for detailed, comprehensive and

focussed fact-finding in a manner that uncovers the truth, and promotes public

accountability. It also enhances the rule of law, transparency and openness.

Commissions of inquiry fulfil a variety of functions, but are typically appointed in

order to investigate the facts of a particular set of events and to tender a report

thereafter proposing avenues for resolution.

11. This Court has addressed the role of a commission of inquiry in several decisions:

11.1. In Magidiwana and Others v President of the Republic of South Africa

and Others6, this Court identified the role of a commission of inquiry to be

primarily truth-telling, stating:

“It is open to the President to search for the truth through a commission. The truth so established could inform corrective measures, if any are recommended, influence future policy, executive action or even the

6 [2013] ZACC 27; 2013 (11) BCLR 1251 (CC) at para 15.

5 initiation of legislation. A commission’s search for truth also serves indispensable accountability and transparency purposes. Not only do the victims of the events investigated and those closely affected need to know the truth: the country at large does, too.”7

11.2. The role of commissions as vehicles for accountability was also

explained in Minister of Police and Others v Premier of the Western Cape and

Others, where this Court further stated that “a commission of inquiry [is] one of

the mechanisms of accountability and oversight available. . .”8 This Court also

explained that, in addition to advising the President, a commission of inquiry

serves a deeper public purpose, particularly at times of widespread disquiet

and discontent and relied on the words of Cory J of the Canadian Supreme

Court in Phillips v Nova Scotia:

“One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover ‘the truth’. . . In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public.”9

7 Magidiwana at para 15. 8 [2013] ZACC 33; 2013 (12) BCLR 1365 (CC) 2014 (1) SA (1) at para 41. 9 Minister of Police at para 45.

6 11.3. In Azanian Peoples Organization (AZAPO) and Others v President of

the Republic of South Africa and Others, this Court described the role of

commissions of inquiry as also encompassing a national catharsis and

accountability element. The role of a commission included having regard to

“the perspectives of the victims and the motives and perspectives of the

persons responsible for the commission of the violations”.10

11.4. In SARFU I, this Court summarised the role of commissions as being “to

determine facts and to advise the President through the making of

recommendations. It is a mechanism whereby he or she can obtain

information and advice.”11

12. Commissions of inquiry are the vehicle best suited to at least the following

functions:

12.1. Establishing the facts — Commissions provide a full and fair

account of what happened, especially in circumstances where the facts

are disputed, or the course and causation of events is not clear;

12.2. Learning from events — Commissions are beneficial in that they

help to prevent the recurrence of tragic or undesired events by

synthesising or distilling lessons which can be used to change practice;

12.3. Catharsis or therapeutic exposure — Commissions provide an

opportunity for reconciliation and resolution, by bringing protagonists face

to face with each other’s perspectives and problems;

10 [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672. 11 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (10) BCLR 1059 (CC) (“SARFU I”) at paras 146 – 147.

7 12.4. Reassurance — Commissions assist in rebuilding public

confidence after a major failure by showing that the government is making

sure it is fully investigated and dealt with; and

12.5. Accountability, blame, and retribution — Commissions work to hold

people and organisations to account, and sometimes indirectly

contributing to the assignation of blame and to mechanisms for retribution

and sanction.12

13. A commission of inquiry is also different to an adversarial court process in several

beneficial respects in these circumstances:

13.1. Commissions have more flexibility than court process, This makes them

more timeous, inclusive and effective than typical courts;

13.2. Commissions actively investigate and regulate themselves and do not

depend on a particular party to bring a case;

13.3. The only restriction on a commission are its terms of reference whereas

the work of courts is restricted to disputes between the parties;

13.4. A commission, and not the parties, determines what type of evidence

should be called;

13.5. Unlike a court, a commission often determines a matter of great national

importance and not a narrow dispute between parties like a court; and

12 House of Commons Public Administration Select Committee Government by Inquiry: Volume 1 (The Stationery Office Limited, London, 2005), 9–10.

8 13.6. A commission’s findings are more certain since they are usually not

appealable and may be reviewed only on very narrow grounds.13

14. In light of these important functions and sensitive to the different process

demanded of an inquisitorial commission of inquiry, CASAC submits that the clarity

of a decision by this Court in these proceedings that there is no privilege against

self-incrimination or right to silence in commissions of inquiry would vindicate these

important objectives and enhance the functioning of any commission of inquiry.

THERE IS NO PRIVILEGE AGAINST SELF-INCRIMINATION OR RIGHT TO

SILENCE IN A JUDICIAL COMMISSION OF INQUIRY

15. The constitutional rights of an arrested or accused individual to remain silent or to

rely on the privilege against self-incrimination are protected within a commission of

inquiry because the legislative and regulatory framework that governs the work of

the Commission ensures that testimony before it is inadmissible at a criminal trial

unless the offence being prosecuted is one in terms of the provisions of the

Commissions Act.

The Constitution

16. The starting point for this submission is the relevant provisions contained in section

35 of the Constitution, which provides that:

13 New Zealand Law Commission, The Role of Public Inquiries, page 11, para 22 & 23 (Issue 1: 2007). NZ Law Commission.

9 “35. Arrested, detained and accused persons

1. Everyone who is arrested for allegedly committing an offence has the right

a. to remain silent;

b. to be informed promptly

i. of the right to remain silent; and

ii. of the consequences of not remaining silent;

c. not to be compelled to make any confession or admission that could be used in evidence against that person;

. . .

3. Every accused person has a right to a fair trial, which includes the right

. . .

h. to be presumed innocent, to remain silent, and not to testify during the proceedings;

i. to adduce and challenge evidence;

j. not to be compelled to give self-incriminating evidence;

. . .”

17. It is clear from section 35 that the constitutional privilege against self-incrimination

or the right to remain silent is not extended to a witness before a commission of

inquiry. Only an arrested or accused person is afforded the protections created by

section 35 of the Constitution. This is the end of the matter here. The Constitution

is clear that a person appearing as a witness in a commission of inquiry does not

have the same privilege or rights of an arrested or accused person. However, we

next proceed to consider the specific and relevant provisions that regulate

evidence before a commission of inquiry to test this submission.

10 The Commissions Act

18. The Commissions Act applies to the work of the Commission as specified in

paragraph 4 of the Commission’s Terms of Reference14, subject to such

amendments and exemptions as may be specified in further proclamations.

19. Section 3(1) of the Commissions Act provides that

“For the purpose of ascertaining any matter relating to the subject of its

investigations, a commission shall . . . have the powers which a [High Court]

has . . . to summon witnesses, to cause an oath or affirmation to be

administered to them, to examine them, and to call for the production of books,

documents and objects.”

(emphasis added)

20. This section means that appearance before the Commission to testify is mandatory

once a summons has been issued to an individual. It also confirms that the

purpose of this compulsion power is “ascertaining any matter relating to the subject

of its investigations”. Appearance alone is insufficient, a witness is required to be

examined to further the fact-finding and truth-telling objectives of a commission of

inquiry.

21. Section 3(4) of the Commissions Act states that:

“Any person who has been summoned to attend any sitting of a commission as a witness or who has given evidence before a commission shall be entitled to the same witness fees from public funds, as if he had been summoned to attend or had given evidence at a criminal trial in a superior court held at the place of

14 Proclamation No 3 of 2018, Annexure IM1 p 081

11 such sitting, and in connection with the giving of any evidence or the production of any book or document before a commission, the law relating to privilege as applicable to a witness giving evidence or summoned to produce a book or document in such a court, shall apply."

(emphasis added)

22. This provision is clear that a witness before a commission of inquiry is to enjoy the

privileges available to a witness in a criminal trial. But what are the privileges

“applicable to a witness giving evidence” in a criminal trial? And does this place a

witness before a commission of inquiry in the identical position to that of an

accused person facing prosecution in a criminal trial in a High Court?

23. We submit that it does not for two main reasons:

23.1. First, section 3(4) of the Commissions Act must be interpreted today in

light of the provisions of section 35 of the Constitution. It therefore must

exclude the privilege against self-incrimination and right to remain silent

afforded only to an arrested or accused person in our constitutional era. The

“law relating to privilege” that section 3(4) seek to apply must be the

constitutional approach of limiting the section 35 rights to an arrested or

accused person.

23.2. A witness would continue to enjoy the other protections of the “law

relating to privilege” pursuant to section 3(4). These include other privileges

such as legal professional privilege (including both legal advice privilege and

litigation privilege). 15

15 See also sections 195 to 204 of the Criminal Procedure Act, No 51 of 1977

12 23.3. This is the only interpretation that is consistent with both section 3(4) of

the Commissions Act and section 35 of the Constitution.

23.4. Second, the legislature’s choice of words deliberately equates a witness

before a commission of inquiry with a witness in a criminal trial. Had the

legislature wished to equate a witness before a commission of inquiry with the

accused in a criminal trial it would have used clear language to make that plain.

Instead, it chose the language applicable to a witness summonsed to attend

and testify at a criminal trial as a witness, not the accused.

24. The correctness of this interpretation of section 3(4) is confirmed by consideration

of the other legislative and regulatory provisions applicable to testimony before a

commission of inquiry.

25. Section 6(1) of the Commissions Act provides that:

“Any person summoned to attend and give evidence or to produce any book, document or object before a commission who, without sufficient cause (the onus of proof whereof shall rest upon him) fails to attend at the time and place specified in the summons, or to remain in attendance until the conclusion of the enquiry or until he is excused by the chairman of the commission from further attendance, or having attended, refuses to be sworn or to make affirmation as a witness after he has been required by the chairman of the commission to do so or, having been sworn or having made affirmation, fails to answer fully and satisfactorily any question lawfully put to him, or fails to produce any book, document or object in his possession or custody or under his control, which he has been summoned to produce, shall be guilty of an offence and liable on conviction to a fine not exceeding fifty pounds or to imprisonment for a period not exceeding six months, or to both such fine and imprisonment.”

(emphasis added)

13 26. Section 6(1) creates a criminal offence for failure to (i) appear, (ii) remain in

attendance when required to do so, (iii) be sworn or make affirmation, (iv) answer

fully and satisfactorily, or (v) produce a book, document or object at a commission

of inquiry.

27. Sections 3(4) and 6(1) are clear that a witness is compelled to appear before a

commission of inquiry and to answer fully and satisfactorily any question put to him

(or her) to the exclusion of the privilege against self-incrimination or the right to

remain silent.

28. These sections also are clear that a witness’ testimony is subject only to the other

available privileges in our law of evidence, such as legal professional privilege.

This means that a witness may refuse to answer a question before a commission

of inquiry only by relying on a privilege other than the privilege against self-

incrimination. A question seeking self-incriminating information is permitted; one

seeking other privileged information is not. This is what determines whether the

question is “lawfully put to him” for purposes of section 6(1) of the Commissions

Act.

29. This distinction between the privilege against self-incrimination and right to remain

silent, and all other privileges is the bright-line that must be drawn in this case by

adopting this interpretation of sections 3(4) and 6(1) of the pre-Constitution

Commissions Act. Guidance from this Court endorsing this application of our law

ensures that both the Commission and any witness has clarity about their

obligations to appear, fully and satisfactorily answer questions, and the limitations

on the grounds on which a witness may refuse to answer a question to one of the

other privileges.

14 30. This approach is also consistent with the Regulations and Rules adopted by the

Commission itself.

The Commission’s Regulations

31. Regulation 8 of the Regulations of the Judicial Commission of Inquiry into

allegations of State Capture, Corruption and Fraud in the Public Sector including

Organs of State (“Commission Regulations”)16 states that:

"(1) No person appearing before the Commission may refuse to answer any

question on any grounds other than those contemplated in section 3(4) of the

Commissions Act, 1947 (Act No. 8 of 1947).

(2) A self-incriminating answer or a statement given by a witness before the

Commission shall not be admissible as evidence against that person in any

criminal proceedings brought against that person instituted in any court, except

in criminal proceedings where the person concerned is charged with an offence

in terms of section 6 of the Commissions Act, 1947 (Act No. 8 of 1947)."

32. Regulation 8(1) confirms that the Commission has compulsion powers to ensure

that testimony is given by a witness, even if it is self-incriminating. It anticipates

16 The Regulations were promulgated in Government Notice No. 105, Government Gazette No. 41436 (9 February 2018), and are amended by Proclamation No. 8 of 2018 in Government Gazette No. 41522 (21 March 2018); Proclamation No. 1 of 2020 in Government Gazette No. 42947 (10 January 2020); Proclamation No. 8 of 2020, in Government Gazette No. 42994 (4 February 2020); and Proclamation No. 24 of 2020 in Government Gazette No. 43563 (28 July 2020).

15 that there may be self-incriminating testimony and regulates its inadmissibility in

subsequent criminal proceedings.

33. Regulation 8(2) creates a clear direct use immunity preventing admission of any

self-incriminating testimony in criminal proceedings other than for prosecution for

failure to (i) appear, (ii) remain in attendance when required to do so, (iii) be sworn

or make affirmation, (iv) answer fully and satisfactorily, or (v) produce a book,

document or object at a commission of inquiry.

34. Regulation 8 therefore provides support for CASAC’s submission that a witness

before the Commission cannot refuse to answer any question that may be self-

incriminating.

35. Regulation 12(2) is the next relevant provision which states that

(2) Any person who— (a) appears before the Commission and refuses or fails, on any grounds other than those contemplated in section 3 (4) of the Commissions Act, 1947, to answer fully and satisfactory, any question lawfully put to him or her;

. . . is guilty of an offence and liable on conviction —

(i) in the case of an offence referred to in paragraph (a), . . . to a fine, or to imprisonment for a period not exceeding 12 months”

(emphasis added)

36. Again, CASAC relies on the formulation of this Regulation to establish that self-

incrimination is not a valid reason to refuse to answer questions before the

Commission.

16 The Commission’s Rules

37. Rule 6.1 of the Rules of the Judicial Commission of Inquiry into Allegations of State

Capture, Corruption and Fraud in the Public Sector including Organs of State (GN

397 of 2018) further enables this approach to ensure that the Commission obtains

all of the the testimony required to investigate its Terms of Reference, and states

that:

"The Commission may receive any evidence that is relevant to its mandate, including evidence that might otherwise be inadmissible in a court of law. The rules of evidence applicable in a court of law need not be strictly applied to the determination of the admissibility of evidence before the Commission."

(emphasis added)

The Correct Legal Approach

38. These provisions, read together, mean that --

38.1. a witness appearing before the Commission is lawfully obligated to

answer fully and satisfactorily all questions put to them;

38.2. the privilege against self-incrimination or right to remain silent is

unavailable and a witness may not decline to answer a question put to them

during the Commission on that basis; and

38.3. other privileges remain available to a witness testifying before a

commission of inquiry, such as legal professional privilege.

39. This limitation on a witness’ rights is reasonable and justifiable under section 36 of

the Constitution, as this Court previously held twice in 1996:

17 39.1. In Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO

and Others (No 2)17, this Court determined that section 25 of the Interim

Constitution18 meant that the testimony of a witness in an inquiry held under

section 417 of the repealed Companies Act, No 61 of 1073 could only be

admitted for use in a prosecution of that person for an offence arising from their

participation in the inquiry (such as a charge relating to the administering or

taking of an oath or affirmation, the giving of false evidence, or a failure to

answer questions fully and satisfactorily).

39.2. The Court confirmed that the witness to be examined has no choice but

to attend the inquiry and answer all questions put by the inquiry, even if the

answer is self-incriminating.19

39.3. It then held that this compulsion to give self-incriminating evidence was

constitutional when it was coupled with a direct use immunity in a subsequent

criminal trial and when subject to a judicial discretion to exclude derivative

evidence at that possible trial.20

39.4. This approach was confirmed by this Court in Bernstein and Others v

Bester NO and Others.21

17 1996 (4) BCLR 441 (CC) 18 Which was materially similar in the relevant respects to section 35 of the Final Constitution. 19 At para [70] 20 At para [153] and [185] (“As long as incriminating evidence is not admissible at the criminal trial and the use of "derivative evidence" at such trial is made dependant on such use being subject to "fair criminal trial" standards, the rule against self- incrimination is adequately protected”) 21 1996 (4) BCLR 449 (CC), see e.g. paras [137] to [141]

18 40. It is an approach suited to the circumstances of a judicial commission of inquiry

and already reflected in the Regulations and Rules of the Commission referred to

above.

PRAYER 4 OF THE NOTICE OF MOTION

41. Prayer 4 in the Commission's Notice of Motion requests this Court to make an order

that:

"…when appearing before the Commission and after he has taken the oath or affirmation, the respondent [Mr Zuma] shall answer any questions put to him by the designated Evidence Leader(s) and the Chairperson of the Commission, subject to the privilege against self-incrimination, and may not rely on the right to remain silent."

42. In its heads of argument22, the Commission submits that

“President Zuma is thus a compellable witness and does not have a right to remain silent before the Commission. Although he retains his privilege against self-incrimination, he cannot rely on this privilege to resist appearing as a witness or to refuse to answer at all (i.e. to remain silent). Rather, the privilege must be claimed in respect of each question and the judicial officer, before allowing the claim of privilege, must satisfy himself that “there is reasonable ground to apprehend danger to the witness from his being compelled to answer”. This danger must be “real and appreciable and not of an imaginary and unsubstantial character”

22 At p 42 para 60

19 and it relies on R v Kuyper 1915 TPD 308 at 316, R v Boyes (1861) 1 B & S

311 at 330, 121 ER 730 at 738 and S v Carneson 1962 (3) SA437 (T) at 439H

as authority for these submissions.

43. With great respect for the Commission’s counsel, this submission is incorrect

because it takes no account for the clear limitation of the privilege against self-

incrimination to arrested and accused persons in section 35 of the Constitution. In

this regard, CASAC submits that:

43.1. First, there is no reason to distinguish between the privilege against self-

incrimination and the right to silence in section 35 of the Constitution. The

applicant accepts that the latter right does not apply to a witness before the

Commission (see Heads of Argument p 42 para 59). The same is true of the

former privilege. There is no legal or principled basis to distinguish between

sections 35(1)(a) and 35(1)(c) or between sections 35(3)(h) and 35(3)(j) of the

Constitution. Both the privilege against self-incrimination and the right to

silence are only available to arrested or accused persons, not witnesses before

a commission of inquiry.

43.2. Second, the authorities cited by the applicant do not assist since they all

relate to the rights of accused person’s in a criminal prosecution in court, and

did not consider the specific legislative and regulatory provisions that

determine the scope of privilege before a commission of inquiry.

43.3. Third, the applicant’s submission ignores this Court’s decisions in

Ferreira v Levin and Bernstein.

20 43.4. Fourth, the applicant’s submission is inconsistent with the holistic

interpretation of the Constitution, legislation, Regulations and Rules of the

Commission set out above. Read together, section 35 of the Constitution,

sections 3 and 6 of the Commissions Act, Regulations 8 and 12, and Rule 6 of

the Commission all anticipate that self-incriminating evidence must and will be

given to fully and satisfactorily answer questions posed to a witness at the

Commission so as to fulfil the objectives and purpose of a commission of

inquiry. They then restrict how that testimony may be admitted into evidence

later to a single instance: at a criminal trial for an offence related to the witness’

conduct at the Commission.

43.5. Fifth, section 35 of the Constitution is clear in its limitation of the privilege

against self-incrimination and the right to remain silent to only arrested or

accused persons. No residual right or common law basis exists to which a

witness before a commission of inquiry may appeal. The legal framework set

out above is complete in its creation of the privilege and the right, and in

identifying to whom it is available and in what circumstances.

44. For these reasons, CASAC submits that Prayer 4 of the Notice of Motion should

be reformulated by deleting the unnecessary latter portions of it to read instead

that it is ordered that

45. We stress that the same legal position would hold for any other witness who

appears before the Commission, not just Mr Zuma.

21 46. CASAC submits that this is the only approach that ensures the proper function of

a commission of inquiry while protecting the constitutional rights of arrested and

accused persons.

CONCLUSION

47. CASAC submits that the relief sought in prayer 4 of the Notice of Motion should be

considered in light of the interpretation of the Constitution, Commissions Act,

Regulations and Rules of the Commission set out above.

MM LE ROUX

O MOTLHASEDI

Counsel for Amicus Curiae

Chambers, Sandton

24 December 2020

22 TABLE OF AUTHORITIES

Legislation, Regulations and Rules

Commissions Act, No 8 of 1947

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act, No 51 of 1977

Terms of Reference of the Judicial Commission of Inquiry into allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State

Proclamation No. 3 of 2018

Regulations of the Judicial Commission of Inquiry into allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State

Government Notice No. 105, Government Gazette No. 41436 (9 February 2018), Proclamation No. 8 of 2018 in Government Gazette No. 41522 (21 March 2018); Proclamation No. 1 of 2020 in Government Gazette No. 42947 (10 January 2020); Proclamation No. 8 of 2020, in Government Gazette No. 42994 (4 February 2020); and Proclamation No. 24 of 2020 in Government Gazette No. 43563 (28 July 2020)

Rules of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State

Government Notice 397 of 2018

Caselaw

Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others

[1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672

Bernstein and Others v Bester NO and Others

1996 (4) BCLR 449 (CC)

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (No 2)

1996 (4) BCLR 441 (CC)

Magidiwana and Others v President of the Republic of South Africa and Others

[2013] ZACC 27; 2013 (11) BCLR 1251 (CC)

23 Minister of Police and Others v Premier of the Western Cape and Others

[2013] ZACC 33; 2013 (12) BCLR 1365 (CC) 2014 (1) SA (1)

President of the Republic of South Africa and Others v South African Rugby Football Union and Others

1999 (10) BCLR 1059 (CC)

R v Kuyper

1915 TPD 308

R v Boyes

(1861) 1 B & S 311

S v Carneson

1962 (3) SA437 (T)

Other

House of Commons Public Administration Select Committee Government by Inquiry: Volume 1

(The Stationery Office Limited, London, 2005)

New Zealand Law Commission, The Role of Public Inquiries

(Issue 1: 2007)

24 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 295/20

In the matter between:

SECRETARY OF THE JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE Applicant

and

JACOB GEDLEYIHLEKISA ZUMA Respondent

and

COUNCIL FOR THE ADVANCEMENT First Amicus Curiae OF THE SOUTH AFRICAN CONSTITUTION

VUYANI NGALWANA SC Second Amicus Curiae

HELEN SUZMAN FOUNDATION Third Amicus Curiae

THE HELEN SUZMAN FOUNDATION’S WRITTEN SUBMISSIONS

INTRODUCTION

1. The Judicial Commission of Inquiry into Allegations of State Capture,

Corruption and Fraud in the Public Sector Including Organs of State ("the

Commission") was established to uncover the truth about state capture,

corruption and fraud, and to make recommendations on these matters so as

to ensure that these crimes cease and are not repeated.

2. Mr Jacob Gedleyihlekisa Zuma ("Mr Zuma" or "the Respondent"), the

Former President of the Republic of South Africa, is at the centre of the

allegations of state capture, corruption and fraud, which the Commission is

tasked with uncovering. Mr. Zuma’s conduct, in refusing or failing to attend

the Commission and give evidence in accordance with the summonses and

directives issued by the Commission, has seriously impeded the functioning

of the Commission and threatens to undermine its ability to fulfil its crucial

truth-seeking and recommendation-making mandate.

3. The Secretary of the Commission (“the Applicant”) accordingly seeks

various orders from this Court, on an urgent basis, in order to ensure Mr.

Zuma’s compliance with the Commission’s summonses and directives by

appearing before the Commission and satisfactorily answering any questions

put to him so that the Commission can fulfil the crucial mandate entrusted

to it.

4. The third amicus curiae, the Helen Suzman Foundation (“the HSF”), seeks

to participate in these proceedings to make submissions on Mr. Zuma’s legal

duty to comply with the summonses and directives issued by the

Commission, arising from the applicable statutory and regulatory scheme as

informed by principles of constitutional and international law. 3

5. The HSF’s written submissions address the following topics:

5.1 The relevant legislation and regulations are clear and unambiguous in

relation to the coercive powers conferred upon the Commission to issue

and enforce summonses and directives. The exercise of the

Commission’s coercive powers gives rise to clear legal duties to comply

with the summonses and directives of the Commission. The duty to

comply has been repeatedly endorsed in the relevant case authority

and applies to all witnesses equally;

5.2 No exception or exemption from the duty to comply can be permitted to

be made for Mr Zuma, particularly taking into account the purposes of

the Commission and the allegations against Mr Zuma to which he must

be made to answer. Moreover, the constitutional enshrinement of

equality before the law and the values of accountability and the rule of

law require that all witnesses be treated equally when it comes to

compliance with subpoenas and no exception can permitted to Former

Presidents or any other categories or classes of witnesses;

5.3 There are a number of constitutional rights and values that will be

undermined if Mr Zuma is not ordered to comply with the summonses

and directives, and to appear before the Commission to answer all

questions put to him;

5.4 In particular, the public has a collective right to truth in relation to state

capture, corruption and fraud, which may be inferred from a number of

rights in the Bill of Rights understood in light of South Africa’s

customary international law obligations; 4

5.5 Systemic and grand scale corruption is a serious human rights violation

impeding the state’s fulfilment of its constitutional obligations, which

engages the public’s right to truth. The public’s right to truth will be

undermined without an order enforcing the Commission’s summonses

and directives;

5.6 The public’s right to the truth about state capture, corruption and fraud

supports and requires the relief sought in the Proceedings as a

component of reparations for serious human rights violations

guaranteed under the Constitution and international law.

MR ZUMA’S LEGAL DUTY TO COMPLY WITH THE COMMISSION’S

SUMMONSES AND DIRECTIVES

6. The HSF views the central issue in these proceedings as relating to the

powers of the Commission regarding the issuing and enforcing of

summonses and directives and the duties on all witnesses to obey such

summonses and directives. Specifically, the question is whether the

Secretary of the Commission is right to seek to compel Mr Zuma to appear

before the Commission and to answer questions posed to him.

7. It is well to recall, the power that the Secretary of the Commission seeks to

enforce in this application by securing the appearance of Mr Zuma before the

Commission for the purposes of giving evidence, is not a power that is

unique to the Commission: 5

7.1 For example, section 35(1) of the Superior Courts Act1 gives a party to

proceedings before any High Court in South Africa that requires the

attendance of witnesses in those proceedings, the power to procure

such attendance in the manner provided for in the Uniform Rules of

Court. Uniform Rule 38(1) is the applicable rule of court and it gives a

party, as of right, the power to cause a subpoena to be issued for the

purposes of securing a witness to appear. More importantly, a person

that is subpoenaed to attend any proceedings is required to comply with

the subpoena and if that person does not, the court concerned may

issue a warrant directing that he or she be arrested2 and detained3 with

the view of securing his or her presence as a witness. In terms of

section 35(4) of the Superior Courts Act, a person that fails, without

reasonable excuse, to obey a subpoena is guilty of an offence and is

liable, upon conviction, to a fine or to imprisonment for a period not

exceeding three months.4

7.2 In the company law context, in Roering5 the SCA opined in relation to

the obligation to appear before a commissioner appointed in terms of

section 418 read with section 417 of the old Companies Act,6 that once

1 10 of 2013. 2 Section 35(2) of the Superior Courts Act. 3 Section 35(3) of the Superior Courts Act. 4 These provisions remain applicable law and have recently been considered by the Western Cape High Court in Antonsson v Jackson 2020 (3) SA 113 (WCC) at paras 38 – 53. 5 Roering v Mahlangu 2016 (5) SA 455 (SCA). 6 Which sections remain in force pursuant to Item 9 of the Fifth Schedule of the new Companies Act 71 of 2008. 6

summoned to appear a witness is obliged to answer any question put to

them.7

7.3 As a further example, section 205(1) of the Criminal Procedure Act8

permits a judge, regional court magistrate or magistrate to require the

attendance before him or her, by the issuance of a subpoena in terms

of section 205(1) and on request from the relevant prosecuting

authority, of any person who is likely to give material or relevant

information as to any alleged offence, whether or not it is known by

whom the offence was committed.9

8. Sound policy reasons exist for enabling specified statutory bodies and

institutions to use the subpoena to extract evidence from relevant witnesses.

It has long been recognised that a person who is subpoenaed to give

evidence before any legally constituted tribunal empowered

to subpoena witnesses is, generally speaking, obliged to obey it.10

9. The lawfulness of the subpoenas issued by the Secretary of the Commission

is not in dispute, the legal framework in accordance with which the

subpoenas have been issued is clear as set out below and enforcing the

subpoenas does not breach any other law or rights of Mr Zuma.

10. The HSF contends that relevant legislation and regulations are clear and

unambiguous in relation to the coercive powers of the Commission and that

the exercise of these powers, in turn, gives rise to clear legal duties to obey

7 Roering above n 5 at para 22. 8 51 of 1977. 9 Nel v Le Roux NO 1996 (3) SA 562 (CC) at para 7, this Court found that subpoenas issued in terms of section 205(1) are not inconsistent with the Constitution. 10 Podlas v Cohen & Bryden NNO 1994 (4) SA 662 (T) at headnote. 7

the summonses and directives of the Commission. In addition, the relevant

legislation and regulations must be understood as permitting no exemptions

or exceptions from the coercive powers of the Commission. The HSF places

reliance for this interpretation on the constitutional enshrinement of equality

before the law and the values of accountability and the rule of law.

The Commission’s purpose and its powers to subpoena witnesses

11. The Commission is mandated to inquire into, make findings on, report on and

make recommendations in relation to state capture, corruption and fraud.11 In

order to fulfil this critical mandate, the Commission is clothed with coercive

powers to summons witnesses and issue directives in terms of the applicable

statutory and regulatory scheme.

12. The Commissions Act12 ("the Commissions Act") provides for the setting up

of commissions of inquiry for the purposes of investigating matters of public

concern. Such commissions may be declared subject to the Commissions

Act or any other law.13 Regulations may also be promulgated conferring

additional powers on commissions and providing for the manner of holding or

the procedure to be followed at the investigation.14 In addition, such

regulations may provide for penalties for any failure to comply therewith.15

13. The relevant Government Gazette No 41436 of 9 February 2018 declares

that in terms of the powers vested in the President by the Commissions Act,

11 See the Commission’s terms of reference. The Commission’s terms of reference appear in Annexure IM1 of the Applicant’s Founding Affidavit, at 78-82. 12 8 of 1947. 13 Section 1(a) of the Commissions Act.

14 Section 1(b) of the Commissions Act.

15 Section 1(2) of the Commissions Act. 8

the President declares that the provisions of the Commissions Act and the

regulation annexed thereto to be applicable to the Commission.

14. Section 3(1) of the Commissions Act provides that "[f]or the purpose of

ascertaining any matter relating to the subject of its investigations, a

commission … shall have the powers of a Provincial Division of the Supreme

Court of South Africa has within its province to summon witnesses, to cause

an oath or affirmation to be administered to them, to examine them, and to

call for the production of books, documents and objects."

15. Section 6(1) of the Commissions Act provides that any person summoned to

attend and give evidence before a commission:

15.1 who, without sufficient cause (the onus of proof whereof shall rest upon

him) fails to attend; or

15.2 refuses to be affirmed as a witness; or

15.3 fails to answer fully and satisfactorily any question lawfully put to him,

is guilty of an offence.

16. The Regulations of the Judicial Commission of Inquiry into Allegations of

State Capture, Corruption and Fraud in the Public Sector including State

Organs promulgated on 9 February 2018 (as amended) ("the Regulations")

are the regulations applicable to the Commission.

17. Regulation 10(6) of the Regulations provides that, "[f]or the purposes of

conducting an investigation the Chairperson may direct any person to submit

an affidavit or affirmed declaration or to appear before the Commission to

give evidence or to produce any document in his or her possession or under 9

his or her control which has a bearing on the matter being investigated, and

may examine such person". (emphasis added)

18. Regulation 8(1) provides that, "[n]o person appearing before the Commission

may refuse to answer any question on any grounds other than those

contemplated in section 3(4) of the Commissions Act."

19. Regulation 12(2)(b) provides that "[a]ny person who (b) wilfully hinders,

resists or obstructs the Chairperson or any officer in the exercise of any

power contemplated in regulation 10, is guilty of an offence and liable on

conviction … to a fine, or to imprisonment for a period not exceeding 12

months".

20. The HSF, therefore, contends that the statutory and regulatory scheme

applicable to the Commission in relation to the Commission's coercive

powers to subpoena persons to give evidence before it is beyond debate.

These clear coercive powers are critical to the proper functioning of the

Commission.

21. The HSF further contends that the exercise of the Commission’s coercive

powers gives rise to concomitant legal duties to obey any subpoenas issued

by the Commission. The duties to obey subpoenas, to which we turn next,

are particularly relevant in this context, taking into account the seriousness of

the subject matter of the Commission and the importance of the integrity of

the Commission’s work. 10

The duty to obey subpoenas, affirmed through this Court’s

jurisprudence

22. The legal duty to comply with the summonses and directives issued by the

Commission arises immediately from the Commissions Act, which confers

subpoena powers on the Commission and imposes a criminal sanction for

non-compliance. But the reason for that duty has been explicated and

underlined by this Court through important decisions, each of which situate

the duty within our constitutional framework. The decisions are Bernstein,16

SARFU III,17 Minister of Police v Premier of the Western Cape,18 and

Glenister II.19 Before he can side-step the Commission, Mr Zuma will have to

side-step each of these decisions.

23. In Bernstein, this Court recognised that it is the legal duty of persons who are

subpoenaed to “co-operate with the courts, and to attend court for the

purpose of giving evidence or producing documents when required to do

so”.20 In that case, which concerned the constitutionality of sections 417 and

418 of the old Companies Act21 (which sections remain in force pursuant to

Item 9 of the Fifth Schedule of the new Companies Act)22 that permitted the

summoning and examination of any person as to the affairs of a company

being wound up, this Court recognised that the legal duty to obey subpoenas

16 Bernstein v Bester NO 1996 (2) SA 751. 17 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 ("SARFU III"). 18 Minister of Police v Premier of the Western Cape 2014 (1) SA 1 (CC). 19 Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) ("Glenister II"). 20 Bernstein above n 16 at para 52. 21 61 of 1973. 22 71 of 2008. 11

extends to subpoenas issued by non-judicial mechanisms.23 It described the

duty as “a civic obligation recognised in all open and democratic societies

and not an invasion of freedom.”24

24. Bernstein was quoted with approval by this Court in SARFU III, in which it

was held that a person who is subpoenaed to attend a commission of inquiry

is under a legal duty to obey the subpoena.25 This Court said: “A person who

is served with a subpoena is required to give evidence and to produce

documents in relation to the terms of reference of the commission to the

satisfaction of the commission”.26

25. Thus, any person summoned by the Commission to give evidence,

regardless of their political or other standing, is under a legal duty to attend

the Commission unless they can show “sufficient cause” for failing to

attend.27 The onus of establishing sufficient cause is on the person who is

the subject of the summons.28

26. Moreover, in Bernstein, this Court stated that “[w]itnesses who ignore

subpoenas or who refuse to answer questions put to them may be subjected

to the sanction of imprisonment”.29 It held that such sanctions are

“reasonable and necessary” in order to enforce compliance with the law.30

Given the important objects of the Commission and commissions of inquiry in

23 Bernstein above n 16 at para 52. 24 Ibid. 25 SARFU III above n 17 at para 185. 26 Ibid. 27 Section 6(1) of the Commissions Act. 28 Bernstein above n 16 at para 52. In Bernstein, this Court acknowledged that the power of subpoena may be abused, but held that absent proof of abuse it is the duty of the person summoned to cooperate. 29 Ibid at para 53. 30 Ibid at para 55. 12

general, such coercive powers are not surprising: the Commission’s powers

must include the necessary ability to compel the summonsed person to

attend and to remain in attendance at the inquiry.

27. Accordingly, the HSF contends that the Commissions Act and the

Regulations must be interpreted and applied in a manner that allows the

Commission to perform its mandate effectively. This requires an

interpretation that imbues the Commission with coercive powers and an

application that effectively enforces those powers.

28. The applicant has appropriately referenced this Court’s decision in Minister of

Police v Premier of the Western Cape as confirming the Commission’s

coercive powers to ensure accountability. But the HSF wishes to draw

attention to a different aspect thereof: where this Court recognised that

establishing a commission of inquiry may be a step taken in terms of section

7(2) of the Constitution to respect, protect, fulfil and promote the rights in the

Bill of Rights.31 This Court has expressly held that section 7(2) of the

Constitution imposes an obligation on the state to combat corruption.32 This is

because corruption has deleterious effects “on the full enjoyment of

fundamental rights and freedoms” and “disenables the state from respecting,

protecting, promoting and fulfilling them as required by section 7(2) of the

Constitution”.33 It follows that the establishment of a commission of inquiry

31 Minister of Police v Premier of the Western Cape above n 18 at paras 51-2. 32 Glenister II above n 19 at para 175, where this Court said: “The Constitution is the primal source for the duty of the state to fight corruption. It does not in express terms command that a corruption-fighting unit should be established. . . . There is however no doubt that its scheme taken as a whole imposes a pressing duty on the state to set up a concrete and effective mechanism to prevent and root out corruption and cognate corrupt practices. As we have seen, corruption has deleterious effects on the foundations of our constitutional democracy and on the full enjoyment of fundamental rights and freedoms. It disenables the state from respecting, protecting, promoting and fulfilling them as required by section 7(2) of the Constitution.” 33 Ibid. 13

into state capture, corruption and fraud, which is ultimately aimed at

combatting corruption, must be seen as a state measure in terms of section

7(2).

29. Measures taken under section 7(2) must be “reasonable and effective”.34 A

commission tasked with investigating state capture, corruption and fraud

would be unable to fulfil its mandate without enforceable coercive powers.

The effectiveness of the Commission would clearly be undermined if those

allegedly involved in these serious crimes were “shielded from the coercive

power of subpoena”, as those at the centre of these crimes (and with the

most information concerning them) would be unlikely to provide evidence to

the Commission voluntarily.35

30. In addition, this Court has stressed the importance of anti-corruption bodies

having adequate independence to perform their mandates without undue

political interference or influence.36 An interpretation of the Commissions Act

that failed to underscore the Commission’s coercive powers to enable it to

perform its mandate or an application of the Act that failed effectively to

enforce those powers, would make a mockery of the adequate independence

of the Commission. If the Commission is rendered toothless to effectively

enforce its coercive powers, it cannot be said to have operational

independence in the sense of “control over and freedom from interference in

those matters connected with the performance” of its functions.37

34 Ibid at para 189; and Sonke Gender Justice NPC v President of the Republic of South Africa [2020] ZACC 26 (“Sonke”) at paras 42-3. 35 Minister of Police v Premier of the Western Cape above n 18 at para 50. 36 Glenister II above n 19 at para 197. 37 See Sonke above n 34 at para 77. 14

31. The HSF submits that it follows from the reasons given above that the

Commissions Act and the Regulations must be interpreted and applied by

this Court in a manner that allows the Commission to perform its mandate

effectively. A different interpretation or application would be inconsistent with

the Constitution and this Court’s own jurisprudence in relation to the duty

upon all persons served with subpoenas to comply therewith.

No exceptions or exemptions permitted in terms of equality before the

law, accountability and the rule of law

32. There are no exceptions or exemptions from the provisions of the

Commissions Act and the Regulations made for any category of persons or

for any particular reasons. The HSF contends that the provisions of the

Commissions Act and the Regulations must be read as applying without

exception to any individual that may have relevant evidence in relation to

those issues, which undoubtedly includes Mr Zuma. This has heightened

importance in the context of the purpose of the Commission, being to

investigate issues of state capture, corruption and fraud involving, inter alia,

former and current state officials and entities and the politically connected.

But it serves a further importance: such an interpretation is demanded by the

requirements of equality before the law, accountability and the rule of law.

33. Equality before the law is enshrined in section 9(1) of the Constitution, which

provides that “[e]veryone is equal before the law and has the right to equal

protection and benefit of the law.” This Court, in Prinsloo,38 explained the

38 Prinsloo v Van der Linde 1997 (3) SA 1012. 15

meaning of equality before the law in the interim Constitution,39 in the

following terms:

“Nonetheless, it would appear that the right to ‘equality before the law’

is concerned more particularly with entitling ‘everybody, at the very

least, to equal treatment by our courts of law’. It makes clear that no-

one is above or beneath the law and that all persons are subject to law

impartially applied and administered.”40 (emphasis added).

34. This is the less-developed meaning of section 9(1)41 – in that section 9(1) has

primarily been understood as a protection against irrational or arbitrary

differentiation by the state.42 However, it is the first meaning of section 9(1)

that is directly implicated by this case43 – being that the law applies equally to

everyone.

35. It is this richer and equalising power of the law that is inextricably linked to

the value of accountability. Measures that place certain persons above the

law clearly subvert accountability – “the sharp and mighty sword that stands

39 Section 8(1) of the Interim Constitution provided: “Every person shall have the right to equality before the law and to equal protection of the law.”

40 Prinsloo above n 38 at para 22. This is obiter dictum (what is said by the way), but it has been quoted with approval in subsequent judgments of this Court, including Weare v Ndebele NO [2008] ZACC 20; 2009 (1) SA 600 (CC); 2009 (4) BCLR 370 (CC) and City Council of Pretoria v Walker [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 ("Walker").

41 See Albertyn and Goldblatt “Equality” in Woolman and Bishop (eds) Constitutional Law of South Africa 2 ed (Juta & Co Ltd, Cape Town 2014) ("Albertyn and Goldblatt") at 15.

42 Ibid. See also Prinsloo at para 25; and Harksen v Lane NO [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 at para 42. Equality before the law, understood in this sense, is intimately connected to the rule of law and the principle of legality. This is because irrational or arbitrary state conduct would be inconsistent with the rule of law.

43 Nonetheless, this Court, in Walker above n 40 at para 27, stated that the rationality standard is equally applicable to the first meaning of section 9(1). Albertyn and Goldblatt, above n 41 at 23,.argue that the applicable standard is fairness. 16

ready to chop the ugly head of impunity off its stiffened neck.”44 In addition,

equality before the law is inextricably linked to the rule of law. Allowing

certain persons to flout the law – or thumb their noses at accountability

measures like the Commission – seriously undercuts the rule of law.45

36. An exemption or exception from the coercive powers of the Commission for a

former President of Republic of South Africa would be contrary to the clear

statutory provisions and violate equality before the law and the values of

accountability and the rule of law.46 It would place persons who have held

high public office above the law and be an arbitrary use of power and not in

accordance with clear statutory provisions. This is heightened in the context

of commissions of inquiry into serious crimes because an exemption or

exception for former Presidents may be seen as fostering impunity, quite

aside from suggesting that the law’s power runs flat when faced with persons

of status.

37. We need look no further than our own history for the appropriate lessons

about the importance of the constitutional enshrinement of equality before the

44 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 580 (CC) ("Nkandla judgment") at para 1.

45 The principle of the rule of law, which is a founding constitutional value in terms of section 1(d) of the Constitution, requires inter alia that state functionaries act in accordance with statutory duties, and do so rationally, in a way that is not arbitrary and without undue influence. See Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 at paras 85 - 86; and Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) BCLR 158 (CC) at para 41.

46 This Court in SARFU III, above n 17 at paras 242-5, held that a sitting President of the Republic of South Africa may even be required in a civil matter to give evidence before a court concerning the exercise of his or her powers. This is to ensure that courts are not impeded in the administration of justice. The Court emphasized that consideration must be given to “the special dignity and status of the President together with his busy schedule and the importance of his work”. The same considerations do not apply to former Presidents of the Republic. 17

law and the values of accountability and the rule of law in the context of

commissions of inquiry.

38. South Africa’s transition from its dark past under apartheid to a constitutional

democracy founded on dignity, equality, and human rights and freedoms was

facilitated by the uncovering of the truth concerning human rights abuses

through the mechanism of a commission of inquiry.47 The Truth and

Reconciliation Commission ("TRC") was established in terms of the

Promotion of National Unity and Reconciliation Act ("the Reconciliation

Act").48 The preamble of the Reconciliation Act provides that the TRC was

established because it is "necessary to establish the truth in relation to past

events as well as the motives for and circumstances in which gross violations

of human rights have occurred, and to make the findings known". The

objectives of the TRC include "establishing as complete a picture as possible

of the causes, nature and extent of the gross violations of human rights which

were committed" during the period of legalised apartheid.49

39. In order to effectively uncover the truth, the TRC had coercive powers to

compel the testimony of any person, without which its work would have been

incomplete. South Africa was a proud trailblazer in this regard, as far as other

truth commissions were concerned. Its final report records that:

47 See the judgment of Ngcobo J (as he then was) in The Citizen 1978 (Pty) Ltd v McBride 2011 (4) SA 191 (CC) at para 171, in which he said:

“Also indispensable to creating and maintaining our constitutional democracy, however, is the reconciliation and reconstruction process this nation embarked upon with the establishment of the Truth and Reconciliation Commission (TRC). Reconciliation and reconstruction are the twin pillars on which our transition from a deeply divided past to a future founded on the recognition of universal human rights, democracy, and peaceful co-existence firmly rest.”

48 34 of 1995.

49 The TRC focused on crimes committed during the period from March 1, 1960 to December 5, 1993. 18

“Another significant difference can be found in the Commission’s

powers of subpoena, search and seizure, which are much stronger than

those of other truth commissions. This has led to more thorough internal

investigation and direct questioning of witnesses, including those who

were implicated in violations and did not apply for amnesty. None of the

Latin American commissions, for example, was granted the power to

compel witnesses or perpetrators to come forward with evidence, and

these commissions have had great difficulty in obtaining official written

records from the government and the armed forces”.50

40. The Reconciliation Act provides that the TRC "may for the purposes of or in

connection with the conduct of an investigation or the holding of a hearing, as

the case may be, by notice in writing call upon any person to appear before

the Commission and to give evidence or to answer questions relevant to the

subject matter of the investigation or the hearing".51 The Reconciliation Act

further makes it a criminal offence to, without sufficient cause, fail to attend a

meeting of the TRC in accordance with a subpoena or fail to remain in

attendance until the conclusion of the meeting unless excused by the person

presiding at the meeting or refuse to fully and satisfactorily answer any

question lawfully put to them.52

50 See Truth and Reconciliation Commission “Truth and Reconciliation Commission of South Africa Report” volume 1 (1998) at 54 (“TRC Report”) available at

https://www.justice.gov.za/trc/report/finalreport/Volume%201.pdf.

51 Section 29(1)(c) of the Reconciliation Act.

52 Section 39(e) of the Reconciliation Act provides:

“(i) having been subpoenaed in terms of this Act, without sufficient cause fails to attend at the time and place specified in the subpoena, or fails to remain in attendance until the conclusion of the meeting in

41. Importantly, there were no exemptions or exceptions for former leaders from

the coercive powers of the TRC. Why? Because of the principle of equality

before the law and the values of accountability and the rule of law. As

explained by Lansing and King Perry, an exception for former leaders would

have undermined the TRC’s search for truth as well as its effectiveness and

credibility.53

42. The equal applicability of the coercive powers of the TRC to all was aptly

demonstrated by the charging, prosecution, conviction and sentencing of

P.W. Botha, former President of the Republic of South Africa, for contempt

for failing to comply with repeated subpoenas to appear before the TRC

(albeit that the conviction was later overturned on appeal on a procedural

technicality).54 The decision to lay charges against and the decision to

prosecute Mr. Botha for failing to comply with the TRC’s subpoenas55 was

seen as a critically important message that no one is above the law or

beyond its reach. At the time, then-spokesperson of the African National

Congress’ sub-committee on the TRC and Minister of Justice, Dullah Omar

said: "By refusing to obey the subpoena, Mr Botha has defied the law and

question or until excused from further attendance by the person presiding at that meeting, or fails to produce any article in his or her possession or custody or under his or her control;

(ii) having been subpoenaed in terms of this Act, without sufficient cause refuses to be sworn or to make affirmation as a witness or fails or refuses to answer fully and satisfactorily to the best of his or her knowledge and belief any question lawfully put to him or her”.

53 Lansing and Perry ‘Should Former Government Leaders be Subject to Prosecution After Their Term in Office? The Case of South African President P. W. Botha’ (1999) California Western International Law Journal, Vol. 30, No. 1 at 113.

54 See New York Times “P. W. Botha, Defender of Apartheid, Is Dead at 90” (1 November 2006) available at https://www.nytimes.com/2006/11/01/world/africa/01botha.html.

55 The TRC laid charges against Mr. P.W. Botha in December 1997. South African Press Association “TRC Lays Charges Against PW Botha” (5 December 1997) available at

https://www.justice.gov.za/trc/media/1997/9712/s971205b.htm. 20

signalled he is above the law. We want to make it very clear that no person in

our country, no matter what office such person occupies, is above the law".56

43. That decision, and others of the TRC, 57 served as powerful symbols of the

transformation that South Africa was undergoing – from impunity and

unchecked abuses of state power to a constitutional democracy in which

even former Presidents are subject to the law and will be held accountable

for abuses of power.58

44. In the fight against corruption through the work that is carried out by the

Commission, South Africa is again able to insist on equality before the law,

including by compelling evidence from those who are reluctant to account for

past abuses. The Commission necessarily has similar coercive powers to

those of the TRC to enable it to uncover the truth about state capture,

corruption and fraud. Mr. Zuma’s repeated failure to comply with

summonses and directives of the Commission is echoed in the past conduct

of Mr. PW Botha. Mr. Zuma too has defied the law and sought to signal that

he is above the law.

56 South African Press Association “PW Botha's Actions Not Good for Reconciliation: ANC” (19 December 1997) available at https://www.justice.gov.za/trc/media/1997/9712/s971219f.htm.

57 Notably, during the Chemical and Biological Hearing of the TRC Dr Wouter Basson, the project leader, who had been subpoenaed to give evidence, launched an application in the Cape High Court contending that his rights in terms of section 35 of the Interim Constitution, 1993 would be infringed if he were compelled to testify. The High Court ruled that he should testify. See TRC Report above n 50 chapter 7 at 174.

58 Nkandla judgment above n 44 at para 1. As explained by this Court in the Nkandla judgment—

45. Equality before the law then becomes not only symbolically important, but

instrumentally vital to the Commission’s work and its integrity. It requires that

all, no matter how previously high, be required to account to the Commission.

Whether at the time of our constitutional transformation, when the political

stakes were dangerously high, or now, when the country is attempting to

understand and undo the devastating effects of years of state capture, the

principle of equality before the law retains equal force. This Court has already

made it clear that its enforcement of clear legal duties will not be impacted by

potentially adverse political consequences.59 And protection of the law

means that all persons in South Africa are entitled to expect that the

appropriate tribunal prescribed by law for the purpose of resolving disputes of

one kind or another (but particularly disputes that go to the integrity of our

constitutional order, such as the Commission) will not have their mandates

and protections rendered ineffective by persons who believe themselves

outside the law.

46. An order by this Court compelling Mr Zuma to comply with his statutory

obligations under the Commissions Act will send the same crystal clear and

constitutionally sourced message that no one is above the law. In this case,

the principle of ensuring that Mr Zuma is subject to the law like all of us, is

not merely a constitutional end in itself: it serves a critically important function

relating to the truth. We turn to that purpose next.

59 See National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre [2014] ZACC 30; 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC); 2014 (12) BCLR 1428 (CC) at para 74, in which this Court enforced the South African Police Service’s obligation to investigate crimes of torture committed in Zimbabwe regardless of the potential political fall-out. 22

THE COLLECTIVE RIGHT TO TRUTH UNDER OUR CONSTITUTIONAL AND INTERNATIONAL LAW

47. The HSF submits that the statutory obligation on Mr Zuma to attend the

Commission and answer questions lawfully put to him is bolstered by the fact

that these obligations are derived from provisions of the Commissions Act

and the Regulations that give effect to constitutional rights and values.

48. Commissions of inquiry serve a fundamental truth-seeking purpose in

addition to (and interlinked with) the accountability-promoting purpose served

by commissions of inquiry, detailed by the applicant.60 Importantly, the

coercive powers of commissions of inquiry, which facilitate the uncovering of

the truth, give effect to the public’s collective right to truth.

The truth-seeking purpose of commissions and the applicable

constitutional rights and values

49. Commissions of inquiry are a constitutional mechanism for truth-seeking. In

Magidiwana I,61 a case broadly concerning victim participation in the

Marikana commission of inquiry, this Court explained the truth-seeking

purpose of commissions of inquiry. It said:

"The power to appoint a commission of inquiry is mandated by the

Constitution. It is afforded to the President as part of his executive

powers. It is open to the President to search for the truth through a

commission. The truth so established could inform corrective

measures, if any are recommended, influence future policy, executive

60 Applicant’s written submissions at paras 48-52.

61 Magidiwana v President of the Republic of South Africa 2013 (11) BCLR 1251 (CC) ("Magidiwana I") at paras 14-6. 23

action or even the initiation of legislation. A commission’s search for

truth also serves indispensable accountability and transparency

purposes. Not only do the victims of the events investigated and those

closely affected need to know the truth: the country at large does,

too."62 (our emphasis).

50. Importantly, this Court highlighted that commissions of inquiry serve the

public purpose of providing the public with the truth.63

51. While commissions of inquiry are constitutional mechanisms, their powers

are sourced in the Commissions Act and regulations promulgated

thereunder. The coercive powers of commissions of inquiry provided for in

terms of the Commissions Act and Regulations, and the corresponding legal

duties placed on persons by the exercise of these powers, are essential for

the effective search for truth. Comparative law is replete with examples of

commissions of inquiry serving as mechanisms for truth-seeking, with

experience showing that commissions of inquiry that lack coercive powers

are seriously impeded in the task of uncovering as full an account of the truth

as possible.64

62 Ibid at paras 14-6.

63 This Court recognised that the purpose of commissions of inquiry go beyond providing the President with “information and advice”. Commissions of inquiry serve a public purpose. Compare SARFU III above n 17 at para 147. See also Minister of Police v Premier of the Western Cape 2014 (1) SA 1 (CC) above n 18 in which the Constitutional Court emphasised the “deeper public purpose” served by commissions of inquiry.

64 See the comparative discussion in Lansing and King Perry above n 53 at 108-10. Lansing and King Perry highlight the cases of Argentina and Chile, whose truth commissions lacked coercive powers to subpoena witnesses or compel testimony. Both commissions were unable to obtain the testimony of former leaders and were accordingly unable to provide a complete picture of the human rights abuses that had occurred in these countries. This also had the deleterious effect of fostering impunity. 24

52. The HSF submits that the coercive powers of commissions of inquiry

provided for in the Commissions Act and the regulations promulgated

thereunder, and the corresponding legal duties created, give effect to

constitutional rights and values by facilitating the uncovering of the truth. In

the HSF’s view these constitutional rights and values include:

52.1 The values of accountability and openness enshrined in section 1(d) of

the Constitution.

52.2 The right to dignity enshrined in section 10 of the Constitution.65 Denial

of the truth in matters of public concern undermines the right to human

dignity as it violates the moral agency of individuals in our society.

52.3 The right to freedom of thought, opinion and belief enshrined in section

15 of the Constitution.66 Access to the truth in matters of public concern

is essential for the full enjoyment of this right.

52.4 The interlinked rights to freedom of expression, political choice and

assembly enshrined in sections 16, 17 and 19 of the Constitution.67

Access to the truth in matters of public concern is essential for the full

enjoyment of these rights.

65 Section 10 of the Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected.”

66 Section 15(1) of the Constitution provides that “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion.”

67 Section 19(1) of the Constitution provides:

“Every citizen is free to make political choices, which includes the right—

(a) to form a political party;

(b) to participate in the activities of, or recruit members for, a political party; and

52.5 The right of access to information enshrined in section 32 of the

Constitution,68 which covers access to any information held by the state

and any information held by any person provided it is needed for the

exercise or protection of rights. Denial of the truth in matters of public

concern undermines the right of access to information.

52.6 The right to an effective remedy for any infringement or threat to any

right in the Bill of Rights enshrined in section 38 of the Constitution.69

Access to the truth in cases of rights violations is essential for the

enjoyment of the right to an effective remedy. Without access to the

truth, it may be impossible to pursue any remedy for a rights violation.

53. Mr Zuma’s obligations are sharpened by the fact that they stem from

legislative and regulatory provisions that give effect to these constitutional

rights and values. Mr Zuma’s conduct in failing to comply with his legal

obligations, and thereby frustrating the truth-seeking purpose of the

Commission, seriously undermines these rights and values. The HSF

contends that these rights and values will only be appropriately vindicated by

this Court granting the mandatory relief sought by the Applicant.

68 Section 32(1) of the Constitution provides everyone has the right of access to “any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights”. This right is given effect to by the Promotion of Access to Information Act 2 of 2000.

69 In Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 at para 69, this Court said:

“Given the historical context in which the interim Constitution was adopted and the extensive violation of fundamental rights which had preceded it, I have no doubt that this Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced.” 26

56. Moreover, the HSF submits that a right to truth emanates from essential

elements of the constitutional rights listed above. Read together, these rights

enshrine a right to truth in matters concerning serious rights violations. This

is clear on a reading of the Constitution itself.70 It is also bolstered by a

consideration of South Africa’s international law commitments. Together they

conduce to an important principle: that failing to deal properly with historical

injustice is an injustice in itself.

The right to truth in customary international law

57. Section 39(1)(b) of the Constitution provides that courts must consider

international law when interpreting the rights in the Bill of Rights. In

Glenister II, this Court explained that the Constitution “draws the obligations

assumed by the State on the international plane deeply into its heart, by

requiring the State to fulfil them in the domestic sphere”.71 This includes

customary international law, which has “a higher rank in the international

hierarchy than treaty law”.72

58. There is an emerging principle of customary international law that recognises

a right to truth for serious human rights violations.73 Our Constitution’s

70 See New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11, in which case this Court held that section 19(3)(b) read with section 18 and other cognate rights found a right to run for and, if elected, hold office as an independent candidate in national and provincial elections.

71 Sonke above n 34 at para 45; citing Glenister II above n 19 in at para 189.

72 Sonke ibid at para 63; citing Prosecutor v Anto Furundžija, IT-95-17/1-T, § 153, ICTY 1998. Section 232 of the Constitution provides that “customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.”

73 The right to truth falls under the umbrella right to know. See Groome “Principle 2: The Inalienable Right to Truth” in Handleman and Unger (eds) United Nations Principles to Combat Impunity: A Commentary (Oxford University Press, Oxford 2018) (“Groome”) at 59. See further Groome, “The Right to Truth in the Fight Against Impunity” (2011) 29 Berkeley Journal of International Law 175 available at http://scholarship.law.berkeley.edu/bjil/vol29/iss1/5. 27

commitment to truth-seeking is both confirmed by and given deeper meaning

by our international law commitments to the right to truth.

59. In any event, section 233 of the Constitution enjoins the courts to interpret

any legislation in a manner that is consistent with international law. In Sonke,

this Court said: “International law also offers useful interpretative guidance

outside the sphere of Bill of Rights interpretation. . . . Section 233 of the

Constitution requires us, when interpreting any legislation, to prefer an

interpretation that accords with international law.”74 Therefore, the

Commissions Act itself must be interpreted in accordance with the customary

right to truth.

60. As an emerging principle of customary international law, while the contours of

the right to truth are still developing, a core of the right has crystallised.75

This is that states have an obligation to provide victims, those closely related

to victims and the public with information about serious human rights

violations.76 The customary norm, thus, also recognises the right to truth as a

collective right held by the public.77 And, importantly, commissions of inquiry

are considered a key mechanism for fulfilment of the obligation to provide the

public with the truth.

74 Sonke above n 34 at para 70.

75 Groome above n 73 at 59.

76 See Naqvi “The right to the truth in international law: fact or fiction?” (2006) International Review of the Red Cross Volume 88 Number 862 (“Naqvi”) at 260; and Groome ibid at 65.

77 Naqvi ibid; and Groome ibid. 28

61. An explicit recognition of the right to truth is found in the United Nations

Principles on Impunity78 (formulated in 1996) and the Updated Principles

(updated in 2005).79 The UN Principles on Impunity identified an inalienable

right to the truth.80 This was affirmed in the Updated Principles in Principle 2,

which says:

“Every people has the inalienable right to know the truth about past

events concerning the perpetration of heinous crimes and about the

circumstances and reasons that led, through massive or systematic

violations, to the perpetration of those crimes. Full and effective

exercise of the right to the truth provides a vital safeguard against the

recurrence of violations.”

62. This is clearly a collective right to truth held by the public, as distinguished

from the right of victims to know the truth recognised in Principle 4.

Moreover, Principle 5 of the Updated Principles provides that States must

take effective measures to give effect to the right to truth. What do such

measures look like? The same Principle specifies the use of commissions of

78 Economic & Social Council (ECOSOC), Commission on Human Rights, The Administration of Justice and the Human Rights of Detainees, Annex 1 “Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity,” U.N. Doc. E/CN.4/Sub.2/1996/18 (June 29, 1996) (“UN Principles on Impunity”) available at

https://documents-dds-ny.un.org/doc/UNDOC/GEN/G97/141/42/PDF/G9714142.pdf?OpenElement.

79 ECOSOC, Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, Add. 1 “Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity,” Principle 2, U.N. Doc. E/CN.4/2005/102/Add.1 (Feb. 8, 2005) (“Updated Principles”) available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G05/109/00/PDF/G0510900.pdf?OpenElement.

80 Principle 1 provides: “Every people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through systematic, gross violations of human rights, to the perpetration of heinous crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of violations in the future.” 29

inquiry to ascertain the truth in cases of massive or systemic human rights

violations as an effective measure to give effect to the right to truth.

63. In a 2006 report on the right to truth, the Office of the UN High Commissioner

for Human Rights,81 concluded that:

“[T]he right to the truth about gross human rights violations and serious

violations of human rights law is an inalienable and autonomous right,

linked to the duty and obligation of the State to protect and guarantee

human rights, to conduct effective investigations and to guarantee

effective remedy and reparations.” (our emphasis)

64. There are also a number of UN resolutions that propound the right to truth

and call for its protection. In 2005, the General Assembly of the United

Nations passed a resolution on the Basic Principles on the Right to

Reparation for Victims.82 The Resolution recognised a collective right to truth

for human rights violations as a component part of the right to a remedy.83

65. In 2009, the Human Rights Council adopted a resolution on the right to truth,

in which the Council recognised “the importance of respecting and ensuring

the right to the truth so as to contribute to ending impunity and to promote

and protect human rights” and encouraged States to “consider establishing

specific judicial mechanisms and, where appropriate, truth and reconciliation

81 Promotion and Protection of Human Rights: Study on the right to the truth. UN Doc E/CN.4/2006/91 (8 February 2006) (“UN study on the right to truth”) available at

https://documents-dds-ny.un.org/doc/UNDOC/GEN/G06/106/56/PDF/G0610656.pdf?OpenElement.

82 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147 (16 December 2005) (“Basic Principles on the Right to Reparation for Victims”) available at

https://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx.

83 Ibid at paras 18, 22(b) and (e). 30

commissions to complement the justice system, in order to investigate and

address gross violations of human rights”.84 In 2013, the General Assembly

adopted a resolution containing identical terms.85

66. In 2010, both the General Assembly and the Human Rights Council passed

resolutions proclaiming an International Day for the Right to the Truth

concerning Gross Human Rights Violations and for the Dignity of Victims.86

And in 2011, the Human Rights Council passed a resolution establishing a

Special Rapporteur on the Promotion of Truth, Justice, Reparation and

Guarantees of Non-recurrence.87

67. These international law and soft law sources provide important evidence of

the development of a customary norm. The crystallisation of a customary

norm recognising a right to truth is further supported by the decisions of

regional bodies and courts and by State practice at the national level.

68. At the regional level, the European Court of Human Rights has inferred a

right to the truth as part of the prohibition against torture, the right to an

effective remedy, and the right to an effective investigation.88 The African

84 Human Rights Council, Right to Truth, UN Doc A/HRC/12/L.27 (25 September 2009) at paras 1 and 4.

85 General Assembly, Right to Truth, A/RES/68/165 (18 December 2013).

86 General Assembly, Proclamation of 24 March as the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims, A/RES/65/196 (21 December 2010); and Human Rights Council, Proclamation of 24 March as the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims, A/HRC/RES/14/7 (17 June 2010).

87 Human Rights Council, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, UN Doc A/HRC/RES/18/7 (13 October 2011).

88 See Judgment of 25 May 1998, Kurt v. Turkey, Application No. 24276/94 at para 175, in which the ECtHR held that the authorities’ failure to assist the applicant in establishing the truth about the whereabouts of her son violated the prohibition against torture enshrined in article 3 and the right to an effective remedy enshrined in article 13; Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94 at paras 88-92, in which the ECtHR held that the authorities failure to conduct an investigation into the

Commission on Human and Peoples’ Rights has similarly inferred a right to

truth as part of the right to an effective remedy.89

69. The Inter-American Commission on Human Rights recognised a collective

right to truth arising from the obligation to respect and ensure the enjoyment

of the rights and freedoms recognised in the American Convention on Human

Rights90 and from the right to simple and prompt recourse for the protection

of the rights enshrined in the Convention.91 The Inter-America Commission

has stated that “[e]very society has the inalienable right to know the truth

about past events, as well as the motives and circumstances in which

aberrant crimes came to be committed, in order to prevent repetition of such

acts in the future”.92 The Inter-American Court on Human Rights has also

recognised a collective right to truth, stating that “[s]ociety has the right to

know the truth regarding such crimes, so as to be capable of preventing them

in the future.”93

disappearance of the applicant’s son in custody had violated the right to an effective remedy and the right to an effective investigation in terms of article 5 (right to liberty and security); and Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94).

89 African Commission on Human and Peoples’ Rights ‘‘Principles and guidelines on the right to a fair trial and legal assistance in Africa’’ African Union Doc. DOC/OS(XXX)247, Principle C(b)(iii), available at https://www.achpr.org/public/Document/file/English/achpr33_guide_fair_trial_legal_assistance_2003_eng.p df. Principle C(b)(iii) provides that the right to an effective remedy includes “access to the factual information concerning the violations”.

90 Organization of American States, American Convention on Human Rights, 22 November 1969.

91 These rights are found in articles 1(1) and 25 of the American Convention on Human Rights. See Inter- American Commission, Report No. 1/99, of 27 January 1999, Case of Lucio Parada et al. v. El Salvador, at paras 148-158 available at http://cidh.org/annualrep/98eng/Merits/ElSalvador%2010480.htm.

92 Inter-American Commission on Human Rights, annual Report 1985-1986, OEA/SER.L/V/II.68, Doc. 8 rev. 1, at 205 available at http://www.cidh.oas.org/annualrep/85.86eng/toc.htm.

93 Bámaca-Velásquez v. Guatemala judgment of February 22, 2002 (Reparations and Costs) at para 77 available at https://www.corteidh.or.cr/docs/casos/articulos/Seriec_91_ing.pdf. 32

70. At the national level, an important indicator of the crystallisation of a

customary norm is the establishment of truth commissions in numerous

countries where systemic or mass human rights violations have been

committed to uncover the truth. As Professor Groome, a leading authority on

the right to truth confirms, the proliferation of truth commissions

demonstrates the “near universal value” placed on truth-seeking in respect of

serious human rights violations.94 South Africa, of course, has been at the

forefront of these developments, with the TRC providing a model for truth

commissions throughout the world. The Commission’s work into state

capture is a natural continuation of that important trend. It exemplifies South

Africa’s response to years of state abuse and corruption, in search of a truth

that the public is entitled to.

Corruption and the right to truth

71. Corruption seriously undermines our constitutional democracy and

constitutionally enshrined rights, engaging the right to truth.

72. It is now trite – through the judgments of this Court95 and the laws of our

Legislature96 – that corruption has a pervasive and destructive effect on the

ability of the State to fulfil, and of individuals to realise, a number of

94 Groome above n 73 at 64.

95 See Glenister II above n 19 above at para 166, where this Court said: “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk”. 96 See the Prevention and Combating of Corrupt Activities Act 12 of 2004 (“PCCA”), passed to address corruption and other serious crimes. The preamble to the PCCA explains: “[C]orruption and related corrupt activities undermine the rights [enshrined in the Bill of Rights], endanger the stability and security of societies, undermine the institutions and values of democracy and ethical values and morality, jeopardise sustainable development, the rule of law and the credibility of governments, and provide a breeding ground for organised crime.” 33

fundamental rights contained in the Bill of Rights. It does so by decreasing

the funds available for public spending. In particular, corruption undermines

the State’s ability to take progressive measures to fulfil the socio-economic

rights enshrined in the Constitution – impeding access to housing, health

care, food, water and social security among other things essential for human

dignity. In this way, corruption threatens the fulfilment of “many of the rights

promises made by our Constitution”.97 Corruption particularly affects the most

vulnerable in our society who are most reliant on public goods and services.

73. The Indian Supreme Court – a court that has, like this Court, significantly

influenced the contours of socio-economic rights – also recognised that

corruption “undermines human rights, indirectly violating them”.98 It held that

“systematic corruption is a human rights’ violation in itself, as it leads to

systematic economic crimes”.99 There is also an influential and growing body

of literature that recognises corruption as a human rights violation.100 Indeed,

one of this Court’s former Justices – Justice Goldstone – in calling for the

establishment of an International Anti-Corruption Court, has cited a number

of cases in which corruption was directly linked with severe breaches of

human rights and devastating consequences for human health.101

97 Beadica 231 CC v Trustees for the time being of the Oregon Trust 2020 (5) SA 247 (CC) ("Beadica"), where this Court said: “The fulfilment of many of the rights promises made by our Constitution depends on sound and continued economic development of our country.” 98 State of Maharashtra through CBI, Anti-Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar [2012] 9 S.C.R. 601 602 at para 14. 99 Ibid. 100 See, among others, Boersma Corruption: A Violation of Human Rights and a Crime under International Law (Intersentia, 2012); Peters “Corruption as a Violation of International Human Rights” (2019) The European Journal of International Law Vol. 29, No. 4; and International Council on Human Rights Policy “Corruption and Human Rights: Making the Connection” (June 2009). 101 See Organised Crime and Corruption Reporting Project “Two Judges Call for an International Anti-Graft Court” (9 April 2020) available at https://www.occrp.org/en/daily/12056-two-judges-call-for-an- international-anti-graft-court. In that article, Justice Goldstone is reported as citing a report of the United Nations High Commissioner for Human Rights in 2013, according to which “corruption kills by siphoning

74. Systemic and grand scale corruption undermines constitutional rights in a

serious manner. In that context, the public has a right to the truth concerning

the state capture, corruption and fraud that have threatened our constitutional

democracy and undermined the constitutional vision of a society founded on

“human dignity, the achievement of equality and the advancement of human

rights and freedoms”.102 The Commission is an important mechanism for

uncovering this truth. Mr. Zuma’s conduct, by subverting the coercive powers

of the Commission and frustrating the truth-seeking purpose of the

Commission, undermines the public’s right to the truth regarding state

capture and corruption.

75. In the HSF’s submission, any reading of the Commissions Act, or remedy

related thereto, which fails to give best effect to the right to truth, would be

most unfortunate for two related reasons:

75.1 First, South Africa has been at the forefront of the developments

concerning truth-seeking for years, and any retrogression in relation

thereto, particularly in response to the need to understand the depth

and scale of corruption that has blighted our development, would be at

odds with our constitutional efforts to make a break with a past that

obscured and distorted the truth.

75.2 Secondly, any retrogression would also be at variance with

international law commitments that herald the importance of truth-

finding as a customary international law norm in service of vindicating

money from humanitarian and development projects… and that money stolen through corruption every year is enough to feed the world’s hungry 80 times over...” 102 Section 1(a) of the Constitution. 35

human rights violations arising from corruption.103 As the international

law history shows, South Africa has been at the vanguard of

developments around the right to truth through its TRC processes.

76. At this time when truth itself is under threat worldwide, it is imperative that the

right to truth - under our Constitution and internationally - be given its full

respect. In our own backyard, there can be few projects less worthy of the

fullest respect for truth-telling than the Commission’s efforts in searching for

the answers and solutions to state capture that has blighted our past and

imperilled our future.

The right to truth as a means of ensuring effective remedies under the

Constitution and meaningful reparations under international law

77. Moreover, the uncovering of the truth is not only important for its own sake –

it has critical instrumental value. The Commission is tasked with inquiring

into, making findings on and reporting on matters of public and national

interest concerning allegations of state capture, corruption and fraud. But,

importantly, it is also tasked with making recommendations on these

matters.104 The HSF submits that as full and complete an uncovering of the

truth concerning the possible causes of and the nature and extent of state

capture, corruption and fraud as possible is essential for the Commission to

make appropriate and effective recommendations.

103 See also Law Society of South Africa and Others v President of the Republic of South Africa and Others 2019 (3) SA 30 (CC) paras 4 - 5: international law was central in shaping our democracy and enjoys a well-deserved prominence in the architecture of our constitutional order. 104 See the Commission’s terms of reference at para 1. The Commission’s terms of reference appear in Annexure IM1 of the Applicant’s Founding Affidavit, at 78-82. 36

78. The recommendations of the Commission will serve a "never again" impulse

– ensuring that the same situation does not again threaten our constitutional

democracy. As such, the Commission’s recommendations give effect to the

public in South Africa’s right to an effective remedy for the serious rights

violations that arose from state capture, corruption and fraud.

79. The Constitution provides a right to an effective remedy for violations of or

threats to rights in the Bill of Rights.105 This is informed by the customary

international law norm that recognises a right for individuals to receive

reparations for serious violations of human rights, including guarantees of

non-repetition.106 Guarantees of non-repetition impose an obligation on

states, which is owed to society as a whole, to take preventative measures to

ensure that human rights violations are not repeated.107 Importantly, the

obligation to take preventative measures includes reviewing and reforming

laws contributing to or allowing gross human rights violations,108 institutional

reform,109 strengthening the independence of oversight entities,110 and

educational measures111 to prevent repetition.

105 Sections 38 and 172 of the Constitution. See Fose above n 69 at para 69.

106 The other key elements of the right to reparations are restitution, compensation, rehabilitation and satisfaction. See Evans The Right to Reparation in International Law for Victims of Armed Conflict (Cambridge University Press, Cambridge 2012), in which the author forcefully argues for the emergence of a customary right to reparations for serious human rights violations. See also International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001, A/56/10, ch. IV.E.1, Article 30, available at https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf; and the Basic Principles on the Right to Reparation for Victims above n 82 at para 18.

107 International Law Commission, Draft Articles on Responsibility of States, ibid, at article 30(12).

108 The Basic Principles on the Right to Reparation for Victims above n 82 at para 23(h).

109 Ibid at para 23(b).

110 Ibid at para 23(c).

111 Ibid at para 23(e). 37

80. This broader understanding of reparations was recognised by this Court in

interpreting the “need for reparations” in connection with the gross human

violations perpetrated under apartheid, which appears in the epilogue of the

Constitution. This Court stated that:

“The election made by the makers of the Constitution was to permit

Parliament to favour ‘the reconstruction of society’ involving in the

process a wider concept of ‘reparation’, which would allow the state to

take into account the competing claims on its resources but, at the

same time, to have regard to the ‘untold suffering’ of individuals and

families whose fundamental human rights had been invaded during the

conflict of the past.”112

81. The Reconciliation Act tasked the TRC with recommending reparation

measures in respect of victims of gross human rights violations113 and with

making recommendations of measures to prevent the future violations of

human rights.114 In its final report, the Reparation and Rehabilitation

Committee of the TRC stressed that it followed the “internationally accepted

approach to reparation”, which it saw as including reassurance of non-

repetition – defined as “the right to a guarantee, by means of appropriate

legislative and/or institutional intervention and reform, that the violation will

not be repeated”.115

112 Azanian Peoples Organization (AZAPO) v President of the Republic of South Africa 1996 (4) SA 672 at para 45.

113 Section 3(c) of the Reconciliation Act.

114 Section 3(d) of the Reconciliation Act.

115 Truth and Reconciliation Commission “Report of the Reparation & Rehabilitation Committee” volume 6 (1998) at 93-4 available at https://www.justice.gov.za/trc/report/finalreport/vol6_s2.pdf. 38

82. The recommendations of the Commission covering institutional and law

reform will, accordingly, be a constitutive part of the remedy or reparations

owed to the public in South Africa by the state for the rights violations that

arose from state capture, corruption and fraud. In order to make these

recommendations, the Commission needs as complete a picture as possible

of the causes, nature and extent of state capture, corruption and fraud. For it

to have this, it must hear from the persons allegedly responsible for the

commission of these crimes. Mr. Zuma is at the heart of the allegations

concerning state capture, corruption and fraud.116 The HSF, therefore,

submits that it is critical that Mr. Zuma account to the Commission in order for

the Commission to obtain the complete picture and to make

recommendations that will ensure not only accountability for those implicated,

but will facilitate the undoing of state capture and put in place measures and

correctives that will guard against it being repeated.

CONCLUSION

54. The HSF submits that an order of this Court granting the relief sought by the

applicant will effectively enforce the Commission’s summonses and

directives – ensuring the effective functioning of the Commission and

safeguarding the integrity of the Commission’s work.

55. Equally importantly, it will vindicate the public’s collective right to the truth

concerning the state capture, corruption and fraud that has resulted in

serious human rights violations and will ensure that the public is provided

116 See the “Allegations of Abuses of Power and Breach of Constitutional Duty by Mr Zuma” in the Applicant’s written submissions at paras 29-32. 39 with an effective remedy and proper reparations for these violations under our Constitution and international law.

Max du Plessis SC

Jabu Thobela-Mkhulisi

Catherine Kruyer

Counsel for the third Amicus Curiae

Chambers, Sandton and Durban, 28 December 2020

TABLE OF AUTHORITIES

SOUTH AFRICAN LAW

Legislation and Regulations

Commissions Act 8 of 1947.

Constitution of the Republic of South Africa 108 of 1996.

Criminal Procedure Act 51 of 1977.

Interim Constitution of the Republic of South Africa 200 of 1993.

Prevention and Combating of Corrupt Activities Act 12 of 2004.

Promotion of National Unity and Reconciliation Act 34 of 1995.

Superior Courts Act 10 of 2013

Cases

Antonsson v Jackson 2020 (3) SA 113 (WCC).

Azanian Peoples Organization (AZAPO) v President of the Republic of South Africa 1996 (4) SA 672 (CC).

Beadica 231 CC v Trustees for the time being of the Oregon Trust 2020 (5) SA 247 (CC).

Bernstein v Bester NO 1996 (2) SA 751 (CC).

City Council of Pretoria v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC).

Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 580 (CC).

Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (CC).

Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC).

Law Society of South Africa and Others v President of the Republic of South Africa and Others 2019 (3) SA 30 (CC). 41

Magidiwana v President of the Republic of South Africa 2013 (11) BCLR 1251 (CC).

Minister of Police v Premier of the Western Cape 2014 (1) SA 1 (CC).

National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre [2014] ZACC 30; 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC); 2014 (12) BCLR 1428 (CC).

Nel v Le Roux NO 1996 (3) SA 562 (CC).

New Nation Movement NPC v President of the Republic of South Africa [2020] ZACC 11.

Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (CC).

Podlas v Cohen & Bryden NNO 1994 (4) SA 662 (T).

President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC).

Prinsloo v Van der Linde 1997 (3) SA 1012 (CC).

Roering v Mahlangu 2016 (5) SA 455 (SCA).

Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) BCLR 158 (CC).

Sonke Gender Justice NPC v President of the Republic of South Africa [2020] ZACC 26.

The Citizen 1978 (Pty) Ltd v McBride 2011 (4) SA 191 (CC).

Weare v Ndebele NO [2008] ZACC 20; 2009 (1) SA 600 (CC); 2009 (4) BCLR 370 (CC).

INTERNATIONAL, REGIONAL AND COMPARATIVE LAW

Conventions

Organization of American States, American Convention on Human Rights, 22 November 1969.

UN sources

Economic & Social Council (ECOSOC), Commission on Human Rights, The Administration of Justice and the Human Rights of Detainees, Annex 1 “Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity”, U.N. Doc. E/CN.4/Sub.2/1996/18 (29 June 1996). 42

ECOSOC, Commission on Human Rights, Promotion and Protection of Human Rights: Impunity, Add. 1 “Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity”, U.N. Doc. E/CN.4/2005/102/Add.1 (8 February 2005).

Promotion and Protection of Human Rights: Study on the right to the truth. UN Doc E/CN.4/2006/91 (8 February 2006).

General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147 (16 December 2005).

Human Rights Council, Right to Truth, UN Doc A/HRC/12/L.27 (25 September 2009).

General Assembly, Right to Truth, A/RES/68/165 (18 December 2013).

General Assembly, Proclamation of 24 March as the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims, A/RES/65/196 (21 December 2010).

Human Rights Council, Proclamation of 24 March as the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims, A/HRC/RES/14/7 (17 June 2010).

Human Rights Council, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, UN Doc A/HRC/RES/18/7 (13 October 2011).

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, A/56/10, ch. IV.E.1 (November 2001).

European Court of Human Rights

Judgment of 25 May 1998, Kurt v. Turkey, Application No. 24276/94.

Judgment of 14 November 2000, Tas v. Turkey, Application No. 24396/94.

Judgment of 10 May 2001, Cyprus v. Turkey, Application No. 25781/94.

African Commission on Human and Peoples Rights

‘‘Principles and guidelines on the right to a fair trial and legal assistance in Africa’’ African Union Doc. DOC/OS(XXX)247.

Inter-American Court of Human Rights

Judgment of 22 February 2002, Bámaca-Velásquez v. Guatemala (Reparations and Costs). 43

Inter-American Commission on Human Rights

Report No. 1/99, of 27 January 1999, Case of Lucio Parada et al. v. El Salvador.

Annual Report 1985-1986, OEA/SER.L/V/II.68, Doc. 8 rev. 1.

Indian Supreme Court

State of Maharashtra through CBI, Anti-Corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar [2012] 9 S.C.R. 601 602.

OTHER

Reports

Truth and Reconciliation Commission “Truth and Reconciliation Commission of South Africa Report” volume 1 (1998).

Truth and Reconciliation Commission “Report of the Reparation & Rehabilitation Committee” volume 6 (1998).

International Council on Human Rights Policy “Corruption and Human Rights: Making the Connection” (June 2009).

Academic sources

Albertyn and Goldblatt “Equality” in Woolman and Bishop (eds) Constitutional Law of South Africa 2 ed (Juta & Co Ltd, Cape Town 2014).

Boersma Corruption: A Violation of Human Rights and a Crime under International Law (Intersentia, 2012).

Evans The Right to Reparation in International Law for Victims of Armed Conflict (Cambridge University Press, Cambridge 2012).

Groome “Principle 2: The Inalienable Right to Truth” in Handleman and Unger (eds) United Nations Principles to Combat Impunity: A Commentary (Oxford University Press, Oxford 2018).

Groome, “The Right to Truth in the Fight Against Impunity” (2011) 29 Berkeley Journal of International Law Vol. 29, No. 175.

Lansing and Perry “Should Former Government Leaders be Subject to Prosecution After Their Term in Office? The Case of South African President P. W. Botha” (1999) California Western International Law Journal, Vol. 30, No. 1. 44

Naqvi “The right to the truth in international law: fact or fiction?” (2006) International Review of the Red Cross Vol. 88, No. 862.

Peters “Corruption as a Violation of International Human Rights” (2019) The European Journal of International Law Vol. 29, No. 4.

News articles

New York Times “P. W. Botha, Defender of Apartheid, Is Dead at 90” (1 November 2006) available at https://www.nytimes.com/2006/11/01/world/africa/01botha.html.

Organised Crime and Corruption Reporting Project “Two Judges Call for an International Anti-Graft Court” (9 April 2020) available at https://www.occrp.org/en/daily/12056-two-judges-call-for-an-international-anti- graft-court.

South African Press Association “TRC Lays Charges Against PW Botha” (5 December 1997) available at https://www.justice.gov.za/trc/media/1997/9712/s971205b.htm.