On or about 3 December 2020, the Secretary of the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission”) launched an urgent application in the Constitutional Court asking that court, among other things,
- to declare that President Zuma is constitutionally obliged to appear before the State Capture Commission and account by giving evidence and answer allegations that he failed as President and head of the executive to fulfill his constitutional obligations;
- to declare that Pres Zuma is obliged to comply with any summons served on him by the Commission;
- directing Pres Zuma to appear before the Commission on 18 to 22 January 2021 and 15 to 19 February 2021 unless otherwise excused by the Chair, and to remain in attendance during that period;
- directing that Pres Zuma must answer all questions put to him, subject to his invoking the right against self-incrimination but not the right to remain silent (which the Commission says is available only to accused persons).
This follows Pres Zuma leaving the Commission hearing on 19 November 2020, and not returning on 20 November 2020 when he was still under summons. It is not immediately clear whether he was in fact under obligation to return because the Chair announced on 19 November 2020 – after learning of Pres Zuma’s departure – that there would not be a sitting on 20 November 2020. Perhaps the Chair assumed that Pres Zuma would not return. Perhaps Pres Zuma conveyed that to the Chair. Neither the Commission nor Pres Zuma has explained precisely what the correct position is in this regard.
Ngalwana has filed a conditional application in the Constitutional Court to be admitted as friend of the court (amicus curiae) raising certain issues not raised by either party that he considers relevant and in the public interest for the Constitutional Court to determine together with the Commission’s application. The application is conditional upon the Constitutional Court granting identified relief in respect of Pres Zuma. It seeks to complement, not oppose, the Commission’s application against Pres Zuma. It asks that the Constitutional Court directs the Commission to compel President Ramaphosa and other members of cabinet, senior civil servants and Eskom chief executive to answer questions on specific issues on the same grounds advanced by the Commission in relation to Pres Zuma in support of certain identified prayers.
If granted leave to intervene, written submissions by way of heads of argument will then be prepared.
As of the evening of Saturday 19 December 2020, no word had yet been received from the Constitutional Court, on the one hand, or either the Commission or Pres Zuma’s legal team, on the other, as regards their attitude towards the intervention application which was filed and served on 17 December 2020. The Commission filed its heads of argument on 18 December 2020, which it served on Ngalwana too, but says nothing about the intervention application in those heads of argument. Pres Zuma has elected not to participate in the Constitutional Court proceedings. Instead he has launched review proceedings in the High Court in relation to the Commission Chair’s ruling on Pres Zuma’s earlier application for his recusal.
Read the Full Conditional Application by clicking on the link immediately below:
Secretary of State Capture Commission v Zuma – Amicus Application 17 December 2020 (Intervention Application)
Concourt Pleadings in State Capture Comm v Zuma (Commission’s Application)
Heads of Argument in Secretary Commission v Zuma – 18 December 2020
State Capture Terms of Reference – Original