Secretary of State Capture Commission v Zuma CCT295/20: Written Submissions – By Vuyani Ngalwana

On 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.

On 17 December 2020, Ngalwana 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 take into account the “deeper public purpose” of the Commission by extending some of the relief sought in relation to Mr Zuma to other members of his cabinet and other senior civil servants and Eskom chief executive.

On 18 December 2020, CASAC also filed its application in the Constitutional Court to be admitted as friend of the court. It wants Mr Zuma to denied the benefit of the privilege against self-incrimination when answering questions put to him at the Commission.

On 22 December 2020, the Helen Suzman Foundation also filed its application to be admitted as friend of the court. Its focus is the centrality to the rule of law of the importance of everyone, including former head of state, obeying or complying with the summons and subpoenas issued by the Commission.

On 23 December 2020, the Chief Justice issued Directions conveying that all applicants for amicus status must file written submissions by 13h00 on 28 December 2020, but that they “will not present oral argument at the hearing on 29 December 2020” and that a decision as regards whether they will be admitted as friends of the court will be communicated in the judgment of the court.

On 28 December 2020, further Directions were issued laying the ground rules for the conduct of the hearing on 29 December 2020.

Read ALL the parties Written Submissions by clicking on the links immediately below:

Written Submissions

Heads of Argument in Secretary Commission v Zuma – 18 December 2020

Written Submissions in State Capture Commission v Zuma – Vuyani Ngalwana 28 December 2020

CASAC Heads of Argument – Secretary Commission v JG Zuma (Case No CCT 295-20)

HSF written submissions

Concourt Directions

Concourt Directions – 23 December 2020

Concourt Directions – 28 DEcember 2020

By |2020-12-28T14:34:11+02:00Dec 28th, 2020|Cases of Interest, South Africa|2 Comments

Is There A Case for President Ramaphosa and Others To Answer at the State Capture Commission: A Constitutional Court Intervention – By Vuyani Ngalwana

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)

RELATED DOCUMENTS

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

By |2020-12-19T22:23:22+02:00Dec 19th, 2020|Cases of Interest, South Africa|1 Comment

This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too

Many people view 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” or “the Commission”) with suspicion, at best, and as a witch-hunt specifically for President Zuma’s associates, at worst.

But is this justified?

A cursory reading of the Commission’s Terms of Reference and Rules reveals that such suspicion can either be blunted or blown out into the open or completely disproved.

ANYONE, whatever his or her status in life, who believes that any person should be called as a witness on specific issues, and be questioned on those issues by the Commission, can ask the Commission Chair to call that person as a witness. All you need do is send a written request to the Secretary of the Commission in which you

  • identify yourself
  • identify the person/s you want called
  • specify the issue/s on which you want the person/s questioned
  • explain why that evidence is likely to be valuable to the Commission in the performance of its work
  • link the issue/s on which you want the person/s questioned to at least one aspect of the Terms of Reference.

(The Terms of Reference – to which a link is provided below – have been amended since first being promulgated in January 2018, but not in a manner that materially affects the discussion here)

In this regard, Rule 9.1 of the Commission Rules says:

“If any person considers that a particular witness should be called to give oral evidence, a written request to this effect should be made to the Commission and shall include the reasons for the request and the likely value of the evidence of such witness. Such witness may be called at the discretion of the Chairperson.”

If the Commission Chair invites the person concerned, s/he must be questioned in terms of Rule 3.2 of the Commission Rules which says:

“A member of the Commission’s Legal Team may put questions to a witness whose evidence is presented to the Commission by the Commission’s Legal Team including questions aimed at assisting the Commission in assessing the truthfulness of the evidence of a witness. Subject to the directions of the Chairperson, the Commission’s Legal Team may ask leading questions.”

Since the primary purpose of a Commission of Inquiry is the pursuit of the truth, you are free to suggest a line of questioning to the Commission on the issues that trouble you. Ultimately, whether the person you have identified is invited to give evidence and be questioned at the Commission is for the Chair to decide. But the discretion of the Chair must be exercised judiciously, not on a whim.

If the Chair should refuse your request, you are entitled to reasons. If no reasons are given, or you find the reasons inadequate or irrational or unreasonable, you have a right to challenge the decision on review in the high court.

If the nature of the questioning should strike you as “sweetheart” questioning of the sort that is intended simply to go through the motions without any intention of extracting the truth, you have a right to challenge the process on review to the high court.

Now, the purpose of this brief opinion is this: it is unhelpful to stand on the sidelines hurling invective at the Commission when you can participate in making it a success. We live in what should be a participatory Democracy. PARTICIPATE.

Read an example of a Written Request by clicking on the link below:

Request to State Capture Commission – Website

RELATED DOCUMENTS

State Capture Commission DAY 133 TRANSCRIPT DD 2019-07-15 – Zuma Evidence

State Capture Commission Rules

State Capture Terms of Reference – Original

By |2020-08-16T20:21:58+02:00Aug 16th, 2020|Cases of Interest, South Africa|Comments Off on This is a Participatory Democracy: PARTICIPATE. The State Capture Commission is Yours Too