Did the chattering class really misread Sikhakhane’s primary aim of a Zondo application for recusal?

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By: Clyde Ramalaine

It was never going to be only about the legal in spaces where the personal, the political, and the public intersect in subjects of ‘state capture’ and pontificated guilt.

As we sit and await Zondo to wrap up his R1bn two-and-half-year Commission that heard 257 witnesses, what I ages ago dubbed more of a ”Latent Labour Dispute Commission” South Africa’s chattering class is abuzz with opinions, flagrant statements and bland swipes of adjudication. What is indisputable, the subject of state capture remains a discursive one in our discourses. State capture demands a response measurable in the confirmed polarised context of a South African society. Some will argue state capture was ventilated and proven in the sitting of this Commission while others like myself long ago said it could not and was not proven hitherto.

The difference between the presence of  COVID-19 and ‘State Capture’ is the fact that the first can claim a sudden presence when the latter was crafted over a much longer period of time. They both live in the lexicon of South Africa, yet both came as borrowed into our living spaces. The genesis of the coined state capture in our lexicon is not accidental but particular and its timelines in entering our discourse beyond any dispute.  In order to appreciate the SA narrative on the presence of state capture, it is perhaps important to appreciate the genesis of the notion. The notion of state capture was first coined by the questionable World-Bank to attempt describing the behaviour of a lower-tier group of oligarchs active in Russian economy whom they tried to analyse and explain as a phenomenon. It manifested in SA in the official opposition Democratic Alliance’s 2009 3C’s political campaign of cadre deployment, corruption and capture.

State capture is a political campaign no commission or court will ever be able to prove it. Since state capture constitute a political campaign the State of Capture Commission cannot escape its own political context. To therefore assume the Commission is purely a legal space is to misunderstand its quest. That quest  – was the state captured between 2009 – 2017, if it was to what extent and who were the main players in such capture.

On Monday former President Jacob Zuma’s legal team applied to have the chairperson DCJ Zondo recuse himself from presiding. It was always going to be a mammoth task to bring an application of recusal and this was equally acknowledged by Senior Council Muzi Sikhakhane in his tabling of such

Social media is abuzz with running commentary from talk show hosts, journalists, analysts commentators, jurists all making up the chattering gigabyte data crowd class. They all will tell you how SC Sikhakhane was bombastic, arrogant, theatrical and putting up a show of attention-seeking performance that was bereft of any legal argument. To those, I have said maybe its time we all concede we opine from the poverty of our knowledge rather than the claimed wealth of knowledge as to what Sikhakhane had as strategy and tactics as a defence attorney. What most did not understand is their obsession to reduce the Commission, in tones of a criminal court,  to a unique legal space of proverbial black and white choices.  Unfortunately, South Africans are still deceived by a group of embedded journalists, talk-show hosts, commentators, politicians, business-people, clergy and academics whom all share a strange but connected ambivalence of morality that the Commission here and now must produce arrests of only those they vehemently detest. These want nothing less but to see Jacob Zuma found guilty because in the convenient minds he is already guilty and the Commission must be a mere tool to confirm their judgement of him

The Commission from its terms of reference is framed in legal context but it inculcates all sciences because it relies on information someone by their own volition, less in being subpoenaed, comes and presents. Now to present information even if a person was implicated by another witness or a version of presentation does not assume a court intervention but a human-intervention to aid the search to establish if the discursive notion of state capture did occur or not. Since the Commission deals with real humans whom it invites in its quest for information of a particular kind it warrants being a space of freedom, equality, safety and consciously sensitive to the tenets of the Constitution as the overarching umwelt for SA institutions in letter and word.

So, for most who dared to opine as fly – by- night legal minds informed or not on Sikhakhane’s approach and content maybe their grand-scale error was their obvious choice to downplay the political context of this Commission. One may as a side topic ask why they are absent in acknowledging that virile political context.

In my assessment, Sikhakhane was contextualising the pervasive political context immanent in constructs of ‘state capture’ as bandied around in claims of certainty by some wherein the media scripted some politicians as ‘angels’ and others as ‘demons.’ Spaces in which his client present here this week stands as accused Number-One already tried in the courts or the Media and found guilty by an embedded lusty media that for their own political and economic reasons chiselled these political narratives. It is perhaps fair to suggest Sikhakhane made the political personal and the personal political.  He was straddling in these spaces with comfort and a sense of orchestra-directing where clinical law simply cannot be applied in stark black and white frames but must bow to the human context of fragility that binds evidence leader, witness and chairperson.

Sikhakhane was at pains to advocate that it is in this contextualised space of a  client who feels the Commission, not a safe space that this application is lodged. The Commission, immanent in its investigative and prosecutorial praxis under the leadership of its appointed Chairperson Deputy Chief Justice Raymond Zondo in what his client sees and experienced as having bought into the dominant narratives engineered to render his client guilty without any court of law pronouncing on that guilt in a verdict.

Meticulously conscious of the challenge of the application Sikhakhane was at pains to draw marked distinctions between the unquestionable integrity of the Chair and the matter of plausible committed errors in the cause of presiding. Leaning on hybrid social sciences diaphragm he showed the interwovenness of for example bias and impartiality at the hand of its legal and psychological contexts. In this setting, the recusal is essentially informed by the marked behaviour of the chairperson which details a slew of comments, statements and propositions made in the life of the Commission. It systematically set out an approach to show Zondo as having not been consistent in his behaviour when he as chair purported lenience to certain lined up ‘star’ witnesses which defined the Commission from inception. Zuma’s recusal further burrows into the investigation and legal teams that constitute the Commission’s core for their roles in compromising the Commission at an experiential reality.

Sikhakhane in genesis set out to dispel the peddled sophism that Zuma hitherto refused to appear before the Commission.  He pointed out how Zondo out of unnecessary doubt also fell in the trap of wanting to meet with Zuma’s medical doctors, to ascertain his medical status. Unfortunately, this a  meeting never occurred though.  Sikhakhane with great care solicited Zondo to self-introspection to locate himself in the attempt of seeing how an accused person views the Chairperson’s actions. Yet Sikhakhane was not ambiguous when he categorically asserted should the Chairperson not recuse himself; his client withholds the right to appeal such decision.  Should the Chairperson insist his client takes the stand, he will oblige under duress and Zuma for fear of self-incrimination will become a reluctant witness that will not implicate himself.

As Sikhakhane chipped away at the comments of Zondo as the Chairperson in his contextualization for what these mean to an ordinary [not a  legal mind], one could not help but see him gaining grounds.  Zondo felt the need to interrupt in response to clarify himself. This may have suggested a chairperson seeing the need to explain if not defend his comments. One would have thought a better approach would have been to wait for Sikhakhane to complete his presentation. What was missed by many of the chattering class is that Zondo on Monday amidst Sikhakhane dealing with his statements and comments wilted when he chose to use the word sensitive. While not a full concession that may harvest a recusal it registered a sweet spot. Sikhakhane had no further need to elaborate on the balance of maybe sixteen more comments contained in the application because this wilting on the part of the Zondo was self-evident and noted.

If we jog our collective memories, right before Sikhakhane led this recusal application, DCJ Zondo thought it appropriate to introduce his statement in response to the Zuma affidavit and letter. One could not help to ask was this a well-thought-through or canvassed decision and choice on the part of Zondo? It appears to me [non-legal person] that the choice to read into the day and the Commission this statement immediately rendered the Chairperson as a witness in the Commission. Some would protest the materiality of his statement which essentially was the negation of espoused friendship between himself and former president Jacob Zuma as Zuma’s version dictates. What is indisputable is that Zondo invited response to his version since it was never going to be the accepted gospel. I am of the view that once Zondo determined to read that personal statement he inadvertently set himself up in an invidious position as open to being flagged for now having to adjudicate on his facts as chair of the Commission. He should have known it was never going to be the gospel since Sikhakhane forewarned him that upon studying his version his client may respond in refuting his version. In the end, it is Zondo’s word against Zuma’s word on what friendship means drawn narrow or wide.

Zondo appears to have taken refuge in the moment of flawed sense to resort to engaging a deliberate very narrow definition of friendship. It is a given that many friends have never been to their friends’ homes or family funerals, while the aforementioned typifies a very close friendship, it, unfortunately, cannot be the natural tests and only frames for a notion of friendship[s]. One simply cannot use this narrow arc as a litmus test for acknowledging or denying an evolving construct of what friendship means. Social media spaces refer to those whom we never have met as friends since we share information on what is happening in our lives daily to the point where they know our families. It appears Zondo was obsessed to debunk his past friendship with Zuma and this may have blinded him to the potential ramifications of that choice in how it locates him as one who now has submitted a statement as a witness in a Commission he chairs.  I guess it was both personal and political for Zondo to distance himself from Zuma and that message needed to be communicated to the public.

What will happen when Zondo invites us to hear his findings?

On Monday, November 16, around 4 pm Zondo committed to having his findings available on Tuesday morning around 10 am, he did provide a caveat in saying if it cannot happen the Commission will advise on a later time. Later we heard about a 3 pm timeslot. So, since Monday Zondo thrice announced extensions which now anticipates a Thursday moment.

It is safe to assume Zondo will not recuse himself. I would imagine that Zondo would be able to deal with the application from his law background, but this application as already stated transcends clinical black-and-white law and traverses the common spaces of politics whether Zondo wants to admit or not. The implications for recusal vibrates beyond mere legal arguments for or against a recusal as most have been detailing in their opinions. It breathes in spaces of a possible collapsed Commission and subsequent claims of R1bn waste of taxpayers money.

I do not think Zondo has any intention to be labelled as the one who collapsed perhaps the most important setting of his career. I also do not think he has any appetite to carry the albatross of the one who cost SA R1bn in wasted taxpayers money. The narratives of an anticipated collapsed Commission coupled with the R1bn waste have emerged as central background arguments to advocate for a non-recusal. So,  to assume Zondo is merely going to consider the legal context in typical clinician format is to not appreciate the intention of the application or the current unfolding reality of a Commission since Monday in delays.  These are unfortunately not to be laid at the feet of Zuma but Zondo for his choices. This week’s sitting in costs can also be tabled as the Chairperson’s cost if his delays are the barometer for assessment.

To further accentuate the personal and the political, at another level, this Commission and its successful delivery of a report of the guilty ones constitute Zondo’s resume for the next door he hopes to enter as the Chief Justice of SA in 2021. This recusal becomes, therefore, personal for Zondo, you know that since he already told us in his 24 years of practising in this position as a judge, he was never asked to recuse himself. I guess the personal is the public and the public is political and this plays out against the canvas of the legal, but its personal and political for both  Zondo and Zuma for both accused and Chair.

I, therefore, expect Zondo to open by showing respect for the human context that Sikhakhane shared. I see him not conceding but to confirm the notion of the blindside of all individuals, in which he is not exempted and the position witnesses may find themselves. I expect him to underscore the safe space notion of the Commission at an experiential level as extrapolated from the Constitution. I do not see him apologising for it but restating the spirit of the Commission in an envisaged sense. That will be how far he will go since this will be followed by his legal arguments that most definitely includes case law on the grounds for recusal as not have been met and thus his decision to deny it.

I also think Zondo will at that moment expect Zuma to take the stand to which Sikhakhane would rise to confirm the appeal process as to start. Meaning Zuma will not be giving any evidence at the Commission soon and possibly never. That soon must be understood against the backdrop of the pressure the Commission has to finalise its report set for March 2021. We are also at a particular time of the year in which SA as from December 10 – January 15, usually is on holiday. I am not envisaging any court action which means the earliest an Appeal will be heard is February 2021. This holds implications for the Commission’s report.

In conclusion perhaps many missed the overarching intention of Sikhakhane’s approach, content and style to highlighting the wider than the legal context of the Commission and his client in metanarratives of a polarised South Africa.

In my analysis Sikhakhane as a defence attorney attained what he set out to do, less enthralled by the anger of the chattering class who already found his client guilty and resorted to describing him in adjectives of bombastic, arrogant and performing. Sikhakhane knew their opinions could never be more pungent than a judge having accused him of being corrupt for having Zuma as a client. In this sense, Sikhakhane managed to blindfold those who accuse him of not making a legal argument because they did not read or understand his strategy neither were attuned to his tactics since they never knew what his aim was. Had they known what his game plan was they would agree with some of us that he succeeded to kick the proverbial ball deep into the Chair’s half and until now that ball has not come over the centre of the field yet.

So despite Zondo not granting the recusal the proverbial damage appears done. The best way to appreciate this is the analogy of attending a funeral in the merciless red dust of a Highveld cemetery.

This dust is settling on the black gown of Raymond Zondo as the Chairperson of the State of Capture Commission. Maybe this was Sikhahkane’s original intention.

 

Clyde N. S. Ramalaine
A Lifelong Social Justice Activist Political Commentator & Writer is a SARChi D. Litt.et. Phil candidate in Political Science with the University of Johannesburg. Chairperson of TMoSA Foundation – The Thinking Masses of SA