IN THE COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“THE COMMISSION”) In the matter between: JACOB GEDLEYIHLEKISA ZUMA Applicant and THE CHAIRPERSON OF THE COMMISSION 1stRespondent (DEPUTY CHIEF JUSTICE RAYMOND MNYAMEZELI ZONDO) THE SECRETARY OF THE COMMISSION 24 Respondent FOUNDING AFFIDAVITTABLE OF CONTENTS INTRODUCTION. PURPOSE OF THIS AFFIDAVIT SYNOPSIS OF THE GROUNDS.. STRUCTURE OF THE AFFIDAVIT... RELEVANT BACKGROUND... REQUIREMENT OF IMPARTIALITY WAS AT THE CENTRE OF THE REMEDIAL ACTION Myrelationship with Deputy Chief Justice Zondo... ‘SPECIFIC GROUNDS OF RECUSAL. Biased identification of Commission witnesses. Commission ignored my testimony. Chairperson's prejudicial comments. Unfair treatment during my appearance at the Commission... Chairperson doubted my bona fides regarding my iltheaith Press statements are unjustified APPLICABLE LEGAL PRINCIPLES RELATING TO RECUSAL. CONCLUSION 18 22 22 a7 28 87 67 73 96 98|, the undersigned JACOB GEDLEYIHLEKISA ZUMA state under oath as follows: INTRODUCTION 1 {1am an adult male and former President of the Republic of South Aftica and reside at Nkandla, KwaDakwadunuse Homestead, KwaNxamalala, Kwa Zulu-Natal. 2. Save where the contrary appears from the context, the facts set out in this affidavit are within my own personal knowledge and are true and correct. Where | make submissions of a legal nature, | do so on the advice of my legal representatives, which advice | believe to be correct PURPOSE OF THIS AFFIDAVIT 3. The purpose of this affidavits to support my application forthe recusal ofthe Chairperson of the Commission of Inquiry into State Capture, Fraud and Corupton in the Public Sector, including Organs of State (‘the Commission or Commission of Inquiry") and to set out the grounds on which | make the application for him to recuse himself from presiding over those issues that pertain to me and my family. In order to give my application its proper context, | will also deal with the genesis of the Commission, as well as my atitude towards the manner in which it was established. | do so not because itis the basis on which | seek the Chairperson 1to recuse himself, but because the background itself reveals my reservations about the constitutionality of the Commission, as well as the legality and appropriateness of the appointment of Deputy Chief Justice Raymond Mnyamezeli Mlungisi Zondo (hereinafter referred to as “Depuly Chief Justice Zondo" or (‘the Chairperson") as Chairperson of the Commission |1do not file this application light or recklessly fully understand the gravity ofthis application | fully appreciate its broader constitutional and politcal ramifications. | am acutely aware that Deputy Chief Justice Zondo holds a position of power. | would not lightly or recklessly and without good reason antagonize the presiding officer. | was advised that if | have reservations or fears about the impartiality of the Chairperson, | ‘must raise it openly, rather than harbor itonly to raise itat the end ofthe process. | am advised that recusal applications are complex and are a subject not so fully developed in our jurisprudence. | do, however, submit that the grounds | herein raise, properly considered, would cause reasonable apprehension in the mind of any witness in my position | am not unaware that the task | have given my legal representatives is an unenviable and invidious one. | am acutely aware that asking a presiding officer ofthe seniority of the Deputy Chief Justice to recuse himself is no easy task for them, However, | bring this application in order to express a well-grounded apprehension that the conduct of the Commission and the comments of the Chairperson are prejudicial to me and my family. | am anxious that he can no longer bring to bear an impartial mind when dealing with my evidence or findings relating tome and my family7. |'am acutely aware that applications forthe recusal and disquailcation of judges is a sensitive matter, since it draws into question the fitness of a judge to carry out the judicial functions with the requisite ability to be fair, impartial and just. | am also advised and take comfort in the fact that leading cases on recusal have wamed that a judicial offer facing an application for histher recusal should not be overly sensitive or take the application for recusal personally or as a reckless disregard for the constitutional position of the judge? 8. This application is not brought frivolously or without an appreciation of its gravity. Itis not my intenton to undermine or impugn the integrity of Deputy Chief Justice Zondo.| bring it on the premise that judges have a higher capacity for self-reflection. | state, at the outset, that | have the utmost respect for Deputy Chief Justice Zondo and would never frivolously or for ulterior motives, raise the issues | raise. Ordinarily, and given how | have been treated in the past, I \would not bother bringing such an application. | do so because | have faith that Deputy Chief Justice Zondo has the capacity and the integrity to hear me out, even ify application is about his conduct and how | perceive it. 9 The decision to fle this application was made after due consideration of all the facts and the law underpinning the work of the Commission. | also took into account my limited role in the establishment of the Commission and my views on the constitutionalty of the Commission * President of the Republic of South Africa and Others v South African Football Union and Other 1999 (4) SA 147 (CO) at parat0 2 SARFU (n1) at para 3 tT po SOS10. Itmay well be contended, as some have done, that | ought fo have raised the objections about the legality ofthis Commission and the appointment of Deputy Chief Justice Zondo right atthe beginning. This contention misses the point completely. As a matter of fact, | did raise these Concerns at my appearance. In any event, the remedial action of the former Public Protector, ‘Advocate Thuli Madonsela, precluded me from playing any real role in the selection of the judge to chair or preside over this Commission. 1, ‘AS understood the terms of the remedial action, which were subsequently made an order of Court, | had to establish a commission of inquiry, not on the basis of my own decision as President, butas directed by the Public Protector and thereafter, the Court, The North Gauteng High Court further confirmed that it was correct and legitimate that | make no input in the selection of the judge to preside over this Commission 12, The stated reason was that | was allegedly conflicted to exercise the full extent of the Constitutional power to establish a judicial commission of inquiry. It is obvious that this was based on the assumption that a judge selected by me would either be partial or perceived as biased. Clearly, impartiality was at the heart ofthis decision. This point is important in the Context ofthis matter, where all ofa sudden there may be a view that impartiality is not required when a judge is presiding over a Commission of inquiry 13, Itis for that reason that despite my reservations about the lawfulness and appropriateness of the appointment of the current Deputy Chief Justice Zondo, | was unable to or prevented from interfering with the sanctioned selection procedure and making my views known to the Chief Justice Mogoeng Mogoeng when presenting me with his (Deputy Chief Justice Zondo) name. 4 xo SY| did not want to overstep any mark and risk breaching the remedial action and the judgement of the North Gauteng High Court. 14, In this affidavit, apart from the factual matters on the basis of which I seek the recusal of the Chairperson, | also set out the legal principles that govern applications for recusal. | do this merely to foreshadow the legal issues that will be set out fully in the legal submissions to be made if or when the application is heard, SYNOPSIS OF THE GROUNDS 15. The grounds upon which | seek the Chairperson to recuse himself may be summarized as follows: 15.1 Given our personal relations, the background of which is set out fully below, Deputy Chief Justice Zondo ought to have declined to chair the Commission, whose terms of reference indicated that | was to be the main implicated person; 15.2 In my absence, the Chairperson has made several comments whose effect is the Suggestion that | am already guilly of the offense of "state capture’, Many of these ‘comments carried with them a miscellany on insinuations about my involvement in the unlawful capture of our State while | was President; | am advised that itis not ‘uncommon for judges to hear testimonies that may well outrage them, but they Femain composed in order to create a safe forum even for the accused. In this regard, they are guarded in the comments they make while hearing testimonies. 5 wo 7 rae16. 153 The Chairperson has singled me out for public announcements, by addressing issues relating to me through the media. ! am the only witness in respect of whom so many press statements have been issued by the Chairperson; 15.4 The Chairperson clearly doubts my bona fides. On two occasions he questioned or doubted my statement that | had travelled to seek medical attention; and 15.5 The Commission has tended to call only those witnesses, particularly members of my Cabinet, that implicate me in some way or are disgruntied that at some point | may have removed them from their Cabinet posts; | respectfully submit that, given the general principles regarding recusal applications, the above issues are sufficient to justify my apprehension and the application for the Chairperson to recuse himself. | am aware that some believe that | am so guilly and do not deserve to be treated fairly by our courts or legal processes. However, the approach of our courts and presiding officers ought to presume me innocent and not deepen existing prejudices against me without due process. | have never refused to make writen submissions to assist the Commission.‘STRUCTURE OF THE AFFIDAVIT 17. This affidavit is structured as follows: 174 172 173 174 First, | set out the relevant background which is the genesis of this Commission, as well as the history of my relationship with Deputy Chief Justice Zondo; ‘Second, | will then deal with the reason for the remedial action that prohibited me from selecting the judge to head this Commission; Third, | set out in greater detail the grounds upon which I seek the recusal of the Chairperson of the Commission. In particular, | will show that the Commission has been vacillaing between two positions. On the one hand, ithas been saying | should not receive or expect special treatment, which is a correct. Position. On the other, the Commission has sought to reserve public statements for me. No other witness has hhad their subposna publicly announced through media statements by the Chairperson; Fourth, | set out a brief account of the legal principles regarding recusal applications in order to dispel the notion that impartiality of the Chairperson is not required in a Commission of inquiry,RELEVANT BACKGROUND. 18. Before dealing with each of the grounds on the basis of which I brig this recusal application, it fs germane that | set out in some detail the genesis of this Commission and the circumstances that surrounded its establishment at the time. The following facts are thus relevant: 18.1 Following a rushed investigation into the role of the Gupta family in the affairs of the State and the rise in the public outrage at the state of coruption in Organs of State, on 02 November 2016, the former Public Protector Advocate Thuli Madonsela released Report 6 of 2016/2017, which was titled “State of Capture" (‘the Report); 18.2 The Public Protector had been conducting an investigation into complaints of my alleged improper and unethical conduct, certain State functionaries and the role of the Gupta family in State affairs; In particular, the allegations related to the appointment of cabinet ministers and directors of State-owned enlites, and the allegatons of improper and corupt award of State contracts and other benefits to the Gupta family; 18.3 In the aforementioned Report, the Public Protector made numerous inconclusive findings. However, given that her term was coming to an end, she saw it fit to direct that further investigations be conducted on her speculative findings on the existence of “State Capture’, my role therein and that of the Guptas and many other issues. She directed that |, as President, establish a judicial commission of inquiry to 8 eo. OO)investigate the matters that she had identified in her Report. Most significantly, for present purposes, this particular remedial action directing the President to appoint a ‘commission of inquiry included that the judge to preside over the Commission of Inquiry should be solely selected by the Chief Justice, who would provide the name of the selected judge to me. In this regard, the Report reads (in relevant pari): “8.4 The President to appoint, within in 30 days, a commission of Inquiry headed by a Judge solely selected by the Chief Justice who shall provide one name to the President, &.7The commission of inquiry to be given powers of evi collection no less than that of the Public Protector, 88 The Commission of Inquiry to complete its task and to present the Report and findings and recommendations to the President within 180 days. The President shall submit a copy with an indication of his/her intentions regarding the implementation to parliament within 14 days of releasing the Report.” 184 While | recognised the seriousness of the issues in the Report, and had no objection to the appointment of a commission of inquiry per se, from the onset, | was concemed about the legality of the aforementioned remedial action of the Public Protector. My view, which was confirmed by legal advice, was that the Public Protector had no power to issue a remedial action in breach of the principle of separation of powers. In terms of the remedial action, the establishment or appointment of a commission of inquiry was done by the Public Protector. -Z bd, Ser”18.5 The appointment of a Chairperson to preside over the Commission of Inquiry was allocated to the Chief Justice, an executive function that has, to my knowledge, never been performed by the Chief Justice. 18.6 On legal advice, and in line with my constitutional obligation to defend the Constitution, | challenged the lawfulness of the remedial action. That application was dismissed, and the High Court confirmed the legal validity of the Public Protector’s remedial action. | appealed the dismissal of the application. On 14 February 2018 and while that appeal was pending, | resigned from office and was replaced by the incumbent, Honourable Mr President Ramaphosa (‘President Ramaphosa’). President Ramaphosa then decided to withdraw that application for leave to appeal, save for the cost orders directed at me in my personal capacity. 18.7 In my application to review the remedial action and in the leave to appeal, | pertinenty raised several issues, including the folowing: 18.7.1 The Constitution, in section 84(2)(f), vests the power to appoint the Commission of Inquiry in the President. Icontended that only the President could lawfully exercise the power io appoint or establish a commission of inquiry; 18.7.2 The remedial action of the Public Protector directing the Chief Justice to select a judge for appointment as Chairperson of the Commission of Inquiry was unconstitutional. The Chief Justice, on the separation of 10 ». OF187.3 18.74 18.7.5 powers principle, has no constitutional power to play a role in the exercise of the powers under section 84(2)(f) of the Constitution; Furthermore, | am advised that the Public Protector has no power to issue directives against members of the judiciary, more importantly, the Chief Justice to assume executive positions not contemplated in the Constitution and to perform acts reserved solely for other spheres of government. The Constitution assigns this power to the President, and not the Chief Justice. | was surprised that the Chief Justice was willing to comply with this remedial action and Court order; While | contended, as | stil do, that the direction of the Public Protector and the Court order violated the doctrine of the separation of powers, | also contended that such direction was irrational since there was no reason to suggest thata judge, selected by me, would not be independent ‘or impartial. | viewed the remedial action as an affront to the independence cof our judges. Unfortunately, not even the judges agreed with me that they are independent, regardless of who appoints them; South Arica is a country founded on the rule of law and the supremacy of the Constitution. Section 2 of the Constitution provides that: “The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and’ the obligations imposed by it must be fulfilled”, i wo18.7.6 With that said, ! cannot understand that as a country which is founded on the rule of law and supremacy of the Constitution, we would act contrary ‘o that fundamental principle. REQUIREMENT OF IMPARTIALITY WAS AT THE CENTRE OF THE REMEDIAL ACTION 18.8 It is not necessary to burden this application with the events that followed my attempts to approach the courts to have a final determination of the application to review the remedial action of the Public Protector; 18.9 However, for present purposes, itis relevant to refer tothe issues raised by the Court when it dismissed the review application of the remedial action of the Public Protector. This is so because, right atthe outset, iti clear thatthe requitement of impartiality was at the centre of the decision by the Public Protector directing that | be stripped of my constitutional power to select a judge for appointment to head the Commission of inquiry. The perception of impartiality was so crucial that even the Court deemed it appropriate to give to the judiciary a function that is constitutionally assigned to the executive; 18.10 _Inits judgement of 13 December 2017, the Court stated as follows in regard to the need for impartiality 12 co TF“{141] The rationale that underpins the Public Protector's direction that the judge who is to head the commission be appointed by the Chief Justice is clear. The Public Protector foresaw that the credibility of the process may be compromised were the President to select the judge who is to lead the commission. She would undoubtedly have been aware that public perception is important too and is linked to encouraging public faith in the process. [142] The President has a clear personal interest in the outcome of the commission. The President is implicated in the “State Capture” Report and is at the centre of the allegations regarding the Gupta family’s involvement in the appointment of Cabinet Ministers. Moreover, his son’s business interests are heavily implicated by the allegations regarding the award of contracts by SOEs to Gupta-owned businesses. [143] Any person chosen by the President to head the commission would therefore not be perceived as independent. There is much force in the argument that the President should recuse himself from appointing a Judge in order to exclude any perception of bias and to protect the integrity of the commission in the eyes of the public. emphasis added] [144] The President's insistence that he alone select a Judge to head the commission of inquiry is at odds with the legal principle of recusal. The principle of recusal is primarily applicable to Judges who have a conflict of interest in matters over which they preside. Judges recuse themselves from matters which they are personally conflicted in order to exclude the possibility or the perception of bias affecting the outcome and in order to protect the integrity of the legal process in the eyes of the public. [emphasis added] [145] The principle of recusal is not only concerned with actual bias, but with the existence of a reasonable apprehension of bias. The apprehension of bias principle reflects the fundamental principle of our Constitution that Courts must be independent and impartial, In President of the Republic of South Africa and Others v South African Rugby Football Union & Others, it_was emphasized that a judicial officer who sits on a case in which he orshe should not be sitting, because seen objectivity, the judicial officer is either actually biased or there exists a reasonable rehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution, [emphasis added] 13 KD. gles18.11 [145] There is no reason why the recusal principle should not apply to the President. The principle of recusal applies here because the President has an official duty to select a Judge to lead the commission, but he is conflicted, as i personally implicated, whether directly or indirectly, through his family and associates in allegations of “State Capture”. [147] In these exceptional circumstances it was not only appropriate, but necessary for the Public Protector to ensure that someone other than the President select the head of the commission. The Chief Justice was a perfectly sensible and rational choice. [148] What remains to be considered is the President's contention that it is unlawful for the Chief Justice to appoint the Judge to head the commission of inquiry as the Constitution does not assign this power to Chief Justice. [149] There is no constitutional prohibition on the President seeking and adopting the advice of the Chief Justice. The President could of his own accord ask the Chief Justice to select the Judge to head a commission, whether for reasons of availability or, as here, the clear apprehension of bias, [150] In the circumstances of the case, the Public Protector’s direction that the Chief Justice select the Judge who is to preside over the commission of inquiry is both necessary and appropriate in order to render the remedial action taken suitable and effective, The President's contrary argument must be rejected.” [Own emphasis] Itis clear from the above excerpts thal both the Public Protector and the North Gauteng High Court recognised the need for impartiality in the manner in which the ‘Commission of Inquiry would conduct its proceedings. There can be no doubt that a judicial officer appointed to head a judicial commission of inquiry must be independent, impartial and must act without fear, favour or prejudice. itis precisely for that reason that a judge is appointed in order to conduct the proceedings impartially, or atleast to give such proceedings a veneer of impartiality; 4 -L Kp Sir 518.12 18.13, 18.14 18.15 Clearly, the North Gauteng High Cour, just as the remedial action did, confirmed that recusal does not only apply to judges performing their judicial functions in a court of law, but apply in every forum where impartiality and faimess are required. More so, the principle of impartiality and independence are central to judicial functions. A judge presiding over a commission of inquiry remains bound by the ‘oath of office which requires that he or she defends the Constitution, acts independently and impartially, without fear, favour or prejudice. A judge in a commission of inquiry has a dual role. Itis both adjudicative and investigative, thus imposing a greater need for impartiality on his/her part It, therefore, cannot be overemphasised that Depuly Chief Justice Zondo is constitutionally obligated, when performing the functions of the Commission of Inquiry, to act independently and impartially to all those appearing before him. This is the reason a judge was required to head the Commission of inquiry in the first place; It is important, however, that | set out the events that led to the appointment of Deputy Chief Justice Zondo as the appropriate judge to head this Commission of Inquiry. | say “appropriate” because that is what the Chief Justice indicated to me when he gave me the name of the Depuly Chief Justice Zondo; Having been compelled to appoint the Commission of Inquiry in terms of the remedial action of the Public Protector and the order of the Cour, the first step was 15 RD LaFtozarrange a meeting with the Chief Justice in order to request him to select the judge that Iwould appoint to preside over this Commission of Inquiry; 18.16 During November 2017, in the Durban Presidential Official Residence, I held a ‘meeting with the Chief Justice forthe purpose of complying with the remedial action Of the Public Protector. At that meeting | indicated to the Chief Justice that while section 84(2)( of the Constitution enjoined the President to appoint a commission ofinquiry, however, the Public Protector’s remedial action and confirmed by a Court ‘order had directed that my power to select and appoint a judge would be exercised by Chief Justice; 18.17 The Chief Justice advised me that the appropriate judge fo head this Commission of Inquiry would be Judge Desai, a senior judge in the Westem Cape Provincial Division. As | have said eatlier, | was constrained from expressing any view. | simply had to make the necessary arrangements for the formalities; 18.18 No sooner had the Chief Justice provided me with the name of Judge Desai, than he came back the following day or two, advising me that he had changed his mind ‘and would no longer be selecting Judge Desai. ! made no comment on his selection of Deputy Chief Justice Zondo as | was mindful that any comment could be Construed as an attempt to undermine the remedial action of the Public Protector and a Court order. The Chief Justice did not provide any reason why Judge Desai had become unavailable to head the Commission of Inquiry; 16 wo fo18.19 Since | had no role to play in the selection of the judge to preside over the Commission Inquiry, | did not inquire from the Chief Justice why Judge Desai had been replaced, and why he considered the Deputy Chief Justice Zondo to be the ‘more appropriate judge to head the Commission. Had | been free to speak about the selection of a judge to preside over the Commission Inquiry, | would have disclosed my close relationship with him, which would threaten the very impartiality required by the remedial action. 18.20 At the outset, and given the very reason | was prevented from exercising the President's constitutional function to appoint a judge to head this Commission | harboured serious reservations about his selection by the Chief Justice. This was due to my knowiedge that | had had a personal relationship. | was not certain whether, given the rationale for both the remedial action and the Court order, he would not be disqualified; 18.21 However, had | expressed a view resulting in the Chief Justice deselecting a preferred judge, | ran the risk of being accused of interfering with the powers bestowed on the Chief Justice by the Public Protector and the North Gauteng High Court. That would have sparked public outcry and | was going to be portrayed as seeking to influence the process. Accordingly, even if | harboured serious reservations about the suitability of Deputy Chief Justice Zondo, my ability to raise any concem | might have had was constrained by the remedial action and the Court order,; 7 KD ge18.22 As | willdemonstrate below, and to the extent that this may be relevant for present purposes, that | was concemed particularly by the fact that prior to the selection and appointment of the Deputy Chief Justice to chair the Commission of Inquiry, | had a relatively close personal relationship with him. | continued to have such relationship, even during this tenure as a judge; 18.23 Prior to his selection and appointment to chair the Commission of Inquiry, | was also concemed that the Deputy Chief Justice and | had previously enjoyed very close professional engagements when he was a partner in the law firm then known as Mathe-Zondo Attorneys. Had the circumstances under which this Commission of Inquiry was to be appointed been permissive, 1 would have disclosed this relationship as well. | explain my relationship with Deputy Chief Justice Zondo in some greater deail below. My relationship with Deputy Chief Justice Zondo 19. Mypersonal relationship with the Deputy Chief Justice dates back to the early 1990's, when he was an attorney and partner at the firm then known as Mathe-Zondo Attomeys in Durban. 20. During his period as an attorney and partner at this law firm, | interacted with him and his partner, then Mr Mathe on several occasions. Oceasionally, | sought legal advice and professional assistance from the firm, in particular, from Deputy Chief Justice Zondo and his Partner Mr Mathe, on various matters. 18 “LL. KD SG?21. 22, 23, 24, 25 During this period, | developed a good relationship with Deputy Chief Justice Zondo and constantly consulted him on various professional matters which required legal assistance, This professional relationship developed into a personal one as a result of which we both constantly met on social occasions and public gatherings that were organised by government. On one occasion, we identified and sought Deputy Chief Justice Zondo as the appropriate attorney to assist Zulu King Goodwill Zwelithini Zulu, with some of his businesses that required «person with legal sklls and/or business acumen. Having approached Deputy Chief Justice Zondo for this task, it was felt that his partner Mr Mathe was the most appropriate person to assist His Majesty King Goodwill Zwelithini with his businesses. This was so because Mr Mathe had family connections with the King, and we felt that His Majesty, the King, would be more comfortable with a family member in respect of his personal business. In any event, this did not affect my personal relationship with Deputy Chief Justice Zondo, and we continued to relate as friends and continued to meet at social and government functions. During this period, | had developed a romantic relationship with a woman named Thobeka Madiba, who later became my wife, Unbeknown to me and indeed as a pleasant surprise, Deputy Chief Justice Zondo also had some family connection with my wife, Thobeka Madiba, the details of which are irrelevant for present purposes. It suffices to state that this turned our personal relationship into a cordial family relationship. 19 KD aor26. a. 28, 29, On 29 October 2020, while preparing this application, | became aware that Deputy Chief Justice Zondo had declared the nature of his relationship with my wife's family, Out of respect for Deputy Chief Justice Zondo, | do not intend discussing his personal matters in this application. | am of the view that it would be disrespectful to do so. It suffices to state that we had a close personal relationship, which became a family relationship for the reason | have already stated, | noted that when Deputy Chief Justice Zondo made his voluntary declaration, a deliberate error was made by the media, atibuting such dectaration to me or my attorneys. I have not and would not descend to that arena, ‘My personal relationship with Deputy Chief Justice Zondo continued and on many occasions, | met with him at formal and informal events. We continued to meet after he became a judge in the Labour Court and later the Labour Appeal Court. | can say that | had no reservations ‘bout appointing him as the Deputy Chief Justice of the Republic of South Attica when he was recommended by the Judicial Services Commission. He can attest to the fact that him and | enjoyed a relatively close relationship, bom out of our respective personal and professional circumstances. He has visited my house on several occasions. {can recall an occasion when Deputy Chief Justice Zondo was elevated to the bench, we discussed whether our personal relationship would jeopardize his judicial career. We agreed that we would relate in a manner that would ensure that his judicial career is not adversely affected. | understood and appreciated that he wanted to draw a line in my relationship with 20 Kd SS30. 31 32 him that would not create the public perception that he relied on me, as President, to rise in his judicial career. However, whenever we met at social gatherings, we continued to interact cordially and to share ideas on different subjects. | knew Deputy Chief Justice Zondo to be a good person with very generous opinions on many subjects, including politics and law. | still hold the view that he is a person of integrity, whose rise in the judiciary is a source of pride fo many of us. Although | remained guarded in the manner in which | interacted with him, it was not a conscious decision to conceal my relationship with him. | can state categorically that | never sought any special favours from him based on our relationship. We never engaged in conversations that could compromise his and my political role. | kept a healthy relationship and never sought to place him in a professionally compromising position at all It is not clear to. me what has made him hostile towards me, Ihave sketched above the nature of my professional and personal relationship with the Deputy Chief Justice to provide a context within which | now believe that his hostility towards me, characterised by his unkind public comments relating to my alleged roie in “State capture" renders him incapable of maintaining an impartial mind, For whatever reason, his comments about me betray mind that is biased or at least enthused to publicly demonstrate that he holds no brief for me. 24 KD: ckSPECIFIC GROUNDS OF RECUSAL Biased Identification of Commission Witnesses 33, 44 36 ‘Atthough this application was triggered by the unwarranted public utterances at a media briefing of 21 September 2020, | wish to commence wit the manner in which the Commission has selected witnesses, whose testimony was in my view, prejudicial to me. | will also make ‘eference to comments made by the Chairperson about me in what appears to be his attempt at implicating me without any concrete evidence. Atthough the Commission Inquiry seeks to conduct a wholesale investigation into how I, as President, managed the affairs of government, including how | exercised my constitutional obligations to appoint Cabinet members, to the dismissal of Cabinet members, to provide strategic guidance in the implementation of national policies on strategic issues lke energy, ‘mining, land and public transportation, the management of State institutions responsible for our national assets and general financial management matters, | was only called by the Commission of Inquiry not as a witness, but to answer allegations made by its witnesses in my capacity as what the Commission of Inquiry refers to as an “implicated person’, The carefully selected witnesses were to give evidence to sustain the former Public Protector's. theory of “Stale Capture’, and adopted by the North Gauteng High Court and the Commission. From a plethora of his comments, itis clear that the Chairperson is already of the view that there was “State Capture" or corruption. The selection of the witnesses appears to have been 2237, intended to confirm this version. In this regard, the following witnesses were selected, to the exclusion of other Cabinet members that could have stated a contrary version: 35.1 Pravin Gordhan; 36.2 Mcebisi Jonas; 35.3 Nhlanhla Nene; 35.4 Ngoako Ramathlodi; 36.5 Ms Vytie Mentor; 35.6 Trevor Manuel; 35.7 Ms Barbara Hogan; 36.8 — MrThemba Maseko; and 35.9 Fikile Mbalula {t appears to me that what the Commission did was to identify, fetch and interview persons ‘who could implicate me in some wrongdoing, It is also apparent that the people who were called were politically hostile to me, and/or had some other grievance or complaint against me. The first act of bias, therefore. is in the identification and selection of witnesses for the Commission. From the above list, which is not exhaustive, itis clear that the Commission identfed witnesses who would attempt to implicate me or the ANC in some fraudulent and corrupt activities to sustain the narrative that the nine (9) years that | served this country as President were wasted years characterised by State Capture, fraud and coruption. If State Capture exists, it would be important to solicit the views of a wide range of Cabinet members, 23 KD. gh38, 39, 40. and other officials (goverment and State-Owned Entities) during my tenure and not merely those who are stil aggrieved that | fired or reshuffled them. It appears that the Commission identified and selected witnesses who would, through their testimonies, advance the political narrative that the State was captured by illegitimate forces or interests, was characterised by fraud and coruption. The Chairperson has not indicated to the public how the Commission of Inquiry, objectively identified and selected its witnesses fo testify on the issue of State Capture, fraud end corruption. It appears to me that with or without evidence implicating me in fraud or corruption, the Chairperson has already formed a view that there was State Capture of which | was part, and that I have a case to answer in this regard. Itappears to me that the Commission identfied persons known fo have been opponents of my leadership role in government who were vocal about the perception of State Capture. Itis also people, who, for reasons unbeknown to me, were disgruntled about decisions either taken by me or other Cabinet ministers with or without my knowledge. It is people, who, for their poltcal ambitions and interests, bad-mouthed the activities of govemment to advance their politcal narratives that would delegiimatize the leadership of government atthe time. Having identified and selected these as Com on witnesses, it gave further credence tothe political narratives of my politcal opponents both in my party, the ANC and in government, that | had essentially run a corrupt government. ‘What the Commission has done is to conduct an investigation powered by the popular political narratives that assumes the correctness of the views of those opposed to my leadership of 24 wo TY Lo“4 42, government and the ANC as the basis on which | should be called to give answers, As appears from the examples | give below, the Commission selected members of my Cabinet who already sought to implicate me in corruption or ‘State Capture". | am not unaware that the idea of a commission was merely part of an orchestrated campaign fo oust me as Head of State ‘as soon as | resigned, having established it as they wished, it was tuned into an expensive witch-hunt seeking to find me uty. The selection of witnesses, some of whom told lies about me, appears to have been designed to implicate me in something or at least to create some justification for calling me to testify with the hope to humiliate me, Itis clear that the Chairperson took a view that I must simply answer the narrative that | dismissed Nhlanhla Nene for nefarious or corrupt objectives related to the so-called nuclear project. Nene is portrayed as one who stood guard against my alleged unrealistic and corrupt ambitions to cause the irresponsible spending of public finances in pursuance of a nuclear deal. | will provide below other examples of public comments made by the Chairperson in relation to allegations made against me which appears to be based on his acceptance of the dominant political narrative that | was running a corrupt government or a captured state. \1am of the view that the Chairperson has and continues to conduct this Commission in a manner that is designed to give credence to a political narrative of nine (9) wasted years, and not a legitimate effort intended to find national solutions fo complex problems that beset our country. In my view, the Chairperson is simply confirming a version that he has already ‘accepted as true. This is clear from the biased manner in which the Commission has identified and selected witnesses to represent the alleged truth of State Capture, fraud and comuption and those who must answer to certain allegations. 25 TC wo. SOF?43, 45. There is a clear pattem in terms of which the Commission treats certain witnesses on the presumption that they were, as a fact, involved in state capture. What concems me, therefore, is that the Commission appears to have concluded that the State was captured and is now Conducting an inquiry by selecting as Commission witnesses, those who are known to have ‘expressed the view that indeed the State was captured, and that | was responsible for it. I have a reasonable apprehension that my appearance at the Commission is designed to achieve political objectives and outcomes rather than an impartial and objective attempt to elicit information that would assist the executive in its considerations of how to best utilise ‘rational resources for national goals. My appearance at the Commission is always preceded by a well-orchestrated, well publicised press conferences, including the one of 21 September 2020. It is always preceded by adverse remarks or controversial remarks fom the Chairperson suggesting that | have not cooperated with the Commission. Every time that the Chairperson has sought my attendance or answers, it has always been shrouded in some adverse public utterances by him. No other witness has been subjected fo these public ‘announcements and there is no justifiable basis for them. Itappears to me that the Chairperson’s well publicised comments about me are designed to trigger political hostility towards me. The Chairperson seems to have accepted as fact that the ccrime of “State Capture” exists and that | must answer for it. This position is contrary to what the Commission was to investigate, which is to find outifthere was such “State Capture” rather than to merely confirm, Having sourced some foreign academics who have written about State 26 KD (o%capture, the Commission seems to have accepted their theories as evidence that the crime of State capture exists, 46. The Commission has therefore failed to provide a fair and impartial platform for me to present to it objective information that could assist the executive to identify policy challenges, The Commission appears to exist for the purpose of targeting those who are allegedly responsible for the alleged “nine-wasted years”. 47. The conclusion, atleast from where | stand, is inescapable that the Commission does not provide an impartial platform to deal with facts, but has degenerated into investigations that ‘support the narratives of State Capture and cortuption. It as only sought the version of those that have unresolved issues with me. More recently it has become some sort of agent the law enforcement agencies and prosecution authorities. Commission ignored my testimony 48. Apart from its carefully selected witnesses to tamish my name, the Commission has completely disregarded my testimony to it during 15 - 19 July 2019. In my appearance at the Commission, | specifically set out the politcal context within which | believe the Commission was established. | pointed out to the existence of two intelligence reports in which it was made Clear that my political influence in the country should be eliminated. | indicated with reference to those intelligence reports, that | was a target for elimination from a long time ago. | told the Commission that | believed, based on my work as an experience and trained intelligence 27 kD 5Xofficer, that the Commission was in essence the perfection of a polical project that began a ‘ong time ago which was targeted at eliminating my influence on the politics of South Aftica. | attach the transcript of my presentation on 15 July 20, marked “JZ1” 49. If the Commission was acting fairly and impartially, it would not ignore serious allegations going to the core of ts constitutional and politcal legitimacy. If the Chairperson had bothered to investigate my claims, he would have found that he had been selected and appointed by the Public Protector and the court fo preside over a politcal project. It appears that the Chairperson paid no regard to my testimony. Instead, my testimony has been carefully ridiculed by those who fear such revelations, 50. Itis clear to me that the Chairperson leans towards the version characterizing my tenure as “nine-wasted-years". Chairperson’s prejudicial comments 51. {have already raised the issue of bias in the affidavit that was fled in respect ofthe application for summons. Even then, | stated that the Commission's secretariat affidavit appeared to be an attempt to paint a picture that | am refusing to cooperate with the Commission andlor that | was disrespecting its Chaiperson. Ths is simply incorrect. Infact, this allegation is not bome out by the fact that prevailed at the time. | responded to the call to present myself to the Commission as a ‘quest’. Nevertheless, an altempt was made by the evidence leader to cross examine me. 28 A KD SOK52. 53, 54, Furthermore, and contrary to the impression created by the public utterances of the Commission, | have offered my cooperation to the Commission and exercised my rights under its rules. However, it appears that the Chairperson and the Commission do not accept that \here | have not given a response to the notices, | have done so exercising my rights to ignore testimonies that | do not believe implicate me in any criminal offense and | am satisfied that the Commission can make any inference it deems appropriate, The entire strategy of the subpoena seems to be premised on a belie that | fear being arrested and therefore threatening me will force me to forgo my constitutional rights to faimess and dignity, as well as my privilege not to incriminate mysetf Its utterly incorrect of the Commission's legal team and the Chairperson to insinuate that, when | exercise my right not to respond to a notice, | am refusing to cooperate, The rules themselves envisage that | should do so in the event that I wish to give evidence. If | elect not to respond, the Commission is at liberty to make the inferences it deems appropriate in its judgment. {tis self-evident that the Chairperson and the Commission view me as an accused. The ‘comments and insinuations that have been made by the Chairperson attest to this. Even whien witnesses make no reference to me, the Chairperson always attempts to link or implicate me in some wrongdoing or impropriety. The Chairperson makes propositions to witness in a leading manner to place me in circumstance where | do not feature.55. | make specific reference below, to some of the prejudicial comments made by the Chairperson during testimonies of the Commission's witnesses. | will underline some points where | wish fo place an emphasis. In particular, there is a general acceptance of the testimony of witnesses that are wiling fo implicate me. | perceive this to represent a biased disposition towards me and fear that all | am being called upon to dois confirm a pre-determined position about my alleged role as President of the Republic. 56. | make reference below to some of the exchanges that support my contentions that the Chairperson seems biased against me. 56.1 During Ms B. Hogan's testimony on 12 November 2018 Deputy Chief Justice Zondo was overly courteous to Ms Hogan. He literally accepted her untested version as ‘tue and made suggestions and reached conclusions (in my view) that | acted improperly or unfairy in my interaction with her. One such example is the following exchanges “MS BARBARA HOGAN: Yes, 0, yes, O, yes. As | say | had spoken to Deputy President Motlanthe and he agreed with me and | had also briefed Zwelinzima Vavi as part of the --{indistincf] Alliance and he also agreed with me, but from within the ANC it was absolutely Gama or no one else. And | know, you know, | must take into consideration that perhaps they did genuinely believe that he was being persecuted, but then when presented with, not evidence, but the full story, you should then at least realise that there is a bigger story here. ‘And | was disappointed that they did not realise that. CHAIRPERSON: I can understand an attitude that says there is a certain candidate who is being unfairly excluded from the 3.12 November 2018 Transcript p105 and 119-120 30 KD Os?process. An attitude that says something must be done to make sure that there is a fair process, which allows everyone who is eligible to compete. That is obviously different from saying it does not matter what process is followed, it should be soand so. That is different. MS BARBARA HOGAN: Yes. CHAIRPERSON: But | would ~ it would be surprising if people in senior positions, whether in government or in organisations ina process which by law is required to be fair were to basically say we do not care about the merits or demerits of other candidates, it should be so and so. Because from what you say it seems to me that, that is the effect of what you are saying it was the former President's attitude and you must tell me if |am wrong, that seems to be the effect of what you are saying was the then Secretary General's attitude as well? Am | understanding you correctly? CHAIRPERSON: And like the former President he also did not have any criticism for Mr Maseko's credentials? CHAIRPERSON: So, you must have been under enormous pressure to appoint Mr Ghama at the end of his disciplinary process. Maybe the outcome made things a litte bit easier for you. MS BARBARA HOGAN: Yes. CHAIRPERSON: But you must have been under extreme pressure? MS BARBARA HOGAN: Iwas under extreme pressure.” CHAIRPERSON: This is connecting with your earlier evidence that around July the President had asked you to - the then President had asked you to give him three names. So, this is connecting with that? MS BARBARA HOGAN: Well no this is the following year. CHAIRPERSON: Oh.” 3153.2. Inthe quoted section, itis clear that, apart from being overly courteous to Ms Hogan, the Chairperson was actually putting a proposition to Ms Hogan, suggesting that | had acted improperly and/or that | pressurized her to appoint Mr. Gama as the Group Chief Executive Officer of Transnet. This is further exacerbated by the Chairperson's Pronouncements and conduct on 43 November 2018 during Ms, Hogan's testimony. In this regard, it is appropriate to reproduce the relevant excerpts (as lengthy as they are) “CHAIRPERSON: You said that the President never expressed any unhappiness with your performance, but of course based on the evidence you gave yesterday it was - it must have been quite clear, it is quite clear that there were very sharp differences of opinion between yourself and the President in regard to some of the issues in your portfolio? CHAIRPERSON: Is there room, you can just answer this question to the best of your ability. Do you think there may be room for any suggestion that maybe your personality and his Personality, your respective ways of dealing with issues were such that the kinds of differences that came up, maybe were likely to come up? Or is that something you have not thought about? | am just thinking...{intervenes] CHAIRPERSON: Because the differences of opinion were quite sharp, | think on certain issues and | think they were expressed forcefully on both sides. You must just tell me if what | am thinking you do not agree with. MS BARBARA HOGAN: Yes, CHAIRPERSON: And feel free to say you think differently. | am just exploring. MS BARBARA HOGAN: Yes, CHAIRPERSON: Thoughts. 413 November 2018 Transcript p14-15 and 56-58 32 KD gtMS BARBARA HOGAN: The President is a genial person we know that. | cannot put aside the fact that probably dealing with women who held views, might have been an uncomfortable experience for him, but | was careful to be respectful all the way through... CHAIRPERSON: But on the face of it, it seems to me, and you are free to comment, it seems to me that unless you tell us something else that happened that might have a bearing on this, it seems to me that what you were told on the phone by the former President amounted to saying Mr Maroga was going to continue as CEO of Eskom and there was nothing really to be done about - as far as the President was concerned, about the board's view that he had offered to resign and they had accepted that. But having said that | think | must say that should not necessarily mean that he did not have in mind that the board could do whatever it considered it had a right to do. In other words if it decided that it would dismiss him it may well be that hhe was not excluding that, but the ~ what he said to you just seem to say look, Mr Maroga will continue as CEO and then the board must decide whether they accept that or they decide to do whatever they decide, MS BARBARA HOGAN: That is one possibility, certainly. Another possibility is that the board would resign, and | had seen the exasperation of the board members and that would have been an even further disaster. CHAIRPERSON: Of course you must be right that there would be a risk that if the board was not prepared to accept that Mr Maroga was to continue as CEO and that they would therefore see this as the President taking the side of Mr Maroga, that they could then resign. That must have been a logical possibility. MS BARBARA HOGAN: It would have been perceived that the President had taken the side of Mr Maroga. CHAIRPERSON: [indistinct] _did you get_an impression that there might have been private meetings between the President and Mr Maroga? MS BARBARA HOGAN: Yes, and that impression, it is in Paragraph, | forget which paragraph here but when | was making arrangements through my office for the President to meet with Mr Maroga, you know after that Sunday meeting. The housekeepers, because you went through the housekeeper, 33 KD Oethen the housekeeper said but Mr Maroga has already been here.” 53.4 Ms Hogan concluded her evidence on 14 November 2018, The Chairperson seemed to have accepted her as a star witness and her testimony as true. In this regard, | quote the relevant excerpts “ADV PHILLIP MOKOENA SC: Mr Chair, that concludes the evidence of Ms Hogan unless there are further questions from the Chair? CHAIRPERSON: No, thank you very much, I have asked my questions as we were going along. Thank you, Mr Mokoena. Ms Hogan, thank you very much for once again for coming forward to assist the Commission. MS BARBARA HOGAN: Thank you. CHAIRPERSON: We really appreciate it and thank you also for remaining for three days instead of one that was envisaged, MS BARBARA HOGAN: Yes, CHAIRPERSON: Thank you very much Ms Hogan for those words and | thank you on behalf of everybody in the Commission who all of whom appreciate your words. | also - | have no doubt from the interactions that | receive from ordinary South Africans every day whether | am ina mall or in any public Space and for many South Africans who happen to have a way of sending messages to me. The messages that | get from them are amazing. The sentiments that you have expressed about the Commission | can assure ‘ou that they are shared by very, very many ordinary South Africans. Of course a very great number of the South African Population is Christian so there are lots of people who say we are praying for you but there are a lot of other people who express support for the Commission and all of these messages 5 14 November 2019 Transcript pp65-67 34 Cc ED. Ton |ive us the courage to go on with the work of the Commission. | just hope that all South Africans including organisations of different types will appreciate that the work of this Commi ion may entail or actually does entail that certain truths be told and that we as South Africans tell and seek and tell certain truths about what has been happening and what is happening in our country, because if we do not allow people to come forward and tell the truth, tell what they know and without fear of victimisation, without fear of being marginalised, if when we allow people to do that we give this Commission a better chance to do a good job and if this Commission is able to doa good job because people are allowed to come without fear to tell the truth, to tell what they believe is the truth and they do not fear that they will be marginalised in any way by Sections of society, by certain organisations and they know that they will be seen as doing their best for their country to make a contribution to the finding of solutions to some of the problems in our country. If everybody was given that space to know that they will be viewed in that way then the work of this Commission would be much more easier and so | hope as we move forward that more and more people who come forward will be viewed by South Africans as genuinely wanting to contribute to the work of the Commission and to the work of the country and that if they might say things that other people might not like. What they say must be viewed as their own honest way of making a contribution to the country finding solutions to its problems. Thank you very much. MS BARBARA HOGAN: Thank you Chair. CHAIRPERSON: Thank you. You are excused.” 53.5 Among other witnesses whom the Chairperson was overly courteous and assumed his bona fides was Mr Mcebisi Jonas. | must mention that Mr Jonas has conceded that his statement to the Public Protector (which was part of the basis of the Public Protector’s findings) contained inaccurate allegations. This concession was made during his cross examination on 15 March 2019. | attach hereto an extract of his 6 15 March 2019 Transcript pp53-56 35 a KD. go !testimony inthis regard marked “JZ2” Despite this, the Chairperson has never found this “strange” to his “truth finding” process. This is, in my view, because Mr Jonas’ version (as “inaccurate” as itis) supports the narrative that there was “state capture” and | was allegedly responsible for it. 53.6 The Chairperson's partiality was more evident during Mr. Pravin Gordhan's (Mr. Gordhan) testimony. It was obvious that the Chairperson readily accepted his bona fides and viewed him as the conveyor of universal truth about “State capture’. | do not say this lightly but rely on the transcript which reveals this disturbing deference to Mr. Gordhan. When Mr. Gordhan testiied on 19 November 2018, part of his exchange and that of the Chairperson was as follows.” “CHAIRPERSON: Thank you, you may be seated, thank you very much. Before Mr Pretorius begins, | just want fo thank you ister Gordhan for coming forward to assist the Commission. We have been making a call to all South Africans who may have information about the matters that we are investigating, tocome. forward and we have made a call to President past Ministers, Deputy Ministers, Directors General and so on to please come forward with regard to any knowledge or information that they have on matters that fall under what we are investigating and ‘some have come forward and we grateful for that and we are ‘grateful that you also have come forward. Thank you very much. MINISTER PRAVIN GORDHAN: Thank you Chair, You see that is our responsibilty. CHAIRPERSON: Thank you. CHAIRPERSON: Okay, That paragraph appears to me and you must tell me if your understand it different, appears to be an acknowledgement by the ruling party that the leadershi 7 19 November 2018 Transcript pp34, 79-81 36 Cy KD TOstructures that it had_up to that stage were failing to arrest corruption and these other practices that are mentioned there, Is that your understanding of the paragraph as well? MINISTER PRAVIN GORDHAN: That either they are failing, or they are inadequately managing. ADV PAUL PRETORIUS SC: May | take you back to paragraph 34? | have been asked to ask you in turn to expand upon the second sentence where you say | advised, and you are referring to former President Zuma that he may want to put his preferred candidate through the usual process. Would you expand in articular who was the candidate and what was the content of your exchange with President Zuma in this regard? MINISTER PRAVIN GORDHAN: Well in reference to what | have said already. A, this is how we have made appointments in the past. As illustrated, excuse me, in relation to Mr Magashula and his appointment. B, we have already advertised the position and hhad 120 applicants. C, one could sense a bit of hesitation about allowing that process to continue. Mr Moyane's name might have appeared in a conversation, | cannot quite, | will not, you know die by that, but I seem to remember it vaguely and four, ‘one was trying to be helpful to the President to say, you know, test your candidate against the others and allow for the process. to go through as one normally would and then look at the outcome, but this was getting closer to the election process. ADV PAUL PRETORIUS SC: Do | understand from your answer there that it was not certain at that ‘stage that Mr Moyane was indeed the preferred candidate, or your recollection is not clear on the point? MINISTER PRAVIN GORDHAN: Let us say his name was floating around, but you had the other 120 as well. ADV PAUL PRETORIUS SC: Understood. CHAIRPERSON: I take it from what you say in paragraph 34 last, sentence in the event it would appear that he ignored this suggestion. | take it that the former Prosident did not articulate his views in regard to the suggestion you made about what process you were thinking should be followed? MINISTER PRAVIN GORDHAN: Well in the event it was ignored. | think. Well at that stage and then Mr Nene needs to tell you what followed after the elections, 37CHAIRPERSON: Yes. Yes, no what | am saying is | am assuming, | think you are saying | became aware that former — okay in 34 you say you advised him which | think is the President Zuma that he may want to put his preferred candidate through the usual process. What | am saying is | take it that he did not articulate to you any views about your suggestion at that time. We know that later on he did not follow that process ‘of you cannot...[intervenes] MINISTER PRAVIN GORDHAN: Not in an explicit way. CHAIRPERSON: Yes okay...” 53.7 On 20 November 2018 speculated as follows, in regard to the suitability of the re- appointment of Mr Gordhan as Finance Minister® “CHAIRPERSON: | know that you did suggest other names when you were approached for reappointment as Minister of Finance but it just seems to me that it mado perfect sense to reappoint somebody who had been to the portfolio and you had ‘been there for a full five years | think, full five years, and the markets knew your views. They knew you and also | guess in this kind of situation nobody would want somebody who must come in and stil learn, You needed somebody that really knew what needed to be done. | know that you might find that you are not able to say anything about this, but it seems to me that it made sense if the situation was to be stabilised urgently.” CHAIRPERSON: | am sorry Mr Pretorius and Mr Gordhan. May | just take you back to paragraph 97 of your statement which you just dealt with before we took the tea break. That paragraph indicates that there were discussions between the presidency and National Treasury which resulted in the compromise that Ms Myeni would continue as Chairperson for one further year. Would the involvement of the presidency in the appointment or reappointment of members of boards of SOEs have been a normal thing? Is that a normal thing, or not? 8 20 November 2018 pp22-23, 36 38 ec KD: qo /MINISTER PRAVIN GORDHAI particular board demonstrates. lot in the form, Chair, that this 53.8 Then on 21 November 2018, the exchange went as follows:? “CHAIRPERSON: Yes, but in terms of the evidence that you have given yourself | cannot remember hearing any encounters where there could have been maybe - that may have shown very clearly any serious issues. | know that there was the one where you went to him after you were served with the 27 questions and you | do not know if protested is the right word but you expressed certain views about it and you did say he did not say much other than flipping through the letter and saying he would talk to the Minister of Police. ‘Am I missing anything that one could really say did happen that, could be said to reflect a breakdown in the relationship between the two of you other than maybe just differences of opinion on certain issues relating to work? MINISTER PRAVIN GORDHAN: Chair, what | would say is that if ‘one accepts as a hypothesis the betrayal of the Promise notion of state capture then yes there would be a number of developments. Denel Asia, the Gupta bank accounts, the nuclear issue and so on all of which the Petro SA issue and ail of those that are the ones we highlight here, the changes to the SAA Board the Airbus deal and the swap between myself and Minister Nene at different stages, we had decisions to make each of those would have constituted interference in the project if you like and distractions which probably were not acceptable by both him and those working with him like the Guptas and others that we have named before. So, this is | would imagine not about the cordiality that issue. This is about if the hypothesis is right and i will come back to that in my closing 9 Transcript 21 November 2018 pp36-37 and 45-52, 69-62 39remarks then the Treasury was standing in the way by saying can we test the numbers? Can we check the viability? Can we understand the business case? Have you followed the right procedure as opposed to signing off on whatever it is that is actually requested which might have been the expectation but we do have laws in this country and we do have procedures to follow in this country as, ‘well and a public servant is required to as you would I am sure say to work within the confines of the Constitution and the law which is what they do by and large. CHAIRPERSON: Yes because you know as I see it you know it seems to me that a breakdown of a relationship you know it is like maybe there has been confrontation, you know confrontation on certain issues but from what you have said | mean even with those things where you maybe said on your evidence to have stood in the way of what he may have wanted to happen am | understanding from your evidence is that you simply took certain principled decisions or stance, positions based on your understanding of the legal requirements and of how things should be done, but nothing more than simply insisting on what you believed what was right? ADV PAUL PRETORIUS SC: Yes. You wished to make closing remarks? MINISTER PRAVIN GORDHAN: If | may, Chair? ‘CHAIRPERSON: Well maybe before you do so let me ask some questions. MINISTER PRAVIN GORDHAN: Sure. CHAIRPERSON: So, your closing remarks can be closing remarks. In your statement I had the relevant page, oh here, in paragraph 10 of your statement you say: "Reflecting on the period 2009 to 2017 now it would appear that was witness to events some of which are set out below and it ‘seems an unwitting member of an executive in the earlier part of this period which was misled, lied to, manipulated and abused in order to benefit a few families and individuals in order to release the worst forms of recklessness and corruption, in order to rob ordinary people of schools, clinics, education, in order to abuse and decimate key institutions of our democracy including SARS and you mention others and in order to damage 40 co KD Qo61 62 when it was physically possible for me to do so. However, | can only participate in a process, that is fair and impartial The attempt to force me to participate in the Commission was not necessary as | have never refused to co-operate with it, The fact that | faced health challenges made it difficult for me to ‘meet the Commission's set dates in the past. To suggest that | refused to cooperate is false. ‘The Chairperson’s media approach regarding my attendance at the Commission evidences an attitude that seeks to single me out for special treatment and public humiliation. | am also concerned that the Chairperson was so determined to publicly summon me to the extent that he accepted the old application based on a different set of facts to be amended in order for him to issue the summons. | observed the dialogue between the Chairperson and Pretorius SC in what appeared to be their submissions to each other on 09 October 2020. | also observed the comments made by the Chairperson therein, fortified my view that the Chairperson has indeed adopted a particular position towards me. He continued to make elaborate presentations to himself in an attempt {o justify a decision that he sought to make. | followed with keen interest as the Chairperson and Pretorius SC were validating submissions to each other during the hearing. | will refer to the exchange below when | deal with the press statements and/or announcements against me.Unfair treatment during my appearance at the Commission 63. Between 15 July to 19 July 2019, | attended the proceedings of the Commission as per its invitation as the Chairperson’s “quest”. It was very clear that the Commission did not have any allegations of comuption or fraud to putto me. Instead, the evidence leader with the permission of the Chairperson, decided to embark on a fishing expedition by attempting to cross-examine me on matters relating to alleged Cabinet memoranda, alleged discussion between mysetf and some of my Ministers relating to the appointment of executives and board members of State-Owned Companies, 64, Again, the questions that the Commission (per Mr. Pretorius) put to me then were entirely irrelevant and betrayed a lack of understanding ofthe workings of public administration, Even then, | felt that the Commission had made its mind that | was guity of some offense, The Chairperson permitted this to prevail. The Commission also failed to appreciate the level of detail that a Head of State would be involved in as opposed to Directors-General of departments. | objected to the said abuse of the Commission process and this was the basis for the adjourning of the hearing. It was clear to me that | was regarded as an accused. Chairperson doubted my bona fides regarding my ill-health 65. Since my appearance before the Commission in July 2019, | have been severely and publicly crtcised. The public condemnation of my appearance and evidence has been severe, When this matter was brought before it, the Commission simply ignored the complaint, creating 67 co KD qe)66. 67. 68. further unfavourable conditions for me to give evidence at the Commission. Since then, the Chairperson has made several public comments about me, imputing that | was not co- operating and that I had acted inappropriately. ‘At the end of my first appearance, the Chairperson directed that my next appearance at the Commission would be per arrangement between myself and the Commission. ! have noted that the Chairperson has stated that his directive did not mean that he would negotiate the dates for my next appearance. ‘When the Chairperson of the Commission adjourned the proceedings during the last day of my appearance, he directed that: “We'll adjourn for the day and the Former President will come back at another time that will be arranged.”"2 The Commission later decided to undermine the ditective of its Chairperson by trying to unilaterally impose dates for my next appearance. The Commission's unilateral decision to impose dates and terms of appearance made it difficult for me to attend. Nevertheless, on each and every occasion where dates were unilaterally imposed by the Commission, | timeously advised it of my position as set out below 19 July 2019 Transcript p 43,69. During the week of 14 to 18 October 2019, | was attending my criminal case in the Pietermaritzburg High Court. My then attorney had advised the Commission that | would not be available on the set dates. 70. The Commission was duly advised by letter dated 17 September 2019 that; “Our client is scheduled to appear in the criminal court in the Pietermaritzburg High Court during the week of 14 October 2019, and therefore the proposed dates of 14 to 25 October 2019 are not suitable to him."*? a My then attorney could not confirm those dates since | was waiting for the outcome of my application for the stay of my prosecution. A copy of this letter is attached hereto as marked “373”, 72. In respect of the dates of 21 to 25 October 2019 the Commission was duly informed by the letter of 15 October 2019 that “... our client and his legal team are not available to attend the proposed sitting of the Commission in October.”"* 73, |attach a copy of the above letter marked “JZ4” The Commission had directed that | attend its proceedings from 11 to 14 November 2019. | could not attend its proceedings during this period. The reason for my unavailability was that | fel ill and was hospitalised in a Durban hospital during the proposed period. My legal team duly informed the Commission through a 18 Letter dated 17 September 2019, rom LM Attomeys, 14 Letter dated 15 October 2019, 69 a KD. oo «23. 74, 7. letter dated 01 November 2019, a copy of which is annexed hereto marked “JZ5" In relevant part, the etter reads as follows: “We refer to the above mattor and advise that former President was admitted in Hospital over the past weekend and was released late afternoon yesterday for him to continue treatment at his home.'> ‘The former President asked us to convey to you that due to the above he will not be able to attend the scheduled sitting of the Commission commencing on 11 November 2019 to 15 November 2019, he will however keep you updated on his recovery progress.” On or about 19 December 2019, the Commission's legal team delivered an application to Chairperson to issue summons against me to appear between 27 and 30 January 2020. This application was premised on an unfounded basis that | was not co-operating with the Commission. For completeness, a copy of the application is attached hereto “JZ6”. The dates of 27 to 30 January 2020 set down by the Commission were indeed impossible for me to comply with. was due to return to continue medical treatment as from 23 January 2020 for a much longer period. | had, during that period, also undergone another unscheduled medical procedure and therefore would not be able to attend the Commission on the said dates. Atthe core of the subpoena application, in respect of which the Chairperson has already ruled (on 9 October 2020, was what I view as the refusal to believe that | was ill, when | could not attend the hearing on the dates then set down by the Chairperson. | do not raise this to argue 16 Letter dated 01 November 2019, from Lugisani Mantsha Attorneys. 70 “a KD v,0O«776. 7. 8. against the ruling already made, but to emphasize my contention thatthe Chairperson and the ‘Commission has singled me out for special treatment, publicly questioned my submission that | was seriously ill and required surgical intervention, Despite these efforts, the Chairperson and the Commission's legal team did not accept my bona fides. Instead, they insisted that the subpoena proceed. In my view, there was no need for the application. It was proceeded with merely to embarrass me. It later transpired at the hearing on 14 January 2020 that it was unnecessary. The Chairperson made a ruling in which he expressed doubt about whether | was not lying about my health challenges. He undertook to meet the head of my medical team so that he would confirm the exact details of my illness. There was no justified reason why the Chairperson wanted to know the precise details for my medical condition. The only reasons were that: 77.4 He doubted my bona fides that | was ill; and 77.2 He wanted to secure my attendance at all costs. In my view, the Chairperson is determined to deliver me to the Commission hearings even in ilthealtn, S OQ Sy79, 80, With respect to the hearing on 14 January 2020, the Chairperson said inter alia, the following “CHAIRPERSON: The commission’s legal team will deliver a replying affidavit on or before close of business on Friday the 24 January. That is one. With regard to what is going to happen in regard to this application and the further appearance before the commission of the former President what has been agreed in the discussion involving myself and counsel on both sides is that this application is to be adjourned to a date to be arranged and | hasten to say arranged does not mean agreed. That is one. 2. Ihave accepted with some reluctance but | have accepted the offer made by the former President that the leader of his medical team should see me and in confidence convey to me information that may assist in understanding the medical reasons relating to his failure to appear at some stage in the past before the commission as well as information relating to the future concerning up to when he might not for medical reasons be able to appear before the commission to give evidence and when there would be no medical reasons for him not to appear. It has been accepted that with regard to this 27 to the 20 — to the 31 January the former President need not appear before the commission because of the medical reasons that he has given, The consultation or meeting that the leader of his medical team will have with me will - itis hoped assist in looking at dates when his medical condition would not prevent him from appearing before the commission. So this application will then stand adjourned to a date that will be arranged at the right time. Now before we finalise | just want to check with Mr Pretorius and Mr Masuku whether | have covered everything that needs to be said Publicly that we discussed. Mr Pretorius.” lattach hereto, marked “JZ?” an extract of the transcript of these proceedings. As is evident therein the Chairperson made a ruling in which he undertook to meet the head of my medical team. To date, the Chairperson has not yet complied with his own ruling in this regard.81. | was prepared for the Chairperson to know my health conditions, which was not something | would ordinarily do. However, I had no choice as it was clear that the Chairperson did not trust that | was ill and sought the public to note his doubt. 82. __Itis prejudicial to publicly give the impression that | may have been faking an illness when 1 advised the Commission that | had travelled overseas to seek medical treatment, The mere fact that the Chairperson publicly doubted the medical note from my doctor, portrays this bias against me 83, The fundamental basis ofthe application for a subpoena was that | have not cooperated with the Commission. This is false and is only repeated to fit the version that | must answer wide- ranging and unspecific allegations against me from the Commission's chosen witnesses Other than having exercised my rights in relation to allegations against me, | have so far cooperated with the Commission. 84, As | have slated above, the Chairperson and the Commission treat me as a special case. | have been singled out for public humiliation through press statements and announcements. Press Statements Are Unjustified 85. The Commission “at the instance” of the Chairperson has made a number of press statements where | have been singled me out for special attention and comment. No other implicated person or witness has been a subject of public humiliation by the Chairperson himself, ke | 73 KD SF.87, 88. 89, have been. All the public comments have attracted an avalanche of political condemnation against me through social media platforms and the media, ‘The Chairperson’s reliance on the media to demand my attendance or response to specific allegations contrary to my election is abusive and demonstrates that he has a biased view of my alleged role in State Capture. On 4 December 2018, the Secretariat of the Commission issued a statement postponing the hearing because “some of the witnesses who wer going to testify have become unavailable while others have asked for an opportunity to testify early next year in order to cover more issues than they were initially going to cover if they testified this week or next week.” The aforesaid statement reveals how the Chairperson treats certain witnesses other than me. He accepts their convenience and does not question their bona fides and integrity. However, when it comes to me, | am viewed with suspicion even when | am ill. This, in my view, unfair | have received numerous rule 3.3. notices, which in my view contained frivolous and plainly false allegations from people who were unhappy with their dismissals from Cabinet or who falsely believed that they could not be reshutfied. Ihad elected not to answer those allegations Or cross-examine those persons who “implicated” me.90. 1 92, Despite electing o exercise my rights in terms of the Commission's own rules, the Chairperson sought to invite me as a "quest" which was something that was not even provided for in the tules. While one may argue an invitation as a guest was not an act of bias, or that it was for my benefit, it was clear that this was a special status accorded only to me. However, when | testified it became clear that the invitation fo be a guest of the Chairperson was intended as ‘an ambush to cross examine me on various matters. | am of the reasonable view that, the procedure adopted by the Chairperson to bring me to the Commission seemed, atleast to me, aa stratagem to compromise my position. | was concerned that the Commission wanted fo catch me unprepared When I appeared before the Commission from 15 July 2049 to 19 July 2019, | raised my concems about the Commission with the Chairperson, | have already referred to this elsewhere in this affidavit. What concemed me, was that | was not appearing before the Commission in terms of any rule. The Chairperson had communicated to my former atfomeys and the wider public that ! was being invited as a “quest’. That, in my view, was out of the ordinary Evenduring my appearance, | raised my objection to how | was being treated and later decided to take no further part in the proceedings as | felt that | was being ambushed and treated unfairly by the Commission, This led to an impasse, which was later resolved between my legal team, the Chairperson and the Commission's legal team. In that regard, an agreement was reached as to how | would continue to participate in the Commission,93, ‘Then on 19 July 2019, the Commission “at the instance of the Chairperson’, issued a press statement regarding the agreement. The said statement was apparently aimed at clarifying the confusion which was reported in the media about how | would continue to participate in the Commission, | attach hereto marked “JZ8” a copy of the media statement. The media statement recorded as follows. “4 It has come to the attention of the Chairperson of the Commission that, when reporting on the agreement brokered by the Chairperson between the Commission's Legal Team and the former President's Legal Team, certain journalists say that the agreement includes a requirement that the Commission's Legal Team will furnish the former President's with questions. The Chairperson wishes to state that this is not correct and anyone who listens to the terms of the agreement which he announced at the hearing and were confirmed by the Counsel from both sides will not hear anything to the effect that the Commission's Legal Team will be furnishing the former President's Legal Team with any questions. What the terms of the agreement include is that the Commission's Legal Team will indicate to the former President’s Counsel the areas of interest in a witness’ statement or affidavit on which the Commission would like to have the former President's version. This means that, if in a witness’ affidavit or statement various incidents or events are dealt with, the Commission's Legal Team will indicate which ones of those incidents or events or matters they would like the former President to provide his version on. The agreement does not say that the Commission's Legal Team must furnish the questions that they intend fo ask the former President on that incident or event or matter. The agreement includes a requirement that, after the former President's Counsel has been furnished by the Commission’s Legal Team with an indication of which incidents or events or matters (areas of interest) they wish to have the former President's version on, the former President will furnish the Commission with a statement or statements or affidavits setting out his version in regards to those incidents or events or matters in regard to each affidavit. In terms of the agreement the Commission's 76 KD ICS94, 96, Legal Team will furnish the former President's Counsel with the areas of interest in regard to each affidavit on which they would like the former President's version within the next two weeks. The timeframe within which the former President will furnish his statement or statements or affidavits will be agreed between the Commission's Legal Team and the former President's Counsel but, if they are unable to agree on the timeframe, they will submit their disagreement to the Chairperson who will hear both sides in Chambers and decide on the timeframe within which the former President will have to submit his statement or statements or affidavits.” ‘There was no justifiable reason compelling the Chairperson to address the media or the public {In my view, the Chairperson acted unfairly in tis regard. ‘Again, on 9 October 2019, the Commission “at the instance of the Chairperson...", issued another media statement responding (albeit unsolicited) to a newspaper article. Now one could view this innocently. However, it raises curiosity why the Chairperson always finds itimportant to respond to the media when articles are written about me. A copy of this media statement is attached hereto marked “JZ”. In this media statement it was said “On Friday, the 4!” October 2019, the Business Day newspaper Published an article in its front page with the headline: “Zuma to get preview of nuke-deal questions”. In the article the Business Day said: “In an attempt to avoid the debacle that ensued at former president Jacob Zuma's last appearance, the Zondo Commission on state capture has agreed to his demands to see questions in advance of his next appearance.” The article also sai “Overall, the commission has sent [Mr Zuma] 11 pages with 80 questions that will guide his next appearance.” The article went on to say that prior to Mr Zuma’s appearance before the Commission in July 2019, the Commission had refused “to do the same on the grounds that he had access to 7witness statements which would have given him sufficient information on the issues to be raised. The same article was published in the Sowetan of Friday, 4 October 2019. At the top of the front page of the Sowetan, the following headline appeared: “Zondo sends Zuma 80 questions”. The article itself appeared on page 2 of the Sowetan. It is quite clear that the article portrayed the Commission as having changed its earlier decision not to send Mr Zuma in advance questions that he would be asked once on the witness stand, The article stated that the Commission has agreed to send Mr Zuma questions in advance and has actually sent them. The Chairperson raised the Commission’s concerns about the article at the hearing on Tuesday, 8 October 2019, and made it clear that the statements in the article that the Commission had sent Mr Zuma questions in advance of his appearance before it is simply factually untrue. It must also be stated that the Commission has never agreed to furnish Mr Zuma with any questions in advance. The Business Day chose not to have regard to the terms of the agreement that were announced on 19 July 2019 which did not include any agreement by the Commission to send any questions to Mr Zuma in advance of his appearance. That agreement only referred to the Commission's Legal Team having to send a document indicating “areas of interest ‘the various affidavits or statements of witnesses from which the questions would arise. On Tuesday the Chairperson said that there is an 14 page document which has 80 questions that was sent by Mr Paul Pretorius SC, the Head of the Commission's Legal Team, to Mr Zuma's Counsel but that document did not include any questions. He said the document reflected the areas of interest, agreed upon on 19 July 2019, The Chairperson undertook to make the document available to the public so that the public could see whether there are any questions in that document. That document is attached to this statement, Anyone who reads the document will see that there are no questions. It is difficult to understand why a publication such as the Business Day would publish such a false article about the Commission. 78 C KD. Joo’Issued by the Acting Secretary at the instance of the Chairperson of the Commission.” 96. Subsequent thereto, the Chairperson issued another media statement on 10 October 2019 concerning me, a copy of 97. A week later, on 17 Octo! which is attached hereto marked “JZ10” and reads as follows’ “Correction of media reports in regard to the former President's next appearance before the Commission The Commission wishes to correct the media reports which are to the effect that the former President, Mr Jacob Zuma, is required to appear before it during the week of 14 to 18 October 2019. The Chairperson of the Commission had initially included those dates among the dates set aside by the Chairperson for the former President’s appearance before the Commission but this is no longer the position now, The dates that remain set aside for the former President's appearance before the Commission are 21 to 25 October 2019 and 11 to 15 November 2019. ‘The Commission also announces that there will be no hearings on Friday, 11 October, Monday, 14 and Tuesday 15 October 2019. There will be a hearing on Wednesday, 16 and Thursday, 17 October 2019. Issued by the Acting Secretary at the instance of the Chairperson 10 October 2019” ber 2019, the Chairperson issued another media statement, a copy of which is attached hereto and marked "JZ11”, reads as follows: 4, ‘The former President, Mr JG Zuma, was due to appear before the Commission for the week commencing Monday, 21 October 2019, 79 Za KD To ”98. 2. The Commission has been informed that the former President and his legal representatives are unavailable that week owing to circumstances relating to his criminal trial. The Commission has taken note of this, Consequently, the former President will no longer appear before the Commission next week. 3. The Chairperson previously determined the dates of 11 to 15 November 2019 as other dates for the former President's appearance before the Commission. The former President has agreed to appear on those dates, Those dates still stand. 4 Further dates for the appearance of the former President will be communicated to him in due course. Issued by the Acting Secretary at the instance of the Chairperson 17 October 2019” During November 2019, when | felill, my legal representatives then informed the Commission that | could not appear at the Commission between 11 and 15 November 2019. A copy of this letter is attached hereto, marked “JZ12”. This was accepted, it now ‘appears reluctantly and with reservations, by the Chaiperson. Further dates for my appearance were to be “communicated” -presumably to the media and the public, but my health status would be considered in scheduling any future appearances. It was clear to me thatthe Chairperson had made up his mind that | was a special case and should be subjected to media statements and announcements. Itappears that the Chairperson was ofthe view that | deserved to be rebuked publicly. This public rebuke deepens the stereotype against me and the conclusion held by some in our society that, regardless of the facts, |am guilty as charged. 8099, This was still the application that was before the Chairperson on 14 January 2020. The Commission had amended the dates and supplemented their contentions. With respect, this could not be the case as the basis for the January dates was a different one. 100, Then suddenly, on the contrived theory that | was refusing to cooperate, the Commission's legal team (through the then Acting Secretary) set down the initial application to the Chairperson for an order to issue summons against me. The Commission's Legal Team clearly questioned my bona fides and doubted my commitment to cooperate with the Commission. It appears to me that the Chairperson was of the same mind, This was revealed in his dialogue with Pretorius SC on 9 October 2020. 101. On 10 August 2020, the Commission addressed a letter fo my attorneys enquiring about my availabilty to appear before the Commission. A copy of tis letter is attached hereto, marked ““JZ13”. On 19 August 2020, my attorneys, in good faith, wrote to the Commission to advise that they had been recently appointed and were preparing forthe criminal trial. In this regard, they sought the Commission's indulgence so that they could at least familiarise themselves with the matter. 102. It seems that the Commission and the Chairperson viewed my attorney's letter (ike they view me) with suspicion. On 21 September 2020, the Chairperson (unprovoked) made a press briefing (albeit during the proceedings) rebuking me. This was pursuant to an invite he made to the media. On 20 September 2020, he had issued an invite to the media, a copy of which is attached hereto marked “JZ14”" 81 Lv KD. Ce ,103. On 21 September 2020, at the press briefing, the Chairperson publicly announced as follows: “CHAIRPERSON: Yes before we — yes before we proceed with today's business, | just want to deal with a matter that as quite correctly attracted the attention of the public and the media a lot, Previously | determined that today up to Friday would be the ‘week when the former President Mr Jacob Zuma would appear before this commission. He was nofified thereof and after ‘some time his attorneys wrote to the commission and said that he would not be appearing before this commission during this week, ‘The reasons they gave include that he was busy preparing for his criminal trial that his doctors have 20 advised him to limit his movements because of his age and Covid-19 and that he is he was seeking legal advice on the implications of the recent amendments to the Regulations of this commission. 1 do not want to comment at this stage on his reasons for deciding that he would not appear before this commission this week. ‘The media have sent a number of enquiries with regard to him including a question such as whether this commission will issue a subpoena to compel him to appear before it and whether there are other dates which have been determined when he should appear. Since his attorneys informed the commission that he would not be appearing this week in order for the commission to use its time optimally arrangements were made for the matter that we are going to hear this week to be heard this week. This was a matter that was going to be heard later in the year. So, the commission had to rearrange its plans so that we could use this week properly which otherwise would be wasted. | decided after receiving - the commission had received his response through his attorneys to fix the date for the hearing of the commission legal team’s application for an order authorising the issuing of a summons against Mr Zuma. | have determined that that date will be the 9 October at 09:00 am. He and his lawyers have been informed that unless | am satisfied on that date that there are good grounds for them not 82 Lo KD 4?to appear if they do not appear that application will proceed without them. They have been informed that should they wish to make use of a virtual appearance before the commission and if they inform the commission timeously arrangements will be made for them to appear virtually before the commission, But that application will proceed with or without them unless | am satisfied that there are good grounds for them not to be here. Ihave also determined new dates for Mr Zuma’s appearance before the commission since becoming aware of the letter from his attorneys. Those dates are 16 to 20 November 2020. Those are the dates that | have determined. | know that in their letter they — his attorneys said dates should be negotiated with him corwith them. No dates will be negotiated with them or with him This commission has made it clear to the attorneys who represented him before that this commission does not negotiate dates with witnesses. The commission fixes the dates and people are supposed to appear and if they have got good grounds for not appearing then they make an application = a necessary application and show that they have got good ‘grounds. And if lam satisfied that they are good grounds other dates will be determined. But we will not negotiate dates with witnesses. So the position as it stands is the application brought by the legal team of the commission for the authorisation of a summons - the issuing of a summons against Mr Zuma will proceed on the 9 October at 09:00 and the dates of 16 to 20 November 2020 have been determined for his appearance. That is all | wanted to say about that matter and now we may proceed.” 104. At this stage, | became more convinced that the Chairperson was biased against me. Instead cf making things better, the Chairperson made them worse. There was absolutely no need to make such a public announcement. | was seriously concemed with this approach as it was unnecessary. No one had said | would not co-operate. 83 KD 405 |105. 106. (On 9 October 2020, the Chairperson exposed himself in arguing a case for my subpoena, while he was supposed to decide on it. As much as the whole transcript is important, | will quote a few excerpts which | believe reveal the Chairperson's bias or at least my perception of i A copy of the relevant portions of the transcript is attached hereto, marked "JZ15” The relevant exchange is as follows “CHAIRPERSON: | mean there can be no doubt that if on information available to me or evidence submitted to the commission by other witnesses there can be no doubt that if | form a view that a particular person may have knowledge or does have knowledge of matters that are relevant to what | am investigating | must take steps to get that person to come and testify. ADV PRETORIUS SC: That is correct Chair. CHAIRPERSON: If | do not do that | would be failing in my duty. CHAIRPERSON: It seems to me that the position is if Mr Zuma or anybody who is said to be implicated by a witness, a certain witness is served by the commission with a Rule 3.3. Notice to say here is a statement from a witness who seems to implicate you in wrongdoing that the commission is investigating. | mean that notice in terms of the Rules of the Commission advises the recipient of a Rule 3.3 Notice that you have a right to apply to the commission for Leave to Cross-examine this witness. You have a right to apply to the commission for Leave to give evidence yourself and contradict whatever the witness is saying. You have a right to apply to the commission for Leave to call witnesses who can corroborate what you say - your story. It explains all of those things. But you are not forced to make those applications, ADV PRETORIUS SC: Correct.CHAIRPERSON: You are free to say | am not going to make that application - those applications. Those people can implicate me as much as they want, that is fine. But once the commission says we are aware that you do not think you are implicated; we are aware that you have chosen not to apply for Leave to Cross- examine these witnesses but nevertheless we want you to come and answer questions provided the commission has grounds to believe that you may have knowledge of matters that are — that it is investigating you cannot refuse lawfully, ‘ADV PRETORIUS SC: Correct. Correct. CHAIRPERSON: Obviously if ther a specific reason why you cannot appear on a specific date that is different then you put your case before the commission to say, on that date ~ on that date | have to see a doctor. | am not well bla, bla, bla. If the commission is satisfied that itis a genuine reason it will ive another date. But of course with reference to the recent correspondence from Mr Zuma’s attorneys one of the reasons that have been given recently why Mr Zuma was not prepared to come to the commission on the 21 to CHAIRPERSON: | think if you go back to... or maybe | can just have a look. One point one, among others, that is of the Terms of Reference: “Among others, requires this Commission to investigate the veracity of allegations that former Deputy Minister of Finance, Mr Mcebisi Jonas and Ms Mentor were offered positions by the Gupta family. Now, one of the matters on which Mr Zuma may assist the Commission is this. Mr Jonas gave evidence that on the 23" of October 2015, he met with one of the Gupta brothers and Mr Duduzane Zuma and Mr Hlongwane at the Gupta residence, ‘And he said the Gupta brother who appears to have been Tony Gupta, told him that Mr Nhlanhla Nene was going to be fired as Minister of Finance because he was not working with them and 85they wanted Mr Jonas to agree to the Minister of Finance and then if he would work with them. Six weeks after that, Mr Nhlanhla Nene was fired. And the media statement that was issued by Mr Zuma said that Mr Nhlanhla Nene had done a stunning job as the Minister of Finance. And it was said that Mr Nhlanhla Nene was dropped from cabinet because he was to be the government's candidate for a position in the ...[intervenes] ADV PRETORIUS SC: Brics Bank. CHAIRPERSON: Brics Bank, | think. But tho job never happened, And | have heard evidence from somebody from the bank who said that is not how the bank... that bank operates. It has got policies and procedures and Mr Zuma had no say, had no power to force the bank to take Mr Jonas, Mr Jonas himself said the... his position as Minister of Finance was higher than the position that Mr Zuma was talking about in the bank. ‘And Mr Nene said, actually, the... Mr Zuma's reason for dropping him, that he was to go to that job, was a fabrication, That is what Mr Nene said before me under oath here. So the question is. How come somebody from the Gupta family knew in advanced that Mr Nene was going to be fired? Then Mr Nene gets fired. The Prosident says: This man has done a stunning job. But he fires him, nevertheless, The man goes and stays at home. The job that has... that the President talked about, does not materialise. And Mr Nene said: He never even phoned me after | had left and sitting at home and to check whether anybody had contacted me about this job. And then, when Mr Jonas gave evidence, he said the Gupta brother who was in that meeting, among others things, said to him: if you need advisors or you need support staff when you become Minister of Finance, we will provide. And the replacement of Mr Nene, Mr Van Rooyen - | have heard that evidence - comes to National Treasury on the first day of his appointment, comes with certain advisors and those 86 KD. setadvisors seem to have connections with the Gupta family, ADV PRETORIUS SC: Correct. CHAIRPERSON: And Mr Jonas says, at that meeting, the Gupta brother also told him that there are people that they work with and he says one of them is Mr Brian Molefe, another one is Ms Lynne Brown, Minister of Public Enterprise at that time. ‘And when Mr Gordhan gave evidence before the Commission he said he heard that when he was fired in 2017 by MrZuma, Mr Zuma told the Top Six of the ANC that he wanted to replace him with Mr Brian Molefe. And the Commission subsequently asked some members of the Top Six, Mr Gwecle Mantashe, Dr Zweli Mkhize and Ms Duarte, Jessie Duarte to depose to affidavits to say: Do you know anything about this? And the Commission has got affidavits from them. They did not give any problems. They supplied affidavits. ‘And those affidavits do say, indeed Mr Zuma did suggest to the Top Six that he wanted to replace Mr Gordhan with Mr Brian Molefe. The same Mr Brian Molefe that Mr Jonas says he was told by the Gupta brother worked... was working with the Gupta’s. ‘And then of course, we all know, itis in the public domain that Mr Brian Molefe resigned from Eskom after the Public Protector's report, | think he said he wanted to clear his name of whatever but later went to parliament. I think he went to parliament about a month or two before Mr Gordhan was fired. And then Mr Gordhan was fired. Mister... | think the three members of the ANC Top Six who have provided affidavits, said that the Top Six rejected Mr Zuma's suggestion to replace Mr Gordhan with Mr Molefe. And then what we do know is that Mr Gordhan was then succeeded by Mr Gigaba. And what we do know, it sin the public domain, is that it did not take long after that before Brian Molefe resigned from parliament. 87 te KD. oOADV PRETORIUS SC: Correct. CHAIRPERSON: And Mr Zuma must enlighten the Commission on all of these matters. ‘ADV PRETORIUS SC: Yes, Chair. Chair, there are, apart from those Terms of Reference, there are other Terms of Reference where Mr Zuma's evidence would be necessary for the Commission to complete its investigations adequately. CHAIRPERSON: H'm. | mean, | am hearing evidence these days relating to Eskom. And hearing evidence from Mr Tsotsi and from Mr Nick Linnell. It is to the effect that, Ms Dudu Myeni called Mr Linnell to Pretoria and said you... | need you to come and meet with the president. He came. The president did not meet them then but then he was told: Go to Durban. They have been meeting at the President's official residence on Sunday the 8" of March. He went there. Mr Tsotsi was called there. ‘And a discussion took place which was to the effect that there should be an inquiry into the affairs of Eskom and certain executives must be suspended. Ms Lynne Brown, | have read her affidavit that she has given to the Commission. If | understood her evidence in the affidavit correctly. She says she knew nothing about that meeting in Durban and yet, she was Minister of Public Enterprises. ‘And both Mr Linnell and Mr Tsotsi say that President Zuma took part in that meeting, | have seen the statement by Ms Dudu Myeni who denies that Mr Zuma took part in that meeting, Ihave heard evidence that in regard to Eskom and a board meeting that was supposed to happen on the 26¢" of February, was cancelled because Mr Zuma called the Chairperson of the board the night before and called the acting DG of the Department of Public Enterprises and said that meeting must be cancelled. ADV PRETORIUS SC: Yes. 88 ‘ KD. SOF!CHAIRPERSON: And the acting DG at the time says, when the President called her because he said he could not find the minister or deputy minister. When she said: But we cannot interfere. Or something to that effect. He says, Mr Zuma said: Well, that meeting must be cancelled and dropped the phone. Now with regard to Eskom, The evidence that is unfolding and there are more witnesses who will come and maybe the picture will change when everybody has given evidence. But at this stage, the evidence that seems to emerge suggest that there may well be credence to the proposition that certain decisions that were made by the Eskom Board were dictated to the Exco Board from outside Eskom. And certain executives were removed. And then Mr Brian Molefe and Anoj Singh from Transnet were then seconded to Eskom to take some of the positions of the executives who were suspended and then allowed to leave or kicked out, ‘And | have heard certain evidence about allegations relating to Mr Brian Molefe and Anoj Singh of Transnet, who were leading evidence of some of the people who the board had asked to Mr Brian Molefe and to Mr Anoj Singh when they were at Transnet, about money that they say they have got from the Gupta’s in the night and so on, Of course, they will come and give their evidence and maybe one will get a different picture and maybe one would come to the conclusion that nothing like that ever happened. But these, all of these things cannot be ignored. ADV PRETORIUS SC: Correct. CHAIRPERSON: | cannot ignore these things when | asked the uestion: Should | call Mr Zuma to appear? | cannot ignore those iam going to do my job properly. ADV PRETORIUS SC: H'm, h’m. And you have been cautious to say that no findings have been made. CHAIRPERSON: Yes, BD. SCITFADV PRETORIUS SC: ...{intervenes] CHAIRPERSON: Yes. ADV PRETORIUS SC: CHAIRPERSON: H'm. ADV PRETORIUS SC: And as night follows day, evidence implicating the former President must be examined, including through the evidence of the former President himself. CHAIRPERSON: H’m. ADV PRETORIUS SC: There are other examples. Chair, the record is .[intervenes] CHAIRPERSON: Ja, is replete. ADV PRETORIUS SC; ..replete of such evidence. CHAIRPERSON: Yes, ADV PRETORIUS SC: Direct interference in the activities of law enforcement agencies. CHAIRPERSON: Yes. ADV PRETORIUS SC: Appointments and dismissals. CHAIRPERSON: Yes. ADV PRETORIUS SC: The meeting with Gavin Watson -ufintervenes] CHAIRPERSON: Yes.ADV PRETORIUS SC: prosecution. CHAIRPERSON: Yes. CHAIRPERSON: | mean, there was evidence by some of the people who were senior officials within the Intelligence ‘community that their departments had... or units had conducted certain investigations of criminal nature. And the minister serving under Mr Zuma or State Security, Dr Cwele called one of them to a meeting at the airport where he told them, according to the evidence placed before me that President Zuma had said that the investigation should be stopped. I need to look to all of those things. ADV PRETORIUS SC: Correct. CHAIRPERSON: How can | ignore those things? ADV PRETORIUS SC: Yes, Chair. CHAIRPERSON: How can | ignore all of those things? And alll am doing, | am doing my job to establish exactly what happened, ADV PRETORIUS SC: Correct. CHAIRPERSON: So that | can prepare reports that is based on evidence that has been presented by cross-section of people. And if he is implicated, | am giving him an opportunity to come here and clear his name. But | want to know what he has to say about those things. He might he does not want to clear his name. That is fine. But | want to know what he knows about the things that have been said, 91 kD KO!ADV PRETORIUS SC: Yes. Chair, in summary then. In evidence before you and to date, and I stress to date, because there is more to come. MrZuma has been or may be implicated by the evidence of at least 34 witnesses. That perhaps is enough to qualify, certainly under Section 3(1) of the act. Chair, in relation to the second issue that is why there is an added reason that it is necessary and desirable for a summons to be issued, The Commission, quite apart from its mandate, the law, but as a practical consideration, requires certainty in regard to the fact of Mr Zuma’s appearance and the dates of his appearance. We are simply so close to the end of the Commission’s hearings that the proper and efficient functioning of the Commission would be rendered impossible unless we have that certainty and you are entitled to take that into account in the exercise of your discretion. The history of Mr Zuma’s cooperation or lack thereof with the Commission, is set out in the written submi CHAIRPERSON: Now the legal time has now applied that | should authorise a summons, then they oppose that and say you make it as if he is not cooperating. So when you act and show courtesy and say come and appear before the Commission without issuing a. summons, you are criticised. When you say okay, let us issue a summons, then you are criticised. ADV PRETORIUS SC: Then you not being polite. CHAIRPERSON: | mean, there are many people who have been requested by the Commission to appear before the Commission and they have never had any hesitation. We have told, you know, Mr Zuma’s attorneys before — I was looking at the correspondence here, that | told the President, current President that before the Commission finishes its work it would be important that he comes and gives evidence before the Commission because the matters that the Commissioner is looking at, state capture, happened at a time when he was Mr Zuma’s deputy. The current President had no hesitation, he said you are right, lam going to come. You tell me when | must come and | will come and I said the ANC must also come and | was told the ANC has no hesitation to come. 92 KD. TOThe Commission has approached other leaders of the ANC, Mr Mantashe, and asked them to file affidavits without compelling them and they responded by filing affidavits. Mr Mantashe, Dr Zweli Mkhize, Ms Jessie Duarte, the President himself was asked, without being compelled, to file an affidavit about whether had had any interactions with the Guptas. He filed his a not have to be compelled. ADV PRETORIUS SC: Yes, CHAIRPERSON: He did not complain that there was no rule for making such a request. ADV PRETORIUS SC: Yes. Chair, | muststress that the applic by the legal team has not been prompted by the notion, which is a preposterous notion, frankly, that you are not allowed to issue polite invitations because the law does not expressly say, you know, you may do so. There are good legal and factual grounds quite apart from that. But the proposition that you are not entitled by law to issue a polite invitation to witnesses to come before the Commission to give evidence voluntarily cannot stand. CHAIRPERSON: Ja, | mean, all it seems is | am not supposed to ask him to come, | am not supposed to authorise a summons to be issues to compel him to come, so ...[intervenes] ADV PRETORIUS SC: But when you do... CHAIRPERSON: So | guess | am supposed to just fold my hands and not do anything. ADV PRETORIUS SC: The directive now carries a criminal sanction. CHAIRPERSON: Yes, now the last time | heard was that the directive that | issued on the 28M of August compelling him to file an affidavit | cannot remember whether it was in regard to the Eskom matter and the Durban meeting or whether it was in regard to PRASA, but the deadline which had been given the last time | had it had come and gone and he had not fled any affidavit and in regard to another one | suspect that the deadline has come and gone, but | don’t — | haven't been told whether he has filed an affidavit. ‘So whether you make a request nicely he won't file an affidavit, Whether you reach an agreement with him and he undertakes to 93 co np “Oean affidavit he won't file it. When | issue a directive in terms of the regulations, at least in regard to one he did not file an affidavit within the time that was given and to my knowledge he did not file an application to request an extension of time and in terms of the regulations as amended failure to comply with a directive issued by the Chairperson in terms of Regulation 10{6] failing to comply with it without sufficient cause is a criminal offence. ADV PRETORIUS SC: ‘orrect.” 107. More recently, and in an unprecedent way, and unprovoked, the Chairperson decided to issue a media statement on 29 October 2020, declaring his private life. While he was the one who decided on this unnecessary and ill-advised pre-emptive stunt, the primed media frenzy condemned me for his unsolicited declarations. | mention this to demonstrate how the Chairperson’s public statement prejudice me. | do not wish to stoop so low as to deal with the details of his declaration. If they were to be declared, such declaration ought to have been made earlier. In any event, | regard the Deputy Chief Justice Zondo’s private life to be itrelevant for this application. | am saddened that the Secretariat of the Commission deemed itan appropriate pre-emptive strike to make such a declaration on his behalf. 108. On 03 November 2020, while preparing this affidavit, | was shown another letter from the Commission. A copy of which is attached as “JZ16”, Its contents appeared to be a veiled threat fo approach the Constitutional Court to enforce the summons issued by the Commission. Strangely, it inquired if | would comply with the summons. This further demonstrates the Commission's attitude towards me. | am advised that itis extra-ordinary to seek direct access to the Constitutional Court on this basis. Assuming that the Court would entertain such a case, itis not clear to me what the legal basis would be for seeking to enforce 94 Kd. OO109. 110. 11 ‘a summons that has not been defied. While it would not surprise me if the Court entertained this kind of application, | submit that it reveals the Commission's prejudice against me. The above demonstrates a mind that is not open, but is made up. It is clear to me that the Chairperson disregards his own rulings relating to the scheduling of my response to allegationslappearances. He also does not appreciate the value of my election not to contest the allegations that are made against me which | believe do not implicate me in fraud or corruption at all. | have stated above that the examples used to justi his decision to issue summons, demonstrated that his mind was made up on those issues. For all the reasons that are set out above, | submit that the Chairperson must recuse himself from presiding over the Commission or he must recuse himself in so far as it relates to my involvement in the Commission. | am of the view that his comments and approach reveal a bias against me. | have set out verbatim the comments of the Chairperson because | am advised that my apprehension must be based on facts that are true, Inow tum to deal with what | understand to be the applicable principles on recusals. I do so briefly, and more argument will be advanced when the application is heard,APPLICABLE LEGAL PRINCIPLES RELATING TO RECUSAL 112. | am advised that the principles of recusal are well-established, and | set them out briefly to dispel the notion | have observed in the public media suggesting that in order to succeed in a recusal application, | must prove actual bias on the part of the presiding officer. | am advised and submit that the notion that merely because this is a commission of inquiry, and not a court, impartiality is not @ requirement, is equally incorrect 113. As itis evident from the judgment of the North Gauteng High Court cited above, the very establishment and remedial action which is the genesis of this Commission recognizes the ‘need for impartiality on the part of the Judge presiding, in this instance, the Chairperson. 114. The principle set out herein and to be developed in some greater detail when the application is heard, are primarily designed to safeguard the lawfulness, faimess and integrity of any legal oF adjudicative process. At the outset, | am advised that actual bias is not a requirement fora recusal. An applicant must show a reasonable apprehension of bias. 115. The ethical duties imposed upon judges’ flow from the nature of ther office. A judge, whether performing a judicial function or an executive function of a commission of inquiry, must be impartial and independent. A judicial officer must act fairly, whether performing a judicial function or an investigative executive function of a commission of inquiry. A judicial officer must be fair and impartial, whether the proceedings are informal or formal. So important is the principle against bias itis part of the Code of Conduct for judges. A judge is not stripped KD MAAof the requirements of impartiality merely because hefshe is performing a quasi-judicial function or a commission of inquiry 116. 1am also advised that a judge appointed to chair a judicial commission of inquiry has special duties which according fo the Constitutional Court decision in South African Personal Injuries Lawyers v SIU & Heath's, include ensuring that the position that he or she being appointed to by the executive is not inconsistent with the central mission of the judiciary. In other words, itis @ duty of a judge to refuse to be appointed to a positon that is inimical to the judicial functions and judicial independence. 117. When a judge is advised and is of the view that he has accepted a position that is not consistent with the central mission of the judiciary, he or she must refuse the appointment. | allege that the Chairperson should examine whether his appointment was lawful and consistent with the central mission of the judiciary. If itis not, as | contend, he must recuse himself, regardless of whether he believes that he has been fair and impartial to me. Further argument will be advanced when or if the matter is heard, 118. | further allege that the overall conduct of the Chairperson constitutes an infringement of separation of powers, my guaranteed right to equal protection and benefit of the law,” the right to a fair hearing’® and the right to be heard by an tribunal that must apply the law 16 2001 (1) SA 883 (cc) * Section 9(1) ofthe Constitution provides: “Everyone is equal before the law and has the right to equal protection ‘and benefit ofthe law." % Section 34 of the Constitution provides: “Everyone has the right to have any dispute that can be resolved by the pplication of law decided in a fair public hearing before a court cr, where appropriate, another independent and Ce KD. TOrSimpartially and without fear, favour or prejudice.1® Given the comments and conduct of the Chairperson, to which | have referred above, the conclusion is inescapable that I cannot be treated fairy by the Chairperson. 119, Ihave been advised on the applicable legal standards for a recusal application as set forth in the Constitution and the applicable code of judicial conduct. The Code of Judicial Conduct Article 13: Recusal stipulated that: A judge must recuse him or herself from a case if there is (a) real or reasonably perceived confict of interest; or (b) reasonable suspicion of bias based upon objective facts, and shall not recuse him or herself on insubstantial grounds. | refer to ‘what has been set out above and respectfully submit that the Chairperson has indeed adopted position against me and cannot deal with me fairy and impartially. CONCLUSION 120. In the light of the grounds raised above and the comments made by the chairperson about ime, my apprehension that the chairperson has adopted a stance against me, is reasonable. | apprehend further that, given his comments, he will not be able to exercise an open mind when dealing with me and my testimony and findings that may relate to me. This has had a devastating consequence on my right fo be presumed innocent. 121. _Itcannot seriously be suggested that the Chairperson’s comments, to which | have referred, have no bearing on me. | respectfully submit that the manner in which | have been treated by “® Section 165(2) ofthe Constitution provides: “The courts are independent and subject only to the Constitution ‘and the law, which they must apply impartially and without fear, favour or prejudice.” 98 “QB KD wer !the Chairperson’s running commentary about me reveals that he has concluded that | am guilty of the offences he is tasked to investigate 122. Inthe present circumstances, and in the light of the grounds | have set above, | submit that ih my apprehension is reasonable. DEPONENT 99 KD| certify that the deponent has acknowledged that he knows and understands the contents of this affidavit, that he has no objection to taking the prescribed oath and that he considers it to be binding on his conscience. | further contirm that this affidavit was duly swom to before me and the deponent signed itinmy presence at yneArGne 167 or HOVEMBEL 999, 5; WO SIGNATURE: runames KWEYA DAVID MAGOK? COMMISSIONER OF OATHS, REPUBLIC OF SOUTH AFRICA STAMP KWEDA.PAUE NPEGOKL., i i ' Weuee ve | FULL FIRST NAMES AND SURNAME IN BLOGK LETTERS | UMAR... SPEES.. HEISSADRIES (GT 'S ADDFIESS (STREET ADDRESS) 2000 it- 10 DURBAN NORTH KWAZOCIATAC | 100