Why the Zondo recusal application is weak on the facts and the law

The hearing for the recusal of Deputy Chief Justice (DCJ) Raymond Zondo as chairperson of the State Capture Commission had a distinctly Trumpian feel to it. Victimhood, conspiracy theories, and “alternative facts” all made an appearance at the hearing that was sharply focused on the former President’s personal feelings and fears. And like Donald Trump’s false claims about his election victory, the former President’s arguments seemed to be aimed more at delegitimising the Commission and any findings it will make than at winning a legal victory.

I write this as we await the decision of DCJ Raymond Zondo on whether he will recuse himself as chairperson of the Commission on State Capture. While I do not know how Zondo will rule, the law and the facts do not seem to favour Jacob Zuma. It is perhaps because of this that Mr Zuma’s advocate, Muzi Sikhakhane, skilfully attempted to reframe the application as a trial about the very existence of state capture, by suggesting that the Commission’s “passive acceptance” of the “state capture narrative” was at the heart of Zuma’s concerns.

Treading a careful line between deference and condescension towards DCJ Zondo, Zuma’s legal representative also planted the seed in the minds of those watching the proceedings at home, that the recusal process itself was somewhat suspect. His statement that the case law applicable to recusal applications was “unreliable”, and “intellectually dishonest”, as judges got to determine what standard should be used to decide whether they should recuse themselves, was a legal nonsense (the Commission is bound by the Constitutional Court precedent on the matter), but it may have pre-emptively provided a political explanation for the possible rejection of the recusal application. (I do not express an opinion on whether this was intended or not.)

It was an exceptional performance by a gifted orator, but, to my mind, it was not entirely successful in hiding the weaknesses in the legal arguments, and the dubiousness of some of the factual claims on which the application is based. It must be remembered that the test for recusal is a stringent one. The Constitutional Court summarised the test as follows in President of the Republic of South Africa and Others v South African Rugby Football Union and Others:

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.

The Constitutional Court further pointed out in South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited Seafoods Division Fish Processing that in recusal applications there is a rebuttable presumption that judicial officers are impartial. It is the applicant for recusal (in this case, Jacob Zuma) “who bears the onus of rebutting the presumption of judicial impartiality”, and the presumption “is not easily dislodged. It requires ‘cogent’ or ‘convincing’ evidence to be rebutted”. What is required from a presiding officer is not “absolute neutrality” (something that is, in any event, impossible), but impartiality; the “quality of open-minded readiness to persuasion… by the evidence and the submissions of counsel”.

Requiring absolute neutrality would make it impossible for presiding officers to do their job. For example, absolute neutrality would require a presiding judge to respond in an identical manner to a witness claiming the earth is flat and one that correctly states that it is round. It would also mean a recusal could be based on a contention that a presiding officer was more courteous towards one witness than towards another (as Jacob Zuma did in his recusal application) – not something a reasonable person would normally take as proof that the presiding officer does not have an open mind.

While the test remains the same, regardless of whether the recusal application is for a judge presiding in a court of law or for a judge presiding over a Commission of Inquiry, it is applied differently because a Commission is inquisitorial in nature and is not conducted in the adversarial manner familiar to us from court proceedings. In an adversarial process the parties are adversaries who present their respective cases under strict procedural rules.

The presiding judge acts as an impartial and mostly passive referee. The assumption is that the opponents fight it out in court, in a process regulated by various procedural rules, and that the truth will emerge from this contest, allowing the impartial presiding officer to make a final ruling for one or other party. Presiding officers must therefore take care not to act in a manner that would give an undue advantage to one or the other side, as this may – in extreme cases – lead to a reasonable apprehension of bias on their part.

Before a Commission of Inquiry, following an inquisitorial process, this concern does not arise. The staff of the Commission act as investigators who actively participate in the fact-finding to try to ascertain the truth. The presiding judge plays an active role in this process and has a duty to assess evidence, question witnesses, and direct investigators about what additional information is needed to arrive at the truth.

This requires the presiding judge to make a preliminary assessment of the evidence, while keeping an open mind, always with a view to establish the truth, wherever it may lead. As long as the judge does not exclude or ignore relevant evidence that may contradict a preliminary view  (as judge Seriti did in the Arms Deal Inquiry), and remains eager to uncover the truth in accordance with the available facts, a reasonable apprehension of bias will not arise.

In the light of the applicable law explained above, former President Zuma’s application for the recusal of DCJ Zondo must overcome several hurdles.

First, Zuma has to convince DCJ Zondo that his personal beliefs that the Commission is part of an unexplained and unsubstantiated conspiracy against him, and that Zondo does not have an open mind, are reasonable beliefs that a reasonable person could hold. It would therefore not be sufficient to argue that Zuma does not feel comfortable to testify – as Zuma’s lawyer did on Monday – and that Zondo has a duty to create an environment in which Zuma feels comfortable to testify,.

Second, some of the factual claims advanced in the recusal application are not true, or highly contested, or irrelevant. The claim that the Commission carefully selected witnesses to “sustain the former Public Protector’s theory of state capture”, is not born out by the facts. The Commission called over 200 witnesses, including many witnesses (such as Duduzane Zuma and Dudu Myeni) who do not accept that Zuma was involved in state capture. The claim that Zuma has always been willing to co-operate with the Commission and that he has always been willing to testify, is difficult to square with the fact that Zuma has not complied with various directives issued by the Commission, and that he walked out of his previous hearing when evidence leaders started asking him difficult questions.

Some other claims made in Zuma’s application are, to say the least, bizarre in a way that Donald Trump would admire. For example, when Pravin Gordhan failed to attend the hearing where he would have been cross examined by former SARS Commissioner Tom Moyane’s legal representative, Zondo expressed his displeasure with Gordhan in no uncertain terms, complaining: “I am not happy”. A reasonable person is likely to view this as evidence of Zondo’s even-handedness. But in a major attempt at gaslighting, Zuma suggested in his application – with no evidence to back this up – that this was a mere attempt by Zondo “to seem impatient”.

But to my mind the major difficulty with the application is that the factual allegations made to support recusal seem to be aimed at meeting a test for recusal that does not exist in law. The allegations that Zondo treated some witnesses more politely than others, that he did not challenge the testimony of all witnesses with equal vigour, and that he was somehow unkind to Zuma, seem to be aimed at proving that Zondo lacked absolute neutrality, which (as I pointed out above) is not the legal standard for recusal in South Africa.

Ironically, a rather convincing legal argument could previously have been made that the Commission was unlawfully established. But this argument is no longer available to Mr Zuma. As I previously argued (see here and here) it is possible that the Public Protector’s remedial action instructing Zuma to appoint a Commission of Inquiry, and requiring that the Chief Justice selected the judge to head it, were unconstitutional. However, not only were these arguments rejected by the High Court, the court also made the Public Protector’s remedial action an order of court. While it is possible that another court would have overturned this judgment on appeal, the appeal on the merits of the case was dropped once Zuma resigned as President, which means the court order now stands and must be obeyed.

In his recusal application, Mr Zuma again raised the possibility that the appointment of the Commission was unconstitutional. As the court order establishing the Commission was not appealed, this argument does not appear to be of any legal value to evaluate recusal. But it does enhance the political argument which undergirds Zuma’s entire recusal application, namely that the Commission was unlawfully established and is illegitimate, and forms part of a vast conspiracy against Zuma, driven by all-powerful agents (including local intelligence services working with the US and perhaps members of the judiciary).

Whatever DCJ Zondo decides on Wednesday, Mr Zuma is likely to continue advancing this argument, as it is his best bet to delegitimise the Commission and the findings it is likely to make.

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