Zondo recusal application: more a political than a legal move

Earlier this week former President Jacob Zuma’s legal team sent a letter to the State Capture Commission, indicating that they intend to launch an application for the recusal of Deputy Chief Justice (DCJ) Raymond Zondo as chair of the Commission, and announcing that Zuma will take no further part in the Commission until the application for recusal is finalised. While the legal grounds for recusal seem to be weak, Mr Zuma and his lawyers may hope that the recusal application will provide Zuma with legal and political cover if he ignores a summons to testify before the Commission.

Former President Jacob Zuma has often expressed a willingness to cooperate with the state capture Commission of Inquiry, while not, in fact, cooperating. Instead, Mr Zuma has argued that the Commission was infringing on his rights by trying to provide him with an opportunity to refute the testimony of witnesses implicating him in wrongdoing. Most notably, Mr Zuma has argued that the notion of state capture is a political invention created to advance a factional narrative, and that the Commission’s failure to accept this view and to reject the testimony of all the witnesses who implicated him showed its bias towards him. In an affidavit submitted to the Commission in January this year, he thus concluded:

Having given the Commission my views on state capture, I do not accept that the Commission’s attempt to invoke coercive powers to force me to answer questions on the personal views and subjective opinions of different Commission witnesses is done in good faith. It is a strategy that will, no doubt, create unjustified hostile and acrimonious conditions for my future participation in the Commission.

Given the rather dim view Mr Zuma holds of the Commission, and his eagerness to avoid testifying, it is not surprising that he will now apply for the recusal of DCJ as chair of the Commission. It will, however, be surprising if the application is successful.

The Constitutional Court confirmed the test to be applied when a judge or other presiding officer is asked to recuse him or herself in 1999 in its judgment in the case of President of the Republic of South Africa and Others v South African Rugby Football Union and Others. In that case, between then President Nelson Mandela and then head of the South African Rugby Football Union, Louis Luyt, 5 justices of the Constitutional Court were asked to recuse themselves because of their personal relationship with Mr Mandela and the ANC. Most notably, the applicant complained that Mr Mandela had attended the wedding of the son of Arthur Chaskalson, then President of the Court. He also complained that some of the justices were closely associated with the ANC before their appointment to the bench. Applying a stringent test for recusal, the Constitutional Court rejected the recusal application.

The Court linked the duty of a presiding officer to recuse him or herself to the right to a fair trial in section 35 of the Constitution as well as the section 34 right guaranteeing for everyone the right “to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” This suggests that a duty to recuse oneself primarily applies to anyone presiding in a court or other quasi-judicial and administrative proceedings in which a dispute is being resolved.

The first question that arises is to what extent this duty to recuse also applies to the chairperson of a Commission of Inquiry. A commission is not a court of law and does not resolve disputes. Its findings and recommendations are not binding and have no legal effect on the rights of individuals unless the findings and recommendations are implemented or otherwise acted on. Moreover, a Commission operates in an inquisitorial manner, which means the commission is an active participant in the investigation. An individual implicated by other witnesses or by evidence gathered by the commission retains the right to give their own version of events, but does not enjoy all the procedural safeguards enjoyed by an accused person in a criminal trial.

While all this suggest that the chair of a Commission of Inquiry would seldom have to recuse him or herself, it does not mean that it would not be wise to do so in certain limited instances. The exercise of public power must at least be rational, and I have no doubt that a court would set aside the report of a Commission of Inquiry if the bias of the chairperson tainted the veracity of the report. Moreover, given the fact that the findings and recommendations of a Commission of Inquiry is not binding, its success depends in part of the legitimacy of the process followed by the Commission and the legitimacy of a Commission of Inquiry will be tainted in cases where the chairperson is clearly biased.

Assuming for arguments sake that the test for recusal as developed by the Constitutional Court in the SAFUjudgment would be applicable in the present case (this is an assumption generously in favour of Jacob Zuma), let’s have a closer look at the test applied there. In that case the court held that it is the presiding judge who must make the decision on whether he or she should recuse themselves. The person applying for recusal bears the onus to prove that a reasonable person will apprehend that the judge is biased.

In considering a recusal application, the judge (or other presiding officer) must ask whether, considering all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.

It is important to note that it will not be easily assumed that a reasonable person (as opposed to the average Twitter user) would fear that a judge is biased. In applying the test for recusal, courts recognise a presumption that judicial officers are impartial in adjudicating disputes. This is based on the recognition that legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence. This means that:

The test should be applied on the assumption that a reasonable litigant would take these considerations into account. A presumption in favour of judges’ impartiality must therefore be taken into account in deciding whether such a reasonable litigant would have a reasonable apprehension that the judicial officer was or might be biased.

The Court also held that the reasonable person will not expect that judges will “function as neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging. It is apparent, and a reasonable person would expect, that triers of fact will be properly influenced in their deliberations by their individual perspectives on the world in which the events in dispute in the courtroom took place. Indeed, judges must rely on their background knowledge in fulfilling their adjudicative function.”

Moreover, the personal feelings of the applicant will not be decisive, as the test is whether a reasonable person (not the applicant or his supporters) would be apprehensive that the judge is biased. Particularly relevant for the current case is the statement of the Court that:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.

Where the applicant is overly suspicious, has an overdeveloped sense of grievance or victimhood, or has misconstrued the facts or the nature of the proceedings (for example, by wrongly conflating a Commission of Inquiry with a criminal trial), the application is bound to be rejected. As the Constitutional Court stated:

An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for such an application. The apprehension of the reasonable person must be assessed in the light of the true facts as they emerge at the hearing of the application. It follows that incorrect facts which were taken into account by an applicant must be ignored in applying the test.

It must be obvious from the above, that I am more than sceptical that the recusal application will be successful. Far more would be required for recusal (either under the reasonable apprehension of bias test or the rationality test) than has so far been presented by Zuma’s lawyers or is likely to be presented (but I may of course proven wrong on this point). I would not be surprised if Mr Zuma’s lawyers are aware of this. But as section 6(1) of the Commissions Act allows a witness not to heed a summons if he or she has “sufficient cause” not to do so, Mr Zuma and his lawyers may well be hoping that the recusal application will serve as “sufficient cause”, thus protecting Mr Zuma from a criminal conviction for contempt of the Commission.

But there may be a more pressing reason for the application. As noted above, while the Commission’s findings are not binding, the impact of any report will largely depend on the perceived legitimacy of the Commission. An attack on the impartiality of the chairperson could therefore be viewed as a political, rather than a legal, tactic, aimed at softening the impact of any adverse findings made against Zuma.

In this sense, the move looks like a last ditch attempt to divert the public’s attention from the fact that Mr Zuma is desperate not to have to try and refute the evidence of the witnesses who implicated him in wrongdoing.

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