An agreement was later cobbled together that will maintain Zuma’s participation in the process. But it may be a short-lived truce as he is likely to continue to use the threat of a walk-out as leverage over how his evidence and its truthfulness are tested.
For those that have attentively followed the former President’s legal and political strategy over the past two decades – referred to in some quarters as his “Stalingrad” strategy – this will have come as no great surprise.
Over the past months, the commission headed by Deputy Chief Justice Raymond Zondo, has heard chapter and verse about the systematic abuse of public and private power that wreaked havoc with numerous key state institutions in the country. These included the National Prosecuting Authority, the South African Revenue Service as well as several state-owned entities vital for development and public service delivery, such as power utility Eskom.
According to numerous witnesses Zuma was the central protagonist. Several large files of witness statements were presented to his legal team in the run up to Zuma’s extraordinary appearance before the commission this week. They contain myriad accusations against him.
The responsibility of a commission of inquiry is to uncover the truth. Hence it has a duty – as Justice Zondo made absolutely clear to Zuma as he began his testimony – to make findings on all material matters. This is the case even though the commission is not a court of law and cannot hold any individual civilly or criminally liable.
Herein lies the dilemma and the risk for Zuma. He will have been advised that in the absence of counter-evidence, preferably from himself, the grave danger is that the commission will prefer the evidence of others and so make adverse findings against him.
That is probably why he was advised to appear before the commission. And why, having walked out, he returned.
But the strategic and tactical dilemma for Zuma and his legal team is this: by putting him on the witness stand, there is a risk that he would be found wanting, especially in terms of the details of any matter.
As every lawyer learns sooner or later in their career, the devil really is in the detail: the more detail you get into, the more likely that any discrepancy in the evidence is likely to emerge. And, in turn, the more likely that a dishonest witness will be exposed.
Hence, Zuma’s lawyers were very anxious to protect him from any scrutiny and, therefore, from any detailed questioning of his version of events.
This is why the quarrel between the legal teams – Zuma’s on the one hand, and the commission’s, on the other – ended up being about the pivotal issue of “cross-examination”.
Unpacking the process
Laymen watching events unfold this week may well have been greatly puzzled by this dispute. They could be forgiven for thinking that given that the whole point of a commission of inquiry is to find the truth this would, by definition, entail asking questions, difficult ones if needed.
My colleague Professor Pierre de Vos explained – with his customary thoroughness – the process as thus: the rules of the commission permit “examination” of any witness, including to “examine” the witness to try and establish whether he or she is being truthful.
Helpful as this legal analysis is, those of us who have practised at the Bar will know that in an adversarial court proceeding the distinction between “examination in chief” and “cross examination” is very clear. One side to the proceedings will lead evidence “in chief”. And then the other side (or sides) will cross examine the witness in order to limit the damage being done to their client’s interests. Or to undermine the credibility or veracity of it.
But in an inquisitorial proceeding, such as the Zondo Commission, the distinction is rather less clear and far more subtle. This is because there are no competing parties. Instead, what you have is a commission armed with a legal team whose job it is to assist it in making findings of fact by adducing relevant evidence.
Often, in this context when a witness is being forthcoming, the need to test the plausibility of evidence may be reduced. But when a key witness, such as Zuma, comes to the stand and time and again, as he did this week, says he cannot remember the detail – or otherwise deflects or obfuscates – then the need to probe deeper and ask more difficult questions is likely to be greater.
Zuma’s team protested that when Counsel for the Inquiry, Paul Pretorius SC, started to do so, he was “cross-examining” the witness and that this was “unfair”. Putting aside the semantics of whether it was “cross examination” as opposed to “mere examination” for a moment, it is difficult to understand the point from a legal perspective. But it’s easy to understand it from a political perspective.
All about survival
Legally, it would have been inappropriate if Zuma had been treated as a hostile witness from the beginning, as is often the case in an adversarial court proceeding.
So, when Zuma was able to give detailed accounts of events in the 1970s, as a part of his bizarre story of intrigue that was clearly designed to create a counter-narrative in which he is the victim of a devious and dangerous international crusade to eliminate him, rather than the perpetrator of state capture, but is unable to recall details of conversations from a few years ago when he was president, real cross-examination would be to put a question like this to the witness:
Mr Zuma, can you really expect the commission to believe that you can remember details from 40 years ago but not from seven years ago? That’s not credible is it? You’re not being frank or honest with the commission, are you?
However, somewhere along the spectrum of possible types of questioning, there is a middle ground in which the witness’ account could and should be tested by tougher questions. Otherwise, how else is Zondo to assess the evidence before him and make findings, especially if there are competing versions?
The game’s not yet over
Zuma and his legal team may think they have played a smart hand. Having volunteered to give evidence, having presented an alternative narrative that deflects from the core subject of state capture, and having avoided detailed questioning on the sort of detail that may have tripped their client up, they then walked away only to return within a few hours.
Had Zuma not returned, the risk would have been that in the absence of detailed evidence from him to set alongside that of the witnesses who gave evidence against him, Zondo may have no choice but to make damaging findings that are severely adverse to a former head of state whose legal and political options appear to be narrowing by the day.
Richard Calland is Associate Professor in Public Law at the University of Cape Town, a partner in political risk consultancy The Paternoster Group and a member of the Advisory Council of the Council for the Advancement of the South African Constitution.
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