Two memorandums of demands that were delivered today to Deputy Chief Justice Raymond Zondo and Chief Justice Mogoeng Mogoeng during the protest march of the Gauteng RET President Zuma Support Group to the Commission of Enquiry into State Capture and the Constitutional Court

10 October 2020

1) For the urgent, personal, attention of Deputy Chief Justice Raymond Zondo, Chairperson of the Commission of Enquiry into State Capture Date: Friday, 9 October 2020 Dear Deputy Chief Justice, Memorandum of Demands for the recusal of Deputy Chief Justice, Raymond Zondo, as the Chairperson of the Commission of Enquiry into State Capture We have taken cognisence of the outrageously biased manner in which you have right from the inception of the Commission of Enquiry into State Capture [hereinafter referred to as the Commission] targeted President Jacob Zuma, inter alia by having addressed no less than three times media conferences publicly in a negative and aggressive manner, concerning arrangements for President Zuma to give evidence before the Commission.

This happened in a context where there have been several other witnesses who had for various reasons delayed to appear before the Commission, however your engagements with them have always been, and continue to be, through respectful direct personal contact. The most notable example is that of Minister Pravin Gordhan, who is due to appear before the Commission for cross-examination, but who has not done so to the point where he is evidently defiant and arrogant in being unavailable.

Despite such disdainful conduct towards the Commission you have not seen it fit to address Mr. Gordahn's persistent absence through media conferences. Nor have you threatened to subpoena him, instead you continue to respond personally to Minister Gordhan with the utmost subservient deferrence and respect. The contrast between how you engage with Mr. Gordhan, and other witnesses, stands in stark contrast compared to your vindictive and hostile behavior towards President Zuma.

There are witnesses who are to appear before the Commission, and who indicated their availability to do so with immediate effect, among those is Mr. Lucky Montana (who had written two letters to the Commission to that effect), but the Commission does not seem to be in a rush at all to call them. There are other persons such as messrs Brian Molefe and Arthur Fraser who have literally pleaded to appear before the Commission, but the Comission had not seen it neccesarry for them to be called.

In the case of Mr. Molefe he has actually provided the Commission with a thirty page affidavit, but he was not called by the Commission to appear before it during the critical enquiry into Eskom. We are convinced that the reason for this extraordinary step by you, to ignore an absolutely crucial witness with regards to Eskom, is because of those who are implicated in the said affidavit by Mr. Molefe.

The only rush, and urgency, to get a very specific witness before it, has singularly been reserved for President Zuma. Indeed the targeting of President Zuma has been the hallmark of the Commission's approach, since it commenced with its proceedings. Deputy Chief Justice, from your conduct as Chair of the Commission it is overwhelmingly clear that right from the beginning you adopted a biased disposition towards President Zuma. It is thus impossible that you can apply your mind to the issues, and evidence, related to President Zuma.

We have also with shock and dismay learnt that there are historically strained personal family and professional relations between President Zuma, and yourself. These clearly constitute a conflict of interest, and yet you never saw it fit to declare such. As an imminent legal practitioner you surely realized the importance of declaring any possible conflicts of interest at the inception of the Commission, and your decision not to do so could not have been anything but deliberate. It certainly was not an oversight, and we are convinced that your decision was in fact informed by prejudice and malice, with the intention to settle personal, and other, scores with President Zuma.

Such prejudice and malice are also demonstrated in that you in engagements with witnesses before you indicated that you have already prejudged the issues that you have been tasked to investigate. There are specific instances where you made prejudicial statements about President Zuma, while you addressed witnesses who had made absolutely no reference at all to President Zuma.

None the less you went out of your way to drag President Zuma into the discourse. Deputy Chief Justice, on the basis of such evidence it is evident that you have already made up your mind, and joined the narrative that seeks to present President Zuma as the cause of all the corruption that you are tasked to investigate. This is a totally untenable situation. Such conduct by you as the Chairperson has stripped the Commission of its crucially required legtimicacy.

We submit to you that the work of the Commission is irrevocably - indeed fatally - tainted and compromised, not only through your unacceptable conduct as it's Chair, but also because of the overall biased and persistent targeting of only certain persons of particular political ideological pursuasion. It is evident that those who are the proponents of Radical Economic Transformation (RET) are your main target.Right from the beginning, when the Commission was constituted, we have warned that the mandate of the Commission is far too narrow, and fatally flawed. We warned that the Commission was being established as a factional political attack tool.

The correctness of that view is now amply demonstrated in practice through the vindictive, biased and narrow minded conduct of the Commission in general, and specifically by you as it's Chairperson. Thus Deputy Chief Justice in calling for your recusal, we simultaneously also call for the Commission of Enquiry into State Capture to be dissolved.

Anything less will be a travesty of justice. The Gauteng RET President Zuma Support Group therefore, with the presentation of this Memorandum of Demand, joins President Jacob Gedleyihlekisa Zuma in insisting that you must forthwith recuse yourself as Chair of the Commission of Enquiry into State Capture.

We furthermore support the decision of President Zuma not to further take part in the Commission until the matter of your recusal is determined. In doing so we share the view of President Zuma that the lawfulness of the establishment of Commission is questionable. We demand that you urgently recuse yourself within a period one week [seven (7) days]. In the event of you failing to do so we will proceed with further protest action and mass mobilisation to effect your recusal.

The exact nature of such action will be determined and announced, if so required, at that time of our deadline for your recusal. 

On behalf of the Gauteng RET President Zuma Support Group, and all the concerned South Africans and the organisations and structures that they represent who joined us in this march, together with all citizens throughout South Africa who concur with the call that you should recuse yourself.

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2) For the urgent attention of the Honorable Chief Justice, Mogoeng Mogoeng Date: Friday, 9 October 2020 Dear Chief Justice Mogoeng Mogoeng, Memorandum of Demands for the removal of Deputy Chief Justice, Raymond Zondo, as the Chairperson of the Commission of Enquiry into State Capture, and for the Commission to be dissolved As concerned citizens we feel it our duty to approach you, and to raise our serious concerns about the outrageously biased manner in which Deputy Chief Justice, as Chair of the Commission of Enquiry into State Capture [hereinafter referred to as the Commission], conducted himself right from the inception of the Commission, and maliciously and vindictively targeted President Jacob Zuma.

Deputy Chief Justice Zondo have inter alia addressed no less than three media conferences in a negative and aggressive manner, concerning engagements for President Zuma to give evidence before the Commission. This unacceptable vindictive conduct by the Deputy Chief Justice occurred in the context where there have been several other witnesses who had for various reasons delayed to appear before the Commission. However in contrast to the public attacks on President Zuma, through media conferences, Justice Zondo's engagements with them have always been, and continue to be, through respectful and direct personal conduct.

The most notable example is that of Minister Pravin Gordhan, who is due to appear before the Commission for cross-examination, but who has not done so to the point where he is evidently defiant and arrogant in not being available. Honorable Chief Justice, despite such disdainful conduct towards the Commission your Deputy Chief Justice has not once seen it fit to address Mr. Gordahn's persistent absence through media conferences. Nor has he ever threatened to subpoena Mr.Gordahn.

Instead Justice Zondo continues to respond personally to Minister Gordhan with the utmost subservient deference and respect. This stands in stark contrast to his hostile and vindictive behaviour towards President Zuma. There are witnesses who are to appear before the Commission, who indicated their availability to do so with immediate effect, among those is Mr. Lucky Montana (who had written two letters to the Commission to that effect), but the Commission does not seem to be in a rush at all to call them.

There are other persons such as messrs Brian Molefe and Arthur Fraser who have literally pleaded to appear before the Commission, but the Comission had not seen it neccesarry for them to be called. In the case of Mr. Molefe he has actually provided the Commission with a thirty page affidavit, but he was not called by the Commission to appear before it during the critical enquiry into Eskom.

We are convinced that the reason for this extraordinary step by Justice Zondo, to ignore an absolutely crucial witness with regards to Eskom, is because of those in high office who are implicated in the said affidavit by Mr. Molefe. The only rush, and urgency, to get a very specific witness before it, has singularly been reserved for President Zuma.

Indeed the targeting of President Zuma has been the hallmark of the Commission's approach, since it commenced with its proceedings. The conduct of the Deputy Chief Justice as Chair of the Commission overwhelmingly shows that right from the beginning he adopted a biased disposition towards President Zuma. It is thus impossible that he can apply his mind properly to the issues, and evidence, related to President Zuma.

We have also with shock and dismay learnt that there are historically strained personal family and professional relations between President Zuma, and Deputy Chief Justice Zondo. These clearly constitute a conflict of interest, and yet Judge Zondo never saw it fit to declare such. We ask ourselves whether when, you as the Chief Justice had been given the task to appoint the Chair of the Commission and approached him, Justice Zondo declared this conflict of interest to you?

We very much doubt whether Judge Zondo had done so, because in our minds your great legal insight and well-known balanced and fair approach, would certainly have prevented you from appointing Judge Zondo as Chair of the Commission if you had been made aware of this glaring and serious conflict of interest.

The question thus arises whether Judge Zondo had kept you in the dark, and thus deliberately miss-lead you. As an imminent legal practitioner Judge Zondo must certainly have realized the importance of declaring any conflicts of interest at the inception of the Commission, and his decision not to do so could not have been anything but deliberate.

It certainly was not an oversight, and we are convinced that his decision was in fact informed by prejudice and malice, with the intention to be appointed bas Chair of the Commission at all costs (indeed by hook and by crook) in order to be in a position to settle personal, and other, scores with President Zuma. Such prejudice and malice are also demonstrated by Judge Zondo's engagements with witnesses before him, that indicated that he already prejudiced the issues that he had been tasked to investigate.

There are specific instances where Judge Zondo had made prejudicial statements about President Zuma, while he addressed witnesses who themselves had made absolutely no reference at all to President Zuma. None the less he went out of his way to drag President Zuma into the discourse. Honorable Chief Justice, on the basis of such evidence it is evident that Judge Zondo had already made up his mind, and joined the narrative that seeks to present President Zuma as the cause of all corruption that he was tasked by yourself to investigate.

This is a totally untenable situation. Such conduct by your Deputy Chief Justice has stripped the Commission of its crucially required legtimicacy. We therefore submit to you that the work of the Commission is irrevocably - indeed fatally - tainted and compromised, not only through the unacceptable conduct of it's Chair, but also because of the overall biased and persistent targeting of only certain persons of particular ideological pursuasion.

It is evident that those who are the proponents of Radical Economic Transformation (RET) are the main target. Honorable Chief Justice we must point out that right from the beginning, when the Commission was constituted, we have warned that the mandate of the Commission is far too narrow, and indeed fatally flawed. We warned that the Commission was being established as a factional political attack tool.

The correctness of that view is now amply demonstrated in practice through the vindictive, biased and narrow minded conduct of the Commission in general, and specifically by the conduct of it's Chairperson. Thus, honorable Chief Justice, we are left with no other option but to call on you to remove Deputy Chief Justice as the Chair of the Commission and for the Commission of Enquiry into State Capture to be dissolved. Anything less will be a travesty of justice.

The Gauteng RET President Zuma Support Group have also presented a Memorandum of Demands to Deputy Chief Justice Zondo and the Commission, in which we joined President Jacob Gedleyihlekisa Zuma in insisting that Deputy Chief Justice Zondo should recuse himself forthwith as Chair of the Commission of Enquiry into State Capture. We have also expressed our support for the decision of President Zuma not to further take part in the Commission until the matter of the recusal of Judge Zondo is determined. In doing so we share the view of President Zuma that the lawfulness of the Commission is questionable.

Honorable Chief Justice in the event that Judge Zondo refuses to recuse himself we respectful request you to act decisively and to remove him as Chair of the Commission, and to furthermore dissolve the Commission. It is our carefully considered belief that you have the legal right to do so because you appointed Deputy Chief Justice Zondo as the Chair of the Commission. As very concerned citizens we also feel obliged to raise our concern about the serious allegations that there are judges who have received money from the sealed bank accounts of the CR17 campaign for the election of the President of the African National Congress (ANC), as well as other persistent allegations of the bribing of judges.

Until these bank accounts are opened, and they can be perused fully, without any hindrance whatsoever, serious doubts about the independence of the judiciary will remain. As it is, there are persistent rumours that certain judges allow their rulings to be influenced because they have been paid. You must be aware that there even rumours that the biased and unbecoming conduct of Deputy Chief Justice Zondo as Chairperson of the Commission of Enquiry into State can be explained in the context that he is alleged to have been paid money from those sealed CR17 bank accounts. Furthermore, the actual ruling to seal the bank accounts in question is also suspect and called into question on the same basis. Surely all of this must be of serious concern for you as Chief Justice.

We are aware that you very clear and uncompromising about matters of this nature, and we have noted your insightful comment that, "there is no such thing as a free lunch". We therefore make a clarion call to you as Chief Justice, and custodian of the integrity of our courts and legal system within our Constitutional Democracy, to do everything within your means to remove the dark and damaging clouds of growing suspicion, and to get the CR17 bank accounts unsealed so that they can be fully scrutinised, and transparency and accountability can prevail. Honorable Chief Justice we humbly, but urgently, request that you respond to this Memorandum of Demands within a period of one week [seven (7) days].

We have also provided a similar deadline to your Deputy Chief Justice to recuse himself as Chair of the Commission of Enquiry into State. In the event that Judge Zondo either fails to recuse himself, or is not removed as Chair of the Commission, we will proceed with further protest action. The exact nature of such action will be determined and announced, if so required, at the time of expiry of our deadline. Please be assured of our highest consideration. 

On behalf of the Gauteng RET President Zuma Support Group, and all the concerned South Africans and the organisations and structures that they represent who joined us in this march, together with all citizens throughout South Africa who concur with our call that you should recuse yourself.

Issued by Carl Niehaus on behalf of the Gauteng RET President Zuma Support Group, 10 October 2020