Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma

The Judicial Commission of Inquiry into State Capture (Zondo Commission) was established by then-President Jacob Zuma in January 2018 pursuant to the Public Protector's remedial action, to investigate allegations of state capture, corruption and fraud. The terms of reference placed Mr. Zuma at the center of the investigation, including allegations that the Gupta family offered Cabinet positions and whether he facilitated unlawful awarding of tenders. Mr. Zuma initially appeared before the Commission in July 2019 but refused to continue answering questions. Despite agreements to cooperate and multiple requests and directives, he failed to submit affidavits or appear as required. The Commission issued a summons in October 2020 requiring his attendance in November 2020. Mr. Zuma appeared but moved an application for the Chairperson's recusal. When this was dismissed on 19 November 2020, he and his legal team walked out without permission. The Commission then launched an urgent application directly to the Constitutional Court seeking to compel his attendance and testimony.

• Whether the Constitutional Court should grant direct access to hear the application on an urgent basis
• Whether a witness before a commission of inquiry can be compelled to appear and testify
• Whether a witness before a commission of inquiry has a right to remain silent
• What privileges are available to witnesses before a commission of inquiry under section 3(4) of the Commissions Act
• Whether the privilege against self-incrimination applies to witnesses before commissions of inquiry
• Whether costs should be awarded against a private party in constitutional litigation involving an organ of state

1. Direct access granted. 2. Advocate Ngalwana SC not admitted as amicus curiae. 3. CASAC and Helen Suzman Foundation admitted as amici curiae. 4. Mr. Zuma ordered to obey all summonses and directives lawfully issued by the Commission. 5. Mr. Zuma directed to appear and give evidence on dates determined by the Commission. 6. Declared that Mr. Zuma does not have a right to remain silent in proceedings before the Commission. 7. Declared that Mr. Zuma is entitled to all privileges under section 3(4) of the Commissions Act, including the privilege against self-incrimination. 8. Mr. Zuma ordered to pay the Commission's costs, including costs of two counsel.

1. Witnesses summoned to testify before a commission of inquiry established under the Commissions Act have no right to remain silent - they are obliged to appear, give evidence and answer all questions lawfully put to them. 2. The rights in section 35 of the Constitution (including the right to remain silent) apply only to arrested and accused persons, not to witnesses before commissions of inquiry. 3. Section 3(4) of the Commissions Act affords witnesses before commissions the same privileges enjoyed by witnesses in criminal trials, including the privilege against self-incrimination. 4. The privilege against self-incrimination, though not expressly stated in section 35, is a fundamental right protected by section 12 of the Constitution (freedom and security of person) and applicable to witnesses before commissions. 5. A witness wishing to invoke privilege against self-incrimination must claim it before the Commission's Chairperson and demonstrate how answering would incriminate them in a specified crime. 6. Defiance of lawful process issued by a commission constitutes a breach of the rule of law and undermines the constitutional order. 7. Section 3(4) of the Commissions Act must be interpreted consistently with section 39(2) of the Constitution to promote the objects of the Bill of Rights.

The Court made several non-binding observations: 1. Commissions of inquiry serve both to advise the President (who is not bound by their findings or recommendations) and a 'deeper public purpose' of restoring public confidence through public hearings on matters of concern. 2. Not every commission serves this deeper public purpose - some are merely for gathering information. 3. A 'matter of public concern' under the Commissions Act requires both public anxiety/worry and public interest - it is a more restricted notion than mere public interest. 4. The Commission's lack of diligence in pursuing the matter (particularly the unnecessary delay in issuing a summons and setting down applications) contributed to the urgency it faced, though this did not outweigh the public interest in granting relief. 5. The Court emphasized that the allegations under investigation (state capture, abdication of constitutional powers to private individuals) would constitute 'a huge threat to our nascent and fledgling democracy' and 'a subversion of this country's constitutional order' if established. 6. The general rule protecting private parties from costs in constitutional litigation against the state does not apply where the private party's conduct is frivolous, vexatious or unlawful and has forced the state to litigate.

This landmark judgment establishes critical principles regarding commissions of inquiry in South Africa. It confirms that the President's power to appoint commissions under section 84(2)(f) of the Constitution is subject to constraints of legality and that coercive powers under the Commissions Act only apply to matters of 'public concern' (objectively determined). The judgment clarifies the rights and obligations of witnesses before commissions: they must obey summonses and answer questions lawfully put to them, but retain the privilege against self-incrimination and other privileges available to witnesses in criminal trials. The Court strongly reaffirmed the principle that no one is above the law, including former presidents, and that defying lawful process constitutes a breach of the rule of law. The case demonstrates the judiciary's willingness to enforce accountability mechanisms and vindicate the public interest in investigations into state capture and corruption, even where this requires direct and coercive orders against politically powerful individuals.