The state capture inquiry has warned former president Jacob Zuma’s lawyers that it "may have to resort" to approaching the Constitutional Court to ensure that he honours the subpoena issued against him by commission chair deputy chief justice Raymond Zondo.
If the inquiry brings an application, it may be one of the first times in democratic SA history that the highest court has been asked to enforce a subpoena.
This potential action, inquiry secretary Itumeleng Mosala told Zuma’s attorney Eric Mabuza, was "because of the importance of your client’s evidence to the matters being investigated by the commission … It is hoped that this will not be necessary."
In his letter sent to Mabuza on Tuesday, Mosala stressed that the inquiry was willing to hear Zuma’s evidence through a video link "to cater for such legitimate concerns your client may have with regard to Covid-19" in light of his age.
While Zondo ordered that Zuma be subpoenaed to appear before him from November 16 to 20, the former president’s lawyers have previously informed the deputy chief justice that they will seek his recusal from the inquiry.
They contend that Zuma believes Zondo is biased against him.
"Until this application for your recusal is finally determined, president Zuma will take no further part in this commission and the chair is entitled to take any such step as he deems lawful and appropriate," Mabuza wrote to the deputy chief justice more than a month ago.
Zuma has yet to formally lodge his application for Zondo’s recusal.
In the letter, Mosala said it was "important and urgent that the commission be informed whether your client will or will not comply with the summons so that, if your client indicates that he will not comply with the summons, the commission may consider its options. Those options include approaching the Constitutional Court."
He cited a section of the constitution that reads "national legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court, to bring a matter directly to the Constitutional Court; or to appeal directly to the Constitutional Court from any other court".
Mabuza has declined to comment.
The Jacob Zuma Foundation previously criticised Mosala for detailing Zuma’s repeated failure to provide the inquiry with information and affidavits requested by Zondo, describing his previous argument for Zuma to be subpoenaed as "nothing but a ruse, whose outcome has been clearly predetermined".
Mosala said inquiry lawyers had repeatedly tried and failed to obtain Zuma’s response to the evidence of 34 witnesses who they contend implicate him in corruption. He said Zuma had not responded to requests he provide evidence about the alleged capture of the Passenger Rail Agency of SA and Eskom.
The foundation insists Zuma has sought to co-operate but has been mistreated by Zondo and inquiry lawyers.
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