Arthur Fraser objects to Zondo’s nomination for Chief Justice

By: Sello Theletsane

Former spy head Arthur Fraser has objected to the nomination of Deputy Chief Justice Raymond Zondo for the position of Chief Justice.

In a letter sent through Mabuza Attorneys, Fraser said Zondo is not a fit and proper candidate to be the custodian of the values enshrined in the Constitution of South Africa.

He said at least 10 people testified before Zondo at the Judicial Commission of Inquiry into Allegations of State Capture, he was denied an opportunity to appear.

“Despite my repeated requests to be given an opportunity to appear before him in order to state my version and to defend myself against a well-orchestrated narrative and propaganda against me, Deputy Chief Justice Zondo made sure that I neither present my version nor get an opportunity to cross-examine those he called to testify against me. No independent-minded judge would act in this manner,” he said.

Fraser added that his experience with Zondo and how he prejudiced him in how he conducted the proceedings of the Commission demonstrates quite amply that he lacks the necessary independence required by the Constitution.

“It is my sincere view that this conduct renders him no longer for to be a judge, let alone Chief Justice of the Republic of South Africa. While there may be numerous examples of his unfair and biased manner in which he conducted himself while presiding over the Commission, I will confine myself to his egregious conduct towards me,” Fraser said.

“Together with Mr. Paul Pretorius SC (Head of the Commission’s Legal Team and Evidence Leader), he deliberately permitted no less than ten witnesses to present falsehoods about me without affording me even one opportunity to state my version before the Commission or to defend myself against any of the allegations made against me. I have reason to believe that Deputy Chief Justice Zondo did this in order to endear himself with the political class so that he can secure the position of Chief Justice for which he is now nominated.”

Fraser maintained that he believes that Zondo’s conduct was deliberate and sought to protect those he would have exposed to be the real culprits in capturing or attempting to recapture the State. He added that Zondo’s conduct sought to protect the real origins of the idea of the Commission as a foreign-sponsored concept.

“Due to my privileged position as a former head of Intelligence, I also have knowledge of person(s) who were carefully selected to execute same. It is this information that Deputy Chief Justice Zondo vehemently opposed to prevent me from exposing. It also sought to conceal and protect the role of old apartheid security intelligence networks in capturing the post-apartheid state. His conduct and treatment of witnesses that did not fit the Commission’s narrative demonstrates his lack of judicial independence and ability to act without fear or favour as demanded by his oath of office,” he said.

Fraser is of the view that Zondo’s appointment would signal the death of the judiciary and would have a corrosive effect on the country’s democratic values.

He pointed the following out to corroborate his views:

1). Deputy Chief Justice Zondo lacks the requisite judicial independence;
lacks the necessary loyalty to the oath of office taken by judicial officers when they are appointed; and
lacks the integrity and fairness required for the office of the Chief Justice.

2). Section 165 of the Constitution guarantees the independence of the Judiciary and provides in relevant part that no person or organ of state may interfere with the functioning of the courts.

3). More importantly for present purposes, section 174(8) of the Constitution requires that before judicial officers begin to perform their functions they must take an oath or affirm, in accordance with schedule 2, “that they will uphold and protect the Constitution”.

4). As far as I know all judicial officers take a solemn affirmation or oath when they are appointed. This oath for judicial officers is contained in Item 6 of Schedule 2 of the Constitution. It reads that: swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court …, Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.”

5). As a citizen, I expect a judge to deal with any matter and allegations against any person without any political influence or pre-conceived ideas to such an extent that, that person is prejudiced. I do not expect a judge to allow a situation in which accusers of a person have a free ride to level allegations against a person without giving the accused an opportunity to defend themselves.

6). As I contend above, Deputy Chief Justice Zondo has ensured that I was not given an opportunity to test the allegations levelled against me. It appears to me that he adopted the attitude of those who seek to besmirch my name by allowing their narrative to be the only narrative given to the public during the Commission.

“I submit to the Panel that Deputy Chief Justice Zondo lacks the integrity, the objectivity, and fairness required for such a critical position in our constitutional State. I submit that his appointment would have a corrosive effect on the already troubled judiciary. It is my considered view that Deputy Chief Justice Zondo is not a suitable candidate to become the country’s Chief Justice. I raise this firstly because he has failed dismally to manage the Commission that he was tasked to manage for the past three and a half years,” he said.

Among other issues raised by Fraser, he highlighted that:

– In 2019 and 2020 Deputy Chief Justice Zondo called three of the former most senior Intelligence officers, Ambassador Mzuvukile Maqetuka, Mr. Gibson Njenje, and Ambassador Rieaz “MO” Shaik, who established and headed the State Security Agency from October 2009 to January 201 2, to testify. Ambassador Maqetuka and Mr. Njenje accused me of the most serious crimes of treason and corruption. At the very least I expected Deputy Chief Justice Zondo to call me to give my side of the story.

– To demonstrate his unfairness, after Ambassador Maqetuka testified (on 10 July 2020), I went to the Commission with my legal team for several days to demand an audience with the Deputy Chief Justice so that we could, amongst others, make arrangements for me to testify. Suffice to say that he deliberately frustrated my efforts and never called me to testify to give my side of the story.

– I point out that Deputy Chief Justice Zondo gave people implicated in less severe crimes an opportunity to testify. The fact that in three and a half years, Deputy Chief Justice Zondo did not even find a day for me to testify demonstrates his lack of impartiality and unsuitability to be appointed as our next Chief Justice.

– In 2021, Deputy Chief Justice Zondo received the testimonies of Mr. Loyiso Jafta, the then Acting Director-General of the State Security Agency; Dr. Sydney Mufamadi, the Chairperson of the High-Level Review Panel on the State Security Agency and Dr. Setlhomamaru Dintwe, Inspector General of Intelligence. These witnesses implicated me in corruption and abuse of funds over nine billion Rand. Given the seriousness of these allegations, I would have expected any fair-minded judge to call for an explanation from me. Again, Deputy Chief Justice Zondo failed to contact me to give my side of the story.

– In addition, Deputy Chief Justice Zondo received evidence of five other junior intelligence officials who implicated me in similar allegations of corruption. Yet, Deputy Chief Justice Zondo did not deem it fit to call someone who occupied the position of Head of Intelligence and other senior roles within Intelligence for that period, spanning over twelve years from 2006 — 2018, to give their side of the story. What kind of a judge would allow such a miscarriage of justice?

– As a way of telling my side of the story to the Commission, I also applied on 22 April 2021 to cross-examine at least seven of the witnesses at the time that had implicated me in treason, corruption, and other forms of wrongdoing. In this regard, I made an extensive written submission to the Commission spanning over 350 pages, including attachments, refuting all the unfounded allegations made against me. In that submission, I also set out a picture of what is happening in our country. The Commission opposed my application. Suffice to say, to date; Deputy Chief Justice Zondo has not made a ruling on my application to cross-examine my accusers.

“The travesty of denying me the opportunity to testify is that Deputy Chief Justice Zondo has denied the country benefit of knowing the full picture of what we now call ‘state capture’. I consider that such conduct by a man who is the Deputy Chief Justice of the Republic of South Africa is unbecoming. It is on this basis that I object to his candidature and state that he lacks the credibility, the integrity, and morality that is a pre-requisite for one to become a judge in society, let alone Chief Justice of our dear Republic,” he said.