Mxolisi Zondo slams impropriety allegations as 'utter nonsense'

Advocate Mxolisi Zondo says he will not apply to cross-examine witnesses because he considers such a “fool’s errand”.

Advocate Mxolisi Zondo. Picture: Facebook

JOHANNESBURG - Advocate Mxolisi Zondo – who has been accused of impropriety at the state capture commission of inquiry – has told Eyewitness News he regards the allegations against him as utter nonsense, purely conjecture and without supporting facts and evidence.

Zondo adds that he will not apply to cross-examine witnesses because he considers such a “fool’s errand”.

The advocate is the younger brother of deputy Chief Justice Raymond Zondo, who is the chair of the commission. Former Independent Police Investigative Directorate (Ipid) head Robert McBride and former KwaZulu-Natal Hawks head Johan Booysen have accused Zondo Junior of impropriety. It’s understood the former head of the Hawks in Gauteng, Shadrack Sibiya, will level similar allegations against the advocate.

“I have read both statements with the specific paragraphs in so far as they 'implicate' me from both Mcbride and Booysen," says Zondo in an extensive written reply to EWN. “None of which present facts, evidence or knowledge of any impropriety on my part which would then implicate me in any wrongdoing or unprofessional conduct.

“All I can surmise is nothing more than conjecture and/or speculation or suspicion of bias and therefore impropriety based on one’s pure fundamentally flawed opinion which is neither supported by facts or evidence of any wrongdoing or impropriety on my part,” says Zondo.

The allegations have presented a potential conflict of interest for the deputy chief justice, who has decided that he will not hear evidence related to his brother at this stage. He has told the commission that he will consider the matter and may invite interested parties and relevant organisations to make submissions on how best to address the situation. Evidence leader, Advocate Paul Pretorius has argued that in as far as Mcbride’s evidence is concerned, it is not critical to the broader issues being canvassed at the commission.

Advocate Zondo presided over the disciplinary hearings of Ipid investigator Matthews Sesoko, Sibiya and was appointed to handle Booysen’s, but this did not come to be. According to his profile on the Thulamela Chambers website, Zondo has been a practising advocate of the High Court and a member of the Johannesburg Bar since 2008. He holds an LLB and an LLM (majoring in Labour Law and Advanced Corporate Law) qualifications, both from the University of Natal. Labour and Employment Law are his niche, however, he also practices extensively in immigration, medical negligence as well as administrative and constitutional law.

In Mcbride’s affidavit, he accuses Advocate Zondo of unlawfully firing Sesoko. Sesoko had requested a postponement owing to illness but Zondo rejected his medical certificate and dismissed him in absentia.

“In his written ruling, Zondo concedes that it would have been fair to hear Sesoko’s version of events but bizarrely dismisses him with immediate effect, without allowing him to state his defence because the medical certificate submitted by Sesoko’s counsel was from a general practitioner and not from a specialist. Furthermore, Sesoko’s dismissal was on the basis of hearsay evidence of a single witness,” said Mcbride.

Booysen also makes allegations against Zondo, however, the details of which have not been disclosed through the commission. It’s understood the advocate was appointed to preside over Booysen’s disciplinary hearing. Booysen challenged the decision that the matter proceeds and request certain documents and undertaking from Zondo in writing. It’s understood the matter proceeded no further.

In Sibiya’s case, Zondo presiding over his disciplinary hearing in 2015. The major-general, who was implicated along with former national Hawks boss Anwa Dramat, was accused of planning and executing the unlawful arrest and deportation of several Zimbabwean suspects – an allegation he has denied.

At the time, EWN reported that Sibiya’s attorney said the guilty verdict against his client was legally flawed, while Sibiya had denied any involvement in the matter, arguing that he was being targeted for leading the investigation and arrest of former Crime Intelligence head Richard Mdluli.

Attorney Victor Nkhwashu said Zondo's judgment was poorly reasoned. "The body of the judgment does not correlate with the bottom finding of the judgment. The judgment is legally flawed." Zondo found that while Sibiya was not involved in the arrest of the suspects he did know about the operation and gave clearance for it.

Advocate Zondo confirmed he has been served with notices from the commission informing that witnesses have implicated him – as required by Rule 3.3 of the commission. “I have written to the Commission stating, amongst other things, that to the extent that the moment I handed down my rulings in the matters in question, I became functus officio (his mandate expired) and that, owing to the fact that all these proceedings were mechanically recorded at all material times, the record ought to speak for itself,” he says.

Zondo says the record of proceedings can be obtained from Ipid and the Hawks. “Therefore, I really have nothing to add and neither do I intend to apply for cross-examination in respect of any of these witnesses as to me that would be tantamount to engaging in a fool’s errand,” he says.

Zondo questioned why, if the parties had concerns about his rulings, they were not taken on review at the time.

“It is even more disconcerting for me to have to dignify what to me appears to be utter nonsense and a complete waste of my time with a response.

“I say this because, one can not help but wonder that, if for instance Sesoko and Sibiya, whose disciplinary hearings took place in 2015 and 2016 respectively, felt that there had been any form of impropriety on my part in chairing their disciplinary hearings, why then did they not deem it necessary to report me to the Bar Council for investigation into my professional conduct?

“Why wait for three to four years respectively to raise a non-issue?” asks Zondo, adding that at all times all the parties were legally represented and at no time can they claim they were not ignorant of their rights.

Zondo re-iterated that he has been informed by a Rule 3.3 notice that witnesses will implicate him, but “have no appetite in entertaining what seems to me to be a fool’s errand and, to the extent that all the proceedings were mechanically recorded at all material times, the record ought to speak for itself.”

Booysen returns to testify at the commission on Thursday, 2 May. It’s not clear when Sesoko and Sibiya will be called to present their evidence.