/ 15 February 2021

Zondo to ask the Constitutional Court to send Zuma to jail for flouting summons

South African Justice Raymond Zondo Hints On A Possible Extension Of The Inquiry Into State Capture
Acting Chief Justice Raymond Zondo (Photo by Veli Nhlapo/Sowetan/Gallo Images via Getty Images)

Deputy Chief Justice Raymond Zondo said on Monday that he would ask the Constitutional Court to find Jacob Zuma in contempt of court and send him to prison for defying a summons to testify at the state capture inquiry this week, because his stance could incite lawlessness if left unchallenged.

Four hours after Zuma failed to appear, Zondo said the commission was unequivocal that this was the correct route, stressing that it did not arrive at the Constitutional Court in December in “a rush”, but sought an order compelling him to respect the summons after all else failed.

Because the order was granted last month and since served on Zuma, the commission could now return to the court to ask for a ruling and an appropriate sanction.

“Our law is clear and there is no lacuna.”

“The commission has noted that in this situation it may institute what is called contempt of court proceedings. The commission will do so. 

“The commission will approach the Constitutional Court and ask it to impose a term of imprisonment on Mr Zuma if it finds that he is guilty of contempt of court. It will be up to the court what it considers appropriate.”

He added that Zuma had the right to oppose this application.

Should the former president do so, he would have to convince the court that his refusal to heed the summons made an order of the court by last month’s ruling was not wilful or mala fides to escape an adverse ruling.

Zuma signalled early on Monday morning, through a letter from his attorney, Eric Mabuza, to the secretary of the commission, that he would not heed the summons.

He said the court order was defective and that Zuma could not appear before Zondo while his court bid to force the deputy chief justice to recuse himself was still pending.

Zondo described Zuma’s decision as a “great pity” made all the more poignant because he had twice sworn to the nation, when taking up office for two successive terms, to uphold the Constitution.

“This is very serious because if it is allowed to prevail there will be lawlessness and chaos in the courts because there may be other people who will decide to follow his example when they are served with summonses and other court processes.”

He dismissed Zuma’s tendered legal grounds for failing to testify as, first, something he should have raised to the Constitutional Court and, second, not the full story.

Zondo argued that the former president had a chance to raise the matter of the review when the commission applied to the Constitutional Court last year for an order compelling him to respect the commission’s directives, and to oppose the application. 

Zuma might also have taken his reasons as to why he demanded recusal to the court and allowed it to settle the point.

He then turned to Mabuza’s plea that Zuma’s absence should not be construed as defiance of legal process and referred to the former president’s public statement a fortnight ago where he said he would rather go to prison that subject himself to persecution reminiscent of the apartheid regime.

“In his own words, he said he was going to defy an order of the Constitutional Court.”

Zuma, on 1 February, drew the battles line in a five-page missive that concluded: “In the circumstances, I am left with no other alternative but to be defiant against injustice as I did against the apartheid government.” 

Evidence leader, advocate Paul Pretorius ventured that Zuma’s real reasons for defying the summons, and the apex court, were plainly “of a political nature”.

He then referred to the part in Zuma’s statement that read: “I therefore state in advance that the commission into allegations of state capture can expect no further cooperation from me in any of their processes going forward. If this stance is considered to be a violation of their law, then let their law take its course.”

Pretorius said he found “of particular concern the reference to ‘their law’”, because it indicated that Zuma believed that the law of the land did not apply to him in the manner it did to anybody else.

He set out, at length, the allegations and evidence the commission wanted Zuma to answer to, both that which had already served before the commission and some which was still to come.

This ranged from testimony that Zuma had directed state advertising to flow to media owned by the Gupta brothers to evidence that he had allowed the politically-connected family to influence appointments to the cabinet and to state-owned enterprises (SOEs).

Moreover, the former president needed to respond to allegations that money flowed to his eponymous foundation and the ruling party, respectively through former SAA chairperson Dudu Myeni and Bosasa, and the pressure Nhlanhla Nene faced as finance minister to conclude a nuclear deal with Russia before he was fired. 

Zuma was implicated more than 30 times by witnesses by the time the commission turned to the Constitutional Court in December as a last resort to force him to cooperate with its inquiry after contending with stonewalling for more than two years.

The number has since risen, notably through testimony from members of the State Security Agency, who last month told of ministers and operatives abusing due process and millions in state funds in service of Zuma’s personal and political whims.

But Pretorius said the commission’s underlying query was not simply whether there had been corruption during his nine-year presidency but whether it played out according to a deliberate grand design to subvert state entities to benefit a particular group of people.

The commission needed to put the question to Zuma and it needed to make a finding, he said.

“Those professional conclusions, questions even need, or have needed to be put to the captain of the ship, the person at the wheel during the period under review. “The various appointments and dismissals of ministers, state officials, SOE boards and executives had consequences such as the corrupt appropriation of state resources on a massive scale. Were those consequences incidental or were they intended consequences?”

Pretorius suggested that the money had flowed to the same people who influenced decisions of state, making it all the more vital to hear Zuma’s version of events.

“In the end, Mr Zuma, and I stress through honest cooperation, might have assisted to understand the commission not only what happened but how it happened.”

In sticking to his vow not to testify, Zuma ignored a last-gasp plea and a warning of a constitutional crisis at the weekend from the ANC after the party showed itself divided on the issue along the usual factional lines.

He has boasted that he retains wide support, and the past two weeks have seen manoeuvring by sympathetic ANC structures and sabre-rattling from the Umkhonto weSizwe military veterans (MKMVA). The latter have converged at Nkandla and vowed to protect him from arrest.

Zuma also potentially faces criminal charges after the commission opened a case with the police in terms of section 6 (1) of the Commissions Act after he breached summons in November and again in January. The Hawks recently referred the case to the National Prosecuting Authority for a decision.

For now, Zuma’s legal team arguably face a difficult brief as far as persuading the court that he is not acting and bad faith and averting a contempt ruling goes. 

These serve to enforce respect for the courts and the law. Six weeks ago, in handing down the order compelling him to respect the summons and testify, Justice Chris Jafta said Zuma had flouted the rule of law by repeatedly frustrating the work of the inquiry.

“The respondent’s conduct in defying the process lawfully issued under the authority of the law is antithetical to our constitutional order. 

“We must remember that this is a Republic of laws where the Constitution is supreme. Disobeying its laws amounts to a direct breach of the rule of law, one of the values underlying the Constitution and which forms part of the supreme law. In our system, no one is above the law.”