The decision sees Zuma defy a summons made an order of the Constitutional Court and place himself at risk of arrest.
In the letter, Eric Mabuza said the summons calling Zuma to testify every day this week was not in line with the court order handed down on January 26.
He also raised the matter of Zuma’s application to review Deputy Chief Justice Raymond Zondo’s decision not to recuse himself from hearing his client’s testimony, and said appearing before him while that was pending would undermine the legal process.
Mabuza said the letter was sent as a courtesy and Zuma’s decision should not be construed in any way as defiance of the legal process. But, privately, a source close to Zuma has said his decision was based on political considerations.
By making good on a threat a fortnight ago not to testify, Zuma has ignored a last-gasp plea and a warning of a constitutional crisis at the weekend by the ANC after the party showed itself divided on the issue along the usual factional lines.
It is the third time Zuma is in breach of summons in as many months.
The commission responded to the two earlier instances — on November 19 and January 18 — by laying criminal charges in terms of section 6 (1) of the Commissions Act. The investigation was done by the Hawks, who handed the docket to the National Prosecuting Authority (NPA) some 10 days ago.
The NPA has scrupulously avoided public comment on the case, save to say that no decision to prosecute had been taken yet.
The commission said it would announce on Monday what steps it would take in response should Zuma make good on his threat not to appear to testify.
He set out his refusal in incendiary political terms in a five-page statement on 1 February, accusing both the commission and the judiciary of bias and saying he would rather go to prison than bow to persecution.
In a sign of manoeuvring by sympathetic ANC structures and sabre-rattling from the Umkhonto weSizwe Military Veterans Association (MKMVA), Zuma started by claiming enduring popularity.
“With this groundswell of messages, I felt moved to publicly express solidarity with the sentiments and concerns raised with me about a clearly politicised segment of the judiciary that now heralds an imminent constitutional crisis in this country.”
The statement came three days after the Constitutional Court handed down an order compelling Zuma to comply with the summons to appear from Monday until Friday and all other directives issued by the commission. Moreover, the court also ordered him not to remain silent on the witness stand, save where he could justify invoking the privilege against self-incrimination.
Zondo can now instruct Itumeleng Mosala, the secretary of the commission, to ask the Constitutional Court to find Zuma in contempt, which could result in him being fined or imprisoned, or both.
A civil contempt ruling rests on four pillars. There must be a court order, it needs to have been served and violated, and the defiance must be wilful or mala fides.
The first three requirements are in place, and the onus would be on Zuma’s lawyers to show reasonable doubt on his actions being in bad faith.
It would arguably be a difficult brief for his lawyers. 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 into state capture for more than two years.
“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.”