Jacob Zuma was elsewhere on Thursday as the Constitutional Court reserved judgment on the Zondo commission’s plea to send him to prison for two years for contempt, its case arguably reinforced by his resolute absence from the legal process.
Legal counsel for the commission, Tembeka Ngcukaitobi, said the court was compelled to punish Zuma’s cynical manoeuvring to destabilise the legal order of a fledgling democracy and create a parallel political narrative to escape accountability for his actions as president.
“He has displayed a cynical attitude to accountability; he has created an environment where he can escape in answering to his participation in what is being investigated and, therefore, the penalty of two years must reflect this court’s disapproval of this type of cynicism, particularly when it is executed by a person who was once president of this country,” Ngcukaitobi said.
“Where matters stand right now, is that the public has been deprived [of] an opportunity to hear from Mr Zuma, to hear his version, to get an explanation.”
Ngcukaitobi confirmed, under questioning from the justices of the apex court, that the commission was no longer asking them to coerce Zuma to testify before the state capture inquiry.
Trying to achieve this through a suspended sentence would pose the risk of Zuma using the reprieve to run rings around the commission and turn the process into a public circus, he argued.
“It is quite clear that we are excluding coercion. The short answer is that, yes, we do not ask for his appearance — we are asking for his punishment.”
He was replying to a question from Justice Zukisa Tshiqi as to why the commission was not seeking a sanction that would serve the twofold purpose of forcing Zuma to testify and vindicating the authority of the highest court.
It was worrying, she said, that the commission had abandoned all hope of Zuma appearing before it as this departed from its reason for first approaching the Constitutional Court in December last year.
The commission sought and subsequently won an order compelling Zuma to respect any summons to testify and not to resort to silence on the witness stand.
Tshiqi said it would seem that imposing a purely punitive custodial sentence would be counterproductive to this purpose.
Ngcukaitobi countered that in December he had argued in court papers that it was unthinkable that Zuma would defy an order from the highest court in the land, yet precisely that transpired when he flouted a summons to appear before the commission on 15 February and issued a diatribe against Deputy Chief Justice Raymond Zondo.
The application for a contempt ruling was not concerned with defiance of a summons, but the more severe crime of defying the court’s order, he said.
In this regard a prison term would not be counterproductive, because it would restore the authority of the court in the face of Zuma’s “false, unfounded” attacks in which he went as far as accusing judges of taking bribes. A fine would turn the matter into a mere exchange of money.
“The ultimate judicial tool here is incarceration and it must be used,” Ngcukaitobi said.
“What will be counter productive is this suggestion that Mr Zuma should go to prison first, someone must then be sent to fetch him and bring him before the commission. He must then be asked, ‘Do you now want to speak or not?’ — that would be ineffective as a remedy.”
Commission secretary Itumeleng Mosala had in his application for a contempt ruling filed in February offered Zuma the escape clause of accommodating his testimony should the court opt to impose a suspended sentence.
But on Thursday, Ngcukaitobi said the fact that Zuma did not deign to file replying court papers proved that every form of suasion has failed.
His concession that the commission was no longer trying to secure Zuma’s testimony before its lifespan ends on 30 June 30 elicited a question from the bench as to why the matter should then be considered urgent.
“So the imminent termination of the commission’s mandate is irrelevant to this matter as far as this application is concerned and in terms of the relief the commission is seeking,” Justice Leona Theron said. “So why is this matter urgent?”
Ngcukaitobi said contempt of an ongoing nature must always be dealt with swiftly, but, in this case, any delay would allow the doubt Zuma has sought to cast on the authority of the courts “to percolate through the public body”.
There was also the real risk that Zuma would continue his tirades against the courts.
“They are egregious insults to members of the judiciary as a whole. But they are also made in a public and forceful way, akin to a campaign. That is another factor you should take into account,” he said in pleading for sentence.
Ngcukaitobi said he had combed through case law in search of precedent on an appropriate prison term, but found none because of the extreme nature of the contempt, in part because it was coming from a former head of state. “This case stands apart,” he submitted.
Theron asked whether any person did not have the right to criticise the Constitutional Court and whether it would be an infringement of Zuma’s right to free speech to consider his public statements as a further aggravating factor.
The advocate replied that anybody was free to criticise the court, but not to insult it.
Moreover, if Zuma wanted to defend his right in this regard, he could have come to court to do so.
“There is no one who is entitled to say that the judges have abandoned their green robes. No one is entitled to say that some judges have received money from Mr [Cyril] Ramaphosa. Nobody is allowed to say that the Constitutional Court has become a threat to democracy,” he said.
“Mr Zuma is not even here to complain about his freedom of speech. He is quite happy that he has made his remarks, because they fall in the category of political campaigns.”
Zuma’s failure to participate in the court process puts him at great risk of a contempt ruling, should the Constitutional Court agree with the commission that the matter falls under its jurisdiction because it would be misplaced to ask the high court to vindicate its authority.
There are four requisites for a contempt finding. The first three — namely that a court order was made, it was served and it was flouted — are not in dispute.
The last is that the defiance must be wilful or mala fides, and here the onus is on the respondent to cast reasonable doubt on the assumption that this is the case.
By ignoring two court deadlines earlier this month to file papers, Zuma failed to discharge this burden.