The Pietermaritzburg high court will on Tuesday morning 6 July hear former president Jacob Zuma’s urgent application to have his warrant of arrest stayed, pending the outcome of his application to the Constitutional Court for the rescission of his 15-month jail sentence for contempt.
The matter has been allocated to Judge Bhekisisa Mnguni and will be heard virtually.
The Zondo commission investigating state capture is arguing that the high court lacks the jurisdiction to entertain the application, as it only has the power to stay or suspend its own orders, not those of a higher court.
“It cannot rescind, vary or stay the execution of orders by any other court, particularly a higher court,” the commission said in its answering affidavit filed to the court on Monday 5 July, inviting Zuma to direct himself to the correct court.
The commission contended that Zuma’s last-ditch efforts to escape the prison sentence handed to him by the apex court for contempt last week for defying its January order that he cooperate with the state capture inquiry was part of a pattern of abuse of the judicial system by the former president.
“This application within the context of its full factual history reveals that it is a continuation of the pattern of abuse by the applicant of the court process. Courts should not entertain such abuse any longer,” the commission urged.
“The natural flow of what the applicant proposes is a situation where courts interfere with and undermine each other’s orders, under the guise of exercising their inherent powers. That cannot be.”
Zuma’s high court application is twofold. He is also attempting to challenge the constitutionality of the law on contempt, but here too the commission counters that the court should not entertain it.
It argues that Zuma had every opportunity to raise his arguments in this regard to the apex court. Instead, he elected not to file papers and issued a string of highly politicised missives in which he scandalised the court and the judiciary as a whole.
His attorneys of record at the time notified the court that their client would not be participating in the process “at all”.
Zuma’s bid to raise constitutionality belatedly, and in a lower court, clearly seeks to draw on the Constitutional Court’s minority judgment by Justice Leona Theron.
Theron noted that an unsuspended, purely punitive order of imprisonment, in the context of a civil contempt matter, was unprecedented and in her view violated sections 12 and 35(3) of the constitution.
The commission had in its pleadings made plain that it had abandoned all hope that Zuma could be compelled to appear before it to answer allegations of his involvement in state capture and said it believed a coercive sentence would be futile. The Constitutional Court majority concurred that it would be naive to think a suspended sentence could produce the desired effect.
The commission insists that Zuma is bound by the majority judgment, that the minority ruling does not in any way ground the prima facie right he seeks to assert, and that he has no recourse to the high court.
“I deny that the applicant’s constitutional rights are at stake. He has had ample opportunity to assert his constitutional rights and elected not to do so,” commission secretary Itumeleng Mosala states in the answering affidavit.
“In the context of this case, the Constitutional Court must be left to assert its authority, as well as to deal with the applicant’s persistent attempts to undermine that court and the judicial system as a whole.”
Zuma on Sunday July 4 told supporters at his Nkandla homestead in KwaZulu-Natal that the Constitutional Court ruling would see him become the first person in post-apartheid South Africa to be sent to prison without a trial, and went on to ignore the court’s deadline to hand himself over to the authorities by midnight.
The minister and national commissioner of police now have until midnight on Wednesday to effect his arrest, as per the court’s order, barring an intervention by the high court.
Zuma’s application for rescission will be heard by the apex court on Monday 12 July.
It was filed in terms of rule 42 of the Uniform Rules of Court, but the state capture commission argues that it fails to satisfy the test for rescission as he would need to show that the court order was sought or granted in error, and in his absence.
“Absence from the proceedings under that rule means that the party simply did not know about the proceedings,” it says.
Zuma is instead blaming his absence from the process on poor legal advice and being too poor to brief new counsel. He also contends that, at 79, his health is so precarious that a jail term could be a death sentence.