The minister and the national commissioner of police have submitted a letter to Acting Chief Justice Raymond Zondo saying they will not act on the Constitutional Court order to arrest former president Jacob Zuma pending the outcome of his bid to rescind his 15-month sentence.
“It is our clients’ view that the pending litigation has a direct impact on the action which they should take in terms of the court order,” the state attorney said in the letter, sent on behalf of Minister Bheki Cele and police commissioner Khehla Sitole.
“In view of the unique situation presented by the development and the legal matrix involved, our clients will, out of respect of the unfolding of litigation the processes [sic], hold further actions they are expected to take in terms of the honourable court’s order, in abeyance.”
Alternatively, they continue, they will act on any “directions the honourable acting chief justice may possibly issue regarding the conduct of the litigation or any other relevant matter related to the litigation”.
The letter was attached to an affidavit Zuma filed to the high court in Pietermaritzburg, which will on Tuesday 6 July hear his urgent application to have a warrant for his arrest stayed pending his application to have his sentence rescinded.
The Constitutional Court gave Cele and Sitole until midnight on Wednesday to ensure Zuma’s arrest, and should the high court dismiss his application, they will technically find themselves in contempt if they fail to do so.
They acknowledge that the rescission application is not an appeal, which would have suspended the court’s ruling, but argue that the circumstances of Zuma’s case are exceptional.
The commission is opposing the urgent application by Zuma, to be heard later on Tuesday, to have his warrant stayed pending the outcome of his rescission application filed to the Constitutional Court last week.
It argues that the high court lacks jurisdiction to stay or alter a ruling handed down by a higher court.
Zuma not only contests this, but seeks to use the letter from the minister and the commissioner to argue that his order should be granted unopposed.
He argues, disingenuously, that while the Zondo commission is the litigant that secured his sentence for contempt, it does not have a direct interest in the outcome of his urgent application and therefore lacks standing to oppose the relief.
The same applies to the Helen Suzman Foundation, which was a friend of the court in the Constitutional Court, and also filed papers opposing his high court application.
Zuma says the minister and commissioner of police have a “direct and pertinent interest” in the matter and have taken a sensible approach not to oppose his bid to avert arrest given the security threat it plainly poses. He adds that they would not have adopted this approach without consulting President Cyril Ramaphosa.
“This sensible approach of the relevant state institutions is therefore commendable, especially when contrasted with the self-serving and naive approach adopted by the opposing parties, which can only be described as vindictive busybodies.”
He adds: “The only basis on which the commission seeks the immediate enforcement of the committal orders is to gloat and brag.”
Zuma describes the gathering of supporters outside his home at Nkandla in KwaZulu-Natal at the weekend in dramatic terms, warning that if he were arrested this could lead to “another Marikana massacre situation”.
“There must be very good reasons to do with security issues and the public interest why the ministers, the commissioner and the president have taken a sensible approach to oppose the relief sought in this matter,” he adds.
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.
In his affidavit, he accuses the commission of failing to deal with part B of his application, and insists that it falls within the exclusive jurisdiction of the high court.
The commission disagrees, arguing that Zuma’s opportunity to argue that the time and place to argue that his constitutional rights were being violated was before the Constitutional Court when it heard its application for a contempt order and that he chose not to do so.
Zuma’s application for rescission will be heard by the Constitutional 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.
Zondo became acting chief justice last week, since outgoing Chief Justice Mogoeng Mogoeng is on leave. He will recuse himself from the rescission application since, as the chairman of the eponymous commission, he was the litigant in the contempt matter.