Jacob Zuma’s plea to the high court in Pietermaritzburg to stay the execution of the constitutional court’s order of arrest failed, “unsurprisingly” as the judge put it, because it lacked jurisdiction to hear the matter in terms of the hierarchy of the court system.
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The next chapter in the protracted legal saga will play out on Monday when the constitutional court hears the former president’s application to have both his conviction and sentence for contempt rescinded. But he faces more hurdles in the apex court.
The papers filed by Zuma’s counsel in constitutional court in the past week to perhaps try to push the boundaries of precedent further still than the arguments he put up in the high court.
His application is fraught in that it relies on rule 42 (1)(a) of the Uniform Rules of Court, which allows for a court order to be rescinded if it were “erroneously granted in the absence of any party affected thereby”.
But, as the Zondo commission into state capture says in its heads of argument, this is not a textbook case of absence because Zuma was not someone who was unaware of the court process — he was one who deliberately, expressly, distanced himself from it.
Nor, it argues, do his papers point to a factual mistake in the judgment that, had the court been aware of it at the time, means it would not have handed down a 15-month sentence for contempt.
Zuma’s stated reasons for not taking part are well-known. These include that he relied on poor legal advice to the effect that he did not have to obey an earlier order to testify before the commission and that he could not afford to spend more money on lawyers to act for him in the apex court while he is fighting corruption charges in the high court.
But in paragraph 40 of his papers, there is also the admission that he did not bother to oppose the commission’s application to have him imprisoned for contempt because he did not think it would be heard, never mind succeed.
“I was advised that the test for urgency was high, and in all probability, the court would reject the application for lack of urgency given the inexplicable delays on the part of the commission,” he writes.
“Over and above the urgency issue, I was told that the established test for direct access to the Constitutional Court was too high to be met on the facts.”
In other words, he gambled that he could defy a court order, break the law in the process and get away with it.
Zuma goes further to say that he trusted that even if the court heard the case, the court would be rigorous and “separate the wheat from the chaff”.
Counsel for the Zondo commission, advocate Tembeka Ngcukaitobi, says Zuma is not only unable to point to an error on the court’s part that would merit rescission but he is again insulting the integrity of the court by implying in his case it was unable to think clearly.
He argues that the former president tries to abuse the rescission process to mount an appeal where none is allowed because apex court orders are final.
“This is not a genuine application in vindication of the rescission procedure. It is a thinly disguised appeal against the court’s judgment. But as has become the hallmark of Mr Zuma’s litigation strategy; he has continued vilifying the court and its decisions.”
In simple terms, the error Zuma alleges is that the majority judgment is wrong and the minority judgment, which held that a purely punitive prison term was unconstitutional, was correct.
He invokes sections 12 and 34 of the Constitution to argue that he was not granted a fair hearing, and is therefore being imprisoned without trial.
“The proposition is untenable in law. But it is also irrelevant for purposes of recession. A recession is not an opportunity to re-enter the merits and disclose a possible defence. An applicant must point to an error in the judgment. It is not an error to reject an argument,” the Zondo commission counters.
“Here the court rejected the argument that an order of imprisonment would amount to imprisonment without trial.”
These arguments by the former president also underpinned his attempt to challenge the constitutionality of the law on contempt in part B of his high court application.
Judge Bhekisisa Mnguni refused to entertain it, saying case law, notably the Fakie judgment in the supreme court of appeal, made plain that civil contempt procedures survive constitutional scrutiny in the form of motion court applications.
Ngcukaitobi returns to the case law and says Zuma confuses section 12 of the Constitution with section 35(3), and his right not to be deprived of his freedom without fair process in terms of the former was respected.
The argument as to whether those alleged to be in contempt fall into the category of an accused entitled to the protection afforded by section 35 has been settled by the courts, and the precedent also refutes Zuma’s complaint that a process was tailored to victimise him politically.
“All these judgments were not written with Mr Zuma in mind. They are part of South African law. They were applied to Mr Zuma.”
There is a less technical contention in Zuma’s papers that could harm his cause. He insists that he was right not to testify before the Zondo commission, and to defy the court’s initial order in January that he does so.
“So I did not comply with the orders of the constitutional court because I believed that they were unlawful,” he submits in paragraph 54.
“To issue an order that I should appear before a biased commission of inquiry and to obey its instructions was fundamentally flawed.”
This refrain is proof of continued contempt and the futility of his application to have his sentence set aside, the Zondo commission says, as was his refusal to hand himself over to the police this past Sunday, at the latest, to start his sentence.
Apart from the rescission application, the apex court will be confronted with another bid by Zuma to be spared prison pending its ruling. His replying affidavit, filed before Mnguni ruled on his high court application, suggests that if that did go against him, he would ask the constitutional court for an interim release order.
Zuma was arrested minutes before midnight on Wednesday, and taken to the Estcourt Correctional Centre. On Saturday afternoon, the presidency issued a statement calling for calm in KwaZulu-Natal as protestors demanding he be freed set alight trucks and forced the closure of the N3.