The Zondo commission argues in papers to the Pietermaritzburg high court that the court lacks the jurisdiction to stay the warrant of arrest for Jacob Zuma, and that his application for rescission of his 15-month sentence for contempt of the commission is spurious.
“This court lacks the requisite jurisdiction to entertain this matter,” the secretary of the commission, Itumeleng Mosala, states in an answering affidavit to Zuma’s application.
The commission indicated on Friday — as Zuma turned to the courts in a last-ditch attempt to avoid prison — that it would oppose the relief sought.
It says that while the high court has the power to stay or suspend court orders, its power to do so is limited to its own orders, and by filing the application Zuma is simply trying to delay the inevitable reality of going to jail.
“It [the high court] cannot rescind, vary or stay the execution of orders issued by any other court, particularly a higher court,” Mosala states.
Since Zuma was found guilty of contempt of court and handed a punitive sentence by the apex court, he has no possibility of appeal. Instead his legal team has moved for rescission, invoking rule 42 of the Uniform Rules of Court.
But the commission argues that he 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.”
But this was not Zuma’s case. He deliberately excluded himself from the court process by failing to file papers.
“That election places him outside the scope of the rule 42 rescission,” the commission says.
It means that not only does Zuma’s application not get out of the starting blocks, but it amounts to an attempt to perpetuate a pattern of abuse of the courts, it adds.
“Courts should not entertain such abuse any longer.”
In the second part of his application to the high court, Zuma argues that the law on contempt itself is unconstitutional. He elaborated on this premise in a statement to supporters in Nkandla on Sunday, making the wild claim that he will be the first person in post-apartheid South Africa to be sent to prison without a trial.
“I further deny that the applicant’s constitutional rights are at stake,” Mosala says.
“He has had ample opportunity to assert his constitutional rights and has deliberately elected not to do so. The only inference here is that he is abusing the processes of this court to avoid going to prison.”
In his papers to both the Constitutional Court and the Pietermaritzburg high court, Zuma pleads ill-health, penury and poor legal advice.
He says that finding himself out of pocket, he chose to prioritise briefing lawyers to defend him in his corruption trial and as he also feared incurring another order for costs, having been punished with several by various courts of late.
But Mosala counters that this is a selective reading of recent history, because Zuma did not simply fail to defend himself on the contempt charge, he actively set about attacking the integrity of the highest court.
“I deny that the applicant’s approach to the proceedings before the commission and the Constitutional Court was informed only by legal advice which he accepted with no question.”
Handing down judgment on Tuesday 29 June, acting Deputy Chief Justice Sisi Khampepe said Zuma’s egregious attacks on the authority of the judiciary had compelled the court to sanction him and served as an aggravating factor.
The court gave Zuma until Sunday 4 July to hand himself over to start his sentence. Failing that, it gave the minister and national commissioner of police until Wednesday 7 July to arrest him.
Khampepe signed an arrest warrant ordering that Zuma be detained at the Westville prison in KwaZulu-Natal.
The high court is expected to set down his application for Tuesday 6 July. Should it refuse to entertain it, the police would be in contempt of the order should they not move to arrest him. Zuma on Sunday made plain that he had no intention of going to prison willingly.
In his papers to the Constitutional Court, Zuma suggested that prison could kill him, given his age and poor health. The apex court issued a directive on Saturday that it would hear the matter on 12 July.