Zuma should be in jail now, Zondo lawyer tells high court

Former president Jacob Zuma’s application for a stay of arrest and his attempt to challenge the constitutionality of the law on contempt are definitively beyond the jurisdiction of the Pietermaritzburg high court, counsel for the Zondo commission into state capture argued on Tuesday.

Moreover, advocate Tembeka Ngcukaitobi SC stated in the Pietermaritzburg high court, Zuma has in the interim again defied an order of the Constitutional Court, which last week sentenced him to 15 months in prison for contempt of the commission.

“The date on which he should have handed himself over to the police has lapsed,” Ngcukaitobi said.

“Let me state right now that in addition to the conviction that was delivered on the 29th of June, Mr Zuma has not complied with paragraph five, he has not handed himself over to the police.”

“The date on which he should have handed himself over lapsed on Sunday. It is now two days after the lapsed period … He has again taken the law into his own hands. He is presently in defiance,” the commission’s lawyer added.

It was a matter of profound concern that Zuma was in the habit of attempting to place himself outside the ambit of the legal system, he added.

Ngcukaitobi was opposing Zuma’s urgent application before the high court that his warrant of arrest, signed by Constitutional Court Justice Sisi Khampepe, be stayed pending the outcome of the former president’s application for a rescission of sentence.

Tuesday’s protracted argument, for the most part by Zuma’s counsel advocate Dali Mpofu SC, centred around the former president’s case that the high court has jurisdiction in a matter settled by the highest court in the land.

Mpofu argued that this was essentially an unopposed urgent application for an interdict staying a warrant of arrest, because the two parties opposing it — the Zondo commission and the Helen Suzman Foundation — were not directly implicated whereas the minister and national commissioner of police were.

The latter have taken the extraordinary step of informing the office of the chief justice that they would not act on the Constitutional Court’s majority judgment pending the outcome of Zuma’s application to the apex court for recession, or fresh directives to the contrary.

That matter will be heard next Monday.

According to the commission, the time and place for Zuma to challenge the constitutionality of the law in terms of which he earned himself a 15-month sentence was before the apex court. 

The high court lacked the power to intervene, Ngcukaitobi argued, and a rescission application translated into automatic suspension of the order of the higher court.

In this context, he said, the letter from the police asking the Constitutional Court for clarity was nonsensical as no such letter was required. 

“Unless the police themselves obtain an order stopping themselves, and at this time we cannot be too critical of the police because their deadline lapses tomorrow. So Mr Zuma refused, and it is clear that it was a deliberate refusal, it was not an error or a mistake on his part — it was a deliberate refusal that he did not hand himself in to the police on Sunday. He just did not do it,” Ngcukaitobi said.

But moreover, he added, Zuma had made a public statement denouncing the very idea of his arrest.

“So we are in fact [in] a situation as grave as that we have a person who has explicitly told the public that he will just not go [to jail]. The law on the other hand, is clear-cut. The fact that you have instituted a rescission application, the fact that it has been accepted for a hearing, is not a guarantee that you should not comply.”

In its papers to the court, the commission has argued that Zuma’s last-ditch attempts to avoid prison in themselves constituted a further abuse of the legal process, already demonstrated by his scurrilous attacks on the authority of the courts in response to the Zondo commission’s efforts to bring him to answer to evidence implicating him in state capture.

Ngcukaitobi said there was ample reason why the order should be summarily enforced. It would place the rule of law in doubt if the finality of an order of the highest court could be placed in doubt and revisited in a substantive way, or if parties were simply free to approach courts repeatedly on the same matter.

Similarly, if they were free to choose which orders they saw fit to comply with, or not.

“Imagine the implications for the rule of law,” he said.

The bottom line was that the rescission order, unlike an appeal which is beyond bounds with a Constitutional Court ruling, remained binding. Police Minister Bheki Cele and national police commissioner Khehla Sitole, in their letter through the state attorney, acknowledged as much.

What will happen on Wednesday remains moot as Judge Bhekesisa Mnguni reserved judgment until Friday, after hearing a verbose reply from Mpofu.

Mpofu attempted recourse to section 172 of the constitution to make the case that the high court had exclusive jurisdiction in a constitutional challenge, and hence the power to stay an order, even that from a superior court, pending ruling of such.

Not so, said Ngcukaitobi. 

“This challenge to the Criminal Procedure Act is a hopeless challenge … We are dealing with a repetitive, recalcitrant lawbreaker in the form of Mr Zuma. He has now come to ask you in assisting him to break the law further. You should reject that,” he said.

He said Mnguni should reject the application to stay an order of a superior court because Mpofu’s version of section 172 was recklessly flawed as it did not confer jurisdiction where none was inherent in the first place.

If Zuma was now drawing “some inspiration from the police” for further defiance, it should not be countenanced.

“In situations as difficult as the current situation — Mr Mpofu spoke about security concerns — but it is precisely in situations [such] as this that the law needs to be expressed clearly and the law needs to be pronounced without ambiguity … the judiciary needs to speak without ambivalence,” Ngcukaitobi said.

He said if the courts were not dealing with a case as fraught with external factors, it would be clear from the outset that the application merited summary dismissal.

Zuma has sought, including in a statement on Sunday, to transform himself into a political prisoner, telling supporters that he was about to become the first person in post-apartheid South Africa to face a prison sentence without a fair trial.

But counsel for the Helen Suzman Foundation, advocate Max du Plessis SC, said the Constitutional Court had deliberated and pronounced firmly on the rights of those allegedly in contempt of court orders under the constitution and it was the end of the line for the former president.

Zuma has submitted somewhat dramatically that his arrest would pose a grave security threat and, more realistically, that the letter from the police minister and commissioner would not have been drafted without the tacit consent of President Cyril Ramaphosa.

The Constitutional Court is due to hear the rescission application on Monday 12 July.

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