Jacob Zuma’s application for rescission of his prison sentence for contempt is a vexatious attempt to avoid prison devoid of any basis in law, the Zondo commission asserts in its answering affidavit filed to the constitutional court.
It sees the former president attempting to not only distort the law and the facts of the case but aggravating the contempt that earned him a 15-month sentence, the secretary of the commission, Itumeleng Mosala, argues.
“Mr Zuma has failed to make a case for rescission. In addition, his application has repeated the gross insults to which this court has been subjected.”
The commission insists that Zuma does not meet the threshold set in rule 42 of the Uniform Rules of Court, read with rule 29 of the constitutional court, for a rescission application as these allow the apex court to rescind or vary “an order erroneously … granted in the absence of any party affected thereby.”
Mosala denies that Zuma was absent from the court process.
“Mr Zuma cannot show that the order sought was granted in his absence. Nor can he argue that it was erroneously sought or granted,” he says. “Mr Zuma was a party to the proceedings that resulted in the order he now seeks to rescind. He was duly served with all court papers and he chose not to participate in those proceedings.”
The commission says Zuma’s stance was wilful, that it was asserted in terms that insulted the court and that attempting to blame it on poor advice from his erstwhile lawyers was not only a skewing of the facts but irrelevant to his rescission bid.
“He was not a bewildered litigant but a former president with access to legal representation … Mr Zuma chose the lawyers who represented him. He cannot shift the blame to them at this stage.”
His attorney of record, Eric Mabuza, in writing to the court to say Zuma would not participate in the proceedings, nowhere raised a lack of funding and his client’s public statements make plain that he chose not to do so because he doubted the integrity of the court.
The commission dismisses Zuma’s denial in his papers that he made scandalous attacks on the highest court.
“Those were my views and I should not be imprisoned because I held a wrong opinion or view or belief,” Zuma wrote in his founding affidavit for the rescission application filed to the court on Friday.
“Mr Zuma is clearly not prepared to retract any of the statements made,” Mosala observes.
He notes that in paragraph 54 of his founding affidavit, Zuma says although it was regrettable that his statements about the apex court appear insulting, “I am entitled to express strong views against an oppressive system”.
He further insists that the court’s January order for him to obey the summons served on him to testify before the commission was flawed.
Mosala says this sees the former president literally taking the law into his own hands, and he should accept the consequences for doing so.
“That Mr Zuma repeats his intentional decision to disobey the order of the constitutional court shows beyond any doubt that Mr Zuma is beyond redemption.”
He refers to Zuma’s public statement at the weekend that he would not comply with the court order to hand himself over by Sunday, and his likening of the court to the apartheid judiciary.
“He made it abundantly clear that he will not go to prison, no matter what. It is accordingly clear that the real issue is that Mr Zuma simply wants to avoid prison.”
His application to the court camps on this position, Mosala says, because nowhere at all does it indicate he is prepared to heed the order. “This simply aggravates his crime of contempt.”
The constitutional court will hear Zuma’s application on Monday.
The high court in Pietermaritzburg will on Friday rule on his application for stay of execution of the warrant for his arrest. The constitutional court ordered the police minister and national commissioner of police to give effect to it on Wednesday at the latest in the event that Zuma failed to report willingly.
This means that Minister Bheki Cele and commissioner Khehla Sitole will find themselves in contempt of a court order if they fail to act. They have sent a letter to acting chief justice Raymond Zondo saying they will hold off pending the outcome of the rescission application, or further instructions.
But in argument to the high court on Tuesday, the commission’s counsel, advocate Tembeka Ngcukaitobi, described the letter as nonsensical.