/ 8 July 2021

Zuma goes to prison as the clock ran down on ConCourt order to effect warrant

Safrica Corruption Politics Zuma
Former president Jacob Zuma. (EMMANUEL CROSET/AFP via Getty Images)

After a tense standoff outside his Nkandla home, Jacob Zuma was taken to the Estcourt correctional centre in KwaZulu-Natal on Wednesday night, minutes before the expiry of a court deadline for the police to arrest the former president who was sentenced to 15 months in prison for contempt.

After signalling defiance but running out of legal options, the Mail & Guardian understands that Zuma agreed to cooperate with the authorities at the 11th hour after police commissioner Khehla Sitole visited him at home in Nkandla to defuse a looming constitutional crisis.

He relented in an effort to avoid violence, supporters of the former president said.

Earlier in the evening, police vehicles amassed near Zuma’s homestead and the air force placed a helicopter on standby to fly him to Durban. 

But in the end, there was little of the threatened drama. Just after 11pm an escort of black official vehicles was seen leaving the homestead. And this is when Zuma is believed to have been transported to the prison.

Police Minister Bheki Cele and commissioner Sitole were ordered by the Constitutional Court to arrest Zuma in the likely event that he failed to hand himself over to the authorities by midnight on Sunday 4 July at the latest.

Last week Justice Sisi Khampepe signed a Constitutional Court warrant for Zuma to be taken to the  Westville prison in Durban.

She penned and delivered last week’s apex court ruling that found Zuma in contempt for defying an order by the same court in January that he comply with directives from the Zondo commission to testify on his alleged role in state capture, and launching a string of attacks on the integrity of the judiciary.

Zuma last Friday lodged an urgent application with the Pietermaritzburg high court to stay the warrant of arrest. It was heard on Tuesday and judgment is due to be delivered by Judge Bhekisisa Mnguni on Friday.

On the same day, he filed an application with the apex court for rescission of the contempt order and sentence.

But neither application absolved Cele and Sitole of an express order from the apex court to arrest Zuma before midnight on Wednesday in the predictable event that he failed to hand himself over by the same time on Sunday.

Zuma went the opposite route, telling a crowd of supporters at Nkandla that the court ruling sought to turn him into the country’s first political prisoner since the end of apartheid. 

In an answering affidavit to the Constitutional Court, the Zondo commission said Zuma’s rescission application was a doomed attempt to distort not only the law but the facts of the matter. 

The commission insists that he does not meet the threshold set in rule 42 of the Uniform Rules of Court, read with rule 29 of the constitutional court, for rescission as these allow the apex court to rescind or vary “an order erroneously … granted in the absence of any party affected thereby.”

Itumeleng Mosala, the secretary of the commission, denies that Zuma was absent from the court process, saying his prior conduct made plain that instead he elected to snub the court.

“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.”

Mosala says it was spurious for Zuma to claim that he had a right to express his disdain of the court’s January ruling that he appear before the commission. 

“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.”

Zuma’s application to the high court is similarly fraught with difficulty.

It is doubtful that he has managed to persuade the court that it has the jurisdiction to alter an order of the apex court.

On Wednesday evening, the former president belatedly directed himself to the only court that could come to his assistance by sending a letter to the Constitutional Court.

In the missive, Zuma asked the court to vary its order for his arrest pending the ruling on Friday of the high court, or the apex court’s own ruling on his application, filed last Friday, that it rescind his sentence.

Zuma faced a hurdle to filing a formal 11th-hour application to the Constitutional Court in that he already had an application for a stay pending before the high court. 

Cele and Sitole earlier this week wrote to the office of the chief justice saying they would not give effect to the warrant of arrest, pending the outcome of the former president’s court applications. 

But in the absence of ruling, they risked finding themselves in contempt of the Constitutional Court if they failed to effect the warrant by midnight.