Hurdles remain in quest to jail Zuma
Just after state capture commission chair Raymond Zondo announced he would approach the Constitutional Court for an order that Jacob Zuma be held in contempt, Zuma replied: “Of course he [Zondo] will get it.” But there are legal and factual requirements the commission must meet before the highest court can make such an order, writes Franny Rabkin.
Just after state capture commission chair Raymond Zondo announced he would approach the Constitutional Court for an order that Jacob Zuma be held in contempt, Zuma replied: “Of course he [Zondo] will get it.”
But there are legal and factual requirements the commission must meet before the highest court can make such an order.
The standoff between Zuma and Zondo has brought SA to a low point in its post-1994 history: a former head of state in flagrant breach of an order of the highest court to give evidence before a commission that Zuma himself established.
More shockingly, Zuma attacked the credibility of “some of” the judges of that court and other judges. Without naming them, he said they had “sold their souls” for political expediency. He even suggested — without evidence — that judges may have taken bribes.
When the contempt application came, the commission’s secretary, Itumeleng Mosala, was not playing. He asked for two years’ prison. The commission was not asking, in order to give Zuma a last chance to appear, for the order of imprisonment to be suspended, he said — “given the history of Mr Zuma’s recalcitrance and the limited time available to the commission to complete its hearing of evidence”.
The commission still has to persuade the court that it is the right court to grant the contempt order. The highest court has jurisdiction because it granted the original order, which Zuma breached. But the commission does not claim the Constitutional Court has exclusive jurisdiction and legal experts agree that other, lower courts could also have jurisdiction.
Mosala said it was in the interests of justice and appropriate for the top court to hear the contempt application, “given the very serious affront by Zuma to this court’s authority and integrity”.
He said Zuma had disobeyed the top court’s order, ignoring three summonses. He had not delivered affidavits in breach of directives. He had also attacked “the integrity of this court and its members”.
The Constitutional Court has set a high bar for hearing applications directly. A breach of its order by a former head of state is already unprecedented. Zuma’s statements that followed may, however, push the alleged contempt into the kind of exceptional circumstances that would persuade the highest court to decide the application.
On the other hand, where a person’s liberty is at stake, the court might be cautious about making a punitive order of imprisonment against which there is no appeal.
The commission will also have to persuade the court that the application is urgent.
In its December application, the point was to get Zuma before the commission to answer questions and the lifespan of the commission was fast drawing to a close. But now the commission seeks a “punitive order” as opposed to a coercive one.
The point is to punish him for not coming. This could presumably happen at any time. Unless the court decides to give Zuma one last chance, the urgency will disappear.
If the court suspends the order, the urgency returns: even though the commission went to court and obtained an extension of its deadline to the end of June, it wants to use its last months for writing its report.
There were other grounds of urgency claimed by Mosala. He said Zuma’s conduct posed a threat to public trust in the judiciary. “As former president ... Mr Zuma is expected to set an example by his words and conduct ... When Mr Zuma undermines the integrity and authority of this court, and the judicial system as a whole, there is a grave risk that he will inspire others to do so.”
The statement proved prophetic. Days later another witness due to testify at the commission, Auswell Mashaba, defied a summons.
Mosala said Zuma’s defiance was continuing; there may be more public attacks, there may be more defiance of court orders by others. “A delay in hearing the application means a delay in the court vindicating its honour and authority,” he said.
If the highest court does entertain the application, the commission must still show, beyond reasonable doubt, that Zuma was in wilful and bad faith breach. Here the position taken by Zuma will be crucial.
The Constitutional Court said this week that the application will be heard on March 25 and that answering affidavits, “if any”, should be filed by Monday.
Last time Zuma declined to participate. Questions this week to his attorney, Eric Mabuza, on whether Zuma will participate this time went unanswered.
However, in contempt applications the applicant — in this case the commission — must show the court that the alleged contemnor (Zuma, the person treating the order with alleged contempt) knew about the court’s order and failed to comply. It’s an easy task since Zuma has made public statements on his defiance.
Then it falls to Zuma to bring evidence that this was not done wilfully or in bad faith. If Zuma chooses once again not to participate, it is tickets for him. His “of course he will get it” will be a self-fulfilling prophecy.
THE COMMISSION STILL HAS TO PERSUADE THE COURT THAT IT IS THE RIGHT COURT TO GRANT THE CONTEMPT ORDER
A DELAY IN HEARING THE APPLICATION MEANS A DELAY IN THE COURT VINDICATING ITS HONOUR AND AUTHORITY