‘Lock him up’: Zuma’s contempt for the law
The commission has given up hope the former president will appear before it, and says the court must now protect the constitutional order
The Zondo commission’s latest papers to the Constitutional Court abandon all hope that former president Jacob Zuma could be coerced to assist the state capture inquiry. Instead, it says the very legal order is now at stake, and he must be locked up for menacing it.
When the apex court hears its application for a contempt order against the former president next week, the commission argued in a submission filed on Monday, it has no choice but to adjudicate the matter — rather than leave it to the high court where he could appeal — and to impose a hefty prison sentence.
“We submit that this is not an issue that needs to be decided: it is the authority of this court that has been directly placed under threat by Mr Zuma in his words and deeds,” the papers read. “The interests of justice require that this court exercise its own, undoubted jurisdiction to hear the matter.”
In January, the Constitutional Court granted the commission direct access, and an order compelling Zuma to respect a summons to testify, on the basis that it was in the public interest. The commission’s legal team says the same reasoning must apply.
Zuma’s response to that ruling has been more defiance, and more virulent attacks on the courts. He has predictably stopped participating in the court process, and turned Nkandla into a political court where he receives supplicants and assorted, makeshift allies. Two deadlines to file papers in reply went unmet.
From a legal point of view, the failure to file papers is foolish. It harms his case, because the onus was on him to cast reasonable doubt on the assumption that he is wilfully in contempt.
“The legal effect of his failure to file an opposing affidavit, however, is that all the facts alleged by the commission must be taken to be established,” the commission argues in its submission. “Mr Zuma has presented no evidence whatsoever to avoid the conclusion that his noncompliance was wilful and mala fide.”
There is no doubt in the legal fraternity that a contempt order must follow, should the court decide that the authority indeed lies with it.
It is far less certain what sanction the court could impose. The Commissions Act, which applies in this instance, provides for a fine or a maximum six-month sentence for defying a summons.
The secretary of the Zondo commission, Itumeleng Mosala, arrived at court asking for a two-year prison term by counting each of the five days in February when Zuma failed to appear as summonsed as a separate breach deserving of months in prison.
Mosala’s application was filed on 22 February, and spoke of accommodating Zuma should the court instead impose a suspended sentence to coerce him to testify.
Several tirades against the judiciary later, the commission no longer countenances the possibility that he might comply in its heads of argument, simply stating it “has not happened”.
“The purpose of suspension would, in any event, have been to allow Mr Zuma to purge his contempt, by complying. But this is pointless. Mr Zuma has made it clear that he is determined not to heed this court’s order.”
The commission says there is no applicable precedent in terms of sentencing because Zuma’s actions as a former president abused his political status to mock the court, thus posing a “unique and extreme case of contempt”.
Its gravity vis-à-vis public respect for the courts, as a cornerstone of the the constitutional order, could not be understated and must be punished swiftly and severely.
“The rule of law and the right of access to courts would be rendered meaningless if court orders could be ignored with impunity. If litigants could decide which orders they wished to obey and which they wished to ignore, a state of chaos and anarchy would ensue.”
It is plain from sources close to him that Zuma is betting that, politically, his arrest would be seismic.
But he is also known for bowing at the brink. Should he seek to submit an 11th-hour responding affidavit, the apex court could decide that it would allow such, again because it might be in the public interest. The lifespan of the commission ends on 30 June.
The court will reserve judgment on Thursday after hearing the application. It might be weeks before a ruling on access is handed down. If granted, it will be accompanied by the finding and any sanction.