Mail & Guardian

‘Zuma’s contempt calls for jail’

Zondo commission’s legal counsel tells top court a suspended sentence would allow the former president to run rings around the inquiry — again

- Emsie Ferreira

Jacob Zuma was elsewhere on Thursday as the Constituti­onal Court reserved judgment on the Zondo commission’s plea to send him to prison for two years for contempt, its case arguably reinforced by his resolute absence from the legal process.

Legal counsel for the commission, Tembeka Ngcukaitob­i, said the court was compelled to punish Zuma’s cynical manoeuvrin­g to destabilis­e the legal order of a fledgling democracy and create a parallel political narrative to escape accountabi­lity for his actions as president.

“He has displayed a cynical attitude to accountabi­lity; he has created an environmen­t where he can escape in answering to his participat­ion in what is being investigat­ed and, therefore, the penalty of two years must reflect this court’s disapprova­l of this type of cynicism, particular­ly when it is executed by a person who was once president of this country,” Ngcukaitob­i said.

“Where matters stand right now, is that the public has been deprived [of] an opportunit­y to hear from Mr Zuma, to hear his version, to get an explanatio­n.”

Ngcukaitob­i confirmed, under questionin­g from the justices of the apex court, that the commission was no longer asking them to coerce Zuma to testify before the state capture inquiry.

Trying to achieve this through a suspended sentence would pose the risk of Zuma using the reprieve to run rings around the commission and turn the process into a public circus, he argued.

“It is quite clear that we are excluding coercion. The short answer is that, yes, we do not ask for his appearance — we are asking for his punishment.”

He was replying to a question from Justice Zukisa Tshiqi as to why the commission was not seeking a sanction that would serve the twofold purpose of forcing Zuma to testify and vindicatin­g the authority of the highest court.

It was worrying, she said, that the commission had abandoned all hope of Zuma appearing before it as this departed from its reason for first approachin­g the Constituti­onal Court in December last year.

The commission sought and subsequent­ly won an order compelling Zuma to respect any summons to testify and not to resort to silence on the witness stand.

Tshiqi said it would seem that imposing a purely punitive custodial sentence would be counterpro­ductive to this purpose.

Ngcukaitob­i countered that in December he had argued in court papers that it was unthinkabl­e that Zuma would defy an order from the highest court in the land, yet precisely that transpired when he flouted a summons to appear before the commission on 15 February and issued a diatribe against Deputy Chief Justice Raymond Zondo.

The applicatio­n for a contempt ruling was not concerned with defiance of a summons, but the more severe crime of defying the court’s order, he said.

In this regard a prison term would not be counterpro­ductive, because it would restore the authority of the court in the face of Zuma’s “false, unfounded” attacks in which he went

as far as accusing judges of taking bribes. A fine would turn the matter into a mere exchange of money.

“The ultimate judicial tool here is incarcerat­ion and it must be used,” Ngcukaitob­i said.

“What will be counter productive is this suggestion that Mr Zuma should go to prison first, someone must then be sent to fetch him and bring him before the commission. He must then be asked, ‘Do you now want to speak or not?’ — that would be ineffectiv­e as a remedy.”

Commission secretary Itumeleng Mosala had in his applicatio­n for a contempt ruling filed in February offered Zuma the escape clause of accommodat­ing his testimony should the court opt to impose a suspended sentence.

But on Thursday, Ngcukaitob­i said the fact that Zuma did not deign to file replying court papers proved that every form of suasion has failed.

His concession that the commission was no longer trying to secure Zuma’s testimony before its lifespan ends on 30 June 30 elicited a question from the bench as to why the

matter should then be considered urgent.

“So the imminent terminatio­n of the commission’s mandate is irrelevant to this matter as far as this applicatio­n is concerned and in terms of the relief the commission is seeking,” Justice Leona Theron said. “So why is this matter urgent?”

Ngcukaitob­i said contempt of an ongoing nature must always be dealt with swiftly, but, in this case, any delay would allow the doubt Zuma has sought to cast on the authority of the courts “to percolate through the public body”.

There was also the real risk that Zuma would continue his tirades against the courts.

“They are egregious insults to members of the judiciary as a whole. But they are also made in a public and forceful way, akin to a campaign. That is another factor you should take into account,” he said in pleading for sentence.

Ngcukaitob­i said he had combed through case law in search of precedent on an appropriat­e prison term, but found none because of the extreme nature of the contempt, in part because it was coming from a former head of state. “This case stands apart,” he submitted.

Theron asked whether any person did not have the right to criticise the Constituti­onal Court and whether it would be an infringeme­nt of Zuma’s right to free speech to consider his public statements as a further aggravatin­g factor.

The advocate replied that anybody was free to criticise the court, but not to insult it.

Moreover, if Zuma wanted to defend his right in this regard, he could have come to court to do so.

“There is no one who is entitled to say that the judges have abandoned their green robes. No one is entitled to say that some judges have received money from Mr [Cyril] Ramaphosa. Nobody is allowed to say that the Constituti­onal Court has become a threat to democracy,” he said.

“Mr Zuma is not even here to complain about his freedom of speech. He is quite happy that he has made his remarks, because they fall in the category of political campaigns.”

Zuma’s failure to participat­e in the court process puts him at great risk of a contempt ruling, should the Constituti­onal Court agree with the commission that the matter falls under its jurisdicti­on because it would be misplaced to ask the high court to vindicate its authority.

There are four requisites for a contempt finding. The first three — namely that a court order was made, it was served and it was flouted — are not in dispute.

The last is that the defiance must be wilful or mala fides, and here the onus is on the respondent to cast reasonable doubt on the assumption that this is the case.

By ignoring two court deadlines earlier this month to file papers, Zuma failed to discharge this burden.

‘The short answer is that, yes, we do not ask for his appearance — we are asking for his punishment’

 ?? Photo: Wikus De WET/AFP ?? Solidarity: Supporters of Jacob Zuma, the former South African president, listen to him speak following his appearance at the Zondo commission in Johannesbu­rg on July 15, 2019.
Photo: Wikus De WET/AFP Solidarity: Supporters of Jacob Zuma, the former South African president, listen to him speak following his appearance at the Zondo commission in Johannesbu­rg on July 15, 2019.

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