No more rush for Concourt’s Zuma ruling
The commission’s deadline is irrelevant, as it has abandoned hope of compelling Zuma to testify
The Zondo commission has many imperatives to fulfil in coming weeks, or more likely months, should it secure an extension until the end of September, but reaching finality in its legal battle with former president Jacob Zuma is not foremost among them.
The commission conceded in argument before the Constitutional Court in March that it had abandoned hope of compelling Zuma to testify, hence it was not asking the court for a prison sentence suspended on condition that he complies with a future summons after flouting those ordering him to appear in January and February. “The short answer is that, yes, we do not ask for his appearance — we are asking for his punishment,” advocate Tembeka Ngcukaitobi SC said in reply to a question from Justice Zukisa Tshiqi.
She had raised concern that the commission was departing from the aim with which it first approached the court on an urgent basis in December last year.
The next month, albeit 10 days after a first summons for Zuma to appear came and went unheeded on 18 January, Justice Chris Jafta handed down a ruling making it an order of the court that Zuma respect any summons served by the inquiry.
When Zuma breached the next summons in February, the commission returned to court with an application that he be found in contempt and punished with a two-year prison sentence for violating the integrity of the court and undermining the rule of law. “The ultimate judicial tool here is incarceration and it must be used,” Ngcukaitobi said. This approach means the nearing end of the lifespan of the commission is irrelevant to the ruling.
Ngcukaitobi pleaded though that the matter remained urgent, because a delay may see Zuma redouble his attacks on the judiciary and allow the doubt he had cast on the authority of the court to “percolate through the public body”.
But the highest court rarely treats matters as urgent. It has stressed that sitting en banc (with the entire bench) makes it ill-suited to this and that, moreover, it is not desirable that issues of importance and complexity be determined in haste.
In the Zuma case, the legal question before it is far from complex. The first three requirements for a contempt order are in place — a summons was issued, it was served on the respondent and he failed to comply.
The onus was on him to cast reasonable doubt on the existence of the fourth — namely that he acted wilfully and in bad faith. The former president did not discharge this burden, not having deigned to oppose the application.
But the relief sought is unprecedented in that the Constitutional Court has never, in a case in which it granted direct access, handed down a sentence of direct imprisonment.
“The question may be simple, but the answer is not,” a senior jurist, who asked to remain anonymous, told the Mail & Guardian. He dismissed the argument that there is urgency in law, saying it lies rather in the public interest in the matter, but the absence of a ruling may indicate that the judges are divided as they grapple with the wisest sanction to impose in a matter that belonged more comfortably in a lower court.
Having heard the matter on an expedited basis does not compel the apex court to rule in similar manner, nor does it have to confine itself to the remedy the commission sought.
Here the prospect of the Pretoria high court granting Deputy Chief Justice Raymond Zondo three more months to conclude the state capture inquiry may, in theory, allow for a ruling aimed at securing his testimony.
The contempt application relied not on Zuma’s breach of summons, but on a court order that he comply with the directives of the commission, and sentence could be suspended on condition of him not doing the same for a prescribed time.
Lawson Naidoo, the executive secretary of the Council for the Advancement of the South African Constitution, said public interest demanded a swift ruling. “It is unacceptable that it is taking so long on a matter that was heard on an urgent basis,” he said.
But suggestions that the court is cowed by the thought of what Zuma’s supporters may wreak are silly. Its 2016 ruling that he failed to uphold
the Constitution and was liable for improvements to his home in Nkandla refers.
Conspiracy theories merely further Zuma’s aim of undermining faith in the judiciary, one legal expert said.
But constitutional lawyer Dan Mafora said the court placed itself in a corner by hearing a matter, on an urgent basis, then remaining silent for three months, whereas, had the case gone to the high court first, its likely eventual intervention would have been less fraught.
“There are a lot of things at play … Now they are in a bind where they acted too early and whatever they do, given how the optics of this will be cast politically, they are not going to look good,” Mafora said. “But the commission has also gone about securing his [Zuma’s] attendance in a roundabout manner and it has tried to get as many bites of the cherry as possible.”
In its January ruling, the court criticised the commission for what it termed its “maladroit conduct” in not serving summons on Zuma sooner, but held that this was not decisive of the interests of justice issue.
Political analysts have been kinder to Zondo, saying he knew that when he issued summons, Zuma would respond with defiance and he would eventually be forced to bring criminal charges and seek a contempt order. He also knew that he needed to try everything to secure Zuma’s version to counter his inevitable claim of unfairness when the com
mission’s report is written without it. The commission has laid criminal charges against Zuma under the Commissions Act for breach of summons thrice, but this approach has not met with haste either.
The case was assigned to the Hawks, who completed the investigation and handed the docket to the National Prosecuting Authority for a decision months ago.
The commission is encountering wider criticism for not having concluded its work after three years. This was addressed directly by Zondo as he announced that he was seeking a further extension to allow six more, as yet unnamed, witnesses to testify.
“I will not end the work of the commission in an irresponsible manner. I am going to repeat that. I will not end the work of the commission in an irresponsible manner just because I want to satisfy those who demand that the commission should finish its work,” he said.
To date, he has heard oral evidence from about 300 witnesses at a cost nearing R1-billion. If the list will never include the former president and the Gupta family, new evidence is vindicating Zondo’s persistence and with time on his side, public opinion may follow.
Testimony by Shadow World investigator Paul Holden this week linked Nkandla and Saxonwold as it emerged that money laundered by the family’s front companies went towards Zuma’s legal fees in the arms-deal case.
‘Now they are in a bind: they acted too early and whatever they do, given how the optics of this will be cast, they are not going to look good’