Sunday Times

An unpreceden­ted ask to Concourt on Zuma

Zondo says only jail time is appropriat­e for defiance

- By FRANNY RABKIN

At the Constituti­onal Court on Thursday, the state capture commission was unequivoca­l that it had abandoned all hope of getting former president Jacob Zuma to give evidence before it. “We do not ask for his appearance. We ask for his punishment,” said Tembeka Ngcukaitob­i

SC.

The former president’s direct imprisonme­nt was the only order that would protect the dignity of the Constituti­onal Court — not a fine and not a suspended sentence, he said.

The commission has asked the court to hold Zuma in contempt of court and to imprison him for two years after he failed to comply with its earlier order to abide by the commission’s lawful summons.

Despite the Constituti­onal Court order, Zuma did not appear at the commission in February to give evidence, as he had been summonsed to do. Nor did he participat­e in the Constituti­onal Court hearing on Thursday or submit papers to argue why he should not be held in contempt. Instead, he released a statement after the hearing, making veiled threats that “judicial corruption” will lead to people “rising up” and that democracy will “unravel”.

Politics aside, the order the highest court has been asked to make is, from a legal point of view, unpreceden­ted: it has been asked to incarcerat­e someone without hearing their side, without them even being there, for two years, and from which order there can be no appeal.

We do not ask for his appearance. We ask for his punishment

Tembeka Ngcukaitob­i, above

Acknowledg­ing that a two-year sentence was a “serious” penalty, Ngcukaitob­i said there were “strong reasons” it was appropriat­e. Most importantl­y, Zuma’s conduct “must be seen for what it is: we are dealing with a cynical manoeuvre to avoid accountabi­lity”. Not only had he defied summons, directives and an order from the highest court, he had, in public statements, insulted the Constituti­onal Court, its judges and the judiciary.

This case “stands apart”, he said. It was an “extreme case of contempt”. The penalty of direct imprisonme­nt for two years would “reflect this court’s disapprova­l of this type of cynicism, particular­ly when exhibited by a person who was once president of this country and took an oath to comply with the constituti­on at all times”.

It was on this aspect that Ngcukaitob­i faced the most questions. Justice Zukisa Tshiqi said it “worried” her that the commission had abandoned all hope of Zuma’s appearance since that was the whole point of the commission originally coming to the Constituti­onal Court.

But Ngcukaitob­i said the situation had escalated beyond what the commission had anticipate­d. In December he had said it was “simply unthinkabl­e” that anyone would defy an order of the Constituti­onal Court. “How wrong was I?” he said.

Justice Nonkosi Mhlantla asked what about an order that would give him a few weeks to comply or face imprisonme­nt.

“The spectacle we fear is of Mr Zuma continuing to run rings around the commission … and the entire thing degenerate­s into a circus,” said Ngcukaitob­i.

He said Zuma had known for months that he was supposed to come to the commission and give evidence and that “another 30 days changes nothing”. He said Zuma’s decision not to participat­e was an aggravatin­g factor.

“To try and now find some sort of justificat­ion for him, when he has not bothered to put it under oath here, simply brings about discredit to the judiciary.”

Acting justice Dhaya Pillay asked about a fine. Ngcukaitob­i said a fine would not give appropriat­e weight to the harm done.

“It reduces the assault to the dignity of the court to a money exchange. That is just inappropri­ate,” he said.

He said the order was urgently needed as the contempt was ongoing and there was a risk of more attacks on the judiciary. The very same day, Zuma’s statement said that “many South African judges, including those of the Constituti­onal Court, can no longer bring an open mind to cases involving me”.

In his latest statement he singled out Pillay, saying it was “curious” that she was included on the bench given her “historical hostility and insults against me”.

He said she had insulted him by “insinuatin­g in a judgment that I am ‘a wedge driver with a poisonous tongue’.”

This was a reference to a defamation case brought by fellow ANC leader Derek Hanekom. In her judgment, in which she found in favour of Hanekom, Pillay opens with a quote by former ANC president

Oliver Tambo at the ANC’s 1969 consultati­ve congress in Morogoro, Tanzania: “Be vigilant, comrades. The enemy is vigilant. Beware the wedge driver. Men who creep from ear to ear, driving wedges among us; who go around creating splits and divisions. Beware the wedge driver. Watch his poisonous tongue.”

Later in the judgment, Pillay said: “The litigants finger each other as wedge drivers. This calls for a value judgment best left to the political party to which they belong. As the ANC adopted the concept of wedge drivers, it would know best how to apply it.”

Zuma also accused her of saying that he had damaged the reputation of the ANC. The quote comes from the same judgment — from a paragraph where she is setting out an argument that was made by Hanekom.

However, the latest statement is not before the Constituti­onal Court as evidence.

Judgment was reserved.

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 ??  ?? Former president Jacob Zuma's failure to give evidence before the commission, saying Zondo is biased, has led to an unpreceden­ted court applicatio­n.
Former president Jacob Zuma's failure to give evidence before the commission, saying Zondo is biased, has led to an unpreceden­ted court applicatio­n.
 ??  ?? Dhaya Pillay
Dhaya Pillay

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