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A 'sham' and 'political gimmicks', says Zuma as he refuses to provide affidavit to ConCourt over sentence

Jacob Zuma says he will not be filing an affidavit to the Constitutional Court — and in a 21-page letter to chief justice Mogoeng Mogoeng, he explains why

14 April 2021 - 17:06 By Franny Rabkin
Former president Jacob Zuma on Wednesday said he would not be filing an affidavit to the ConCourt, explaining why in a 21-page letter to chief justice Mogoeng Mogoeng. File photo.
Former president Jacob Zuma on Wednesday said he would not be filing an affidavit to the ConCourt, explaining why in a 21-page letter to chief justice Mogoeng Mogoeng. File photo.
Image: Thuli Dlamini

The directive from the Constitutional Court to former president Jacob Zuma asking him for an affidavit on an appropriate penalty should it find him in contempt of court was “nothing but a stratagem to clothe its decision with some legitimacy”.

Zuma made the comment in a letter to the ConCourt on Wednesday.

The court had set Wednesday as the deadline given to the former president for the affidavit it sought from him in the application brought by the state capture commission, which asked the court to imprison Zuma for two years for contempt of court.

The application was made after Zuma did not turn up at the commission to give evidence in February in line with a summons, despite an order from the highest court to do so.

When the application was made and argued, Zuma chose not to participate and did not file any court papers to oppose the application. The highest court has therefore only heard the commission’s side.

In its direction on April 9, it asked Zuma to submit an affidavit on two issues. First on what would be an appropriate sanction, should the court find him in contempt. And second, if the court “deems committal to be appropriate”, on the “nature and magnitude of sentence that should be imposed, supported by reasons”.

On Wednesday, Zuma said he would not be filing an affidavit and,  in a 21-page letter to chief justice Mogoeng Mogoeng, he explained why.

Zuma said the directions were a “sham and an attempt to sanitise the gravity of the repressive manner in which the court has dealt with my issues”. 

Describing the directions as “political gimmicks”, Zuma said his decision not to participate in the Zondo commission’s court case to the Constitutional Court was a “conscientious objection” to the abuse of judicial authority by the commission. He said the commission was advancing “politically charged narratives of a politically but very powerful commercial and political interests”.

After setting out the history of the adoption of the constitution and the creation of the ConCourt, Zuma said the court was meant to represent freedom for everyone. He said it was also meant to be “safe from the unjust and oppressive political narratives that had routinely found credibility in the courts of oppression”, and that its justices would not “conduct the affairs of the court with arrogance and oppressive tendencies”. 

However, he was disappointed that the apex court had thought it had jurisdiction to consider a custodial sanction as a court of first instance when there had been no trial to determine whether there had been contempt of court.

“Although I am not a lawyer, I have read the Constitutional Court ruling and its attempt to fudge the issue of jurisdiction and I was left none the wiser as to its reasoning about jurisdiction,” he said.

He was also disappointed that the ConCourt had not considered that he had taken the decision of commission chairperson Raymond Zondo not to recuse himself on review.

He said if he submitted an affidavit as asked, he would “purge my conscientious objection for having not participated in the proceedings of the Constitutional Court”. 

Zuma added that giving him three days and only 15 pages to address the court on sanction did not appear to be a good-faith attempt to give him a right to hearing, but rather “to sanitise the procedural infirmities of the procedures of the Constitutional Court”.

He also was not given opportunity to address them on the merits of the contempt decision, he said.

However, he did not believe he was in contempt of court.

“I have no doubt that the Zondo commission has become a complex project controlled by my political foes. Even though I established the commission, I was aware that it had been proposed as part of the campaigns to force me out of government,” he said.

The commission could have laid a criminal charge of contempt against him, but he has yet to receive summons, he said. Instead the commission had used the court to promote “the entrenchment of political narratives of alleged acts of state capture, fraud and corruption by me”.

He said he was ready to “become a prisoner of the Constitutional Court”. 

“For the cause of constitutional rights, I will walk in jail as the first prisoner of the Constitutional Court.”