WRAP | Judgment reserved in Zuma's ConCourt case

The Constitutional Court on Monday began hearing the application by former president Jacob Zuma to set aside its ruling that sent him to prison.

The former president was jailed last week after he was found guilty of contempt of court for repeatedly snubbing calls by the state capture inquiry, chaired by acting chief justice Raymond Zondo, to appear and give evidence. 

8pm update: Judgment reserved in Zuma's ConCourt case

The Constitutional Court has reserved judgment in former president Jacob Zuma's rescission application.

This after Zuma's lawyer, Adv Dali Mpofu, wrapped up argument on Monday night.

6.40pm update: Zuma holds the keys to his own prison cell, says Ngcukaitobi

It was up to former president Jacob Zuma to decide when his jail stay would eventually come to an end.

This was the picture painted by advocate Thembeka Ngcukaitobi SC on Monday. Speaking before the Constitutional Court, he said that if Zuma had chosen to comply with the court orders issued, he wouldn’t be in the position he found himself in now.

“Mr Zuma holds, and has always held, the keys to his own prison door, which he could use by the simple act tendering to comply — not on his own terms, but on the terms prescribed by this court,” said Ngcukaitobi.

He was representing the state capture commission in the apex court's proceedings.

Zuma had chosen to snub repeated calls by the commission and defied a Constitutional Court order to appear before it. Zuma had remained defiant that he would not give evidence before commission head Zondo, saying he had an unfair bias towards him.

For his defiance, Zuma was convicted of contempt of court and sentenced to 15 months in jail. He was admitted into prison in the early hours of Thursday morning.

But as his lawyers tried to have the Constitutional Court order's ruling rescinded, Ngcukaitobi said, so far, Zuma had showcased himself as someone with little regard for the law.

“What you are left with is the clear impression that you are dealing with a person who, despite the punishment, despite the imprisonment, has still not taken the view that judgments of the Constitutional Court [are] to be complied with,” he said.

Ngcukaitobi said the Constitutional Court had, before this matter, laid down the law on how people who are found to be contempt of court should be dealt with. He urged the court to not deviate from this now, arguing that doing so would set a precedent that court orders can be ignored.

“All of this could have been avoided had he been willing to simply account for things that happened when he was in office,” Ngcukaitobi added.

5.50pm update: 'No basis to assume' that Zuma will testify if ConCourt decides to release him: Ngcukaitobi

As Zuma’s legal team fights tooth and nail to have him released from prison, he has given no suggestion that, if victorious, he will actually head to the state capture commission to give his evidence.

This was one of the arguments put forward by Ngcukaitobi, representing the state capture commission, to the Constitutional Court on Monday.

Answering questions posed by justice Chris Jafta, Ngcukaitoi said Zuma, through his legal team, on Monday had persisted with his brazen contempt of the commission.

“In today’s proceedings, Mr Zuma had the option of heeding what was said by justice [Sisi] Khampepe. He had the option of offering an apology and [making a] suggestion that he will obey the existing and future court orders ... On the pleadings today, he has done none of those. So you have no basis to assume he will [comply if released],” said Ngcukaitobi.

Instead, Ngcukaitobi submitted, instead of there being some sort of apology from Zuma's legal representative, advocate Dali Mpofu SC, a glimpse of an apology had instead come from advocate Vuyani Ngalwana SC, representing Democracy in Action. The group had joined the matter as a friend of the court. 

Ngalwana had earlier told the court that Zuma had perhaps been ill-advised. He called on the court to consider his age and that he had received bad legal advice when considering whether to rescind its decision.

Jafta questioned Ngcukaitobi about the possibility of Zuma still giving evidence to the commission, asking whether this option was still open to him.

Ngcukaitobi pointed out that there had been false allegations made by Zuma in his initial papers to the Constitutional Court that he had not been given an opportunity to perhaps go back to the commission and, finally, deliver his evidence.

“When we brought the contempt proceedings, we specifically left the door open for Zuma to comply. We have never made the case that because the commission’s time frame is coming to an end, Mr Zuma cannot [testify]. We simply said if the court is of the view that Mr Zuma should be compelled to comply first, before an arrest, arrangements would have to be made so that is possible.

“In the founding affidavit here, Mr Zuma falsely claims that he never had the option of complying before the decision was made to find him guilty and to impose the sanction ... clearly an untrue allegation,” he said.

Zuma is hoping the Constitutional Court will rescind its decision which led to him being jailed for contempt of court last week.

But Ngcukaitobi said the court could not simply overturn its decision.

He said it needed to prove that “the error [made when giving the judgment] must be something this court was not aware of at the time the order was made, which could have precluded the granting of the order in question, had the court been aware of it”.

“Was there a fact that the court was ignorant about at the time that it gave the judgment?” Ngcukaitobi said.

He called on Zuma’s legal team to prove the errors made by the court in this case.

Ngcukaitobi instead emphasised Zuma’s previous defiance.

“He has told you many times that he will not appear before a biased chairperson,” Ngcukaitobi said.

3.50pm update: Zuma's snubs 'unacceptable', says lawyer, but asks if it's in the interest of justice to jail him

Democracy in Action has added its voice to calls for the Constitutional Court to free president Jacob Zuma after his contempt of court conviction.

The organisation had been admitted to the matter as a friend of the court.

Addressing the court on Monday, Ngalwana said he acknowledged that Zuma may have erred in snubbing the court and the commission of inquiry into state capture, but highlighted that it could have been that he was ill-advised.

Justice Steven Majiedt quizzed Ngalwana on what should be done now, especially because Zuma had three times ignored calls to comply.

Ngalwana advised the justices to look beyond the facts of Zuma’s prior actions and focus on the facts presented to it now.

“The mere fact that there has been non-cooperation by the litigant, whether it be [through] legal advice or not, no court is bound by such choice,” said Ngalwana. “I feel for the applicant and his counsel.”

He said Zuma and his legal teams had a tough task of convincing the court to grant the order they sought.

“This court must do that which it considers to be in the interest of justice. Is it in the interest of justice for this court to punish an octogenarian for having snubbed it? Is it in the interest of justice to punish an almost 80-year-old because he has made statements that are disparaging of this court? Or is it in the interest of justice to roll the clock back and consider what might the court have done had there been these defences that are belatedly put before you; do those make any difference in the interest of justice?

“Not to defend what the applicant may or may have not done ... In fact, what the applicant has done or omitted to do, whether it is in terms of legal advice or not, was unacceptable. There is no running away from it. But it has happened.

“The court is now seized with this request ... [The applicant is saying] I’ve erred in what I did, I’ve listened to advice and the advice was not to my benefit, ultimately, as I now learn. So please reconsider and see whether it is in the interest of justice for me to languish in jail at my age during what is the most devastating pandemic we have had since at least 1918,” Ngalwana put to the court.

2.45pm update: It is ‘cruel, degrading and vindictive’ to keep Zuma behind bars

Mpofu on Monday called on the Constitutional Court to release Zuma from prison while it deliberated whether it jumped the gun by  jailing him without trial.

Zuma began serving a 15-month jail sentence in an Estcourt prison last week..

Keeping Zuma behind bars in the interim was “cruel and degrading” and anyone who called for this was “being vindictive”, Mpofu told the court.

He had on Monday questioned whether the sentence handed to Zuma was perhaps harsh because of who he had challenged.

“Is he being punished for expressing an opinion about the Zondo commission and exercising his rights of expression?” Mpofu asked.

He argued that this is why the matter should have been brought before a lower court first.

Mpofu said that, in his view, Zuma’s rights were limited in this case and if they were, the court made more than a rescindable error.

“It did a constitutional, rescindable error or a series of them and that judgment cannot stand. It cannot,” Mpofu said, adding this was “nothing else but a crime”

Mpofu questioned whether it was correct to convict Zuma of contempt because he had never refused to appear before the state capture inquiry but simply refused to appear before inquiry chairperson Zondo, whom he deemed to be biased.

“Can the court force him to appear before a person he believes to be biased? No,” said Mpofu, adding it should instead steer him to the right channels to address this.

Mpofu has wrapped up his arguments.

Ngalwana, for Democracy in Action, and advocate Nomgcobo Jiba have since started addressing the court. They have joined the matter as friends of the court and are arguing that Zuma was treated differently because of who he is.

1pm update: Zuma’s lawyer takes the court back to constitution basics — even the worst, the most vile human beings have rights, says Mpofu

“The more vile the person, the more entitled they are to the protection of their rights,” argued Mpofu.

“Call them whatever, one thing we must agree on is that they are human, whether they are an accused or not. The questions is are they human and if they are, they are entitled to human rights, all the human rights listed in our constitution.”

Mpofu was arguing that it did not matter who an accused was, everyone is protected by the rights enshrined in the constitution, including the right to a fair trial.

“It doesn’t matter if you are a bad person, a child molester, an unpopular president, involved in state capture or what have you. The more vile a person, the more they are entitled to those [human] rights. If they were charged for a traffic offence, maybe we can cut corners but if they are charged for multiple murders, rape and so on, then we have to stand up even more to ensure their rights are [upheld].

“It doesn’t matter if that person has insulted the Constitutional Court in a million imaginable ways, they are entitled to the rights in section 35 and that section orders that every court obeys that,” he said.

He took the court back to basics, saying Zuma was jailed without mitigating factors having been taken into consideration. He said Zuma was jailed without the court considering whether he was a first-time offender, has dependents or has a health condition which could lead the court to deliver a different sentence.

“How can we sentence someone without knowing their mitigating factors at the point of conviction? The court had no idea if he had Covid-19,” said Mpofu.

Mpofu pleaded with the justices to look at the matter from a different perspective.

“Your task in this case is to look beyond the history, beyond the insults or cockiness or opportunities given by this court.”

11am update: Mpofu proffers PW Botha example but judge rebuts

Mpofu drew a comparison with the 1998 incident when another former president, PW Botha, was found guilty of contempt for repeatedly refusing to testify before the Truth and Reconciliation Commission (TRC) about his role in atrocities committed under his rule during apartheid.

Mpofu argued that while Zuma and Botha committed the same “crime” by refusing to appear before an officially appointed commission, Botha was given the right to a fair trial for the crime.

“The difference between Botha and Zuma is Botha went to court, got a suspended sentence and a fine and so on. He had all his rights of appeal whereas former president Zuma did not have that. He did not have the right, which this court said was so sacred,” Mpofu argued.

“Two people have done the same thing. One was dealt with in a way that deals with section 35 and was given a proper trial. The other was not given a trial,” Mpofu said.

Justice Mbuyiseli Madlanga questioned this line of argument, saying the steps followed by the state capture inquiry, which Zuma had snubbed, were not the same as those which the TRC pursued.

In Zuma’s case, after he had snubbed the state inquiry, an application for an order for him to be granted a summons was put to the Constitutional Court. Upon his failure to comply with that summons, there was an application for him to be convicted of contempt of court.

The TRC did not approach the Constitutional Court in a similar fashion.

“Therefore there’s no comparison at all,” said Madlanga.

In Botha’s case, the high court later overturned his conviction. This was because Botha was called to testify after the law establishing the commission expired and before it was extended.

10am update

“Who shall guard the guardians?” This was the question posed by Mpofu as Zuma’s case began.

Mpofu laid out his argument, saying it seemed the Constitutional Court may have erred in its judgment that led the former president to jail last week after he was found guilty of contempt of court.

After hearing Mpofu’s  argument, justice Zukisa Tshiqi said: “The former president was notified that there was an application brought to this court. He was aware that what was sought was for him to be held in contempt. He knew the application was to hold him in contempt and he elected not to participate. The court then made it an order to hold him in contempt.”

Tshiqi asked whether Mpofu was saying that in every judgment it is OK for a party to sit back and not reply and then come with an application for a rescission?

Mpofu asked whether a person would be without a remedy because they had earlier elected not to oppose an application.

“It simply cannot be our law, even in logic,” Mpofu argued.

He said the court cannot say an applicant could forfeit his right to life simply because he had thought a matter he believed would be frivolous was entertained by the court, which ultimately ruled against him.

He highlighted there were several rights a person could not waive, including the right to a free trial.

“At any point when you perceive your rights have been infringed, there should be a remedy. For every right there should be a remedy otherwise the rights of the Constitutional Court are hollow,” Mpofu argued.

He had submitted that the ConCourt itself may have exceeded the constitution.

“We don’t say this very lightly but we say it because it relates to the supremacy of our constitution,” he said.

Mpofu argued that it is the constitution that is supreme and not the Constitutional Court.

Trying to soften his blow, Mpofu said such errors were made even in lower courts.

“If you could assume that the order [to jail Zuma without trial] was unconstitutional or exceeded the defence of the Constitutional Court, the question is what should happen? What should happen is what happens on a daily basis. The aggrieved must approach the court to seek relief,” Mpofu said.

He said while there was “awkwardness” in bringing the order before the same apex court, there is “nothing earth-shattering about that”.

Mpofu said all the court needed to establish was whether it infringed on Zuma’s rights when it moved to jail the former president without trial. If that is the case, he said, it should move to rectify this.

The case is being heard after Zuma last week started serving his 15-month sentence in a correctional facility in Estcourt in KwaZulu-Natal.

Proceedings continue.

Background

Zuma filed the application on June 2, shortly after the court ordered he had a matter of days to hand himself over to police to start serving his jail term.

Zuma has given three reasons why he did not heed the calls to attend the state capture inquiry proceedings. 

His reasons include that he did not participate in the contempt proceedings for medical reasons, he lacked financial resources and because he had sought the recusal of the chairperson of the inquiry, Zondo. He accordingly felt his abstention was reasonable, “notwithstanding that it was at odds with the order made by the Constitutional Court compelling him to attend”.

Zuma's application is being heard virtually as he is behind bars after handing himself over to authorities on Wednesday night.

The Helen Suzman Foundation (HSF) has added its voice to the matter, joining as a friend of the court. In its papers, it labelled Zuma’s latest court action as “another attempt by Mr Zuma to make a mockery of legal process and the judiciary”.

The foundation has submitted that Zuma has failed to meet the requirements for a rescission application, and that there was no patent error or omission in the order granted by the court.

“Moreover, HSF submits that the Constitutional Court, in the contempt proceedings, already dealt with all the issues Mr Zuma has raised in this application. Accordingly, these reasons, all of which have been previously traversed, cannot now be presented as rescindable errors. In any event, HSF submits that Mr Zuma’s failure, by choice, to plead these issues during the contempt proceedings does not have the effect of rendering the consequent judgment erroneous,” the foundation said. 

The application is being heard as #FreeJacobZuma protests have flared up across the country. Pro-Zuma supporters went on the rampage in KwaZulu-Natal, and the protests have turned into widespread looting and torching of shops and establishments. 

The protests have spread to other provinces. 

TimesLIVE