My right to life might be at stake, says Zuma as he asks ConCourt to rescind decision to send him to prison

Former president Jacob Zuma’s “only sin” was that he wanted his dispute over the recusal of state capture commission chair Raymond Zondo to be decided before he had to appear before him, he said in urgent court papers to the Constitutional Court on Friday.

Even if his stance was “ill-advised” it was never intended to provoke “such acerbic judicial ire”, he said. 

“To the extent that it clearly had that unintended consequence, it is very regrettable indeed,” said the former president.

Zuma has applied to the Constitutional Court to rescind its order on Tuesday that he is guilty of contempt of court and sentenced to 15 months in prison. The contempt order was for failing to comply with the Constitutional Court’s earlier order in January to appear at the state capture commission and give evidence as per the commission’s lawful summons. When the commissions summoned him in February, he did not come.

On Friday, Zuma also urgently applied to the high court in Pietermaritzburg to stay the orders that required him to turn himself in by Sunday, and to interdict the police from arresting him pending his rescission application to the Constitutional Court.

In the high court he has also asked that the stay of imprisonment be kept in place pending a high court constitutional challenge to the “common law distinction of civil and contempt proceedings”.

“I seek an order declaring that it is not compatible with the constitution for a person convicted of the crime of civil contempt to be sentenced to any term of imprisonment without conducting a civil or criminal trial in terms of the Criminal Procedure Act,” he said in his high court affidavit.

In his founding affidavit to the Constitutional Court, the former president said that despite the court’s “strong expression of judicial disdain” for his defiance of its orders, he trusted it would be able to “dig from the depth of its judicial being, to bring the requisite calmness and restraint, and to adjudicate my matter solely based on its legal merits”.

He said his health was unstable and the incarceration order threatened his life.

“In the present circumstances, it is the right to life itself which may be at stake. It is therefore no exaggeration to label mine as cruel and unusual punishment,” he said.

Zuma said his medical condition required “constant and intense therapy and attention”.

He was disclosing this not to avoid imprisonment but to show how grave a threat to the constitutional order it was to summarily send someone to prison — “without even affording me a proper opportunity to advance mitigation after conviction, like all the other millions of human beings who have ever served sentences in SA”.

Zuma said he did not believe the state capture commission had been constitutionally established and explained how he had come to the view that its chair was biased against him.

He had been advised, and believed in good faith, that “I could not be forced to appear before a judge whose recusal was the subject matter of an ongoing court process”.

He now accepted that this was wrong, he said. 

The former president also sought to explain why he had declined to participate in the case at the ConCourt to compel him to abide by the summons; and in the application that he be held in contempt. 

He said financial hardship had driven him to be selective about which court cases he put resources into. He was told that it was likely that the ConCourt would reject the cases for lack of urgency or because they were brought directly to the highest court, and also that even if unopposed “the usually rigorous process of the court would separate the wheat from the chaff”.

His non-participation was not “some calculated disdain” for the Constitutional Court, he said.

However, Zuma said he had re-examined his public statements made ahead of the commission’s approach to the highest court, in which he had attacked some of the judges of SA saying they had “sold their souls” and forsaken their oaths of office in order to vilify him. 

“Those were my views and I should not be imprisoned because I held a wrong opinion or view or belief,” he said.

Zuma said that the commission should have dealt with him in terms of the Commissions Act, and that by going to court instead Zondo had “deliberately set out to undermine the provisions of the Commissions Act”. His approach was not prescribed in the act and his justification for going to the Constitutional Court was “flimsy and plainly irrational”. 

While orders of the apex court cannot be appealed, the rules of the Constitutional Court incorporate the Uniform Rules of Court, which apply to all other courts. Rule 42 says that a court may “rescind or vary an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby”.

Zuma said that the rule must be “constitutionally interpreted” so that “error” should include “notions such as granting an unconstitutional order and/or reviewable material errors of fact and/or law.” He said the rule must also be applied with “the necessary constitutional flavour”.

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