Former president Jacob Zuma held the key to his own prison door, the state capture commission’s lawyer told the Constitutional Court on Monday, shortly after the former president’s lawyer sought to convince the same court that it had in its previous judgment breached Zuma’s constitutional rights.
The commission’s counsel, Tembeka Ngcukaitobi SC, was responding to Zuma’s case to theapex court – from which there is no appeal – that it must reverse or “rescind” its earlier judgment, which found Zuma in contempt and sentenced him to 15 months in prison. The former president was taken into custody on Wednesday night.
Zuma defied a January ConCourt order to abide by the state capture commission’s summons and directives. When the commission summoned him to give evidence in February, he did not go. The commission then went back to the ConCourt, asking it to hold him in contempt.
What we have is persistent contempt. No contrition. No apology. Nothing.
— Tembeka Ngcukaitobi SC
Both times the commission went to court, Zuma was notified but refused to come. Instead, he issued public statements claiming he was being singled out and saying some judges had betrayed their oaths of office and “sold their souls”. Then, before the ConCourt gave judgment on contempt, it asked Zuma to address it on an appropriate penalty should it find him guilty. Once again, he refused.
On Monday, Ngcukaitobi said Zuma remained in contempt as he had said in his recent court papers that he would not appear before the commission chair, deputy chief justice Raymond Zondo – against the highest court’s order. “What we have is persistent contempt. You are told to revisit your order. No contrition. No apology. Nothing,” said Ngcukaitobi.
Zuma’s counsel Dali Mpofu SC had earlier told the ConCourt that a contempt order had “criminal consequences” yet Zuma had not been granted the rights of other criminal accused. These included the right not to be detained without trial and the right of every criminal accused to have their conviction and sentence reassessed on appeal, he said.
When these rights were breached and the ConCourt did not then consider whether such rights were justifiable under the constitution, this amounted to a “rescindable error”.
Mpofu said the rules on rescission should not be applied “mechanically”. And even if Zuma’s application did not fit neatly within the rescission rules, the court still had the duty in the interests of justice to remedy its earlier “unconstitutional” judgment.
But Ngcukaitobi argued that, according to the earlier judgments of the Constitutional Court and the Supreme Court of Appeal, a rescission required that there must have been new information that was not known to the court at the time of judgment; and that, if it were known, it would have precluded the court from coming to the judgment it came to.
Yet, Ngcukaitobi said, “each and every complaint” that was raised for Zuma on Monday had already been “exhaustively considered by the court and ... carefully determined”.
He said Zuma’s arguments on his constitutional rights had been raised in the minority judgment by justice Leona Theron.
But “that is simply a reflection of a mature judicial system in operation. The idea that the debate between the two judgments somehow lends itself to an error capable of rescission simply has no application whatsoever,” said Ngcukaitobi.
Mpofu said the court had to rescind its judgment, notwithstanding the fact that Zuma had steadfastly refused to participate in the litigation up to this point. Certain constitutional rights — including the right to a fair trial, the “flagship right” in Zuma’s case — cannot be waived, he said.
He said Zuma had been given seven separate opportunities to participate in the case. “On each occasion, he either denounced the court, denounced the judiciary [or] denounced the commission,” he said. And given the “persistent, brazen contempt”, the interests of justice required the court to dismiss the application, he said. But Mpofu implored the court to “look beyond the history, look beyond the insults, look beyond the cocking a snook at the opportunities that were granted by the Constitutional Court, and simply say, as they said in S v Makwanyane, the rights in the constitution are reserved for the worst among us”.
S v Makwanyane was the seminal judgment that invalidated the death penalty as unconstitutional.
Mpofu also asked that if the court did not hand down judgment immediately, Zuma be released from custody in the meantime.
The Constitutional Court reserved judgment.
