EDITORIAL | Joseph and Jacob. Equal before the law? Not to Zondo, it seems

Former president Jacob Zuma may be facing possible imprisonment and losing the war, but in truth, he has already won considerable battles. 

Imagine the person defying the state capture commission, or any court, being ordinary Joseph from Soweto: would the commission have gone to the Constitutional Court to ask it to compel Joseph to appear and set another date for him? Would the commission, after Joseph publicly announced he would not appear, go back to the ConCourt to ask it to enforce a contempt of court judgment, while inviting Joseph to make representations on whether he is guilty or not?

Or would ordinary constables of the SA Police Service (SAPS) be picking him up by the straps of his trousers and locking him up until a suitable court date is secured? Ordinarily, a process involving the police and the National Prosecuting Authority (NPA) would have been unleashed, Zuma arrested, but with this would come many years of litigation, time the commission does not have. It may well be that the approach taken by commission chair Raymond Zondo is meant to circumvent delays. On the surface though, it appears the commission is bending over backwards to accommodate Zuma.

It was criticised by the Constitutional Court on this late last year: “Despite the constitutional injunction of equal protection and benefit of the law, of which the commission was aware, for reasons that have not been explained the commission treated the respondent (Zuma) differently and with what I would call a measure of deference,” wrote justice Chris Jafta in an unanimous judgment.

Zondo, who is also deputy chief justice, said yesterday he was afraid Zuma’s actions would unleash lawlessness if allowed to set a precedent. The truth is that he, as the chair of the commission, has already set a terrible precedent: does he expect other commissions, magistrate’s and high courts — that he told us issue many summonses and orders daily across the length and breadth of our country — to do the ConCourt to-ing and fro-ing before arresting people who don’t show respect for court orders and decisions? 

The commission did not rush to issue summons or rush to the Constitutional Court to compel him to appear. The commission did so when it was clear that he was really not prepared to comply with the summons.

—  Deputy chief justice Raymond Zondo

“The commission did not rush,” said Zondo, “to issue summons or rush to the Constitutional Court to compel him (Zuma) to appear. The commission did so (only) when it was clear that he was really not prepared to comply with the summons.”

It is plain that Zondo is making a painstaking effort to ensure the commission is not seen to be unfair on Zuma, and he may well be following the correct prescripts of the law, but an impression is cemented in the public’s mind that judges don’t treat all who appear before them equally. By bending over backwards to show what Jafta calls undue “deference” to the former president, Zondo seems to be paying needless attention to the politics of the arrest.

Mere mortals will not be treated as gently as Zuma is. Granted, he is no ordinary person by virtue of the offices he has occupied. But the law enjoins Zondo to treat Zuma as he would ordinary Joseph. Yet some animals are evidently more equal than others.

That said, we do agree with Zondo that it is indeed a great “pity” that none other than a former head of state who took an oath of office twice to uphold and protect our constitutional order is behaving like a constitutional delinquent.  

We are also of the view that none can fault Zondo when he says: “If the message that is sent out is that people can ignore summonses and subpoenas and orders of courts, and that they can defy those with impunity, there would be very little left of our democracy.”

It is a pity, therefore, that to ensure our country does not become a banana republic, stern action ought to be taken against one who risked his life in pursuit of freedom and, presumably, a constitutional order. Quite a pity.