News Analysis

The Constitutional Court faces an unprecedented ask on Zuma

The State Capture Commission is unequivocal in that it has abandoned all hope of getting former president Jacob Zuma to give evidence before it

28 March 2021 - 00:02
By Franny Rabkin
Former president Jacob Zuma
Image: Thuli Dlamini Former president Jacob Zuma

At the Constitutional Court on Thursday, the state capture commission was unequivocal that it had abandoned all hope of getting former president Jacob Zuma to give evidence before it.

“We do not ask for his appearance. We ask for his punishment,” said Tembeka Ngcukaitobi SC.

The former president’s direct imprisonment was the only order that would protect the dignity of the Constitutional Court — not a fine and not a suspended sentence, he said.

The commission has asked the court to hold Zuma in contempt of court and to imprison him for two years after he failed to comply with its earlier order to abide by the commission’s lawful summons.

Despite the Constitutional Court order, Zuma did not appear at the commission in February to give evidence, as he had been summonsed to do. Nor did he participate in the Constitutional Court hearing on Thursday or submit papers to argue why he should not be held in contempt.

Instead, he released a statement after the hearing, making veiled threats that “judicial corruption” will lead to people “rising up” and that democracy will “unravel”.

Politics aside, the order the highest court has been asked to make is, from a legal point of view, unprecedented: it has been asked to incarcerate someone without hearing their side, without them even being there, for two years, and from which order there can be no appeal.

Acknowledging that a two-year sentence was a “serious” penalty, Ngcukaitobi said there were “strong reasons” it was appropriate.

Most importantly, Zuma’s conduct “must be seen for what it is: we are dealing with a cynical manoeuvre to avoid accountability”.

Not only had he defied summons, directives and an order from the highest court, he had, in public statements, insulted the Constitutional Court, its judges and the judiciary.

This case “stands apart”, he said. It was an “extreme case of contempt”.

The penalty of direct imprisonment for two years would “reflect this court’s disapproval of this type of cynicism, particularly when exhibited by a person who was once president of this country and took an oath to comply with the constitution at all times”.

It was on this aspect that Ngcukaitobi faced the most questions.

Justice Zukisa Tshiqi said it “worried” her that the commission had abandoned all hope of Zuma’s appearance since that was the whole point of the commission originally coming to the Constitutional Court.

But Ngcukaitobi said the situation had escalated beyond what the commission had anticipated.

In December he had said it was “simply unthinkable” that anyone would defy an order of the Constitutional Court.

“How wrong was I?” he said.

Justice Nonkosi Mhlantla asked what about an order that would give him a few weeks to comply or face imprisonment.

“The spectacle we fear is of Mr Zuma continuing to run rings around the commission … and the entire thing degenerates into a circus,” said Ngcukaitobi.

He said Zuma had known for months that he was supposed to come to the commission and give evidence and that “another 30 days changes nothing”.

Ngcukaitobi said Zuma’s decision not to participate was an aggravating factor.

“To try and now find some sort of justification for him, when he has not bothered to put it under oath here, simply brings about discredit to the judiciary.”

Acting justice Dhaya Pillay asked about a fine.

Ngcukaitobi said a fine would not give appropriate weight to the harm done.

“It reduces the assault to the dignity of the court to a money exchange. That is just inappropriate,” he said.

He said the order was urgently needed as the contempt was ongoing and there was a risk of more attacks on the judiciary.

The very same day, Zuma’s statement said that “many South African judges, including those of the Constitutional Court, can no longer bring an open mind to cases involving me”.

In his latest statement he singled out Pillay, saying it was “curious” that she was included on the bench given her “historical hostility and insults against me”.

He said she had insulted him by “insinuating in a judgment that I am ‘a wedge driver with a poisonous tongue’.”

This was a reference to a defamation case brought by fellow ANC leader Derek Hanekom.

In her judgment, in which she found in favour of Hanekom, Pillay opens with a quote by former ANC president Oliver Tambo at the ANC’s 1969 consultative congress in Morogoro, Tanzania: “Be vigilant, comrades. The enemy is vigilant. Beware the wedge driver. Men who creep from ear to ear, driving wedges among us; who go around creating splits and divisions. Beware the wedge driver. Watch his poisonous tongue.”

Later in the judgment, Pillay said: “The litigants finger each other as wedge drivers. This calls for a value judgment best left to the political party to which they belong. As the ANC adopted the concept of wedge drivers, it would know best how to apply it.”

Zuma also accused her of saying that he had damaged the reputation of the ANC.

The quote comes from the same judgment — from a paragraph where she is setting out an argument that was made by Hanekom. However, the latest statement is not before the Constitutional Court as evidence. Judgment was reserved.