Zondo Commission opposes Zuma’s attempt to stay arrest

The Zondo Commission of Inquiry into allegations of state capture filed a weighty response to former president Jacob Zuma’s application to the Pietermaritzburg High Court to stay the order of his arrest.

In short, the Zondo Commission will argue that the high court lacks the requisite jurisdiction, and that Zuma:

• Has failed to satisfy the test for rescission;
• Is continuing in his “pattern of abuse … of the court process”; and
• Does not satisfy the requirements for an interim interdict.

Court has no jurisdiction to hear the application

The commission points out that the high court does not have the requisite jurisdiction, and can only stay or suspend its own orders.

The Constitution of the Republic of South Africa provides that the Constitutional Court, the Supreme Court of Appeal and the High Court (as a collective) can only “protect and regulate their own process”. For a high court to interfere in a Constitutional Court order “would undermine the hierarchy of our court system”.

The Zondo Commission further submits that the Constitutional Court “must be left to assert its authority”, and refers to Acting Chief Justice Sisi Khampepe’s judgment, handed down last Tuesday (June 29): “Never before has this Court’s authority and legitimacy been subjected to the kinds of [attacks] that Mr Zuma has elected to launch against it and its members.

“Never before has the judicial process been so threatened”.

Test for rescission not satisfied

The commission points out that Zuma was fully aware of the proceedings before the Constitutional Court, “but elected not to participate in them”.

In order to bring an application to rescind the law, Zuma would have to show:

• That the judgment was obtained as a result of fraud; or
• The court committed a justus error; or
• New documents were discovered after the judgment was handed down; or
• The judgment/order was granted by default.

Zuma has not shown any of these grounds.

The commission concludes that the rescission application “does not even get out of the first blocks” and that it is merely a strategy employed by Zuma “to avoid the inevitable – serving his prison sentence”.

No good reason given for Zuma’s application

Zuma has not provided a full account of the facts, and the commission proceeds to set them out.

• The initial summons issued by the commission

The commission issued summons for Zuma to appear before it for examination from November 16 to 20, 2020.

Zuma attended the proceedings on November 16, 2020, but his legal representatives submitted an application for commission chair Deputy Chief Justice Raymond Zondo’s recusal.

After a day was spent dealing with the recusal, with Zondo requiring time to consider it, Zondo dismissed the recusal on November 19, 2020. That was the day Zuma “excused” himself and departed – “despite being advised that he was not entitled to leave the proceedings and that his absence would constitute a criminal offence”.

• The first application to the Constitutional Court

The commission approached the Constitutional Court for an order, on the basis that Zuma, the former president, “is obliged to account before the Commission for his exercise of public power and performance of his constitutional obligations whilst holding that office, in respect of the matters under investigation by the Commission”.

The matter was heard on December 29, 2020. Zuma was served with papers but did not oppose. His attorneys addressed a letter to the Constitutional Court informing it that Zuma would not participate in the proceedings at all.

• Zuma refused to appear in January 2021

The commission served a summons on Zuma that he was required to appear before the commission from January 18 to 22, notwithstanding that the Constitutional Court had not yet delivered its judgment.

Zuma’s attorneys notified the commission that Zuma would wait for the Constitutional Court’s decision.

• The Constitutional Court’s first judgment

On January 28 the Constitutional Court directed Zuma “to comply with all summonses lawfully issued by the Commission”.

Zuma’s attorneys informed the commission that he would not present himself at the commission.

The Constitutional Court ordered Zuma to “comply with the summons and directives issued by the commission, and to appear and give evidence before the Commission on the dates determined”.

The order and judgment were served by the sheriff on both of Zuma’s residences at Nkandla in KwaZulu-Natal and Forest Town in Johannesburg on February 5.

• Zuma’s continued refusal to appear before the commission

Zuma issued a public statement on February 1, informing the public that:

• The Zondo Commission has followed in the steps of the former Public Protector in creating a “special and different approach” to dealing with him.
• That Zuma has “a well-founded apprehension of bias and a history of personal relationships between the Deputy Chief Justice” and himself.
• The Constitutional Court’s decision has also “created a special and different set of circumstances” to specifically deal with him, and that his constitutional rights have been suspended.
• The Constitutional Court has become politicised.
• “I do not fear being arrested, I do not fear being convicted, nor do I fear being incarcerated …”
• “I am left with no other alternative but to be defiant against injustice as I did against the apartheid government.”

Despite being summonsed Zuma did not appear at the commission on February 15.

• The contempt of court application

The commission applied to the Constitutional Court on an urgent basis for a contempt of court order. The commission detailed all the times that Zuma “intentionally and unlawfully failed to appear before the Commission”, and “intentionally and unlawfully failed or refused to furnish the Commission with affidavits”.

Zuma did not file an answering affidavit, nor did he file an answering affidavit to the Helen Suzman Foundation.

The Chief Justice gave Zuma a further opportunity to make submissions to the Constitutional Court: in the event that he was found to be guilty of the alleged contempt of court, what would constitute the appropriate sanction? And if he had to be sentenced, to describe “the nature and magnitude of sentence that should be imposed, supported by reasons”.

Zuma responded with a letter, stating that he would not depose an affidavit, and noted that his stance “stems from my conscientious objection to the manner in which I have been treated”.

Zuma accused the Constitutional Court’s directives of not being legitimate, and that “some politically interested groups styled as amicus curiae [friends of the court] are given the right of rebuttal”, and that this is not a fair process.

Conclusion on the historical context

Zuma has refused to engage in the court processes and has “instead chosen to make public statements in which he deliberately and vexatiously undermines the dignity and authority of the courts and the rule of law; and suggests that members of public should do the same”.

The commission points out that Zuma is bound by the majority judgment of the Constitutional Court and “cannot undermine that through reliance on a decision that is not binding”.