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Former President Jacob Zuma (left) and Vice President of the Supreme Court Raymond Zondo. (Illustrative Image Sources: 2019 Tiso Blackstar Group / Thulani Mbele | Financial Mail / Freddy Mavunda)
Zondo’s Commission of Inquiry into the state capture filed documents with the Constitutional Court on Monday asking the court to find former President Jacob Zuma in contempt and issue an ‘appropriate’ sentence for failing to assure the supreme court that he would appear before the commission, as it had been ordered to do.
In its Heads of Argument before the Constitutional Court, the Zondo Commission said that the former president’s “public defiance” of the court “appears calculated to undermine public confidence in the judiciary and the administration of justice as a whole.”
Zuma did not present an affidavit of response or a notice of opposition, which generated this reaction from the commission in his papers: “Given what he has publicly stated about this court, it would have been expected that he would defend or explain his statements in oath , before this court. However, the legal effect of its omission in the presentation of an affidavit to the contrary is that all the facts alleged by the commission must be considered established ”.
There is no question that Zuma is in contempt of court, according to the commission. The question was what should be the appropriate sentence for the former president.
Zuma’s “insults” through public statements were an aggravating factor in determining this, the commission said.
“In these statements, Mr. Zuma has aggravated his crime of contempt by insulting this court, the commission and the judiciary in general in a way that seems calculated to discredit the judicial process.
“We are not asking this court to decide whether Mr. Zuma committed the crime of scandalizing the court. We maintain that Mr. Zuma’s statements are an aggravating factor in his contempt of court offense.
“The statements have been issued, their meaning is clear and they have not been explained by Mr. Zuma before this court. By issuing these statements, Mr. Zuma sought to both publicize and justify his defiance of this court’s order and the commission ”.
The commission did not specify what the sentence should be. In directing the commission’s legal team to bring contempt charges to court before the Constitutional Court against Zuma last month, Supreme Court Vice President Raymond Zondo recommended a jail sentence. “It will be up to the court to decide what is appropriate,” Zondo said at the time.
By evidence leader Paul Pretorius’ own admission when he discussed Zuma’s absence last month, around 40 witnesses throughout the investigation had so far implicated Zuma in wrongdoing.
Rather than appear before the commission again (he has only appeared once), Zuma has launched searing public attacks on the alleged lack of impartiality of the commission and its eponymous chairman, Judge Raymond Zondo.
He asked Zondo to recuse himself, and in November last year he left the commission because the judge failed to do so. Since then, he has ignored the subpoenas calling him to testify and the subsequent order from the Constitutional Court that he obey the subpoenas and testify.
Zuma and his acolytes have considerable public support and argue that the commission has become a political battlefield rather than an inquisitorial forum.
The commission highlighted some of Zuma’s “insults” in its newspapers, quoting him as saying:
- That the Constitutional Court represented “a clearly politicized segment of the judiciary that now heralds an imminent constitutional crisis in this country.”
- That the commission recently went to the Constitutional Court “to compel me to attend the commission and compel me to give answers in the commission, effectively undermining a litany of my constitutional rights, including the right to be presumed innocent.”
- That the Constitutional Court ruling “also imitates the commission’s stance in the sense that it has now also created a special and different set of circumstances specifically designed to deal with Zuma by suspending my constitutional rights, leaving me completely defenseless in front of the commission. ”. This resembles the conduct of the apartheid government, which legislated for the indefinite detention of Robert Sobukwe, who was also “a specific target for his ideological stance on liberation.”
- That I have no alternative “but to be defiant against injustice, as I did against the apartheid government.” I am once again “prepared to go to jail to defend the constitutional rights for which I personally fought and to fulfill the sentence that this democratically elected government deems appropriate as part of the special and different laws of Zuma’s agenda.”
- That the Constitutional Court ruling “effectively stripped me of my constitutional right as a citizen and created … a jurisprudence that only applies to Jacob Gedleyihlekisa Zuma.”
- What a challenge to the Constitutional Court “not to undermine the Constitution, but to vindicate it, in the face of what I see as a few in the judiciary who long ago abandoned their constitutional position to join the political battles.”
- What a challenge to the Constitutional Court and now I await its ruling because “I firmly believe that we must never allow the establishment of a judicial power in which justice, equity and due process are discretionary and are preserved exclusively for some litigants and not for others” .
- That “many in our society have seen this form of judicial abuse …”
- That the Constitutional Court issued a judgment on costs against me. It has become “commonplace for some of our courts to issue these cost orders against me in order to lessen my constitutional right to go to court.”
- That “it is not the authority of the Constitutional Court that I reject, but its abuse by a few judges. It is not our law that I challenge, but rather a few lawless judges who have left their constitutional position for political expediency ”.
- That “I protest against those in the judiciary who have become an extension of the political forces that seek to destroy and control our country.”
- That the recent ruling of the Constitutional Court “is a parody of justice.” It is based “on mere conjecture and speculation about my future conduct” and “a betrayal of the Constitution that many refuse to face as a scapegoat for all the ills of society.”
- That “I protest against our black, red and green robes, dressing individuals who have long betrayed the Constitution and their oath.”
- That my statement “is a protest against some in the judiciary who have sold their souls and turned away from their oath.” My respect for the law “obliges me to reject the abuse of the law and the judicial office for political purposes.”
The commission also cited some of Zuma’s “grave insults” about the Zondo Commission:
- The commission “has continued to create a special and different approach to dealing specifically with Zuma. The commission chairman, unprovoked, has called special press conferences to make specific announcements about Zuma. This has never happened to any other witness.
- “The commission … should have rightly been called the Commission of Inquiry into the State Capture Allegations against Jacob Zuma, as it was obviously established to specifically investigate me.”
- Supreme Court Vice President Zondo has been “frugal and nimble with the truth. She had trusted her own personal integrity, which now seems very compromised. “
- “He literally created a dispute of fact in a request about him and continued to resolve the matter, where I was contesting his version. Again, a special and different set of legal rules was employed because they were directed at Zuma. “
- In the commission, “the president himself has ignored and suppressed the accusations made against the judiciary.” It is absolutely clear to me “that the judiciary and the legal system as a whole point me to a different and special treatment. Therefore, I declare in advance that the commission … cannot expect any further cooperation from me in any of its processes in the future. “
- The Vice President of the Supreme Court, Zondo, and lawyer Pretorius SC, did what has become their hallmark: “introduce each other and do politics to influence public opinion.”
- “That the vice president of the Supreme Court Zondo can deceive the nation is something that should concern us all.”
- The Chair “has always sought to harm me.”
- “Supreme Court Vice President Zondo and due process and law are separate.”
- “Judge Zondo today again demonstrated the questionable judicial integrity, independence and open-mindedness that is required in an investigation of this magnitude.”
- “The commission sought to free me at all costs and in this effort is prepared to break all the rules of justice and fairness.”
The commission also listed some of Zuma’s insults to the judiciary as a whole:
- Public discourse has been “seeking to protect what I consider to be a few in the judiciary who have resigned their oath of office …”
- “I express my own protest against those in the judiciary who have turned their back on their fundamental task in society … because I believe that judges should never become agents of the ruling classes in society.”
- I take this position “because we continue to allow some in the judiciary to create jurisprudence and legal inconsistencies that apply only to me.”
- “We sat down with some judges who have helped the incumbent president hide from society what at first glance appear to be bribes obtained to win an internal ANC election.”
- It has become clear to me “that I will never obtain justice before some of the members of the current group of judges in their eagerness to raise their hands to seek political acceptance at my expense.”
- “History will soon reveal that it is only a few in our courts who have been captured to serve political ends and undermine the Constitution …”
Zuma’s lack of response to the request further aggravated his guilt, according to the commission, as he “demonstrates a persistent attitude of contempt and contempt for this court and its processes.”
The commission maintains that as a high-profile figure and a leader in society, Zuma is potentially blazing a trail for others to follow, which could pose a very real threat to the rule of law.
The commission said it was also seeking legal costs. “This order of costs is justified by the reprehensible conduct of Mr. Zuma that has forced the commission to go back to this court at public expense.
“Mr. Zuma has deliberately and in bad faith challenged an order of this court. It has also launched unwarranted public attacks against this court, the commission and the institution of the judiciary.
“Mr. Zuma’s public statements against this court have been false and malicious. When asked to substantiate or explain the statements under oath, Mr. Zuma did not do so, as he did not submit any affidavits in response to this matter. Such malicious conduct deserves censure in a punitive cost order. “
The Constitutional Court hearing takes place on March 25.
So far, the commission has cost South African taxpayers close to one billion rand and has had to extend its lifespan due to high witness volumes and having to take a three-month hiatus during the Covid-19 shutdown.
Your final report is due by June 30.
The commission, so far, has extended the grace to Zuma that it is hard to imagine it would do so to ordinary citizens. In his previous presentation to the superior court, he said that he would be willing to accommodate Zuma during the three-month period that should be used to draft his final report, should he agree to testify. DM
