Two weeks ago Jacob Zuma issued a statement in which he asserted that “the Commission Into Allegations of State Capture can expect no further cooperation from me in any of their processes going forward”, defiantly adding that “if this stance is considered to be a violation of their law, then let their law take its course”. 

Zuma also stated that he was prepared to go to jail for his defiance of the law.

But on Monday, 15 February 2021, his lawyers — while confirming that Zuma will refuse to obey the summons — claimed that this “should not be construed to suggest any defiance of a legal process”. It is difficult to reconcile the two statements, suggesting that Zuma is hedging his bets, signalling defiance of the law when it is politically convenient, while claiming not to be defiant of the law when it is legally advantageous.

The problem with the second claim is that it is untrue. 

Zuma’s refusal to testify in contempt of an order issued by the Constitutional Court is unlawful and therefore does show defiance of the legal process. 

In fact, the reasons advanced to justify Zuma’s contempt of court is not only a legal nonsense — as Zuma and his lawyers must surely know — but also undermines respect for the rule of law and for the commission of inquiry Zuma created and whose work Zuma asked South Africans to support.

It is not clear why Zuma’s lawyers would willingly advance such clearly misguided legal arguments that are seemingly aimed at undermining trust, not only in the deputy chief justice, but also in the Constitutional Court and thus the entire legal system. Although this is all self-evident, let me nevertheless explain why, from a legal perspective, Zuma’s excuses hold no water.

Zuma and his lawyers argue that as the high court is yet to decide on Zuma’s application reviewing deputy chief justice (DCJ) Raymond Zondo’s decision not to recuse himself as chair of the commission, “appearing before DCJ Zondo in the circumstances, would undermine and invalidate the review application over his decision not to recuse himself”. 

Somehow the fact that the review application was allegedly “not before the Constitutional Court and, accordingly, was not considered, determined and/or adjudicated by that court”, is supposed to bolster this argument.

This argument is based on a misrepresentation of both the facts and the law. The majority of the Constitutional Court based its decision to order Zuma to testify partly on the “undisputed facts” that “Zuma had failed to remain in attendance after his application for recusal was dismissed on 19 November 2020”. 

The court also signalled that it was aware of Zuma’s plan to have the decision reviewed by the high court. The court nevertheless ordered Zuma to obey all summonses and directives lawfully issued by the commission and to appear and give evidence before the commission on dates determined by it.

But even if the Constitutional Court had not been aware of the review application when it issued its order, it would have been of no legal relevance to present the matter. 

Such an application, launched in another court, dealing with a different legal issue, cannot magically undo the order issued by the Constitutional Court or suspend Zuma’s legal obligation to obey it.

This is because no one is above the law, and individuals do not have the option of disobeying a court order because they believe the court got it wrong or because another court is considering another aspect of the case. 

If people like Zuma had the power to decide for themselves which court orders to obey, the entire legal system would collapse.

When a lower court orders someone to do or not to do something, that person may appeal against the judgment to a higher court and such an appeal will normally suspend the order until the appeal is finalised. But one cannot appeal against a judgment of the Constitutional Court, which means one has no option but to obey such an order or face a contempt of court finding and potentially imprisonment.

If Zuma and his lawyers had wanted to advance their claim that the Constitutional Court order would invalidate the review application, they would have had to advance that argument before the Constitutional Court when the court considered the commission’s application against Zuma. This, they did not do.

Instead, they declined to take part in the Constitutional Court proceedings, only to resurrect the argument in a letter to the commission. 

But sending a lawyer’s letter to a commission of inquiry cannot undo a binding court order, no matter in whose name the letter was written or how powerful the lawyers’ client might once have been. Even if Zuma’s argument had legal merit, Zuma should have advanced it before the court and cannot now blame the court for his own failure to do so.

As court orders cannot be undone by a letter written by a private party to another litigant, the letter sent to the commission by Zuma’s lawyers on Monday is a curious, but revealing document. It suggests that Zuma believes he is above the law and that he therefore does not need to obey court orders that do not serve his personal interests and that he does not agree with.

Zuma’s lawyers also stated on Monday that Zuma is disobeying the Constitutional Court because the summons issued for Zuma to appear was “irregular and not in line with the Fourth Order of the Constitutional Court judgment of 28 January 2021”. 

This is not a coherent or easily understandable claim. 

One assumes it refers to paragraph 4 of the Constitutional Court order which states that “Mr Jacob Gedleyihlekisa Zuma is ordered to obey all summonses and directives lawfully issued by the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Commission)”.

As it is not open to Jacob Zuma or his lawyers to decide whether a summons was lawfully issued, the claim is also a legal nonsense. 

If Zuma and his lawyers believed the summons was not lawfully issued, they could have approached the court to have it set aside. The fact that they have not done so suggests they know this claim is legally untenable. In other words, it suggests they are taking their chances in the court of public opinion because they know they have no chance in an actual court of law where legal rules, not hot air and innuendo, hold sway.

Whether one is a deadbeat dad, a spendthrift drifter or a dodgy former head of state desperately trying not to account for one’s actions, ignoring a court order is an outrageous thing to do as it poses a direct challenge to the authority of the law and the legal system. 

Few South Africans would tolerate or condone this type of lawlessness if indulged in by somebody other than Jacob Zuma.

For example, I can’t imagine that many South Africans would support a decision by a convicted murderer not to report for prison duty because of a spurious and a legally absurd claim that the court got it wrong or that a complaint was lodged at the JSC against the presiding judge. (Admittedly, some deadbeat dads may well support a fellow deadbeat dad’s decision not to pay maintenance as ordered by the court, which is perhaps why some people will continue to support Zuma despite his criminal behaviour.)

In our law, contempt of court in this context is defined as the deliberate, intentional (wilful), disobedience of an order granted by a court of competent jurisdiction.

The High Court in Victoria Park Ratepayers’ Association v Greyvenouw CC and others explained that the principal “purpose of contempt of court proceedings when an order has been disobeyed has been held to be ‘the imposition of a penalty in order to vindicate the Court’s honour consequent upon the disregard of its order… and to compel the performance thereof’”.

While Zuma all but admitted that he was acting in contempt of court, this does not mean the former president is automatically held to be guilty of contempt. The commission will have to make an application to the Constitutional Court asking it to hold Zuma in contempt of court and to impose a suitable punishment, which can include imprisonment.

The Constitutional Court explained the legal position on contempt in its judgment in Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Shadrack Shivumba Homu Mkhonto and Others v Compensation Solutions (Pty) Limited where it pointed out that section 12(1) of the Constitution grants those fingered for contempt with procedural safeguards. 

The applicant in contempt proceedings in which the other party seeks imprisonment must prove all the requisites of contempt beyond reasonable doubt. However, “once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides”.

Zuma will find it close to impossible to show that he had not deliberately or wilfully disobeyed the Constitutional Court order. This is because the excuses advanced by Zuma’s lawyers on Monday do not attempt to show that Zuma lacked the intention to disobey the court order (something that would, in any case, have been difficult to do as Zuma had previously signalled his intent to disobey the court order). 

Instead, the letter bizarrely attempted to show that Zuma deliberately disobeyed the court order because he believed it was wrongly issued.

If Zuma had pulled this stunt when he was still president of South Africa, it would have caused a grave constitutional crisis as it would have set up a direct clash between the head of the executive and the highest court in the country — the kind of clash that a court never wins. 

But Zuma no longer holds any official position of power. He is just another ageing politician facing prosecution for corruption, fraud and money laundering.

I may be naïve, but I suspect that while  Zuma’s defiance of the Constitutional Court constitutes an indefensible attack on our constitutional democracy, it is likely to have a far more devastating effect on Zuma’s own status, political influence and credibility (what innocent person would ever go to such lengths not to have to refute the truthfulness of the allegations made against him?), than on the standing of the Constitutional Court — which is, after all, likely to have the last word on the matter. DM