Former president Jacob Zuma (left) and Deputy Chief Justice Raymond Zondo. (Illustrative image sources: 2019 Tiso Blackstar Group / Thulani Mbele | Financial Mail / Freddy Mavunda)
The Zondo Commission of Inquiry into State Capture filed papers with the Constitutional Court on Monday in which it asked the court to find former president Jacob Zuma in contempt and to issue an ‘appropriate' sentence for failing to assure the apex court that he would appear before the commission, as he had been ordered to do.
In its Heads of Argument to the Constitutional Court, the Zondo Commission said that the former president’s “public defiance” of the court “appears calculated to undermine public trust in the judiciary and the administration of justice as a whole”.
Zuma did not file a responding affidavit or notice to oppose, which garnered this reaction from the commission in its papers: “Bearing in mind what he has stated publicly about this court, it would have been expected that he would defend or explain his utterances on oath, before this court. The legal effect of his failure to file an opposing affidavit, however, is that all the facts alleged by the commission must be taken to be established.”
There is no doubt that Zuma is in contempt of court, according to the commission. The question was what the appropriate sentence for the former president should be.
Zuma’s “insults” via public statements were an aggravating factor in determining this, the commission said.
“In these statements, Mr Zuma has aggravated his offence of contempt by insulting this court, the commission and the judiciary at large in a manner that appears calculated to bring the judicial process into disrepute.
“We do not ask this court to decide whether Mr Zuma committed the offence of scandalising the court. We submit that Mr Zuma’s statements are an
aggravating factor in his offence of contempt of court.
“The statements have been issued, their meaning is plain, and they have not been explained by Mr Zuma before this court. By issuing these statements, Mr Zuma sought both to publicise and justify his defiance of this court’s order and the commission.”
The commission did not specify what the sentence should be. Instructing the commission’s legal team to bring contempt of court charges before the Constitutional Court against Zuma last month, Deputy Chief Justice Raymond Zondo had recommended a jail term. “It will be up to the court to decide what is appropriate,” said Zondo at the time.
According to evidence leader Paul Pretorius’s own admission when discussing Zuma’s no-show last month, about 40 witnesses throughout the course of the inquiry had thus far implicated Zuma in wrongdoing.
Instead of appearing before the commission again – he has only appeared once – Zuma has fired blistering public attacks over the alleged lack of impartiality of the commission and its eponymous chairman, Justice Raymond Zondo.
He has called on Zondo to recuse himself, and in November last year walked out of the commission because the judge failed to do so. He has since ignored summonses calling him to testify, and the subsequent Constitutional Court order that he obey the summonses and give evidence.
Zuma and his acolytes have a fair degree of public support, and argue that the commission has become a political battleground instead of being an inquisitorial forum.
The commission highlighted some of Zuma’s “insults” in its papers, quoting him as saying:
- That the Constitutional Court represented “a clearly politicised segment of the judiciary that now heralds an imminent constitutional crisis in this country”.
- That the commission recently ran to the Constitutional Court “to compel me to attend at the commission and to compel me to give answers at the commission, effectively undermining a litany of my constitutional rights, including the right to the presumption of innocence”.
- That the Constitutional Court’s judgment “also mimics the posture of the commission in that it has now also created a special and different set of circumstances specifically designed to deal with Zuma by suspending my constitutional rights, rendering me completely defenceless against the commission”. This resembles the conduct of the apartheid government, which legislated for the indefinite detention of Robert Sobukwe, who was also “specifically targeted 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 again “prepared to go to prison to defend the constitutional rights that I personally fought for and to serve whatever sentence that this democratically elected government deems appropriate as part of the special and different laws for Zuma agenda”.
- That the Constitutional Court judgment “effectively stripped me of my constitutional right as a citizen and created … jurisprudence that only applies to Jacob Gedleyihlekisa Zuma”.
- That I defy the Constitutional Court “not to undermine the Constitution, but to vindicate it, in the face of what I view as a few in the judiciary that have long left their constitutional station to join political battles”.
- That I defy the Constitutional Court and now await its sentence because “I firmly believe that we should never allow for the establishment of a judiciary in which justice, fairness and due process are discretionary and are exclusively preserved for certain litigants and not others”.
- That “many in our society have watched this form of judicial abuse….”
- That the Constitutional Court made a costs order against me. It has become “common place for some of our courts to make these costs orders against me in order to diminish my constitutional right to approach courts”.
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 defy, but a few lawless judges who have left their constitutional post for political expediency”.
- That “I protest against those in the judiciary that have become an extension of political forces that seek to destroy and control our country”.
- That the recent judgment of the Constitutional Court “is a travesty of justice”. It is “based on mere conjecture and speculation about my future conduct” and “a betrayal of the Constitution that many refuse to confront as they scapegoat me for every malady in society”.
- That “I protest against our black, red and green robes, dressing up some individuals that have long betrayed the Constitution and their oath of office”.
- That my statement “is a protest against some in the judiciary that have sold their souls and departed from their oath of office”. My respect for the law “obliges me to reject the abuse of law and judicial office for political purposes”.
The commission also quoted some of Zuma’s “serious insults” about the Zondo Commission:
- The commission “has continued with creating a special and different approach to specifically deal with Zuma. The chairperson of the commission, unprovoked, has called special press conferences to make specific announcements about Zuma. This has never happened for any other witness.”
- “The commission … should have been rightly named the Commission of Inquiry into Allegations of State Capture against Jacob Zuma, as it has been obviously established to investigate me specifically.”
- Deputy Chief Justice Zondo has been “frugal and expedient with the truth. I had relied on his own personal integrity, which now seems very compromised.”
- “He literally created a dispute of fact in an application about him and continued to adjudicate the matter, where his version was being contested by me. Again, a special and different set of legal norms were employed because they were targeting Zuma.”
- At the commission “allegations made against the judiciary have been overlooked and suppressed by the chairperson himself”. It is blatantly clear to me “that I am being singled out for different and special treatment by the judiciary, and the legal system as a whole. I therefore state in advance that the commission … can expect no further cooperation from me in any of their processes going forward.”
- Deputy Chief Justice Zondo and Advocate Pretorius SC did what has become their hallmark, “in making submissions to each other and playing politics to influence public opinion”.
- “That Deputy Chief Justice Zondo could mislead to the nation is something that should concern us all.”
- The Chair “has always sought to prejudice me”.
- “Deputy Chief Justice Zondo and due process and the law are estranged.”
- “Judge Zondo has today again displayed questionable judicial integrity, independence and open-mindedness required in an investigation of this magnitude.”
- “The commission sought to deliver me at all costs and in this endeavour is prepared to break every rule of justice and fairness.”
The commission also listed some of Zuma’s insults to the judiciary as a whole:
- The public discourse has been “seeking to shield what I regard as a few in the judiciary that have forsaken their oath of office….”
- I “express my own protest about those in the judiciary that have turned their back on their fundamental task in society … because I believe that judges should never become agents of ruling classes in society”.
I take this stance “because we continue to allow some in the judiciary to create jurisprudence and legal inconsistencies that apply only to me”.
- “We sit with some judges who have assisted the incumbent president to hide from society what on the face of it seems to be bribes obtained in order to win an internal ANC election.”
- It has become clear to me “that I will never get justice before some of the current crop of our judges in their quest to raise their hands to seek political acceptance at my expense”.
- “History will soon reveal that it is only some in our courts that have been captured to serve political ends and to undermine the Constitution…”
Zuma’s failure to respond to the application further aggravated his culpability, according to the commission, as it “demonstrates a persistent attitude of contempt and disregard for this court and its processes”.
The commission maintains that as a high-profile figure and a leader in society, Zuma is potentially cutting a path that others will follow, which could pose a very real threat to the rule of law.
The commission said it was also seeking legal costs. “This costs order is justified by Mr Zuma’s reprehensible conduct that has required the commission to again approach this court at public expense.
“Mr Zuma has deliberately and in bad faith defied an order of this court. He has also launched unjustified public attacks on this court, the commission and the institution of the judiciary.
“Mr Zuma’s public utterances against this court have been untruthful and malicious. When called upon to justify or explain the statements on oath, Mr Zuma has failed to do so as he has not filed any answering affidavit in this matter. Such malicious conduct is deserving of censure in a punitive costs order.”
The Constitutional Court hearing takes place on March 25.
The commission has thus far cost the South African taxpayers close to R1-billion and has had to have its lifespan extended because of the sheer volume of witnesses and having to pause for three months during the Covid-19 lockdown.
Its final report is now due by June 30.
The commission has, up until now, extended grace to Zuma that it is difficult imagining it would to ordinary citizens. In its previous filing with the apex court, it said that it would be willing to accommodate Zuma during the three-month period that should be used to write its final report, should he agree to testify. DM