Deputy Chief Justice Raymond Zondo and his State Capture Commission were criticised for failing to force former president Jacob Zuma to testify, with the Constitutional Court stating in January 2021 that the commission was responsible for having to rush to court to secure his testimony months before it was scheduled to conclude.

Back in the apex court on Thursday, the commission took a different approach. It has abandoned attempts to get Zuma to testify and called on the court to find him in contempt of the January order, which said the former president must adhere to summonses, answer questions and file the requested affidavits. Instead, it asked the court to send him to prison for two years rather than impose a suspended sentence to get Zuma to cooperate.

“The spectacle we fear is the spectacle of Mr Zuma continuing to run rings around the commission. Because, he is brought today, he doesn’t speak, he’s brought the other day, and the entire thing degenerates into a circus,” argued Tembeka Ngcukaitobi SC for the commission.

“Another 30 days changes nothing. He has been served with papers, he has not responded. So another 30 days simply enables the abuse of the Constitutional Court to continue and the abuse of this court should stop and it can only stop by a custodial sentence.”

There’s no doubt that Zuma defied the Constitutional Court’s January order. He did not appear on 15 February as required and has not submitted any of the mandatory affidavits. Instead, he has said he’d rather go to jail than testify and suggested Zondo and the Constitutional Court justices are biased.

Zuma thinks the Constitutional Court case should pause while he approaches the courts to challenge Zondo’s decision not to recuse himself from the commission. But he chose not to participate in either the commission’s initial Constitutional Court case or the hearing on Thursday.

Ngcukaitobi said Zuma could have come to court to argue his case but did not, making the matter straightforward, regardless of whether Zuma had a related case pending.

“I’m afraid there is no option. He should have gone to the commission on the 15th of February. He did not do so and he deliberately did not do so. 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 institution of the judiciary. 

“Mr Zuma knows his legal rights, he has senior counsel advising him,” said Ngcukaitobi.

The justices quizzed the advocate on whether the matter fell within the court’s jurisdiction and whether it was urgent.

Ngcukaitobi argued that the Constitutional Court should rule on a breach of its own order and that it would be unfair to send the matter to a lower court.

“The real debate is whether or not we could have gone to the high court. In that instance, we are not aware of any authority that says a party may go to the high court to sue for contempt of a Constitutional Court order,” he said.

University of Pretoria law lecturer Dr Llewelyn Curlewis said the court had jurisdiction over the matter under the Superior Courts Act and because it made the initial order.

The issue of urgency appears more complicated. In the commission’s original application to force Zuma to testify, the court found that the time constraints were due to its own conduct – treating Zuma with kid gloves – but it granted Zondo direct access because it was in the public interest for Zuma to testify on the widespread corruption allegations before the commission concluded.

On Thursday, Justice Leona Theron asked whether there was urgency if the commission had given up on getting Zuma to testify and wanted him sent straight to prison. Ngcukaitobi said the case now related to the implications of the former president defying the court.

Zuma has repeatedly raised the stakes in the saga by defying the commission’s subpoenas and then ignoring the Constitutional Court order, while publicly claiming Zondo and the judiciary are conspiring against him, with loose references to forces that sought his removal from office.

If the court declines to hear the matter on the basis of urgency, the application will fall away and the commission can then decide if it wants to have the application heard on the ordinary court roll. Curlewis said his “gut feeling” was that the court would deem the matter urgent.

Professor Pierre de Vos, from the University of Cape Town’s constitutional governance unit, said urgency might be the weakest point in the commission’s case, but it had made strong arguments.

If the commission’s application is considered urgent, and to fall within the Constitutional Court’s jurisdiction, the justices, once deciding Zuma is in contempt of court, will have to decide on the appropriate sentence.

A two-year sentence of direct imprisonment for contempt in a civil case was described as unprecedented. Ngcukaitobi said the commission couldn’t find useful examples to recommend a prison sentence, but said the court should consider Zuma’s influence in society, the public nature of his disobedience and his public campaign to discredit the judiciary.

Ngcukaitobi cited the 2016 Supreme Court of Appeal (SCA) contempt judgment against former Compensation Fund commissioner Shadrack Mkhonto, who also failed to participate in the court process. The SCA described Mkhonto’s failure to explain his contempt as “the worst affront”.

Mkhonto, however, was sentenced to three years in prison, suspended for five years. Ngcukaitobi said a suspended sentence was inappropriate for Zuma.

“The question really is how long Mr Zuma should go to prison for? That he should go to prison should be clear.”

The Helen Suzman Foundation applied to join the case as amicus curiae. It asked the court to issue an order that was both punitive and coercive, suggesting Zuma be sent directly to prison but released if he cooperates with the commission.

Justice Zukisa Tshiqi asked Ngcukaitobi, “Now, if we simply impose a custodial sentence, would that not be counterproductive in the sense that there would really be no point in the whole thing, in the whole process?”

Ngcukaitobi dismissed the idea. Zondo is due to file his final report by the end of June and, if given the chance, Zuma will keep playing games with the commission. What matters going forward is holding the former president accountable for disobeying a Constitutional Court order, he argued.

“I’m afraid that at this point in time there is a risk of rendering this court’s judgment hollow because it simply creates another round for Mr Zuma to escape; to pretend that he is cooperating and then run away from that cooperation,” said the advocate.

Zuma has repeatedly raised the stakes in the saga by defying the commission’s subpoenas and then ignoring the Constitutional Court order, while publicly claiming Zondo and the judiciary are conspiring against him, with loose references to forces that sought his removal from office.

While appearing to support Zuma’s arrest, ANC veteran Reverend Frank Chikane, who worked in former president Thabo Mbeki’s office, warned that it could result in “another Marikana” as Umkhonto weSizwe Military Veterans’ Association (MKMVA) members have vowed to keep Zuma out of prison and are reportedly stationed outside his Nkandla residence.

Outside the Constitutional Court on Thursday, MKMVA spokesperson Carl Niehaus said, “We do not want to see social instability in SA. But such a judgement will inevitably lead to social instability which will not be good for South Africa or for the ANC… that’s why we sincerely hope that this will not happen.”

Professor Susan Booysen, a director at the Mapungubwe Institute for Strategic Reflection and author of Dominance and Decline: The ANC in the Time of Zuma, said Zuma had been playing a game of brinkmanship and likely thought the authorities were scared to hold him accountable.

She said Zuma appeared to be bargaining on the fear of a possible insurrection if he was to be arrested, but his broader support was experiencing “ongoing shrinkage”, as seen in the limited number of MKMVA and ANC Women’s League supporters who recently rallied outside Nkandla.

It’s unclear whether the Constitutional Court will take the State Capture Commission’s case forward. If it does, and happens to grant the commission’s unprecedented request for direct imprisonment, Zuma could either hand himself over or wait to be apprehended.

One thing is certain, said Booysen: “The martyr act will definitely be there.” DM