Former president Jacob Zuma should be sentenced to a two-year jail-term and no less because his conduct threatens South Africa’s entire constitutional order, the Commission of Inquiry into State Capture argued before the Constitutional Court on March 25.
“The Commission has asked for a declaration of contempt and a two-year sentence – it has not asked for a fine or a suspended sentence,” Advocate Tembeka Ngcukaitobi argued in a contempt of court application heard by the Constitutional Court, in a sitting presided over by Judge Sisi Khampepe. Zuma did not file an affidavit to contest the application.
The former president has repeatedly ignored summons by the State Capture inquiry and in November last year left its proceedings without chairperson Judge Raymond Zondo’s permission. That precipitated a Constitutional Court application to compel him to appear. The Court granted the order which the former head of state ignored and which precipitated what Ngcukaitobi said was a contempt of court application, unprecedented in South Africa’s democratic history.
“His (Zuma’s) conduct must be seen for what it is – a cynical manoeuvre to avoid accountability. Zuma has made public utterances against this court that are false, malicious and unjustified. (He has made) unfounded comparisons between this court and the apartheid judiciary (and) attempted to discredit this court and its members,” argued Ngcukaitobi. He said that this was why the Commission argued that the president must go straight to jail and not pass ‘Go’.
Zuma’s cynical attitude to accountability should be met with a penalty of a two-year jail term as an appropriate expression of disapproval. The court had jurisdiction to sentence, the advocate said, and it had to step in and protect the judiciary from “an open and brazen attack (by the former president).”
Isn’t it just freedom of speech?
Judge Leona Theron asked, “Doesn’t any person have the freedom of speech to criticise this court? Aren’t we (being asked to) impose on Mr Zuma’s freedom of speech?” Ngcukaitobi replied, “Anyone is entitled to say the judges are wrong. We (advocates) say judges are wrong, and we say it all the time. (But) no one is entitled to say that judges have abandoned the green robes (which Constitutional Court judges wear), that judges have received money (a claim Zuma’s supporters have campaigned on). No one can say that the judgment of the Constitutional Court mimics the posture of the Commission, which is designed to make unfair criticism of Zuma. These are unfounded (statements made by Zuma).
“Zuma is not here to defend his freedom of speech. We cannot make ad hominem attacks on people who are doing their work honestly and diligently. (This is a) deliberate campaign to discredit the court,” he argued.
Several judges asked whether a two- year jail sentence was either the appropriate or the only remedy; and whether a fine or a suspended sentence (with an order to appear before the Commission) was not a better option?
“It worries me that you have abandoned hope of him (Zuma) appearing. The main application was to get him to appear. If we simply impose a custodial sentence, it will be counter-productive as there will be no point,” said Judge Zukisa Tshiqi.
“A punitive sentence is never counter-productive. A fine is out of the question. A suspended sentence was alluded to by us, but we have had no response whatsoever from Mr Zuma. It (will) simply play into the exploitative attitude he has adopted throughout,” said Ngcukaitobi, who added that “it simply presents another opportunity for Mr Zuma to pretend he is co-operating and then run away. An effective order is a custodial order.”
The hearing was lightning fast at just over an hour long. Judgment has been reserved. DM
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