Zuma provokes ConCourt in last-ditch bid to avoid jail while armed supporters at Nkandla defy lockdown

The Constitutional Court had agreed earlier on Saturday to hear Jacob Zuma’s application for rescinding of its Tuesday judgment, wherein he was sentenced to 15 months’ direct imprisonment for contempt of court. The matter has been set down for hearing on 12 July. 

The apex court, in a majority judgment, found Zuma guilty of contempt for disobeying its order earlier in the year that he appear before the Zondo Commission of Inquiry into State Capture, chaired by now Acting Chief Justice Raymond Zondo, to answer allegations from scores of witnesses about his role in State Capture. 

Zuma has until Sunday to hand himself over to police, failing which, the SAPS will have three days to arrest him. 

As reported earlier by Daily Maverick, the former president has also brought an application before the Pietermaritzburg High Court, to be heard on Tuesday, to stay the execution of his arrest and incarceration. If it is found that that court has the competency to hear the matter, it is likely to reserve judgment, meaning the arrest order will remain in force. 

South Africans have learnt two things this week: Street fighter Zuma is showing the country legal alleyways and judicial dark corners that are not commonly explored, and police have zero appetite to enforce Level 4 lockdown regulations at specific gatherings, such as the show of support that is playing out outside Zuma’s homestead over the weekend.

Legal experts agree that, technically, in accordance with the Constitutional Court’s judgment, Zuma should be arrested by Wednesday at the latest. But it is more likely that the politically aligned SAPS will use the impending decision by the same court as an excuse to stall matters. 

Associate professor in public law at the University of Cape Town Richard Calland told Daily Maverick that the apex court likely had no choice but to hear Zuma’s review. 

“There is a legal right to apply for rescission. I suppose they could have rejected it out of hand as entirely unfounded, but they – and Zondo - who is ironically now back at the court as Acting Chief Justice, probably felt that they needed to be seen to be very fair to him.

“The rescission application has zero prospects of success. So, it will be rejected on 12 July or soon after. And then we will be back to where we are now,” said Calland.

He said Zuma continued to find ways of using the strength of the rule of law - which he is so happy to attack - to avoid accountability.

According to Lawson Naidoo of the Council for the Advancement of the South African Constitution (CASAC), if the law is upheld, Zuma should still be arrested. His attempt to have this stayed or interdicted via the Pietermaritzburg High Court was based on “bad legal advice”. 

“What Zuma has brought before the ConCourt is a unique kind of review application and a review application does not stay the court order. He will have to apply specifically for an interdict to stay that order. The order remains in force and of effect, and he is liable to either turn himself in on Sunday or be arrested. 

“In my understanding, the KwaZulu-Natal High Court has no jurisdiction to grant a stay of execution of a higher court.  He would have to do that in the ConCourt and, unfortunately, and once again, he has had bad legal advice,” said Naidoo. 

Zuma stated in his papers to the apex court for his rescission application that one of the reasons he finds himself facing jail time is because of “poor legal advice”. 

Nevertheless, there is food for thought in this exhausting debacle. Finally, Zuma is operating within the justice system instead of outside of it. In effect, he has been forced, thanks to the sentencing order, to appear before the apex court where he will have to answer some difficult questions. 

Outside Zuma’s Nkandla homestead

As such issues were being mulled over on Saturday, the disbanded Umkhonto weSizwe Military Veterans' Association (MKMVA) continued to march in various fatigues outside Zuma’s homestead in the midst of Level 4 lockdown restrictions, which prohibit public gatherings. Vehicles continued to stream in, with Zuma supporters – many sans masks - tumbling out and joining the ample crowds. 

Zuma emerged briefly from his homestead to greet the couple of hundred supporters camped outside. The former president did, however, meet with the Zulu regiment inside his property. He said things would become "difficult" if he was made to serve jail time when he had "done nothing wrong".

He implied that the government and judiciary had abused their powers, which could cause upheaval in South Africa. He said that he had predicted the Zondo commission would "end in tears", because "no country has ever investigated its own government".

ANC KwaZulu-Natal chairman Sihle Zikalala and provincial secretary Mdumiseni Ntuli were at Nkandla to meet Zuma. Suspended ANC secretary-general Ace Magashule was also at the homestead.  

Zikalala told the media that the Constitutional Court judgment had “divided society, it has divided the people, especially in the province”. 

Zikalala, previously known to be a Zuma lackey, was jeered by some supporters and called a “sell-out” as he tried to explain that Magashule was making an appearance as a “comrade visiting another comrade”, instead of in any official capacity. 

The momentum outside the homestead continued into Saturday night, with many supporters saying they would be camping out in their cars. Police presence throughout the day had been minimal, with some patrolling officers stopping their vehicles to greet those they knew.   

Supporters come and go, of course, but to the local residents, Zuma is and will remain a hero. 

Sixty-six MaThusini Zuma – no relation – told Daily Maverick that the former president “should be left alone now”. 

“He is even older than I am, but they're still after him. He is no longer the president. He is no longer in politics. Why are they still following him? Everyone is still after him.

“He really changed Nkandla. We have tap water and electricity now because of him. We have the tarred road because of him. He also took care of us, the elderly, with food parcels around Christmas, and blankets. Actually, it’s only last year that we didn’t get them, probably because of Covid. Even people from as far away as Durban came here for those food parcels and the meat, so he’s always looked out for his community. I am going to join the crowd later to show my support.”

Such is Zuma’s stature within the area that 41-year-old Hlengiwe Zuma (also no relation) offered to be arrested on his behalf. “He's an old man. What will you achieve by arresting him?” she asked. 

“We had jobs while he was still here. Now they’re telling us to farm if we want food. We did farm while he was president but we were farming while getting salaries. Now farming is all we can do to get food. As you can see we are [growing] sweet potatoes.”

When Daily Maverick told Hlengiwe that the former president had defied a Constitutional Court order, she said: “Then arrest me in his place. He is too old.”

Seventy-five-year-old MaMambo took a slightly more pragmatic approach. “I can't comment much on if he should be arrested or not because I don’t know what they say he did this time, but as a neighbour and someone I’ve always known, it hurts to see these things happening to him. 

“I’m not saying he’s innocent or guilty, because I actually don’t know much about politics - as you can see my TV is no longer working. Only they know what they did and didn’t do, but to see all these things happening to him, and hearing that he’s getting arrested, hurts.

“I knew him from when he was a boy, even before he dated MaKhumalo. I’m from the neighbouring village, but I was looking after a child from his neighbour. He was a bit older than me, as was MaKhumalo.

“He was never a troublesome boy, and even now as a man I’ve never heard that he shouted at someone or anything of that sort here. We only hear from the news that he is troublesome and we get surprised because that’s not the Msholozi we know. Like I said though, I don’t know what they do as politicians. I can’t comment on that.”

An ANC subregion chairperson, who asked that his name not be mentioned, was adamant that Zuma was the glue holding the governing party together. “That’s the bottom line. If Msholozi can come outside right now and speak ill of the ANC, do you think we would still have an ANC?” 

Zuma had “dirt” on other party leaders, he said, and if he made it known “the whole country would burn”. But he was disciplined by not revealing that dirt. “We are here to defend the ANC that we know Msholozi represents.”

According to his foundation, Zuma will “address the nation” on Sunday at 6pm. DM