That said, there are now several options available to our political and judicial leaders, and they have many different problems to consider.
On Friday Zuma lodged an urgent application at the Constitutional Court for the rescission of its order that he serve 15 months in prison for contempt of court by refusing to obey its earlier order that he testify at the Zondo Commission.
Meanwhile he told his supporters that he would not go to jail, and that he believed he had been treated unfairly by the court.
This raises the spectre that has haunted this entire issue: would Zuma comply with this ruling, or would there be violence as part of an attempt to resist arrest.
Zuma’s track record here is complicated.
He played an important, perhaps critical role in bringing peace to KwaZulu-Natal when the province was riven with violence between supporters of the ANC and the IFP. His supporters could even claim that, without him, that violence would not have ended as quickly as it did, and that he brought peace to KZN.
On the other hand, there have been instances when violence or the threat of violence has been used by his supporters, and he has not disavowed it.
In 2006 his supporters held placards outside the Johannesburg High Court during his rape trial, insulting and threatening violence against his accuser. He said, and did, nothing.
In 2017 a man appeared to threaten the home of the SACP deputy general secretary Solly Mapaila with a gun, and again, it appeared that this was the action of someone supporting Zuma. Again, presidential silence was the only consequence.
The MKMVA and others threatened violence against his removal, many times; again he did not disavow those statements.
Here, Zuma has now appeared with the people who are supporting him, clearly giving them encouragement.
But this does not mean that should the moment come, violence will necessarily be the result.
While this situation has many bad possible outcomes for Zuma, perhaps the worst for him would be to still end up in jail even as violence is used in his name. That would mean he would have played possibly the only card he had, lost, and along with that decision lost any support or sympathy he may have had among ANC members across the country. And when he then went to jail he would be politically isolated, with people furious at a situation for which only he himself can be blamed.
It also makes no strategic sense for Zuma to provoke the power of the state. If there is physical opposition to his arrest all of the people involved, the Police Minister, the National Police Commissioner, the President, the judiciary, everyone, will be forced into a position in which they have no other choice but to win, lest their authority be challenged forever. And despite its obvious current weaknesses, the state will always win such a confrontation.
Thus it is in Zuma’s own interest to ensure that actually there is no violence.
It also shows how important it is that he does not lose control of the situation, to ensure he can still control the moves and prevent violence from actually occurring.
This is also a demonstration of how important it will be for political leaders in the ANC and in KZN to remain close to the action.
While some may view the visits to Nkandla by the Premier Sihle Zikalala and the ANC’s provincial secretary Mdumiseni Ntuli as a suggestion of support for Zuma, in fact it appears they are trying to ensure some kind of peaceful resolution. And considering the situation it would be much more dangerous for them to be absent rather than present.
Meanwhile the next few days are also going to see judges in the Constitutional Court and the High Court in Pietermaritzburg having to make difficult decisions.
Zuma has applied to the Constitutional Court to rescind its earlier judgment, but in the meantime the Pietermaritzburg High Court has to decide whether to stay the order that he be arrested.
While this decision will have to be based on the law, one would have to be less than human not to have sympathy with whoever hears the case in the High Court. They may well want to be seen to be allowing the Constitutional Court to make a decision, and thus grant the stay, simply to give everyone breathing room.
This would then mean that the action would move to the Constitutional Court.
Essentially, Zuma is asking the same judges who ordered that he be jailed to now come to a different decision.
Key to this may be whether the facts have in fact changed.
But one of the main problems Zuma faces is what could be the tension between the facts, and his version of them.
Zuma previously refused to make any submissions to the court when the Zondo Commission first asked that he be found guilty of contempt of court. Even after that, Chief Justice Mogoeng Mogoeng asked Zuma if he would like to make submissions about any possible sanction, or jail time, before they came to their decision.
Again, Zuma refused. Instead, he issued a public statement attacking the court.
Now in his application, he says that he did not make submissions because of his financial hardship. He says also that when he left the commission’s hearing, he did so because he had to take medication and believed that he had the permission of the commission to leave.
But if that is the case, why did he not say that before? Why, instead of saying that to the court, did he issue a public statement attacking the court?
Also, if indeed he had no money for legal advice (he refers in his application to the debts he currently owes, particularly the R20-million he owes the state after it funded all of his previous legal battles), there was no one stopping him from coming to address the court personally.
Just two weeks ago, a former member of the EFF won a ruling in the Supreme Court of Appeal in a defamation case against the party’s leader Julius Malema. He did so by submitting a handwritten affidavit saying that he did not have the funds to fight a legal battle that included Malema’s two top advocates Tembeka Ngcukaitobi SC and Kameel Premhid. Such was the context of the case and the strength of his previous argument that he was victorious.
There was no reason why Zuma could have not done the same. Or at least issued a public statement explaining his position.
This poses serious problems for the judges.
For them to accept what he now says simply at face value, with no interrogation, could be to undermine the rule of law.
How can they now accept his version without interrogating it? Surely he has to be asked to prove what he now says, because he refused to say it before.
The court also has to deal with his argument that Judge Dhaya Pillay (who was in the majority in this case) is biased against him and thus should not have heard the case.
Zuma bases this on her findings in the Hanekom defamation case, and in her findings about a sick note that he submitted during his criminal trial. He also says that her friendship with Public Enterprises Minister Pravin Gordhan shows her bias against him (she was confronted with this during the Judicial Service Commission hearings).
In essence, he is asking the court to say that one of its judges should not sit in the case because she has ruled against him before.
If this is accepted it would mean that a precedent has been set, that a judge who has found against a person cannot sit in another case involving them. That would have the possibility of rendering the entire system unworkable. Zuma has lost many cases in the Constitutional Court before (Nkandla, the Zuma Spy Tapes case, the attempt to extend the term of office of then Chief Justice Sandile Ngcobo etc)… Would this mean that none of the judges who heard those cases can hear this case?
That would render the Constitutional Court, and probably the Supreme Court of Appeal impotent.
The problem the court may now have is that even if it is of a mind to change its earlier finding (and that is unlikely), to do so would mean it has to accept that Judge Pillay should not have been part of the case in the first place, and that it will now accept submissions from a person that could change the outcome of a case, after they have already ruled.
The outcome of that would be a judicial and legal earthquake. There would be no end to litigation.
This would also run the risk that Zuma would be the only person (in so far as is known…) to have won such a rescission application in this court, in effect to have had their case heard twice. And that in turn would then raise the question of whether the court is really treating people equally – is everyone equal before the law, or is he somehow special?
Of course, it could also be argued, as Zuma does, that this is a unique case for many reasons.
It is not only that he would be the “first direct prisoner of the Constitutional Court under our democracy”, it is also that this is the first time someone has been jailed in this way for contempt of a commission.
This may well explain why the court has agreed to hear this application; it is mindful of the completely unique situation that is at play here, politically and legally.
This application, and the court’s decision to hear it, also buys time. It allows the political situation around Nkandla to be dealt with carefully.
There are several resonances with the situation now, and that slightly strange time in 2018 when the ANC was preparing to tell Zuma to resign as President.
Then, as now, it may be that the outcome is much more important than the methods. Zuma had control of the armed forces then and surely posed much more of a danger to the country than he does now. And yet the end result was that he still had to leave office.
It was always inevitable that a court order compelling Zuma to go to jail, to be the first elected former head of state to report to a police station in our democracy, was going to result in last-minute court applications, political difficulties and threats.
But it may be that the outcome is what will really matter, and that violence can be avoided. DM