South Africa

AWAITING RULING

Zuma lawyers call out Concourt judges for possibly being affected by ‘pettiness, bruised feelings and excessive zeal’

No doubt ex president Jacob Zuma and Helen Zille’s friendship is based in their common experience of being rejected by “people whose lives and careers they helped to build,” but even more in their joint mastery of the national art of the misuse of words. (Photo: Shiraaz Mohamed)

As former President Jacob Zuma recovers from an operation at a KwaZulu-Natal hospital, his legal team has had another crack at getting him out of jail, calling on the Constitutional Court judges not to let ‘pride’ and ‘pettiness’ deter them from considering his rights.

Former president Jacob Zuma’s legal team filed their latest papers in the Constitutional Court on Friday, responding to a call by the court for the legal teams in the case to make fresh submissions on the role of international law in the case.

On Sunday, the Department of Correctional Services (DCS) released a statement confirming that Zuma “underwent a surgical procedure” on Saturday “with other procedures for the coming days”.

“As a result, DCS is unable to predict a discharge date as our priority at this stage is for Mr Zuma to be afforded the best care possible,” department spokesman Singabakho Mxumalo said in a statement.

Zuma was sentenced to a 15-month jail term on 29 June after he refused to testify at the State Capture commission.

The Constitutional Court called, in particular, for the parties to file papers between 13 and 18 August that consider the role of the UN International Convention on Civil and Political Rights (ICCPR), with specific reference to Articles 9 and 14.

Article 9 deals with the right to liberty and security of a person and unlawful arrest, whereas Article 14 says everyone convicted of crime shall have the right to have the sentence and conviction reviewed by a higher tribunal according to law.

The convention came into effect in 1976 and was signed by the South African government in 1994. The South African Constitution has incorporated numerous provisions of the convention.

International Law Considerations

Zuma’s legal team argues that “the mere issuing of the directions constitutes the clearest evidence and acknowledgment” by the court that it should have considered the convention.

“At the risk of stating the obvious, if, as is clearly the case, the court failed or omitted to consider international law, as it must, then this fact alone cries out for the reconsideration of its decision in line with Rule 42 of the Uniform Rules of Court as read with Rule 29 of the Rules of the Constitutional Court, which calls such application to be done ‘with such modification as may be necessary’ i.e. taking into account the constitutional context,” Zuma’s lawyers argue in court papers. 

“South Africa signed the ICCPR in 1994 and ratified it in 1998. The relevant principles in the ICCPR are therefore binding on South Africa.”

Fair Trial Rights

The Zuma team argues that the court has violated Zuma’s fair trial rights and that international law requires the judges to allow him a full criminal trial before sentencing him.

“A fair criminal trial cannot mean the same thing as motion proceedings in the Constitutional Court (or any other court.) A fair trial is not even the same thing as a fair civil trial, let alone motion proceedings.

“Article 9 (1) of the ICCPR recognises the rights to liberty and security of the person. It prohibits arbitrary arrests and detention, requires any deprivation of liberty to be in accordance with the law, and in Article 9 (4) obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts. Articles 9 (3) and 9 (4) imposes procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge,” they argue

Avoid ‘pettiness’

The Zuma team warns the judges of the Concourt against allowing their personal feelings to cloud their judgment, saying they could have been “hurt by the attitude of Mr Zuma”.

.“The judges should have reflected on a fair process of adjudicating their complaint against him. In the circumstances of this case, he simply did not have an impartial court of disinterested prosecution required for criminal contempt prosecution,” they say.

“A correct reflection of the ICCPR within our Constitution would lead to the conclusion that Mr Zuma’s incarceration was a grave judicial error of which it has ready remedies to restore its moral and constitutional authority to avert the temptation of entrenching elsewhere within the judiciary what Justice Frankfurter of the US Supreme Court said is the ‘pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity’.”

The Zuma team say that by undoing its initial decision to incarcerate Zuma the court would be performing a “courageous act”.

“The Constitutional Court must also accept, as other judges in comparative jurisdictions, that like the rest of mankind they may be affected from time to time by pride, passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal.”

 

Meanwhile, Democracy in Action have also submitted their arguments to the court, saying the questions of international law should have been dealt with before Zuma’s incarceration.

The NGO describes itself as “a civil society organisation that focuses on strengthening of our democracy, protection of our constitution, promotion of our human rights and rule of law and fighting against the triple challenges facing the country”.

“It is testimony to the thoroughgoing processes of this Court that it has now called for submissions on implications of customary international law on this unprecedented detention of a former Head of State by the apex Court without being afforded fair trial rights. For that, this Court deserves commendation, not condemnation,” Democracy in Action says in court papers.

 

The organisation is in agreement with the Zuma legal team that international law is on Zuma’s side and should see the court rescind its initial decision to have him jailed.

It argues that if Zuma had been afforded a trial before being sentenced, he might have called State Capture Commission Chairman Raymon Zondo to testify as a witness. “It is conceivable that he may have chosen to call the Chairperson as a witness in order to establish and demonstrate to this Court the facts that informed his refusal to appear before the Chairperson (in contradistinction to the Commission itself), thereby conceivably lending a complete defence for his alleged civil contempt of this court’s order to appear before the Chairperson,” the organisation argues. 

The court will also consider submissions from the Commission of Inquiry into State Capture, the Helen Suzman Foundation and the Council for the Advancement of the Constitutions (Casac). They have until August 18 to do so.

The court is yet to confirm when it will issue its final ruling in the case. DM

 

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  • A total joke.! That Criminal has abused almost every single law in the constitution. Destroyed a whole nation with absolute disrespect of any rule… And Now He cries foul. The NEXT ANC joke please….
    Mike Honsa

  • This is laughable at best.
    The state should insist on the full medical records and then should get expert Drs in the various fields to examine this criminal themselves.
    Please can somebody just make a bold move here? SA deserves justices.

    This man stole the future of a generation of young South Africans.
    WHEN are the courts going to start treating him appropriately?

  • The other procedures planned are probably changing the Elastoplast on his operation site. It is ridiculous that the State seems unable to have access to Mr Zuma in hospital by a trauma specialist to establish whether there is any substance in the so called ‘medical bulletins’ that are being issued. If it is found that doctor(s) in the Military Medical Services have issued false medical ‘sick notes, those doctor(s) should be struck off the medical register. The information issued so far is incompatible with any known clinical situation.

    • When teaching at a Technikon some years ago, a student who’d missed a test presented me with the following sick note written on a doctor’s stationary and signed by that doctor.

      “Mr A.N. Other consulted me and said he was sick on dd/mm/yyyy” (the day of the test). No more, no less.

      I didn’t accept the sick note , and told the student that I would accept that he was sick only if the doctor explained exactly from what illness he was suffering. I heard nothing more from the student.

      I believe the Constitutional Court should demand to know what exactly ails Zuma, and that they should appoint a suitably qualified independent medical practitioner to examine him thoroughly and corroborate this.

  • One thing Zuma has done, through his attempts to avoid facing judicial review of his actions as head of state, and just generally, is to test if SA’s laws can hold power to account.

    How does our legal system deal with a powerful, yet willfully truant offender, ignoring every attempt to get him to testify here, there and everywhere, with seemingly bottomless pits of money?

    If he refuses to pitch, or submit heads of argument to a court, is that not a trail he chose to ignore? And we are pussyfooting around?
    And then invoke aggrievedness, that he wasn’t heard in a judgement that jailed him?
    Interesting.
    But obvious to me, at least, is the gumption, that to simply ignore legal requests and judgements renders our entire legal edifice irrelevant.
    We might as well go back to the bush and fight it out.
    Who needs a state construct then.
    In that case f you all.
    And forget about my taxes.
    Tsek.

  • One example only among many:
    The paragraph “A correct reflection of the ICCPR within our Constitution would lead to the conclusion that Mr Zuma’s incarceration was a grave judicial error of which it has ready remedies to restore its moral and constitutional authority to avert the temptation of entrenching elsewhere within the judiciary what Justice Frankfurter of the US Supreme Court said is the ‘pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity’.”
    is radically ungrammatical, incoherent and logically contradictory.
    It is an extremely frequent characteristic of submissions on behalf of Zuma, Magashule et al that a superficial appearance of legal discourse, when examined even cursorily, reveals these features. Linguistically and therefore legally, they continually undermine their own propositions. They should be rejected on these grounds, let alone any others.

  • The only party displaying “excessive zeal” in this matter, is the legal team for JZ ! By focusing obsessively on his ‘rights’ with no reference to his ‘responsibilities’, they have abandoned any efforts at impartiality ! As for ‘prohibits arbitrary arrests and detention’ … it should be noted that there was nothing “arbitrary” about the detention and that he handed himself over for arrest, on the basis of a legal and binding finding. May I add
    my good wishes to that of the ANC, for his speedy recovery . One can but hope the surgeons found and removed the malignant state capture tumours (not rumours) that afflicted the ex-president … and that he can have his requested ‘day in court’, after decades of trying anything and everything … to evade it.

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