In February 2021, shortly after the Constitutional Court had ordered Jacob Zuma to testify before the State Capture Commission (which he was in any event legally required to do), Zuma issued a statement claiming that he would defy the order and that he was prepared to go to prison. “I do not fear being arrested,” he claimed. “I do not fear being convicted nor do I fear being incarcerated”.

Two weeks later, after failing to appear as directed by the Court, Zuma issued another statement in which he declared that his time with the commission is “now finished” and claimed that he is waiting “to face the sentence to be issued by the Constitutional Court”. In April that year, in response to a direction of the Constitutional Court to file an affidavit regarding the sanction to be imposed by the court for Zuma’s contempt of court, he sent a letter to the Chief Justice in which he again vowed to “stand on [his] conscience and beliefs” and pledged that he would “walk in jail as the first prisoner of the Constitutional Court”.

But after the Constitutional Court sentenced Zuma to a 15-month prison term without the option of a fine and it became clear that he would have to go to prison, Zuma’s alleged conscience went on vacation. Instead of defiantly facing his sentence as he claimed his conscience required, he instructed his lawyers to approach the Constitutional Court with a view to rescind the sentence imposed on him.

On the day he was required to hand himself in, his lawyers made one last, desperate attempt to keep him out of jail by writing a letter to the Constitutional Court, asking it to postpone his arrest until it had heard and considered an application for rescission a few days later. Earlier in the day Zuma had refused to hand himself in, stating that he would “sleep at home” that night. But he changed his mind later in the day and handed himself in shortly before the expiry of the deadline to do so.

Read more in Daily Maverick: Jacob Zuma speeds out of Nkandla and into custody at Estcourt Correctional Centre

On Thursday, Zuma will presumably return to the Constitutional Court for the first time since his dramatic (self-serving) change of heart, to hear arguments in the IEC appeal against the Electoral Court judgment which ruled that Zuma qualified to stand for election to the National Assembly despite having been convicted and sentenced to more than 12 months’ imprisonment without the option of a fine.

Much has changed since the prospect of serving prison time prompted Zuma’s about-turn. Judging from the replying affidavit submitted by Zuma’s lawyers on his behalf in the present case, he has learnt that outright defiance of the Court is not a good legal strategy. Notably, the tone of the court papers has softened, with only hints of the old defiant Zuma on display.

Impartiality argument

Strikingly, his lawyers now assure the court that Zuma has no intention to “re-argue or in any way challenge the previous judgments” of the Court relating to his contempt of court, this now all being “water under the bridge”. To quote the papers: “he himself says that he is prepared to let bygones be bygones and to forgive but never forget”. Zuma also now claims that he “accepts the reality and finality of those decisions”, and concedes that while he still believes the judgments were unjust, the Constitutional Court had been legally competent to send him to jail.

In a similar vein, the arguments advanced by his lawyers in support of Zuma’s application for the recusal of five justices of the Constitutional Court who had taken part in the original judgment that sent him to prison are lacklustre and oddly demure. In essence, the argument is that the justices should recuse themselves:

“On the grounds of reasonably apprehended bias and/or conflict of interests on the basis that they are bound to seek to interpret their own previous decision which now lies at the heart of the issues arising in this appeal in such a way as to automatically differ with the unanimous view of the Electoral Court.”

While Zuma’s lawyers correctly concede that justices of the Constitutional Court do not have to recuse themselves merely because they previously sat in a matter involving him, they seem to suggest that this case is different as the justices targeted for recusal have a personal interest in this case and would in effect be judges in their own cause if they hear the matter. There is no attempt to explain why justices would have a personal interest in a case dealing with the correct interpretation of section 47(1)(e) of the Constitution.

As was first made clear by the Constitutional Court in President of the Republic of South Africa v South African Rugby Football Union the test for recusal is stringent and an application for recusal will seldom succeed. The test is:

“Whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions.”

This means that the onus of establishing grounds for recusal rests on the applicant, in other words in this case it rests on Zuma. What is required is to place “cogent evidence” before the court “that will demonstrate that something the Judge or Magistrate has done gives rise to a reasonable apprehension of bias”. Zuma’s personal feelings about the Court or the justices whose recusal he seeks are thus irrelevant.

Moreover, evidence that the justices of the Constitutional Court had sat in the case in which Zuma had been found in contempt of court and sentenced to 15 months imprisonment would not suffice, as justices regularly consider matters involving litigants they had previously ruled against and because it is literally part of the job of any judge of the Constitutional Court to “interpret their own previous decisions”.

The latter happens indirectly every time a Court applies the principles established in a previous judgment in a new case before it. It also happens directly, as was the case in 2021 in Democratic Alliance in re Electoral Commission of South Africa v Minister of Cooperative Governance and Others when the DA approached the Constitutional Court on an urgent basis to invalidate the decision of the IEC to amend the election timetable to extend the date for submission of party lists and ward candidates for the local government election. This required the Court to interpret its previous order invalidating the declaration of the local government election date, which opened the door for the IEC to amend the timetable.

Recusal unlikely

We have to wait for the oral hearing on Thursday to see whether Zuma’s lawyers come up with any “evidence” to prove reasonable apprehension of bias, but as things stand, in my opinion the recusal application is dead in the water.

Just how difficult it is to win recusal of a judge is illustrated by the 2022 Constitutional Court judgment in South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another in which the Court rejected an application for the recusal of then Chief Justice Mogoeng Mogoeng in which the Court had to decide whether certain anti-Israel and anti-Zionists comments made by Bongani Masuku amounted to hate speech. The recusal application was launched after Mogoeng had made controversial comments expressing love for Israel which the respondents argued raised a reasonable apprehension of bias on the part of Mogoeng because it suggested that he held strong personal views that are diametrically opposed to the beliefs of the respondents.

Zuma’s recusal application has been described as a political and not a legal intervention, which may be correct. But I wonder whether the political considerations at play may have less to do with attempts to discredit the Court, and more with the electoral fortunes of the MK party. We will know that this is the case if his lawyers request on Thursday that the Court finalises the recusal application before it considers the merits of the case on a later date, which — if granted — would probably push the finalisation of the matter beyond election day.

Why this may be politically important is that Zuma needs potential MK voters to believe that if they vote for the party, they are voting for Zuma to become an MP (and perhaps President). This may be so because in the minds of many voters Zuma is MK and MK is Zuma. If the Court rules against Zuma before the election and it becomes clear that he cannot take up a seat in the Assembly, it might make potential MK voters thus less likely to vote for the party.

It is in any event not clear that Zuma will take up a seat in the Assembly even if he wins the case, something Zuma’s lawyers hinted at in their replying affidavit where they note that Zuma might lose his handsome Presidential benefits if he does take up a seat. (It is not clear if such a rule in fact exists.) It thus makes perfect political sense for Zuma to fight for his right to be elected to the Assembly even if he is not planning to take up his seat. What is politically required is for potential MK voters to believe that he will do so until after the election.

If Zuma is not planning to take up a seat in Parliament (which is impossible to know at present) but continues to indicate to supporters that he will do so, it would not be the first time that Zuma had not been entirely honest with his most loyal supporters — as his about-turn in 2021 illustrates. While I do not think the law currently allows Zuma to take up a seat in the Assembly, a small part of me hopes that I am wrong and that Zuma wins his case and is forced to choose between taking up a seat as promised to his supporters and not taking up a seat to protect his personal financial interest. DM