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Jacob Zuma’s ill-conceived rescission application ree...

Defend Truth

Opinionista

Jacob Zuma’s ill-conceived rescission application reeks of self-pity, deviance and delinquency

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Paul Hoffman SC is a director of Accountability Now.

Jacob Zuma’s affidavit shows he is largely the author of his own misfortune because he has accepted bad advice and behaved with the deviance of a delinquent teenager. His generally unapologetic stance is hardly going to endear him to the court being asked to condone his errors. If the court finds Zuma is indeed guilty of aggravating the contempt, it is at large to increase his sentence.

On 12 July 2021, the Constitutional Court will hear an urgent application for an order setting aside the term of imprisonment of 15 months it ordered Jacob Zuma, former president of SA, to serve for his contempt of its order that he present himself to the State Capture Commission to answer its questions concerning his widely and serially alleged involvement in the affairs it is investigating.

Zuma has now resorted to invoking the rules of court that provide for the setting aside of orders granted in error. He is entitled to do so. His prospects of demonstrating any relevant or discernible error seem slim on any careful reading of the papers he has filed in the proceedings.

Quite rightly, the courts need to hold him to account for his refusal to testify before Justice Raymond Zondo at the commission and for his contemptuous approach to the order that he do so. His founding affidavit is a worrisome collection of finger-pointing allegations, bereft of contrition, apology or regret on the part of Zuma.

He blames Justice Zondo for not recusing himself, despite the absence of grounds justifying recusal and the lateness of the recusal application, given that the appointment of Zondo was effected years ago to Zuma’s knowledge and without demur by him. He accuses his legal team of giving him bad advice, without saying why he accepted the palpably poor counsel. He is careful not to reveal what the bad advice was when doing so might further harm his case.

In a worrisome fashion, he admonishes the court to “dig from the depth of its judicial being, to extract the requisite calmness and restraint, and to adjudicate my application solely based on its legal merits”.

These words reveal a remarkable display of unbounded arrogance, a lack of respect and show, for all the world to see, that Zuma is a complete stranger to constitutionalism in general and the role of the courts in SA’s governance structures in particular. His words reveal that his sense of entitlement is huge, his willingness to be a professional victim is unlimited, and that he is totally unapologetic.

Zuma’s founding affidavit shows that he is largely the author of his own misfortune because he has made wrong choices, accepted bad advice and behaved with the deviance of a delinquent teenager whose immature and unjustifiable wail “it’s not fair” echoes through the papers he has filed in support of his ill-conceived application.

Civil imprisonment for contempt of court, Zuma’s current fate, is not novel in SA law. The basic textbook, The Law of South Africa (Lawsa), Volume 5 paragraph 69, sets out the law succinctly:

“Although civil imprisonment has been abolished [in 1977], the court’s power to order committal for contempt has not been affected… The procedure is reasonable and justifiable in terms of the Bill of Rights.

“Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court other than a money judgment…

“Where the respondent displayed an unacceptable degree of arrogance and perceived inviolability of its executive officers and a disregard for the rule of law, the penalty had to be commensurate with the degree of the contempt, the intention with which it was committed and the interests affected and had to act as a deterrent and be punitive. [The Uncedo Taxi Service Association case].”

An overview of the uncontrite affidavit supporting the application reveals very little evidence displacing the findings that Zuma was both wilful and mala fide in his refusal to give evidence and in the way in which he conducted himself in the subsequent contempt proceedings.

The reliance upon the fate of Zuma’s misconceived recusal application of November 2020, which was correctly and justifiably refused by Justice Zondo, is misplaced. Not only was there no proper basis for it, the need to recuse has fallen away because the commission no longer requires the evidence of Zuma. It seeks only that he be punished for his contempt of the order of the highest court in the land requiring him to give evidence. His failure to seek an interim interdict preventing the commission from hearing his evidence is fatal to his bona fides. He says he was advised not to seek the necessary interdict. He does not, as he should have done, say why he was so advised.

Cynical observers may claim that it is plain that the interdict was not sought because its prospects of being granted were, and always have been, extremely slim. Notwithstanding these considerations, Zuma continues to seek to rely on his review application which is now moot as the commission has decided to dispense with his evidence. The committal for contempt sought by the commission is purely punitive and it is necessary to protect the authority of the courts. It is the dignity and efficacy of our highest court that is affected by Zuma’s contempt of its order. As Lawsa puts it in the same paragraph quoted from above:

“All orders of court, whether correctly or incorrectly granted, have to be obeyed until set aside. Since it is vital to the administration of justice that those affected by the court orders obey them, disregard cannot be tolerated and contempt applications are by their nature urgent.”

The Constitution itself values the need to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. As a former head of state Zuma should know, respect and uphold these requirements. Instead, he belatedly pleads poverty, ill-health and poor legal advice as the causes of his being in contempt.

These factors did not lead to the contempt order being granted in error, certainly not the type of error that justifies the invocation of Rule 42. It was entirely Zuma’s own fault that the order was granted in his absence. One searches in vain to find any error in the order that would enable it, or any part of it, to be properly set aside by the proceedings now pending before the Constitutional Court.

It will be interesting to see whether the commission, which asked for 24 months and received 15 months in jail for Zuma, construes the tenor of his founding affidavit as aggravation of his contempt. A proper conspectus of what Zuma relies on suggests that there are certainly grounds for doing so. Casting himself on the mercy of the court without showing any contrition for his actions, his poor choices and his inappropriate public responses is aggravating. So is the attempt to hide behind the skirts of those in the Jacob Zuma Foundation whose scurrilous response to the proceedings is already a matter of public record and stands uncontradicted by Zuma.

His generally unapologetic stance is hardly going to endear him to the court being asked to condone his errors in order to spare him incarceration. If the court finds that Zuma is indeed guilty of aggravating the contempt, it is at large to increase his sentence. As less than four months of the sentence will be served should section 73(6)(aA) of the Correctional Services Act be invoked, the hearing may well be the occasion for revisiting the punishment meted out last month. Whether the act applies at all to civil imprisonment for contempt of court is an open question, the answer to which will or could determine the duration of Zuma’s stay in prison.

There are also good grounds for arguing that the rescission application is a political stunt rather than a seriously intended legal challenge. Zuma makes no bones about his continuing attachment to his earlier criticisms of the court and the commission nor does he disguise his dread of the prospect of presenting his application in court. Much of the material placed before the court by Zuma is for public consumption rather than of any assistance to the court in determining the application. It could properly be struck out as irrelevant, vexatious or even “odious political posturing”.

It may be that the commission will elect to ask for a punitive costs award again. It was awarded punitive costs in the contempt proceedings. It is even conceivable that those advising Zuma will be put on notice that punitive costs will be sought against them personally for encouraging ill-advised litigation and for settling papers with so much irrelevant, inflammatory and scurrilous content.

Whatever emerges from the hearing scheduled for 12 July, it will be of importance for the rule of law and the exacting of accountability in our still fragile and fairly new constitutional dispensation. The independence and impartiality of the highest court in the land is being challenged by Zuma. May it be equal to the occasion. DM

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All Comments 27

  • I’m relieved that I’ve never had to face an advocate of Paul’s calibre in court; it’s much more enjoyable to rather read his articulate, concise and well-reasoned articles.

  • I hope the Concourt increase this delinquent’s sentence to 36 months after this weekends blatant defiance of the rule of law, yet again, by a criminal that should be shown absolutely no mercy. He destroyed SA. And he does not care. He is willing to let his ill informed followers die in his name. He is a disgusting creature that should be treated as such.
    I see Duduzane was also parading amongst the crowd. Might be a good idea to nab that criminal up as well before he flees to one of his foreign mansions paid for by you and I…

  • I agree wholeheartedly with Terry’s comments.
    For me, Zuma’s arguments and pleadings are covered in the fingerprints of Dali “Shut up” Mpofu and one hopes that Paul’s comments in his second to last paragraph, that “It is even conceivable that those advising Zuma will be put on notice that punitive costs will be sought against them personally . . .” grabs the attention of the ConCourt judges.
    I have long been of the view, were it not for the Hulley’s, Sikhakani’s, Shut up’s, et al out there, matters would have taken a very different turn a long time ago.
    Zuma doesn’t have the nouse to come up with this type of legal wrangling and leaves it to his so-called advisors.
    He deserves to finally be short-changed by them!

    • I am in partial agreement with you. One can give you legal advice and the consequences of each approach taken in the legal matter. You make the final decision on the approach. So “Shut Up” had to shut up and present the options for the client chose in the end. He after all Zuma has to go to jail and pay the bills too. Knowing how poor this case is, the ConCourt has put the legal buffs on alert as to costs.

  • Thank you Paul for this clear explanation. Following this. I would like to know from you, and assume that these are questions on everyones lips at this time –
    1. Despite the outcome of this present decision of the court to imprison Zuma for his delinquency before the constitional court, what will happen with all the other charges against him down the line? and
    2 if he does wiggle out of the decisions of the court to be imprisoned, could the South African Law enforcement organs and which ones would they be if this is the case?) be then held liable for failure to act in accordance with the constitutional decision ?

    • Also.. I understand about the importance and superiority of the constitutional court, and of course this was the route to skin the proverbial cat, but to me, this is posturing and pussyfooting around the far graver and pervasive assaults that he has committed on our citizenry. How can this be this way, Paul ?

  • Mpofu and Masuku should be fined and struck from the Roll. Zuma should just be struck. And the bit part players Yengeni,Cigarette Edward and Magashule MUST be kicked out of the ANC. Don’t even mention Carl

      • Can you imagine the ANC kicking out all these scoundrels ? They would have no more ‘cadres’ left to deploy ! Even at NEC level … CR is surrounded by comrades who are ‘married’ to outdated communist ideology (with MBA’s to match … from Trump university one presumes!) … the kind that would make even Xi blush ! Well … if not blush … then at least smirk .

  • Zuma must come to Alexander Bay, I will show him what unfair really looks like. A sight echoed all around our country, I am sure, because of this sociopath and his mindless cronies.

    • Spot on ! The dilly Dali-ing continues unabated. Even in a ..ithole like America, they have after many decades of abuse of the judicial process … found the courage to suspend the license of Guilianni to practice law !

  • Paul another superb article. Whilst SA’s complete media machinery is busy polishing peanuts on the immediate fate of JZ, I find myself again asking, what is the root cause of SA reaching this undesirable and volatile situation? In short my hypothesis is the ANC is de facto unconstitutional. My analysis is that whilst the ANC, or any organisation in SA, is allowed to elect its leadership and organise itself as the ANC does we will continue to risk this outcome. This begs the question that if such a system seemingly promotes what amounts to insurrection then it is surely unconstitutional? You wrote an excellent article in February referring to the Glenister judgement and STIRS, and the possibility of a new Chapter 9 institution to deal with corruption. This would indeed be welcomed. However, this is but one example, where my feeling is the ANC loves all this debate and focus on changing legitimate democratic mechanisms that distract us from the root cause, being the inner workings of the political party. If clever Martians were to arrive and evaluate SA’s political power, they would surely conclude that real decision making takes place out side the formal legitimate system of Parliament, the Chapter 9 institutions etc,- and being tested now, even the judiciary – and actually vests in the ANC leadership structure , Luthuli House etc. Until we focus our attention on this real root cause of our problems we seem to be moving the deckchairs around, hopefully not on the Titanic.

      • Never give up on something you love. The history is still unravelling. We are in a dire situation, but certainly not down and out. We need to shift the focus to the appropriate things….get out ahead of the ANC for a change. We are way too accepting and reactive.

  • A superb analysis … made even more enjoyable and accessible by the simple English deployed, which even a lay person like myself could understand . Away with the showboating and dangerous dilly Dali-ing !

  • Mpofu and Masuku a quote for you two givers of “bad legal advice” which your client alledges you gave him😂
    “The Law, as you may have surmised, is equal parts theatre and reason. The finest scholars might struggle in court,while mediocre thinkers excel. Logic and flair,and leverage where appropriate,such are the makings of a trial attorney.”
    You two on the other hand are much more aligned with those pathetically inept actors on TV2 and your notion of reason is uncomfortably close to insanity. I hope the Bar takes note of your stupidity and flouting of Disaster Management Act as well as your clients dissatisfaction with your services. Hilarious clowns.

  • Just a thought …. in the light of his claim that he got poor/bad advice from his legal counsel … has he reported them (him?) to the JSC (as tardy and almost useless as it is) for remedy ? e.g. suspension of licence or disbarment from the profession. If not why not ? One hopes the ones hearing this rescind application will consider this question.

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