Durban - Former president Jacob Zuma will attempt on Monday, to shift the country’s legal parameters to another level with his application to the Constitutional Court to rescind its previous order, which found him guilty of contempt and sentenced him to 15 months of imprisonment.
Some of the respondents in the matter believe Zuma’s argument had no legal basis and was just another show of defiance for the rule of law and labelled him a “constitutional delinquent''.
The order, which ultimately relates to Zuma's refusal to appear at the Commission of Inquiry into State Capture, headed by Deputy Chief Justice Raymond Zondo, took effect on Wednesday.
Zuma handed himself over to police and was incarcerated at the Estcourt Correctional Facility in KwaZulu-Natal.
In his application, he accused Justice Zondo of abandoning his decision to report him to the police for ditching the commission of inquiry into state capture.
Zuma said the commission failed to inform the Constitutional Court that he has a health condition, which was relevant to his non-appearance before its chairperson Justice Zondo, who had agreed to receive a medical report from his medical team and even meet them.
Had this honourable court been aware of the exact nature and extent of the applicant’s (Zuma’s) medical condition(s), it may have come to a different decision,” read Zuma’s heads of argument.
Zuma said Justice Zondo publicly announced in November last that he would invoke his powers under the Commissions Act to report his alleged conduct as a criminal offence to the SA Police Service.
This was after Zuma walked out of the commission after Justice Zondo ruled against the former president in his bid to have him (Justice Zondo) recuse himself from hearing his evidence.
”That would be consistent with the procedure prescribed in the Commissions Act, which is the controlling statute for commissions of inquiry,” reads the heads of argument.
Zuma said instead of complying with his rulings in relation to his non-appearance at the commission in terms of the Commissions Act, Zondo invoked an extraordinary summary procedure for the enforcement of the commission’s summons but with no reference to the Act, which is the subsidiary legislation which governs his commission.
Zondo opted for direct access to the Constitutional Court to compel him to appear even before resolving the issue of whether he (Zondo) was conflicted or not, was decided in Zuma’s high court application, the former statesman said.
He claimed that Zondo did not disclose to the Concourt his reasons for abandoning his own ruling to deal with Zuma’s non-appearance at the commission.
”This in itself is prima facie unlawful and irrational,” said Zuma.
He said Zondo made the bold move and gambled with an urgent, direct access application to the apex court to obtain “unprecedented” relief.
“Seemingly, a lot more is at play. For now, however, the review and recusal applications are still pending in our court system. Nothing more, therefore, needs to be said on this score,” Zuma stated.
In response, Professor Itumeleng Mosala, the commission’s secretary, deposed an affidavit and deemed Zuma’s rescission application as falling short of legal requirements, riddled with falsehoods, factual misrepresentations and distortions of the law.
Mosala insisted that Zuma was in aggravated contempt of court. He had not and has no intention of purging the contempt.
“No litigant can approach the doors of court with dirty hands. Mr Zuma lacks standing to bring any application to court while he remains in contempt.”
He maintains that Zuma was a party to the contempt order and was duly served with court documents but elected not to participate.
Mosala picked on Zuma blaming his previous legal team for not advising him to interdict the summons that compelled him to appear before the commission.
“Zuma chose the lawyers who advised him. He cannot shift the blame at this stage,” he said.
The two reasons Zuma tendered for not opposing the commission’s applications were him being unable to afford lawyers and the mistaken belief that he couldn’t be compelled to appear before a judge (Zondo) whose recusal was the subject of an ongoing court matter.
Mosala said Zuma’s lack of funds was a lie because after he walked out in November, his attitude was one of defiance, which can be gleaned from his subsequent public statements.
The issue of funds was never mentioned.
“Various other reasons, including having no confidence that the Constitutional court would adjudicate the matter fairly, were given.”
Mosala said Zuma receiving bad legal guidance was irrelevant.
“The important fact is that Zuma acted intentionally when he did not file opposing papers.”
He contended that anyone who acted in such a matter could not complain after the event.
“That is an abuse of the recession procedure. Recession is for persons unaware of proceedings against them.”
Mosala also stated that if the commission was entitled to judgement, there could be no error merely because Zuma believes he has a defence, which was not revealed when the ruling was made.
“Zuma has explicitly stated that he never intends to comply with the judgement. His protestations about a denial of his fair trial rights is a pretext. His application must be dismissed.”
Hubrecht Anton van Dalsen, a legal counsellor with the Helen Suzman Foundation, also asked for the application's dismissal.
Van Dalsen said there were no Constitutional Court rules or any other law that permits the appeal or reconsideration of a Concourt judgement.
He viewed Zuma’s application as not meeting any of the necessary jurisdictional prerequisites to trigger a rescission application, and suggested that Zuma was possibly proposing a novel legal test for rescission, which is not recognised in our law, and completely unsustainable.
“Zuma has become a notorious and serial constitutional delinquent who has brought upon himself two unprecedented Constitutional Court judgments, and remains obstinate and refuses to accept any outcome that is not in his favour.
“The guillotine has now fallen on the legal process,” Van Dalsen said.
Van Dalsen believes that as a former head of state, he should be beyond reproach, personify constitutional democracy and its values, and always act in the best interests of the Republic, but his conduct has been contrary to those values.