On Friday, the Constitutional Court said that allowing former president Jacob Zuma to decide when he would and would not comply with the law would make a mockery of the judicial system.
It dismissed Zuma’s application for rescission after it had ruled that he be jailed for contempt of court.
Handing down the majority judgment this morning, Justice Sisi Khampepe, who also handed down the judgment that ordered Zuma’s 15-month imprisonment, said Zuma had been given several chances to state his case before the Constitutional Court before it had given the order for him to be incarcerated, but he had chosen not to.
Zuma’s legal dealings with the Constitutional Court began in December because of this refusal to appear before the state capture commission headed by deputy chief justice Raymond Zondo.
The secretary of the commission approached the apex court to make an order to compel Zuma to cooperate. He did not oppose the application, and later the Constitutional Court ruled that he must appear before the commission.
“Notably, Mr Zuma did not comply with that order. Instead, he issued a series of public statements in which he impugned the integrity of the court, the commission and the judiciary, and expressed an intention never to cooperate with the work of the commission, nor comply with the order,” said Khampepe.
“Once again, Mr Zuma elected not to participate in the proceedings and, unanimously, the Constitutional Court found Mr Zuma guilty of the crime of contempt of court,” reads the judgment.
She said, again, after being found guilty of contempt of court, Zuma had failed to provide mitigating factors.
Khampepe said, “in anticipation of his impending incarceration,” Zuma filed an application for the court to reconsider and rescind its order made in the contempt proceedings.
Zuma argued that the court had sentenced him to jail without a trial.
He also said the court could not rely on the public statements he had made as those constituted “hearsay evidence”.
He also took issue with the Zondo commission seeking an order to have him jailed, rather than seeking to ensure that he attended the commission, arguing that this showed that the commission was determined to see him jailed and therefore, “his arrest and committal were erroneously sought”.
“Finally, Mr Zuma submits that, far from upholding the principle that everyone is equal before the law, the majority judgment victimised him by treating him harshly on account of his unique position as former president. The fashioning of a particularly egregious punishment, ‘custom-made’ only for him, constitutes a further patent error.”
However, Khampepe said Zuma “intentionally declined” to be part of the contempt proceedings and “disdainfully dismissed a further opportunity when invited to do so”.
“Mr Zuma only now attempts to justify his absence from this court. He goes to great lengths to point out that his failure to appear before the commission was bona fide because, so he contends, the chairperson was biased against him; the commission is unconstitutional; he had received poor legal advice; and he lacked financial means to participate.
“Yet, he seems to overlook the fact that none of these reasons justify his refusal to participate in the proceedings before this court,” reads the judgment.
Khampepe said at “every turn” Zuma “refused to participate in these proceedings”.
“With this in mind, to entertain Mr Zuma’s application in these circumstances would be to permit him to ‘blow hot and cold, to approbate and reprobate’.
“This would be wholly contrary to the interests of justice. If our law, through the doctrine of peremption, expressly prohibits litigants from acquiescing in a court’s decision and then later challenging that same decision, it would fly in the face of the interests of justice for a party to be allowed to wilfully refuse to participate in litigation and then expect the opportunity to reopen the case when it suits them. It is simply not in the interests of justice to tolerate this manner of litigious vacillation,” said Khampepe.
She said Zuma’s behaviour resulted in a “monumental waste of judicial resources”.
The court also ordered Zuma to pay the costs of the secretary of the commission, Zondo and two counsel in the matter.
Zuma who has only served two months of his jail sentence, mostly in hospital, was recently given a medical parole, which is also being challenged in court.
Responding to the Constitutional Court judgment, Zuma’s son, Edward Zuma, told the SABC that he was “mobilising support to retaliate on this nonsensical decision”.
Spokesperson for the Jacob Zuma Foundation, Mzwanele Manyi, told Newzroom Afrika that the foundation was disappointed, but the decision was not “unexpected”.
“We really cannot accept this decision, it very well be the right decision, but it is a decision that we continue not to see its rationale, it is a decision that in facts amounts to bullying,” said Manyi.