The imprisonment of former president Jacob Zuma was the only order that would vindicate the dignity of the Constitutional Court — not a fine and not a suspended sentence, the apex court heard on Thursday.
The Constitutional Court was hearing argument by the state capture inquiry, which is asking it to hold Zuma in contempt of court and to order his imprisonment for two years after he failed to comply with its order to abide by the commission’s lawful summons and directives.
Despite the order from the highest court, Zuma did not appear at the commission in February to give evidence as he was summonsed to do. Nor did he participate in the hearing on Thursday or submit court papers to argue why he should not be held in contempt.
The commission’s counsel Tembeka Ngcukaitobi SC said although Zuma had spoken of an imminent judicial crisis, there was none: “Our constitutional system provides an answer to what has transpired, even though it is unprecedented.”
The law provided that those who wilfully and in bad faith did not comply with court orders, were held in contempt, he said. “His status as former president does not protect him from the law.”
On March 25 2021, the Constitutional Court heard an application by the state capture commission for former president Jacob Zuma to be jailed for two years if he is found guilty of contempt of court. Zuma was given until March 8 to file his replying affidavit, but he hasn’t made any submissions.
Ngcukaitobi said he and junior counsel Janice Bleazard had gone through contempt cases and had found none where the facts were comparable to this one. In December, when he had argued that the ConCourt should order Zuma to abide by the commission’s summons, he had said to the court that it would be “unthinkable” that a former head of state would defy an order of the highest court.
“How wrong was I?”
He said there were “strong reasons” why Zuma should be imprisoned. His conduct “threatens the entire constitutional order” and must be seen for what it is: “a cynical manoeuvre to avoid accountability”.
Ngcukaitobi said the commission was no longer seeking his appearance before it. “We ask for his punishment.” If the court were to make a suspended order, there was a risk of a “spectacle” where Zuma could continue to “run rings around the commission” and it would descend into a circus, he said.
If a custodial sentence were to be suspended for 30 days to allow Zuma a last chance to appear, it would simply enable the abuse of the Constitutional Court to continue for 30 days, Ngcukaitobi said.
Ngcukaitobi argued that Zuma’s public statements, made following the commission’s application to the Constitutional Court and after its judgment, aggravated the contempt of defying the court’s order. The statements insulted the ConCourt and the judiciary by making false claims without evidence, he said.
Asked by justice Leona Theron whether Zuma did not have freedom of speech that entitled him to criticise the Constitutional Court, Ngcukaitobi said his statements were not the same as criticism. While people were entitled to criticise judges and judgments — as happened when people appeared in the ConCourt appealing a judgment of a lower court — he argued what Zuma had said was not criticism, it was insults, and without any factual basis.
Judgment was reserved.