In what is likely to be a watershed moment in the country, SA’s top court will on Tuesday pronounce on whether a former president should be imprisoned for defying an order to appear before a commission of inquiry which he himself appointed.
The Constitutional Court, in a ruling that has been pending for three months, will on Tuesday pronounce on an urgent application from the Zondo commission into state capture to imprison Jacob Zuma for two years.
The judgment comes a day after the high court in Pretoria granted the commission yet another extension of three months, which will take it beyond three years at a cost of more than R1bn. When the commission was set up after a ruling by former public protector Thuli Madonsela, it was anticipated to run for just 180 days.
Whatever the decision on Zuma, it is likely to have huge implications for the country and the ANC as the former president has sought to undermine the judiciary, seeking to portray court rulings as part of a conspiracy. It is a strategy that served him well when he originally faced corruption charges related to the 1990s arms deal, with court appearances resembling political rallies.
Zuma’s strategy may serve as a template for allies, notably secretary-general Ace Magashule, who are facing criminal charges and fighting for their political lives.
In March, the commission’s secretary, Itumeleng Mosala, applied to the apex court for Zuma to be imprisoned for his defiance of the court’s order to appear at the commission.
The Zondo commission heard from witnesses, including former cabinet ministers, who implicated the former president in overseeing corruption on a grand scale during his time in office. He was accused of ceding his constitutional duties to the Gupta brothers, friends of his and business associates of his sons. The Guptas were said to have grown so powerful, they chose ministers and leaders of state-owned enterprises who then directed government spending towards entities the brothers controlled.
Before ending his co-operation with the commission, Zuma denied the existence of such a thing as state capture and said some of his accusers were apartheid spies. He also claimed that the commission chair, deputy chief justice Raymond Zondo, was biased against him.
On January 28, the court ruled Zuma must follow summonses to appear before Zondo. On the day that he was supposed to appear — February 15 — his then attorney Eric Mabuza wrote to the commission, saying he would not appear.
This caused the commission to shift its tactics, seeking to get him behind bars after having failed in its many attempts to get him to appear.
When the matter was heard on March 25, Tembeka Ngcukaitobi for the commission urged the Constitutional Court to deal with Zuma “swiftly and decisively” over his failure to heed an order from it. As head of state, Zuma twice swore to uphold the constitution.
The commission has motivated for a penalty of two years’ imprisonment, rather than a fine or a suspended sentence. Ngcukaitobi argued that a fine would reduce the case to a monetary exchange.
In a letter dated April 9, chief justice Mogoeng Mogoeng wrote to Zuma directing him to file an affidavit of up to 15 pages within a week and suggest “appropriate sanction” if he was found guilty of contempt.
Rather than filing an affidavit, Zuma wrote a letter of 21 pages dated April 14 saying he had a “conscientious objection” to participating in the Constitutional Court process.
He called the Zondo commission “a complex project controlled by my political foes”.
Zuma told Mogoeng he was prepared to become “a prisoner of the Constitutional Court” if he was sentenced and this would be a “constitutional experiment”.
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