The KwaZulu-Natal High Court on Tuesday heard former president Jacob Zuma’s interdict application to stay his arrest, with the Zondo commission arguing that “the recalcitrant lawbreaker” must be arrested and Zuma contending that his arrest was tantamount to detention without trial.
The hearing is the latest in the saga around Zuma’s contempt of court finding for refusing to abide by a Constitutional Court order that he give evidence to the Zondo commission. SA has been on tenterhooks since the judgment a week ago as Zuma supporters threatening violence descended on his Nkandla home and uncertainty reigned over whether the police would comply with the order to arrest him.
Police minister Bheki Cele and SA Police Service boss Khehla Sitole have until Wednesday to make the arrest. Zuma is to serve 15 months in jail and was obliged by law to report to police on Sunday to begin his sentence.
Dali Mpofu, Zuma’s lawyer, argued that to arrest Zuma for contempt of court where there had been no trial was a violation of his rights and amounted to detention without trial.
Mpofu tackled the assertion of opponents to Zuma’s urgent interdict application that the high court had no jurisdiction to rule on a decision of the apex court. Mpofu dismissed questions of jurisdiction as a “red herring”, which the opponents raised as “scarecrow tactics” when common law rules regarding interdicts applied.
He argued that, since there was a threat that the apex court’s order could be set aside, the high court order had jurisdiction.
“Can I make an order as a lower court nullifying the execution of the Constitutional Court order?” judge Bhekisisa Mnguni asked Mpofu. “I think that’s the main issue, really.”
Mpofu also claimed that the decision by President Cyril Ramaphosa and Cele not to oppose the interdict was evidence that Zuma’s application was on solid ground.
“Your lordship must read between the lines of why the police national commissioner, minister of justice, the president have not opposed this matter and are quite happy that your lordship should grant the relief that is sought.”
Tembeka Ngcukaitobi, for the commission, urged Mnguni to shun Zuma’s bid to have the police’s action interdicted. “We are dealing with a repetitive, recalcitrant lawbreaker in the form of Mr Zuma. He has now come to ask you to assist him in breaking the law further. You should reject that,” he said.
Despite obtaining legal advice that the police must arrest Zuma or be in contempt themselves, Cele on Monday wrote to the Constitutional Court indicating that, failing direction from it, he did not intend to carry out the arrest until Zuma’s rescission application at the Constitutional Court on Monday has been heard.
Represented by state attorney Kantoro Chowe, Cele and Sitole said they would “hold further actions” on arresting Zuma out of “respect” for the litigation under way, unless directed otherwise.
Cele’s letter sparked talk of a constitutional crisis in political and legal circles, including fears his defiance of the order could place the rule of law in jeopardy.
Ngcukaitobi said in court that the police letter to the Constitutional Court was “nonsensical” and the judgment must be heeded. “Their deadline lapses tomorrow. So, the order remains operative ... they remain bound by the order,” he said.
Max du Plessis, counsel for the Helen Suzman Foundation, also a respondent in the case, said Zuma may have approached the high court to thwart his arrest because his chances of success at the top court were “vanishingly thin”.
“The Constitutional Court ordered that he had to hand himself over to the police and to be taken into custody by this past Sunday. He refused.”
Du Plessis asserted that Zuma approached the high court while in continued contempt of the deadline to hand himself over. He submitted Zuma’s “constitutional deviance continues” and motivated for Mnguni to act decisively.
Judgment will be handed down at 11.30am on Friday.
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