The clock is ticking on the warrant of arrest for former president Jacob Zuma and if he is not arrested by midnight on Wednesday, police minister Bheki Cele and SA Police Service boss Khehla Sitole could themselves face charges of being in contempt of an order of SA’s apex court.
Last week, the Constitutional Court’s full bench was unanimous Zuma was guilty of the crime of contempt, and the majority sentenced Zuma to 15 months in jail for flouting its order that he obey summonses and testify at the state capture inquiry.
Although Cele publicly pronounced that the police would comply with the order to ensure Zuma’s arrest and jail sentence by Wednesday, on Monday he wrote to acting chief justice Raymond Zondo declaring he would not arrest Zuma in light of recent developments and Zuma’s legal challenges to unravel the court’s order on his imprisonment unless advised otherwise.
“In view of the unique situation presented by the development and the legal matrix involved, our clients will, out of respect of the unfolding of litigation the processes [sic], hold further actions they are expected to take in terms of the honourable court’s order, in abeyance,” Cele and Sitole wrote, through the state attorney Isaac Chowe, to Zondo.
Business Day reported on Monday that police had received legal advice that the warrant against Zuma must, by law, be enacted.
A state attorney confirmed on Tuesday that should Cele and Sitole fail to arrest Zuma by midnight on Wednesday, they would be in contempt of court.
“The factual position is that none of [the] legal challenges suspends the order. I don’t know what clarification is needed,” state attorney Johan van Schalkwyk said.
Shortly after the Constitutional Court convicted him, Zuma launched a three-pronged legal challenge to overturn the judgment. He has applied to the top court to have his jail sentence set aside, and he has brought an urgent interdict application to the high court, which his lawyers have called Part A, aimed at blocking the police from carrying out the apex court’s order.
Zuma has challenged the constitutionality of the Criminal Procedure Act, which has been named Part B, because he contends he has been sentenced to detention without trial, something that harkens back to the apartheid era and is expressly prohibited in the constitution.
With the country’s regard for rule of law hinging on actions — or inactions — by Cele and Sitole on Wednesday, non-government organisation the Helen Suzman Foundation (HSF) wrote to Chowe. The HSF joined the proceedings in the Constitutional Court to help with information, expertise and insights that have a bearing on the case.
The NGO is now a respondent in Zuma’s urgent high court interdict bid in KwaZulu-Natal. Judgment was reserved on Tuesday and will be handed down on Friday at 11.30am.
“Our client is concerned about the contents of the letter,” HSF legal councillor Anton van Dalsen wrote to Chowe. “In short, the minister and the commissioner acknowledge that there is no legal basis to avoid compliance with the order of the Constitutional Court dated 29 June 2021 and that the Rule 29 application does not create any staying effect. This is a long-
settled principle in SA law.”
While Cele has refused to explain his reluctance to arrest Zuma, he has hit back against criticism that it is based on a political bias. Those close to Cele have told Business Day that he fears that Zuma’s arrest would lead to bloodshed and scenes last seen when police acted against striking miners in Marikana in 2012.
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