Mere days into former president Jacob Zuma’s 15-month sentence behind bars, the Constitutional Court will hear arguments why — in Zuma’s view — it should rescind its order against him.
On Monday, in a virtual hearing, the apex court will hear Zuma’s bid to undo its order against him. Dali Mpofu, head of Zuma’s legal team, will first plead Zuma’s case before the court.
Police confirmed it would monitor the Constitutional Court precinct in Braamfontein, Johannesburg, in light of flare-ups in the CBD on Sunday.
Zuma launched his rescission application three days after the court found him guilty of contempt of court on June 29 and ordered he begin jail time five days later.
Zuma’s case to have the court undo its decision is not by way of an appeal, which is unavailable because a Constitutional Court order is final, but by asking the court to rescind its orders. In papers, Zuma said he previously received bad legal advice, and the judges did not know certain facts when they sent him to prison.
The hearing follows Zuma’s loss in the high court in Pietermaritzburg on Friday, which dismissed the former president’s request for an urgent interdict of the Constitutional Court order that police ensure he go to jail.
Zuma’s efforts to get out of jail now depend on what the highest court decides.
“I see, really, a very slim chance of a change from the court, or the court rescinding its own judgment, not on the basis of what is going to be presented,” said Prof Omphemetse Sibanda, of the law faculty at the University of Limpopo.
Whatever the apex court decides, Zuma wants out of jail. He has flagged his medical conditions, said he isn’t a flight risk, raised he is at risk because of the pandemic, and asserted that his constitutional rights are on the line.
Zuma’s case in the highest court takes aim at the state capture inquiry, judge Raymond Zondo as its chair, police minister Bheki Cele, justice minister Ronald Lamola and the Helen Suzman Foundation (HSF). The HSF acted as a friend of the court in the case which landed Zuma in jail.
Based on what he has written to the court, Zuma will argue the court was wrong because — on his version — it considered hearsay evidence and sent him to prison in civil proceedings when it should have applied the rules of the Commissions Act.
Zuma had told the court he did not participate in the prior case which landed him in prison because of medical reasons and a lack of finances. He said that since he wanted Zondo recused as inquiry chair for bias, he thought it was reasonable to avoid testifying.
If the court rejects Zuma’s bid, he wants to present evidence why jail time was the wrong remedy for the crime of contempt of court. Imprisonment has serious implications for his health and personal freedom, said Zuma.
The state capture inquiry opposes Zuma’s application on legal grounds: it says Zuma’s bid does not meet the legal requirements for rescission, and none of his grounds have merit. It claimed Zuma’s version was based on falsehoods.
The inquiry argued that since Zuma chose not to oppose its application for a prison sentence and did participate in the case, he cannot claim the court issued its order in his absence. The commission claimed Zuma’s rescission application is in fact an attempt to appeal against the decision of the uppermost court. Its decisions are final.
Sibanda said the application was an “appeal in rescission’s clothing” because there was no other way by which Zuma could seek to overturn the order.
The HSF asserts Zuma’s case has no prospects of success and is yet another attempt to make a mockery of the judiciary. The legal NGO tells the court it has already dealt with issues Zuma has raised in the rescission bid.
Were the court to rescind its order, the HSF says it will create a never-ending cycle where a party could chose not to participate in a case and, after an order against them, demand an opportunity to make submissions.
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