Mpofu asks judges: ‘Who guards the guardians’ in the ConCourt?

Advocate Dali Mpofu SC faced a grilling from the Constitutional Court justices on Monday morning, when he appeared before them to try and persuade them to rescind the damning judgment they handed down against former president Jacob Zuma last month.

Last month, the Constitutional Court upheld the state capture commission of inquiry’s application to hold Zuma in contempt over his refusal to appear before commission chair Deputy Chief Justice Raymond Zondo, even in the face of an order from the same court.

ALSO READ: Release Zuma until you’ve made your decision, Mpofu asks ConCourt

Despite having opted out of participating in proceedings, though, Zuma has now approached the Constitutional Court with a rescission application. He also approached the KwaZulu-Natal High Court in Pietermaritzburg with an application to effectively stay his detention in the interim, but this was dismissed with costs on Friday and he is currently serving his sentence at Estcourt Correctional Services.

On Monday morning, the Constitutional Court began hearing arguments in the rescission application, though, and Mpofu kicked proceedings off boldly stating the the starting point for the former president’s legal team was “who will guard the guardians”.

“This matter involves the proposition that it is the Constitutional Court itself that may have exceeded the bounds of the constitution,” he charged,

“This is a case maybe that will portray for the first time that it is the constitution that is supreme, not the Constitutional Court”.

But he faced questions from Justice Zukisa Tshiqi around whether rescission was even available to a litigant who had deliberately decided not to oppose an application – as Zuma did.

“In all instances, we would basically be saying it is okay and open to a defendant to simply sit back and hope that a judge will be in his favour and that when the judgment is against him, they can come to court and use the remedy of rescission,” Tshiqi said.

Justice Steven Majiedt also quizzed Mpofu on similarities he had drawn between Zuma’s case and that of Liberty Fighters Network’s Reyno de Beer – who the Supreme Court of Appeal (SCA) recently found made “unjustifiable defamatory and scurrilous utterances” and referred to the prosecuting authorities, when it overturned the declaration of invalidity he secured against most of the level 4 lockdown lockdown regulations last year.

“Mr Zuma wasn’t sentenced because of the insults and the vilification of the judges or the judiciary or even of the court. He was sentenced because he was in contempt of a court order – of the order of this court,” Majiedt said.

Mpofu disagreed.

“That is absolutely not the case. We are told in more than five passages [in the ConCourt’s judgment] that what makes this case unique and extreme and unprecedented are the attacks that were made by former president Zuma,” he argued.

But as Justice Mbuyiseli Madlanga pointed out, the court only made those references “in the context of sanction”.

And said Majiedt: “Even if De Beer was on point – if it was comparable to this case – then that court (the SCA) would have been bound by this court’s decision.”

In his heads of argument, Mpofu referred to the “two highest appellate courts”. Said Majiedt, though, there was only one highest court – the Constitutional Court.

The case continues.