Will Zondo succeed in getting Zuma jailed for contempt?

This week, the Commission of Inquiry into Allegations of State Capture will try to persuade the Constitutional Court (ConCourt) to declare former president Jacob Zuma guilty of contempt and jail him for two years.

It’s an unprecedented bid in South Africa and one the entire country will no doubt be watching closely – save for the man at the centre of it.

Contempt of court proceedings are not, in and of themselves, uncommon. What is uncommon is, however, is contempt of court proceedings brought against the country’s former first citizen – in the highest court.

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Ordinarily, these kinds of cases are brought in the lower courts and only reach the country’s apex court in a handful of instances.

Even then, while the ConCourt has heard contempt cases before, this appears to be the first on record in which the contemnor has so brazenly defied an order it has handed down.

Contempt of court is a criminal offence. And it’s punishable at the discretion of the court. Again, though, the most common sanction is a fine – often suspended. And prison terms, on the rare occasions they are meted out, are usually suspended.

In this instance, however, the commission has explained why it wants direct jail time – without the option of a fine. And it puts up a strong case.

In the heads of arguments filed with the court earlier this month, advocate Tembeka Ngcukaitobi – for the commission – described the current case as a “unique and extreme case of contempt of court, for which there is no meaningful precedent”.

Ngcukaitobi argues Zuma “deliberately defied orders of the republic’s highest court” and that the former president had gone “out of his way to make his defiance public and, in doing so, sought to undermine the integrity and authority of this court over and over again and in the most scathing terms”.

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“This court must, by its order, vindicate its authority and that of the commission and the judiciary generally. It should, we submit, recognise that Mr Zuma’s defiance was an attack on the judicial system as a whole and was, despite Mr Zuma’s protestations to the contrary, patently designed to imperil the rule of law,” he went on.

“A mere fine or suspended sentence would not achieve this purpose. The purpose of suspension would, in any event, have been to allow Mr Zuma to purge his contempt, by complying. But this is pointless. Mr Zuma has made it clear that he is determined not to heed this court’s order”.

And he makes a point. So it is a bold bid. But its success is not outside the realm of possibilities.

And yet the man whose liberty is at stake, won’t be there this week.

He’ll likely be ensconced at Nkandla, having recently tweeted that “that is where my time is spent these days”.

Maybe he’ll be sleeping in, like he did on the morning of 15 February – when he was supposed to be at the state capture commission of inquiry, giving evidence to commission chair Deputy Chief Justice Raymond Zondo.

On that morning, his daughter Dudu Zuma-Sambudla posted that her father had in fact “had a lovely easy morning” below images of her and Zuma both grinning widely.

Afternoon Greetings South Africa From eNkandla, KwaDaKwanuse Homestead…???????????? @PresJGZuma had a lovely easy morning, he actually slept in, as he was rushing nowhere pic.twitter.com/Fg3OQH4QrG

— Dudu Zuma-Sambudla (@DZumaSambudla) February 15, 2021

Wherever he is, neither Zuma nor his legal representatives will be at the ConCourt this week – unless as a result of an 11th-hour change of course.

He has opted not to oppose the case nor, officially at least, to abide by the court’s decision. He has made no submissions to the court.

This doesn’t automatically make the case a sure thing for the commission – the court still has to interrogate its case and its legal team will have to prove various aspects in order to prove contempt – including that it was both wilful and mala fide. But it does make it significantly easier on the commission.

The former president has repeatedly claimed he is standing on principle and even gone so far as to compare himself struggle hero Robert Sobukwe – who was detained for years on end under laws the apartheid regime designed specifically for him.

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The apartheid government enacted the Sobukwe Clause in 1963, with the express purpose of empowering itself to extend Sobukwe’s detention indefinitely, with his being the only case in which the clause was ever invoked.

Said Zuma last month: “The parallels are too similar to ignore given that Sobukwe was specifically targeted for his ideological stance on liberation. I, on the other hand, am the target of propaganda, vilification and falsified claims against me for my stance on the transformation of this country and its economy.”

But his arguments ring hollow and at the end of the day, the undeniable conclusion remains that if indeed he is prepared to go to prison, it’s not likely that it’s his “constitutional rights” he’s trying to protect.
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