Former president Jacob Zuma's contempt of the Constitutional Court and "scurrilous" attacks on the judiciary amounted to a "grave and serious threat to the rule of law" and must be punished with a two-year jail sentence, the State capture inquiry has argued.
"The contemptuous conduct of Mr Zuma is especially egregious," the inquiry's secretary Professor Itumeleng Mosala argues in an urgent contempt of court application lodged against Zuma at the Constitutional Court on Monday.
"He [Zuma] has not only failed to comply with the order of this court, but has also engaged in conduct calculated to undermine the integrity of this court and the judiciary in general," he said.
In addition to seeking an order that Zuma be found guilty of contempt and sentenced to two years behind bars, the inquiry also wants Police Minister Bheki Cele and national police commissioner Khehla Sitole to be ordered "to take all steps as may be required to give effect" to that order.
The inquiry turned to the Constitutional Court after Zuma defied its 28 January ruling that he appear before Deputy Chief Justice Raymond Zondo and answer questions that did not implicate him in specific criminal conduct.
Zuma not only refused to do so, but he also compared the Constitutional Court's ruling to the apartheid state's targeted persecution of PAC leader Robert Sobukwe, whose jail term was repeatedly and unlawfully extended under the so-called "Sobukwe clause".
When Zondo announced the inquiry would bring a contempt of court application against him and seek his imprisonment after he defied a summons for him to appear before it from 15 to 19 February, Zuma effectively accused him and any judge who had ruled against him of bias or corruption – without any evidence.
Police Minister Bheki Cele on Friday answered questions about his visit to former president Jacob Zuma at his Nkandla home earlier this week.
The language that he [Zuma] has used, the platforms he has selected to announce his intentions, and the challenge to state institutions that he is prepared to be arrested are a grave and serious threat to the rule of law. The sentence must reflect the seriousness of the conduct of Mr Zuma.
It was also necessary, Mosala argued, for Zuma's contempt sentence "to reflect the expectation of society that a person in a position of leadership and with immense influence, like Mr Zuma, should comply with the law rather than displaying his contempt of the law".
Lastly, he said, "the sentence should also reflect the fact that these contemptuous acts have been committed by a former president, who took an oath to 'obey, observe, uphold and maintain the Constitution and all other law of the Republic', and who was entrusted by the public to do so".
No ordinary case of contempt
As Mosala describes it, Zuma's defiance of the inquiry that he established more than three years ago, as well as the Constitutional Court, is "no ordinary case of contempt".
Under the Commissions Act, a person found guilty of intentionally and deliberately defying the summons or directives order against them by an inquiry could face a six-month sentence, a fine, or both. Under the Zondo commission of inquiry's regulations, anyone guilty of contempt faces a 12-month sentence.
Mosala argues that the two-year sentence the commission is seeking against Zuma is appropriate, because he can be shown to have committed multiple acts of contempt against the inquiry and would potentially face a four-and-a-half-year sentence, if he was tried in a criminal court.
The inquiry is adamant that Zuma should be imprisoned for his repeated contempt towards it, the Constitutional Court and the judiciary. But it does consider the possibility that the country's highest court "may yet deem it appropriate to suspend such an order, if the Court is of the view that Mr Zuma should be afforded a final opportunity to comply with its order before he can be imprisoned".
In other words, Zuma may still be able to avoid being sent to jail – if he testifies at the commission and complies with Zondo's directives that he provide the inquiry with sworn statements about his involvement in Eskom and the Passenger Rail Agency of SA.
"For such relief to be possible and effective, a special arrangement would need to be made to hear Mr Zuma's evidence before 31 March 2021," Mosala says in the court papers.
Neither Zuma nor his lawyers have responded to that proposition. But, given that the former president has repeatedly stated he would rather go to jail than comply with the ruling against him by the Constitutional Court, his cooperation with the commission seems unlikely.
Deliberately disobeyed judgment
Mosala contends it is clear that Zuma intentionally and "deliberately disobeyed" the Constitutional Court's judgment, and then "issued public statements that specifically attack the integrity of this court and its members".
In separate statements, Zuma attacked "lawless" judges at the Constitutional Court, argued that Zondo was "estranged" from "due process and rule of law", accused Pretoria High Court Deputy Judge President Aubrey Ledwaba of corruptly sealing President Cyril Ramaphosa's CR17 campaign records and claimed judges had received bribes from the CR17 campaign. He did not back up a single one of these claims with any evidence.
"Mr Zuma has not spared the rest of the judiciary from his attack. He has published scurrilous statements about the courts and certain other members of the judiciary too. As the highest court in the land, with special moral authority in our constitutional democracy, I respectfully submit that it is necessary for that court to step in to defend the judiciary as a whole against Mr Zuma's unwarranted attacks."
Mosala has also dismissed efforts by Zuma's lawyers to justify his defiance of the summons for him to appear before the inquiry from 15 to 19 February as "contrived" and baseless.
Zuma's lawyers stated that he would not appear before Zondo for two reasons: firstly, that appearing before the commission would "undermine and invalidate" his review of Zondo's dismissal of his application for his recusal and secondly, that the summons issued for him to appear February was "irregular and not in line" with the Constitutional Court's ruling.
Mosala says these claims "stand to be rejected".
Zuma expected to set an example
This, he says, is because the inquiry informed the Constitutional Court of Zuma's recusal case and argued that it would in no way affect his duty to comply with the summons issued against him. When the court ruled against Zuma, who chose not to participate in the inquiry's case at all, "it was fully aware of the pending review application".
He further points out that Zuma failed to challenge the legality of the summons issued against him – meaning he was obligated to comply with it. Instead, the former head of state deliberately defied it. This conduct and Zuma's attempts to defend it, Mosala maintains, poses a serious threat to the rule of law.
"As a former president and leader of the Republic, Mr Zuma is expected to set an example by his words and conduct," Mosala argues.
"He has the position and influence to do so, as others look up to him as a leader. When Mr Zuma undermines the integrity and authority of this court, and the judicial system as a whole, there is a grave risk that he will inspire others to do so and that rule of law will be fundamentally weakened.
"I submit that particularly where someone who has held the highest public office, such as Mr Zuma, has defied an order of court, an application for contempt of court should be heard urgently. A delay in hearing the application means a delay in the court vindicating its honour and authority, and may result in more acts of defiance of court orders by others, in the belief that court orders may be defied with impunity.
"In this case, the high position and influence that Mr Zuma holds in society, coupled with the public and forceful nature of his defiance of this court and attack on the judiciary, poses an extraordinary and potentially grave threat to the rule of law. The interests of justice require a swift response."