Police minister and SAPS chief back down on arresting Jacob Zuma, citing ongoing litigation

Pietermaritzburg high court judge Jerome Mnguni has dismissed former president Jacob Zuma's (pictured) application for a stay of arrest and committal. (Photo: Leila Dougan)

By Marianne Merten

6 Jul 2021

Police Minister Bheki Cele and SAPS boss Khehla Sitole have decided to effectively flout the Constitutional Court order to take all reasonable and necessary steps to arrest ex-president Jacob Zuma by Wednesday, if he does not hand himself over.

“… (O)ur clients will, out of respect of the unfolding litigation the processes [sic], hold further actions they are expected to take in terms of the honourable court’s orders in abeyance pending the finalisation of the litigation, alternatively, pending any directions the Honourable Acting Chief Justice may possibly issue…” says correspondence dated 5 July from the State Law Adviser in correspondence to Constitutional Court acting Chief Justice Raymond Zondo, on behalf of the police’s political and accounting bosses.

And with that, Police Minister Bheki Cele and SAPS national commissioner Lieutenant-General Khehla Sitole have handed a win to former president Jacob Zuma. In addition, this move by the police authorities reinforces the ex-president’s long-standing delay by legal strategy and tactics that have served him for well more than a decade in the Arms Deal corruption saga.

It was all about the timing, according to Cele and Sitole, now that Zuma has filed court applications to interdict his arrest, set down for Tuesday in the Pietermaritzburg High Court, and in the Constitutional Court for the rescission of his 15-month contempt of court jail term and conviction, scheduled for Monday, 12 July.

“The litigation steps taken by Mr Zuma are being processed and will be adjudicated upon by both the High Court and the Constitutional Court within and beyond the time limits our clients are expected to take action to deliver Mr Zuma to a correctional centre to commence serving the sentence,” said the three-page State Attorney letter to Zondo, seen by Daily Maverick.

“It is our clients’ view that the pending litigation has a direct impact on the action which they should take in terms of the court order…”

In other words, Cele and Sitole believe they can’t act until the end of all legal processes — and that could include an application for Zondo to recuse himself from the rescission case.

Former president Jacob Zuma addresses the media from Nkandla, KwaZulu-Natal on Sunday 4 July 2021. (Photo: Leila Dougan)

With references to “unique situation” and “the legal matrix involved”, the State Law Attorney’s correspondence recognised Zuma’s turn to the courts was not an appeal.

“Our clients are fully aware that the litigation steps taken by Mr Zuma cannot be categorised as appeal processes which in usual cases would have an effect of suspending the operation of a court order.”

And still, Cele and Sitole have decided they’d rather wait than implement an order of the highest court in South Africa, the Constitutional Court.

The full impact of Cele and Sitole’s decision to hold in abeyance any steps to effect Zuma’s arrest remains to be seen when the Pietermaritzburg High Court meets. It may just be a brief hearing on Tuesday — to apprise the court of the police authorities’ decision, and to rule what to do with part B, the constitutional challenge to the Criminal Procedure Act.

The decision by Cele and Sitole has come a day after the SAPS was sharply criticised for failing to act against violations of Covid-19 lockdown regulations as Zuma supporters gathered outside his Nkandla homestead. This softly-softly approach stood in stark contrast to the heavy-handed, often deadly police action in community and student protests.

Also on Monday, 5 July, Zuma filed his response to State Capture Commission Secretary Itumeleng Mosala and the Helen Suzman Foundation. Both had opposed Zuma’s application to interdict his arrest. From the papers seen by Daily Maverick, Zuma makes the point that everyone — Cele, Sitole and President Cyril Ramaphosa — has filed motions to abide, or to accept the court outcome.

“There must be very good reasons to do with security issues and the public interest why the ministers, the (SAPS) commissioner and the president have taken a sensible approach…” said Zuma in his court documents.

“As a former president and head of state, I can authoritatively inform this court that such a decision would have been taken after considerations made in the Presidency, the necessary intelligence assessments done by specialists within the justice and security cluster of the state.”

Meanwhile, the State Attorney correspondence on behalf of Cele and Sitole means the next move in this politico-legal chess game is with the Constitutional Court and acting Chief Justice Zondo.

“We trust you find the above in order and our clients will be bound by any direction which the honourable court may issue pursuant to our clients’ intention to hold any steps in abeyance as indicated herein.” DM

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