Zondo Commission threatens two years in jail, and yet again offers defiant Zuma a lifeline

The Commission of Inquiry into State Capture announced on Monday in a headline-grabbing Constitutional Court application that it wanted that court to have former president Jacob Zuma jailed for two years for contempt following his defiance of its order instructing him to appear before the commission. 

But the commission also added in small print a scenario allowing for kicking the proverbial can down the road via its application. 

An affidavit filed as part of the application made by the secretary of the commission, Itumeleng Mosala, is loaded with strong language, such as the need to “defend the judiciary as a whole against Mr Zuma’s unwarranted attacks”.

But buried in the detail is a footnote that indicates the commission is still willing to forgive Zuma for his multiple acts of defiance, and will shuffle its tight timetable to accommodate the former head of state, who by evidence leader advocate Paul Pretorius’s own admittance has been implicated in questionable acts by 40 witnesses. 

Stripped of its bravado, the application could be compared to President Cyril Ramaphosa’s comments about giving Zuma “time and space” to think his actions through. 

Zuma and his growing army or surrogates, including former friend, then foe, then tea partner, Julius Malema, have in recent weeks taken several nasty swipes at the judiciary, claiming it has been politicised and corrupted.

https://www.dailymaverick.co.za/opinionista/2021-02-21-the-entire-anc-must-clearly-and-forcefully-endorse-independence-of-the-judiciary/

 

In Zuma’s 1 February statement about his reasons for not attending the commission, he claimed it had set up a “special and different set of circumstances specifically designed to deal with Zuma”.

It must be remembered that the terms of reference for the commission clearly state Zuma is being investigated for his alleged role, if any, in the massive corruption racket involving the now infamous Gupta family. 

Nevertheless, there are some eye-watering quotes in the application, which also names Minister of Police Bheki Cele and National Police Commissioner General Khehla Sitole as respondents.

In the notice of motion, the commission asked that “Mr Jacob Gedleyihlekisa Zuma is sentenced to imprisonment for a term of two years” for being “guilty of contempt of court” for not appearing before the commission between 15 and 19 February. 

It further stated that Zuma, “Intentionally and unlawfully failed to appear before the judicial commission of inquiry… on 15 to 19 February 2021 in compliance with summons issued… on 30 November 2020”, which was affirmed by the Constitutional Court on 28 January 2021. 

Also, Zuma had “intentionally and unlawfully failed or refused to furnish the commission with affidavits in compliance with the directives issued by the… commission”. 

The commission said it cited Cele and Sitole to “give effect to the order”. 

Cele made his way through the 25 or so MKMVA “soldiers” braaing outside Zuma’s Nkandla homestead on Thursday last week — stationed there to “protect” Zuma from potential arrest — to visit the former head of state, ostensibly to persuade him to refrain from exhibiting constitutionally delinquent tendencies. But Cele has remained tight-lipped about what was actually discussed. 

Asked for comment on the application in which Cele is cited, his spokesperson, Lirandzu Themba, told Daily Maverick “the minister must still be briefed”. Spokesperson for Commissioner Sitole, Brigadier Vish Naidoo, told Daily Maverick he would speak to Themba and then return to Daily Maverick with comment on his boss being cited. He didn’t. 

Nevertheless, in Mosala’s 29-page founding affidavit, submitted with 175 pages of annexures ranging from the various summonses issued to the Constitutional Court judgment, and including commission transcripts, he said the January order by the apex court “specifically and unambiguously directed Mr Zuma to comply with the summonses and directives issued by the Commission”. 

Mosala said the application made on Monday was the earliest possible date it could be brought before the court, after Zuma’s no-show last week. 

“The application is brought immediately after the last day of the contempt of court, being 19 February 2021.”

“The seriousness of the threat that Mr Zuma’s conduct poses to public trust in, and respect for, the authority of the courts and the rule of law requires this court to intervene and assert its authority without delay. 

“As a former president… Mr Zuma is expected to set an example by his words and conduct. 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 then that rule of law will be fundamentally weakened.” 

Due to Zuma’s stature in society and the “public and forceful nature of his defiance and attack on the judiciary” which poses an “extraordinary and potentially grave threat to the rule of law”, the matter needed to be heard on an urgent basis as “the interests of justice require a swift response”, continued Mosala. 

“I submit that particularly where someone has held the highest public office, such as Mr Zuma, [and] 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.”

It is clear that the commission needs to be viewed as being tough on a defiant high-profile individual whose actions could influence society.

Mosala raises this argument at least twice, stating, “the commission seeks an order of direct imprisonment”, and then again, he states: “the commission does not seek a suspended order of committal”.

But then comes this:  

“Should this court be inclined to grant a suspension of the order of imprisonment on condition that Mr Zuma appears and gives evidence before the commission and submits his affidavits… the commission would need to make appropriate logistical arrangements. 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.” 

Numerous calls and texts from Daily Maverick to ANC Secretary-General Ace Magashule and Deputy Secretary-General Jessie Duarte about the planned meeting between the party’s top six and Zuma about his refusal to appear before the commission, went unanswered, as did attempts to get hold of Zuma.