The drama and delay between midnight Sunday last (by when Jacob Zuma should have presented himself to the police for arrest) and Wednesday last ( when the police left it to the last hour of the three days they were given to track Zuma down and arrest him) has played itself out and the impact of the failure of Zuma to co-operate in his eventual arrest until the last minute must now be assessed.
When he took the decision to apply to rescind the order for his incarceration, it was open to Zuma to couple that application with an application to the Concourt for an order staying his arrest until after his rescission application is determined as it will be after a hearing set down for Monday 12 July. Instead he chose to ask the high court to stay his arrest until after his newly conceived constitutional challenge to the Criminal Procedure Act is finalized, a process which could take years. Zuma is suffering the consequences of that decision now as he goes through the reception processes of the correctional services authorities. It was only late on Tuesday that he asked the Concourt to stay his arrest, too little too late.
The judgment in the high court application has found, on Friday 9 July, that the high court has no jurisdiction to entertain the application; the correct forum is the Concourt. The argument on the rescission is also unlikely to be a success. Where does this leave Zuma?
Under the Correctional Services Act, which may or may not, by necessary implication, apply to civil imprisonment for contempt of court, Zuma is entitled to ask for medical parole if he can find a doctor who supports him in this quest. So far no such doctor has been identified in any of the papers Zuma has filed in court. He may also entitled to administrative release after he has served a quarter of the 15 month custodial sentence imposed on him by the Concourt. Release within 4 months hardly leaves him time to get his ducks in a row for a medical parole application. Similarly, a pardon or reprieve by the president himself would seem to take too long to be of any assistance in getting Zuma swiftly back to Nkandla. The powers of the president to grant parole under section 82 of the Correctional Services Act imply that Zuma will have to throw himself on the mercy of his nemesis at Nasrec, Cyril Ramaphosa, a course he may find unpalatable and one which is fraught with difficulties of a conflictual nature given their former and present roles in the ANC and in the national cabinet. There is a counter argument, perhaps the better position in law, that civil imprisonment for contempt of court is a special and rare form of imprisonment to which the provisions of the Act and the Criminal Procedure Act do not apply. Hopefully these questions will be addressed during the rescission application argument, as there is a considerable difference between 3.75 months and the 15 months “straight” which the court may have intended.
By some opaque and indecipherable reasoning, Zuma remains a member of the ANC in good standing and an ex officio member of its highest decision-making body between conferences, the National Executive Committee. The facts that he is serving time for contempt of the highest court in the land and is also facing serious charges of corruption suggest that the disciplinary processes of the ANC should be used against him in the same way as they have been applied to Secretary General Ace Magashule, who is facing corruption charges but has yet to be convicted of any crime.
If the ANC jealously guards its reputation as a party of integrity and probity, it ought to give consideration to terminating the membership of Zuma as his antics in the State Capture Commission and in the litigation that is at present playing out in the Concourt and the KZN high court do nothing to enhance the image of the ANC. It is possible to love a charming and incorrigible rogue without allowing him to besmirch the reputation of a political party via continued membership. It is likely that the State Capture Commission will be neither loving nor kind to Zuma and that his pivotal role in the process of state capture which is its mandate will be exposed in the report due by the end of September. It might be wise of the ANC to give comrade “ubaba” the order of the boot sooner rather than later.
Any failure to do so will be seen as being soft on corruption and accommodative of a person serially in contempt of orders of the Concourt. Not only did Zuma commit contempt of the order that he attend at the commission, he flouted the order that he present himself to the police by Sunday last too. Only in the last hour before the police minister and commissioner themselves would have been in contempt did he relent and allow himself to be driven to Escourt Prison.
These are not shiny examples of fealty to the rule of law, respect for equality before the law and willingness to be bound by court orders, all of which are contrary to the oath of office sworn by Zuma when he took office as president, not once, but twice. The wording of the oath is instructive and includes the phrase “… and will obey, observe, uphold and maintain the Constitution and any other law …” The Constitution requires that orders of court be regarded as binding.
That Zuma is a constitutional delinquent was established years ago in the Nkandla case. On that occasion his cabinet and parliament supported his delinquency. Now he is on his own with no cover from any institution or political party other than the Jacob Zuma Foundation. His deceitful defiance of the order of court have lost him the support of law abiding citizens. The facts that so few people supported him on the Sunday on which he was meant to surrender to the police and even fewer on the Wednesday on which he did surrender to the police suggest that his time in politics is over and that he should, upon release, concentrate on defending himself in the criminal trial now pending and in the others which are likely to follow the publication of the report of the State Capture Commission.
Paul Hoffman SC is a director of Accountability Now
10 July 2021.
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