Direct imprisonment is the only route to stop former president Jacob Zuma instigating his political campaign against the judiciary and defying both the directives of the commission into state capture and the Constitutional Court.
This was the argument stressed by the Zondo commission before the apex court on Thursday, when it applied for Zuma to be declared in contempt of the court and be imprisoned for two years for refusing to appear before the inquiry to answer to corruption allegations against him.
Zuma and the commission have been at loggerheads since last year as he repeatedly defied its summonses and instead accused its chair, deputy chief justice Raymond Zondo, of bias against him.
Advocate Tembeka Ngcukaitobi SC, for the commission, argued before the court that Zuma had sought not only to defy the directives of the commission and the court, but that he had used falsehoods to wage a political campaign against judges and the judiciary and that this needed punishment.
“After the Constitutional Court granted a judgment against Zuma, the court itself has become a target of Zuma’s angry, threatening and, quite frankly, provocative tirades,” Ngcukaitobi said.
Ngcukaitobi said there was no longer any basis for giving Zuma another directive to attend the commission without him starting in jail.
“Any other opportunity right now of purported compliance will be met with resistance or derision because it has been tried before and it did not work. The ultimate judicial tool in circumstances such as this is incarceration. It must be exercised despite the fact that Zuma is basically using the language of daring the court saying ‘I am not afraid of going to prison’,” he said.
Ngcukaitobi pointed out that the commission had exhausted the use of its coercive power against Zuma.
“There is no scope for further coercive powers. The only scope that remains now is imprisonment,” he said.
He argued that Zuma’s status as a former president did not protect him from the law and that elements of a contempt of court crime were clear and established legally, including in the case against him.
“Zuma knew of the order against him and he failed to comply. Zuma acted in a mala fide and intentional manner and he failed to file papers to explain his disobedience,” he said.
Ngcukaitobi accused Zuma of having ignored the proceedings before the court despite knowing that the commission was seeking to secure his imprisonment, which he said was further demonstration of defiance and disdain against the judiciary.
“Any other procedure that can be set up simply enables the further exploitation of the judicial process, and where matters stand right now is direct imprisonment,” he said.
The commission has also asked for Zuma to be slapped with a punitive cost order, as he had chosen act with malice instead of explaining himself to the court.
“The utterances that Zuma has made are malicious utterances. He is also acting without any facts. Zuma completely disregards the evidence. He just launches on an attack that is completely bereft of facts. Once you combine the malice and the untruthfulness, it becomes quite clear that a normal cost order is not sufficient and that he should pay the punitive cost,” Ngcukaitobi said.
The Helen Suzman Foundation, which joined the proceedings as amicus curiae, argued for an order directing the sheriff of the high court to escort Zuma to the commission when he finishes serving his sentence.
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