Zuma’s red herring application Quarter 3 2021

By BOUWER VAN NIEKERK, Published in The Law/Opinion

Just when we thought that the phat lady, Justice Khampepe, brought the curtain down on the Zondo versus Zuma show, the former President, at the thirteenth hour, tried to pull a rabbit out of a hat to avoid jail time, after being found guilty of the crime of contempt and sentenced to fifteen months of direct imprisonment. On 2 July, Zuma launched an urgent application asking the Constitutional Court to rescind its judgment, which has been widely lauded as a victory for the rule of law, just two days before he was to turn himself over to the authorities to start serving his time.

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In this application, Zuma asked the court to "dig from the depth of its judicial being, to extract the requisite calmness and restraint, and to adjudicate my application solely based on its legal merits." This supposedly impassioned and urgent call for reason is ironic, as it invariably takes one back to that dreaded week in December 2015 when almost an entire nation called upon the former President to rethink his appointment of Des van Rooyen as Minister of Finance. However, this plea by Zuma is unlikely to render the same result, as the rationales employed by the decisionmakers in coming to their initial decisions differ dramatically. Zuma's initial decision to appoint his weekend special Minister was clearly not based on the sound reasoning expected of someone occupying the position of Head of the Executive. In deciding whether to commit Zuma to imprisonment, the majority of the Constitutional Court's Justices spent three months and 66 pages painstakingly explaining why it came to the conclusions that it did.

And therein lies the rub.

So why would Zuma suddenly turn to the very court that he has publicly snubbed over the last couple of months, to overturn a judgment on which the ink has not even properly dried? In his application, Zuma called on the court's "supreme duty" to re-evaluate whether its order violated "the constitutional rights it is enjoined to protect". If it does, then Zuma asked that it makes itself susceptible to "the rescission regime" as envisaged in the Rules of Court and the common law. As I will argue, there appeared little chance of Zuma succeeding to persuade the Justices that they got it wrong the first time around.

After bemoaning the fact that he can no longer litigate on the unbridled and luxurious scale that he was accustomed to when the taxpayer footed his hefty bills, Zuma explained that he decided that he would only litigate matters "where it was absolutely necessary for me to do so." This, he said, did not include "urgent applications of the Commission, especially those which I honestly, but clearly mistakenly, believed to be wholly unmeritorious." This statement would be laughable were it not so deeply offensive, not just to any court considering the application, but also to the Commission of Inquiry into Allegations of State Capture (lest we forget, a commission that he himself launched), and the country as a whole.

Zuma does not hail from the long line of former presidents, both nationally and internationally, who started out in the legal profession. As such, his "decision" would have been influenced by advice that he received from counsel. Unless Zuma insisted on taking advice from a legal practitioner who studied law at the Hogwarts School of Witchcraft and Wizardry, it is unthinkable that he could have been advised to ignore the application because it was "wholly unmeritorious". But even if he did, it is simply inexplicable that when called upon by the Constitutional Court to make representations by way of affidavit, he or any of his advisers could have thought that this could likewise simply be ignored. The former President should have known that a directive from the highest court of the land is not something to be treated with indifference or contempt.

Zuma then continued to make a song and dance of the fact that the Constitutional Court should not imprison him for simply "expressing opinions", whether they be sound or flawed, as he is simply exercising his Constitutionally guaranteed right to do so. This argument is equally unpersuasive, should be considered with circumspection and, once weighed against the facts and the law, should be rejected out of hand. This is so, since Zuma had many opportunities to convey his "opinions" to the Constitutional Court; in fact, the court went as far as to direct him to do so. He refused. By doing so, he elected to derisively ignore the processes of the Court, leaving it with no alternative but to come to the conclusions and ultimate order that it did. To then suggest that the court should, on an ex post facto basis, revisit its judgment based on belated submissions, constitutes Zuma calling on rights that other litigants simply do not have. How easy it would be to ignore directives and court orders until such time as it threatens your liberty, only then to cry foul and ask for reconsideration? If this is how the law should work, justice would simply never be done.

As for the procedural basis upon which he is entitled to the relief requested, Zuma pinned his colours to the mast of his application meeting the requirements of one wherein he, as an affected party, applies to rescind a judgment that was erroneously granted in his absence, which contained a patent error. Incredulously, he then suggested that the proposition that the order was made in his absence is unlikely to be contested. If the court should find this to be the case, it would have to disregard the fact that Zuma intentionally and unequivocally elected to ignore its directives to explain why he should not be committed to prison. Once again, if he is afforded this right, he will again have to call upon rights that simply are not granted to other litigants.

As opportunistic as this application may be, I have little doubt that it will (and should) fail. Although the former President has long been known to successfully employ the Stalingrad tactic of taking every conceivable technical point and right to appeal to frustrate any opponent who has faced him (a right that he has, and something that correctly has not come under scrutiny in the Constitutional Court's judgment), his failure to appreciate that he is a party to legal proceedings in a Court in which judgments cannot be appealed or rescinded simply by staying away, may very well be his ultimate undoing. It will be a sad day if takes the scandalous exploits of a former President to prove this point. But prove it the Constitutional Court must, for it is necessary to uphold the rule of law – a law where everyone is treated equally.

Van Niekerk is a Director of Smit Sewgoolam Incorporated.

The Constitutional Court reserved judgment on 12 July. At the time of uploading the Q3 issue of without prejudice, no ruling had been made. – Ed