Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
2 March 2021

On the inept and false statement issued by the Jacob Zuma Foundation

The various high-stakes legal battles involving Mr Jacob Zuma and his real or perceived accomplices and allies are being fought in both the legal and the political arena. In political battles, the deployment of carefully chosen lies or half-truths can be depressingly effective in convincing sectors of the public willing to believe that apples are oranges and that buffaloes are crocodiles. However, a recent statement issued in the name of the Jacob Zuma Foundation may challenge the credulity of even the most ardent believers in Jacob Zuma’s claim that he is being persecuted.

It is difficult to keep up with all the legal developments directly or indirectly linked to Mr Jacob Zuma’s political and legal battles. In the past few days, Bongani Bongo (a Zuma ally and member of the coalition of the implicated) was found not guilty of trying to bribe a Parliamentary legal advisor by a judge implicated in pro-Zuma misconduct, the Constitutional Court announced a time-table for the contempt of court case against Jacob Zuma, and an independent panel found that there is prima facie evidence that Public Protector, Busisiwe Mkhwebane, is guilty of both misconduct and incompetence (partly based on her alleged bias against some of Mr Zuma’s political opponents), thus clearing the way for an impeachment hearing before the National Assembly.

As is to be expected, some members of the pro-Zuma coalition of the implicated claimed that these developments provided yet further proof that there was a vast conspiracy against Zuma. In turn, some of President Ramaphosa’s cheerleaders franticly argued that Bongo’s acquittal should have no impact on the ANC’s “step-aside” decision, while delicately trying to hint (without saying so openly) that the presiding judge in the Bongo case was corrupt.

The only surprising response came in the form of a statement purported to have been issued by the “Jacob Zuma Foundation”, responding to the State Capture Commission’s arguments to the Constitutional Court. (It is unclear who drafted this statement and why it was not issued in Zuma’s own name – unless this is to provide Zuma with political as well as legal cover in any future litigation.)

Maybe I am naïve, but I found the statement surprising because it directly contradicts Mr Zuma’s previous claims regarding his refusal to obey the Constitutional Court order. The Foundation, bizarrely, took issue with paragraph 81 of the Commission’s submission to the Constitutional Court, claiming that in it the “Commission surreptitiously asks for an order that was openly offered by President Zuma’s legal counsel and rejected by the Commission”. Paragraph 81 reads as follows:

Given the history of Mr Zuma’s recalcitrance and the limited time available to the Commission to complete its hearing of evidence…, the Commission does not seek a suspended order of committal. However, this Court may yet deem it appropriate to suspend such an order, if the Court is of the view that Mr Zuma should be afforded a final opportunity to comply with its order before he can be imprisoned.

In other words, the Commission recognises that the Constitutional Court has the power to suspend an order of imprisonment, on the condition that Zuma obeys the original court order and summons and testifies before the Commission in accordance with the original order of the Constitutional Court. If he then disobeys the summons, he will then automatically go to prison. Such a sentence is attractive as it is aimed at getting Zuma to comply with the court order, and not primarily at punishing Zuma for his contempt, the former being a more effective way of safeguarding the legitimacy and integrity of the court than the latter.

The Foundation’s claim is obviously false as Mr Zuma’s legal counsel had never offered that Zuma would testify if he was given another chance to obey the Constitutional Court order. (He had offered for Zuma to testify before a Commission if it was not chaired by Zondo, but that “offer” is not linked to the Constitutional Court order requiring Zuma to testify before Zondo himself.) In fact, Zuma had consistently claimed that he would not obey the Constitutional Court order and would not testify before Zondo as ordered by the Constitutional Court and that he would rather go to prison than do so.

It is not that surprising that the Zuma Foundation would make false or misleading claims on behalf of Zuma – it has often done so in the past. However, it is surprising that the false claim contradicts Mr Zuma’s previous statements that he refuses to obey the Constitutional Court order and thus refuses to testify as directed.

One explanation – cautiously raised by legal journalist Karyn Maughan – is that Zuma may be running scared, that he may not in fact be prepared to go to prison, and that he is thus signalling that he will ultimately testify rather than go to jail. Another explanation is that the person who wrote the statement believes that Zuma supporters are too stupid to realise that a refusal to obey a court order is the opposite of an offer to obey a court order, or that they are willing to ignore this obvious contradiction because their loyalty trumps the facts.

The second major false claim contained in the Foundation’s statement is more in line with Mr Zuma’s normal rhetoric, suggesting that he is a victim of a vast conspiracy. Objecting to the fact that the Commission is asking the court to impose a 2-year jail sentence on Zuma for contempt of court, the Foundation suggests that this is a request to change the law, specifically the provisions of the Commissions Act, to impose a higher sentence than that provided for by the Act, arguing that:

The 1947 Act talks about 6 month’s imprisonment, or 55 Pounds fine, not the 2 years imprisonment that the Honorable Judge who is Chairing the Commission alone, suggests. The Master Has Directed, it is clear that laws are being changed to deal with President Zuma, like how the Apartheid Government created Sobukwe Laws to deal with Sobukwe.

It is true that section 6 of the 1947 Commissions Act states that any person who refuses to testify before the Commission “without sufficient cause” after being summoned to do so commits a criminal offence and is “liable on conviction to a fine not exceeding fifty pounds or to imprisonment for a period not exceeding six months”. The Commission has in fact twice laid charges against Zuma for contravening this section after Zuma ran away from the Commission while under summons and after he failed to obey a summons earlier this year. Those cases are being investigated and we are awaiting news whether Zuma will be prosecuted by the NPA for contravening this section.

But the case before the Constitutional Court has nothing to do with a contravention of section 6 of the Commission’s Act. The Constitutional Court is not being asked to decide whether Zuma is guilty of acting in breach of section 6. In any event, such a request would be legally absurd, as one can only be found guilty of a contravention of section 6 after being prosecuted by the NPA and found guilty by the Magistrates Court or High Court.

Instead the Constitutional Court is being asked to determine whether Zuma is guilty of contempt by ignoring the Constitutional Court order which directed him to testify before the Commission. The Constitutional Court has a discretion on what sentence to impose if it finds that Zuma was indeed guilty of contempt. The Court is therefore not being asked to “change the law”, it is being asked to exercise its discretion in terms of the common law. In any event, it is the Constitutional Court that will ultimately decide whether Zuma is guilty of contempt and if he is, what sanction to impose to safeguard the integrity of the Court.

Incidentally, this false claim is similar to Zuma’s previous claim that the Constitutional Court “changed the law” when it held that a witness before the Commission has no general right to remain silent. But the Court had already established this general principle in 1995 in its judgment of Ferreira v Levin – which is liberally quoted in the Constitutional Court judgment. In this parallel universe, “applying the existing law” is described as “changing the law”.

It is not a winning legal strategy to make patently contradictory statements or to make demonstrably false statements about a matter before the court. (The adverse findings by various courts about Public Protector, Busisiwe Mkhwebane’s, incompetence and dishonesty is a textbook illustration of this fact.) Which is perhaps why Mr Zuma has so far declined to make these claims under oath and why he declined to participate in the original Constitutional Court proceedings.

What is impossible to predict (although this has not prevented some commentators from doing so), is whether Mr Zuma’s claim that he is a victim of a vast conspiracy will gain some political traction, despite the fact that this is based on the kind of contradictions and falsehoods highlighted above. It is also not possible to know whether the recent suggestion by the Zuma Foundation that Mr Zuma is prepared to obey the Constitutional Court order if given another opportunity to do so, will undermine Zuma’s credibility with those who believed him when he claimed to be willing to go to prison rather than obey the court order.

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