Jailed former president Jacob Zuma faces another daunting challenge to convince the Constitutional Court to rescind its decision to sentence him to 15 months’ imprisonment for contempt of the apex court.
Zuma began his prison term on Wednesday last week following his failure to meet the Concourt deadline of July 4.
He was sentenced to jail on June 29 and was given five days on which to hand himself over to the police and Correctional Services officials for his failure to obey a January Concourt order to appear before the Commission of Inquiry into allegations of state capture.
Instead, Zuma made an urgent application in the KwaZulu-Natal High Court sitting in Pietermaritzburg for a stay in the execution of his arrest. The court ruled against him on Friday last week on the grounds that the High Court did not have jurisdiction to stay a decision of a superior court.
Despite that judgment, Zuma had simultaneously also made an urgent application in the Concourt to rescind his custodial sentence or alternatively award him a suspended sentence due to his ill health.
In his latest application, due to be heard on Monday, Zuma has asked the ConCourt to consider that he was likely to contract Covid-19 while in prison due to his age and deteriorating health condition.
In his appeal to the court to consider his application, Zuma said: “The peculiarity and uniqueness of these unprecedented circumstances, the implication thereof on my personal freedom and the health challenges facing the country should all combine to militate in favour of the serious entertainment of his matter.”
In his papers, Zuma denies that he refused to appear before the Zondo Commission but accused the inquiry of having ignored his legal papers to challenge the decision of the Deputy Chief Justice Raymond Zondo to recuse himself. He also said that Justice Zondo should have lodged contempt of the commission allegations against him in a criminal court instead of the Concourt.
He maintained that Justice Zondo was wrong to ask the Concourt to rule and to impose a prison sentence against him.
“My reasons for not engaging the applications of the commission to the Constitutional Court was based in large part on the lack of finances to engage lawyers to focus on the urgency basis and in terms demanded by the commission and accepted by the Constitutional Court,” Zuma said.
He also said he had put his trust in the “clearly mistaken view” that he could not be forced to appear before a judge whose recusal was the subject of his application.
“I now fully accept that the most legally appropriate route which I could and should have taken would have been to apply for interim relief to interdict my appearance before the commission.
“I did not do so partly because of the legal advice I had received but also motivated by the issue of financial hardship, to which I now turn.
“My failure or lack of wisdom to take that route, however annoying it might be, is certainly not sufficient justification to send me to prison without a trial,” Zuma insists.
He said Justice Zondo’s decision to approach the Concourt was “unashamedly and with the single purpose of extracting imprisonment for me”, further saying “theirs was nothing but a thinly disguised private prosecution, only without the inconvenience of a fair trial”.
He also questioned the decision of the Constitutional Court to send him to jail while a former apartheid president, PW Botha, who faced similar charges of contempt, was given a suspended sentence for undermining the Truth and Reconciliation Commission.
The commission is expected to oppose the application. It is also widely expected to argue that, as it did in the High Court, that Zuma was a “repetitive, recalcitrant lawbreaker”.
Counsel for the commission, Tembeka Ngcukaitobi SC, argued last week for the dismissal of the stay application.