‘Another Marikana’ looms if Zuma’s warrant of arrest isn’t halted: Mpofu
Ex-president ‘made his own prison bed’ and must now lie in it, say parties opposing his high court application
Former president Jacob Zuma’s lawyer threw the “Marikana” issue into the equation at the 11th hour, as he argued that the Pietermaritzburg high court should stay the warrant of arrest, issued by the Constitutional Court, for his client to serve 15 months in prison for contempt of court.
Judge Jerome Mnguni, after hearing six hours of submissions, said he would hand down his ruling on Friday — two days after the expiry of the apex court’s order that police should arrest Zuma if he hadn’t handed himself over.
In his final submissions, Zuma’s advocate, Dali Mpofu, said that if Mnguni did not grant the stay, Zuma would be subjected to the “worst imaginable” human rights violation.
It was, he said, “against the wishes of the people” that Zuma go to jail.
“Let’s have another Marikana. Or whatever might happen. This is just Zuma law,” Mpofu said.
Mpofu spent most of the time arguing that Mnguni had jurisdiction to overturn the Constitutional Court’s ruling that Zuma go to jail.
“Your lordship will be sending someone to jail in circumstances that have never happened before and will never happen again. And if the Constitutional Court order infringed even one right, be it dignity, detention, privacy ... then the declaration of unconstitutionality is not optional,” he said.
But the chances of the ConCourt rescinding its ruling that Zuma is guilty of contempt of court and must go to jail were “vanishingly thin”, said adv Max du Plessis, on behalf of the Helen Suzman Foundation.
The foundation is opposing the urgent bid in by Zuma for a stay of the warrant of arrest.
“He is no victim. This is about past and ongoing defiance and constitutional deviance. He has, through his own actions, disentitled himself from any relief,” Du Plessis submitted to Mnguni, who heard Zuma’s application on Tuesday.
“It’s unconscionable for him to seek this court’s protection when he remains in contempt. There is no hope for his rescission application. He left the Constitutional Court with no choice but to find him in contempt and order his imprisonment. He made his own prison bed.”
Referring to submissions by Mpofu that the status quo “that Zuma remain at home” should be permitted, he said the contrary was true — that Zuma should be in jail, as per the Constitutional Court’s order.
Earlier in his argument, Adv Tembeka Ngcukaitobi, acting for the state capture commission and its chair, deputy chief justice Raymond Zondo, detailed how the ConCourt had repeatedly asked Zuma for submissions in its deliberations over his refusal to appear before the commission and subsequent contempt proceedings.
He said Zuma rejected these overtures, and instead denounced the court, “raging” at its judges and insulting the judiciary.
“As things stand, he is again in contempt of the court, refusing to hand himself over to authorities,” he said.
Zuma was given five days from the ConCourt's judgment to hand himself over, a deadline that expired on Sunday.
Ngcukaitobi said that when the ConCourt granted the contempt order, it had weighed up the public interest and Zuma’s interest.
“It knew his age, it knew the conditions in prison and decided that he should serve 15 months.”
He said Zuma should have approached the ConCourt if he wanted a stay of the warrant.
He described as “nonsensical” the letter from police bosses to the apex court asking for clarity on whether Zuma must be arrested, saying that it would hold off on arresting Zuma without this clarity.
“It (the order) just needs to be enforced. Their deadline lapses tomorrow (Wednesday) and the police are bound by it.”
He questioned why the police had not brought its own court application, or why Zuma had not asked the ConCourt for the stay.
He said that the court, when agreeing to hear the rescission application, was aware of the date by which Zuma had to hand himself over — Sunday — or be arrested — Wednesday — but had decided not to interfere with that when it issued directions on Saturday in response to Zuma’s application.
“If it decides its order should be temporarily suspended, it should make that determination itself.”
Ngcukaitobi said Zuma had placed himself above judicial authority and had defied the Constitution.
“What do you do with such a person? You dismiss their application,” he said.
He described Zuma as a “repeat lawbreaker”.
“And now he has come to you to ask you to assist him in breaking the law further. He is apparently drawing inspiration from the conduct of the police. The threats of violence should not dictate what the correct legal position should be,” he said.
While both opposing advocates submitted that Mnguni had no jurisdiction to hear the matter and had no authority to meddle with a ruling by the apex court — an issue the judge raised himself on several occasions during the hearing — Mpofu insisted he did.
Earlier, he insinuated that Zuma could not afford to litigate in the ConCourt.
Mpofu asked judge Mgnuni whether he was “washing his hands of the issues”.
The judge responded: “That is not the point. It’s whether I have jurisdiction. This is a matter pending before the Constitutional Court.”
Mpofu replied: “You cannot rule out the court might set aside its order on Monday or a few days after that. How can you ignore that? It would be an egregious invasion of his rights to a fair trial to refuse him a stay. Let us just wait, say, for six days for that outcome. You would effectively be saying his right not to be detained without trial must be taken away from him.”
Mnguni said the merits of Zuma’s case were not in issue before him.
Mpofu said: “His only sin was that he assessed a case wrongly ... and now he agrees that he was wrong. That cannot be our law.”
This was a reference to his earlier submissions that Zuma was a penniless old man with health issues, who, with hindsight, had listened to bad legal advice which resulted in him not participating in the ConCourt’s proceedings against him.