• Former president Jacob Zuma on Friday applied for an urgent rescission of the Constitutional Court’s ruling that he was guilty of contempt of court for defying its orders that he appear before the State Capture Inquiry and answer non-incriminating questions. 
• On Saturday, the Constitutional Court agreed to hear that application – in which Zuma also asks for an opportunity to present evidence in mitigation of his 15-month jail term, which he has described as a “possible death sentence”. 
• Zuma will, on Tuesday, seek to stay the implementation of the orders for his arrest and committal to prison, which the police have until Wednesday to act on, in the Pietermaritzburg High Court.

Former president Jacob Zuma has persuaded the Constitutional Court to hear his arguments why his 15-month contempt sentence should be rescinded or reduced – but legal experts say that doesn’t mean he definitely won’t be jailed this week.

Lawson Naidoo, from the Council for the Advancement of the SA Constitution, has told News24 that Zuma’s application to the apex court “does not automatically stay the implementation of the court orders” that it has already issued for his arrest and committal by the police.

Zuma on Friday applied for an urgent rescission of the Constitutional Court’s ruling that he was guilty of contempt of court and should serve a year and three months behind bars for defying its orders that he appear before the State Capture Inquiry and answer non-incriminating questions.

The former head of state says this jail term is a “possible death sentence” and insists that the Constitutional Court should, at very least, hear evidence in mitigation of his sentence “in relation to my developing health situation”.

“At that point, I will be in a better position to adduce the expert evidence of my medical team,” Zuma said.

“That is the least humane gesture this Honourable Court may wish to undertake before possibly sentencing me to death at my age, state of health and in the middle of a deadly pandemic.”

‘Defective’ application

But, should Zuma not hand himself over to the police on Sunday, Police Minister Bheki Cele and National Police Commissioner Khehla Sitole have until Wednesday to ensure that he is arrested and taken to a correctional service facility.

Zuma has sought to stay or interdict that arrest process from happening by approaching the Pietermaritzburg High Court – an application Naidoo says is “defective” because “the High Court can’t stay an order of the Constitutional Court”.

Zuma, he says, has “again received bad legal advice”, as he should have sought an urgent interdict to block his committal in the country’s highest court – as it was responsible for granting those orders in the first place.

Naidoo also contends that, should Zuma not hand himself over on Sunday, he will “technically again be guilty of contempt of the Constitutional Court”.

Constitutional law expert Elmien du Plessis is not as convinced that Zuma has no hope of interdicting his imminent arrest in the High Court.

“This is a completely unprecedented situation,” she told News24. “So we don’t know exactly what should happen because the Constitutional Court has never punished anyone in this way before.”

Ultimately, Du Plessis stressed, it would be up to the High Court who hears Zuma’s urgent stay/interdict application on Tuesday to decide whether he or she had the legal jurisdiction required to decide the case.

Legal expert Nkanyiso Ngqulunga agrees that the court’s jurisdiction is a “clearly debatable issue” that could prove pivotal to the success of Zuma’s stay/interdict application.

If the judge decides that he or she does not have the jurisdiction to block Zuma’s arrest and dismisses his case, says Ngqulunga, “then his arrest would have to go ahead” on Wednesday – regardless of his application to the Constitutional Court.

Zuma may then attempt to apply for bail on an urgent basis.

Almost no hope

One thing legal experts appear united on is this: Zuma has almost no hope of convincing the Constitutional Court that he was wrongly found guilty of contempt.

In a long and detailed ruling, Justice Sisi Khampepe detailed how Zuma had repeatedly “squandered” the opportunities he was offered to defend himself against accusations that he had not only shown contempt toward the State Capture Inquiry, but had also later deliberately defied the Constitutional Court – which he then compared to the apartheid government.

After being asked by the court to provide it with sworn evidence about what sanction he believed he should face, Zuma refused and instead told Chief Justice Mogoeng Mogoeng that he was “ready to become a prisoner of the Constitutional Court”.

In these circumstances, constitutional law expert Bulelwa Mabasa told News24, she was “flabbergasted that the Constitutional Court has agreed to hear [Zuma] after having handed down a judgment and on the eve of his arrest”.

“The Constitutional Court is a court of final instance. [Zuma] refused to put his version to the court and is only now seeking to rescind its judgment. It’s preposterous. Zuma is not only a constitutional delinquent and a vexatious litigant, he is deliberately seeking to cause a constitutional crisis.”

Criminal law expert Ulrich Roux agrees. “I am surprised to say the least that the Constitutional Court is entertaining Jacob Zuma’s rescission application.”

Effectively that means that, after the arguments to hold Zuma in contempt, which he did not oppose and the three months where 11 judges deliberated before they handed down the judgment on Tuesday, that the court is now second guessing its decision.

“They are entertaining an argument by Zuma that they, in fact, made an error when they sentenced him to 15 months imprisonment.”

Roux added that Zuma was relying on sections of the Constitution and the uniform rules of court that allowed for a ruling to be rescinded if it could be shown that a “grave injustice” had occurred or there had been “an unfair trial that has led to an order being made”.

“Zuma is arguing that he should have been granted an opportunity to present mitigating evidence as to why he should not be receiving a sentence of imprisonment for being in contempt of a Constitutional Court order. But the fact of the matter is that he was given numerous opportunities to do so… he could have purged his contempt at any time by agreeing to testify before the commission.

“Instead he elected, time and time again, not to do so.”

The State Capture Inquiry is opposing Zuma’s application for a stay of his arrest, but has yet to detail its arguments on why it is doing so.