Advocate Dali Mpofu has urged the Constitutional court to release former President Jacob Zuma from jail, saying he would advise his client to appear before the State Capture Commission.
The Concourt is currently hearing an application by Zuma seeking the rescission of its decision to sentence him to 15 months imprisonment for contempt of the apex court.
He was sentenced to jail on June 29 and given five days to hand himself over to Correctional Services, for his failure to obey a January Concourt order to appear before the Commission. Zuma is currently in jail at the Escourt Correctional Services, leading to widespread protests against his jailing.
The contempt of court proceedings followed Zuma’s failure to appear and answer questions relating to state capture during his tenure.
Mpofu said that because the Commission’s terms had been extended to September, Zuma can still appear before the inquiry - even though he still held the view that Deputy Chief Justice Raymond Zondo was biased against him.
Mpofu argued that Zuma had been denied his right to appeal by the Constitutional Court, and maintained that he should have been tried for contempt in the Magistrate's Court which would have allowed him to appeal any ruling made against him.
One of the nine judges hearing the application, Judge Zukisa Tshiqi ,asked whether the recission relief Zuma sought should be available to someone who deliberately failed to participate in, or opposed the contempt proceedings, knowing full well the Commission was seeking his imprisonment.
Mpofu argued that even though Zuma did not oppose the case, it did not mean that he forfeited his constitutional rights or his right to a fair trial.
Mpofu said they were also seeking an interim order that Zuma be released from the Estcourt Correctional Facility should the Court decide to reserve its judgment “even its for one or two days”.
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.
By then, Zuma had already been taken to the Estcourt Correctional Facility to begin serving his sentence.
In an affidavit filed to the Concourt, Zuma said his ill-health and the fact that he was 79-years-old should be taken into consideration, especially as he was at high-risk due to the Covid-19 pandemic.
Zuma said his imprisonment would not serve any constitutional value but may make a political statement.
Zuma’s legal team have also argued that he did not participate in the contempt proceedings for medical reasons, because he lacked financial resources, and because he had sought the recusal of Justice Zondo.
In his papers, Zuma denied that he refused to appear before the Zondo Commission but accused the inquiry of having ignored his legal papers to challenge the decision of Justice 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.