Former president Jacob Zuma’s review of Deputy Chief Justice Raymond Zondo’s decision not to recuse himself from hearing his state capture inquiry evidence is immaterial in Constitutional Court proceedings, the commission argued on Thursday.
Tembeka Ngcukaitobi SC, representing the commission, told the apex court that the fact that Zuma may win at some later stage does not suspend his duty to comply with the January 2021 order compelling him to appear before inquiry chairperson Justice Zondo and give evidence.
”You cannot choose which court orders to comply with and not to comply with. There is no universe where he (Zuma) can ask to be excused from complying with a court order,” he said.
Ngcukaitobi was responding to Justice Leona Theron’s question about what would be the impact if Zuma’s review is successful at some stage in the future.
According to Ngcukaitobi, a judgment of the Constitutional Court cannot be suspended unless it is done by the court itself.
Zuma has repeatedly cited his pending high court review of Justice Zondo’s decision not to recuse himself for refusing to appear before the commission.
Ngcukaitobi was also quizzed by Justice Theron about his insistence that Zuma must pay punitive costs despite the ex-president not opposing the matter.
He responded: “That itself in a contempt against a former president and warrants a punitive costs order. What this court deserved at least is an explanation, it did not even get that explanation, that is simply part of Zuma’s malicious behaviour.”
Ngcukaitobi said Zuma’s malicious conduct included the failure to give an explanation to the Constitutional Court about the political campaign he accused him of embarking on against the country’s highest court.
He said Zuma’s failure to participate in the proceedings was part of his deliberate and calculated strategy to discredit the apex court.
”Not filing an answering affidavit makes it more malicious because it shows that he had no explanation for making those remarks, he could not even be bothered to apologise to the court,” argued Ngcukaitobi.
He also addressed the Helen Suzman Foundation’s (HSF’s) bid to be admitted as amicus curiae (friend of the court) in the commission's case to have Zuma jailed for two years after being held in contempt of court for ignoring subpoenas issued by the inquiry despite being ordered to do so by the apex court.
Ngcukaitobi said the HSF’s suggestion that Zuma goes to prison, and if he changes his mind he should then be brought to the commission, brings discredit to the court because it will be ineffective.
The foundation has proposed that Zuma be brought by the sheriff of the high court to testify before the commission in addition to being jailed.
Acting Justice Dhaya Pillay asked what the problem was with a remedy that incorporates or gives an alternative to imprisonment – a fine as an alternative to imprisonment.
”What’s wrong with that?”
In his response, Ngcukaitobi said that remedy does not give appropriate weight to the harm and does not appropriately vindicate the authority of the court, and ultimately reduces the assault to the dignity of the court to a money exchange.
”That is just inappropriate. It cannot be effective in the context of what Zuma has said, not when he has been given a chance to explain,” he insisted.
Judgment was reserved.