Now the ball is in the ConCourt over Jacob Zuma’s rescission application

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Durban – The Constitutional has directed former President Jacob Zuma’s lawyers alongside the State Capture Commission of Inquiry, its chairperson Deputy Chief Justice Raymond Zondo, Police Minister Bheki Cele and National Police Commissioner General Khehla Sitole to state whether any international law was violated in detaining Zuma.

The court emphasised that their submissions should not be more than 20 pages.

Zuma’s lawyers, led by advocate Dali Mpofu SC and Thabani Masuku SC, argued that the UN International Covenant on Civil and Political Rights and that South Africa’s Constitution does not allow one to be detained without trial.

Mpofu maintained that on that basis, the court should rescind its ruling on June 29 and free Zuma from the Estcourt Correction Centre in the KwaZulu-Natal Midlands where he began serving his 15-month sentence for contempt of court.

The call for further submissions divided the parties in two groups, with some on one side arguing Zuma was wrongly jailed while others argued that no international law was broken.

One organisation that was on the side of Zuma is Democracy in Action (DIA) which joined the application as a friend of the court and represented on a pro bono basis by advocate Vuyani Ngalwana SC and advocate Nomgcobo Jiba, a former acting head of the National Prosecuting Authority.

The organisation told the court that not even a mooted presidential pardon would be helpful, as the Constitution of the court was ignored in the Zuma case.

“A presidential pardon would, in our submission, not be one such remedy, because it would not cure the arbitrary nature, and therefore unlawfulness, of the detention by reason of this court forsaking normal procedures established by law,” DIA said in its papers.

It added: “The detention was preceded by a court process albeit, in our respectful submission, a flawed one, since no trial as ordinarily understood was held.”

DIA then said that even if Zuma, through his many statements about the court, had belittled it, the deviation from granting him a trial before he was sentenced was illegal.

“No amount of ’extraordinary’ disdain for the apex court can, in our respectful submission, validly and reasonably justify this court giving short shrift to the applicant’s right to be detained without fair trial … Trial courts exist in our judicial system so that every litigant can have the option to challenge a decision of the trial court in higher courts.”

The Helen Suzman Foundation, which is one of the parties, said no international law on detaining people was violated in his jailing. The foundation’s submissions concur with the submission of the Zondo commission and that of the Council for the Advancement of the South African Constitution.

It said the process that led to Zuma’s sentencing was not a criminal trial where he was allowed to appeal in stages. It added that even the Concourt “bent over backwards to afford Mr Zuma equivalent safeguards, including the further right to file an affidavit in relation to the sanction to be imposed, after the hearing” but he ignored that.

“In our law, civil contempt procedures on motion are not criminal proceedings. Therefore where, in accordance with the Constitution’s express empowering, this court has found a person in contempt of court in civil motion proceedings.

“And after careful consideration determined that imprisonment is the appropriate and necessary sanction, then evidently, by virtue of this court’s position as South Africa’s highest court, no appeal or review can lie to any higher court,” it argued in the submission.

The foundation was concerned that Zuma was still in an offensive mode against the court by claiming that its June 29 ruling was an “angry judgment which was ‘imposed in passion or pettiness’.”

“To say this about this court’s carefully reasoned judgment, which anxiously weighed the exceptional facts, our courts’ jurisprudence, the foundational values of our constitutional democracy, and Mr Zuma’s rights, including the countervailing points raised by the minority decision, is astounding.”

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