IN THE HIGH COURT OF SOUTH AFRICA KWA ZULU NATAL DIVISION, PIETERMARITZBURG
Case No:
In the matter between:
JACOB GEDLEYIHLEKISA ZUMA- Applicant
and
THE MINISTER OF POLICE - 1st Respondent
NATIONAL COMMISSIONER FOR THE SOUTH AFRICAN POLICE SERVICE - 2nd Respondent
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES - 3rd Respondent
THE SECRETARY OF THE JUDICIAL COMMISSION OF INQUIRY INTO STATE CAPTURE, FRAUD AND CORRUPTION IN THE PUBLIC SECTOR, INCLUDING ORGANS OF STATE - 4th Respondent
RAYMOND MNYAMEZELI ZONDO NO - 5th Respondent
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA - 6th Respondent
FOURTH AND FIFTH RESPONDENTS’ ANSWERING AFFIDAVIT
I, the undersigned,
ITUMELENG MOSALA
hereby state under oath:
1. I am an adult male and am employed as the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (“Commission”). The Commission’s main place of business situated at Hillside House, 17 Empire Road, Parktown, Johannesburg.
2. My appointment as Secretary was with effect from 1 October 2020. I am duly authorised to depose to this affidavit on behalf of the fourth and fifth respondents. Unless specified, reference to the Commission in this affidavit is also reference to fourth and fifth respondents.
3. Save where the context indicates to the contrary, or where it is otherwise stated, the facts in this affidavit are within my personal knowledge or are contained in records of the Commission under my control. They are, to be best of my knowledge and belief, both true and correct. Where I make legal submissions, I do so on the advice of the Commission’s legal representatives. I accept such advise as correct.
4. I have read the founding affidavit deposed to by the applicant Mr Jacob Gedleyihlekisa Zuma and respond to it as below. I note that the application comprises two parts: Part A is brought on an urgent basis.
5. The Commission opposes the relief sought by the applicant in Part A of the Notice of Motion, for the following reasons:
5.1. The first is that this Court lacks the requisite jurisdiction to entertain this matter.
5.2. The second is that the applicant has failed to satisfy the test for rescission, both under rule 42 of the Uniform Rules of Court, as well as under the common law.
5.3. Thirdly, understanding this application within the context of its full factual history reveals that it (the application) is a continuation of the pattern of abuse by the applicant of the court process. Courts should not entertain such abuse any longer.
5.4. Finally, the applicant does not satisfy the requirements for an interim interdict.
THIS COURT HAS NO JURISDICITON TO HEAR THE APPLICATION
6. The applicant seeks an order in terms of which this Court stays the execution of the order of a higher Court – the Constitutional Court. I am advised that this Court, with respect, has no jurisdiction to grant the relief that the applicant seeks.
7. While the Court does have jurisdiction to stay or suspend court orders, this jurisdiction extends only to its own orders. It cannot rescind, vary or stay the execution of orders issued by any other court, particularly a higher court. To suggest otherwise would wholly undermine the hierarchy of our court system, as prescribed in the Constitution. The natural flow of what the applicant proposes is
a situation where courts interfere with and undermine each other’s orders, under the guise of exercising their inherent powers. That cannot be.
8. Moreover, the applicant’s contention that the Court has inherent power to stay the execution of the order of a higher court is contradicted by section 173 of the Constitution. It reads as follows:
“The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their
own process, and to develop the common law, taking into account the
interests of justice.” [Underlining added].
9. It should be clear from that provision that courts’ inherent power does not extend to getting involved with the powers and processes of any other court.
10. In the context of this case, Constitutional Court must be left to assert its authority, as well as to deal with the applicant’s persistent attempts to undermine that Court
and the judicial system as a whole. In the Constitutional Court proceedings in point, Khampepe ADCJ observed (in paragraph 29 of the judgment) that:
the matter is self-evidently extraordinary. It is thus in the interests of justice to depart from ordinary procedures. Never before has this Court’s authority and legitimacy been subjected to the kinds of [attacks] that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened. Accordingly, it is appropriate for this Court to exercise its jurisdiction and assert its special authority as the apex Court and ultimate guardian of the Constitution, to the exclusion of the aegis of any other court ” [Underlining added].
11. Only the Constitutional Court has the jurisdiction to grant the order that the applicant invites this Court to grant in Part A of his Notice of Motion.
12. It cannot seriously be argued that the order sought is for the stay of execution of
the Constitutional Court’s order, and not of that order itself. The two are exactly the same thing. The Constitutional Court ordered the applicant’s imprisonment. This Court’s ordering the stay of the execution of that order would in effect be an order for the stay of the Constitutional Court’s order.
13. On that basis, this I am advised and submit that this Court does not have jurisdiction to entertain the application presently before it.
14. In terms of section 173 of the Constitution, read with rule 12 of the Constitutional Court Rules, the Constitutional Court has the power to suspend its own orders. The applicant is hereby invited to approach the Constitutional Court, before the lapse of the period set out in the Constitutional Court’s order, for the relief that he seeks from this Court in Part A of his Notice of Motion. In the event that the applicant takes that route, the Commission might adopt a different approach.
TEST FOR RESCISSION IS NOT SATISFIED
15. To bring a rescission application under rule 42 of the Uniform Rules of Court, the applicant must demonstrate that the Constitutional Court’s order for his committal to prison was sought and or granted in error, and in his absence (as party affected by that order). Absence from the proceedings under that rule means that the party simply did not know about the proceedings. The applicant’s version is that he was fully aware of the proceedings before the Constitutional Court but elected not to participate in them. That election places him outside the scope of
the rule 42 rescission.
16. To bring an application for the rescission of a judgement at common law, the applicant will have to show one of the following:
16.1. that the order/judgment was obtained as a result of fraud on the part of the successful party and the evidence before the Court was not correct;
16.2. the Court committed a justus error;
16.3. new documents were discovered after the judgment was handed down/the order was obtained; or
16.4. the judgment/order was granted by default
17. The applicant does not show these grounds. His rescission application bears not prospects of success because it does not even get out of first blocks. This application for a stay should therefore not be entertained. It is, in its bare form, just stratagem on the applicant’s part to avoid the inevitable – serving his prison sentence. Further submissions will be advanced at the hearing of this matter.
NO GOOD REASON GIVEN FOR THIS APPLICATION
18. In his founding affidavit, the applicant provides an incomplete account of the facts that led to the order of the Constitutional Court in question. Should this Court find that it has the requisite jurisdiction to entertain the application, then I submit that such an enterprise requires a full and proper account of all of the relevant facts. I set these out below.
The initial summons issued by the Commission
19. In the course of its inquiry into allegations of state capture, corruption and fraud, the Commission issued summons for the applicant to appear before it for examination from 16 to 20 November 2020. The purpose of this summons (attached as annexure “AA1”) was for the applicant to give evidence and be questioned on various matters that are the subject matter of the Commission’s investigation. He was also required to respond to the evidence of certain witnesses, which evidence implicates or may implicate the applicant of certain acts of wrongdoing.
20. It is important to note in this regard that much of the alleged corruption and acts which might constitute state capture occurred during the applicant’s term of office as the President of the Republic of South Africa. As such, I am advised that the applicant was and remains constitutionally obliged to account for how he exercised the public power vested in him and performed his constitutional duties as the President. This obligation includes him being required to appear before the Commission.
21. The applicant attended the proceedings on 16 November 2020. On that day, his legal representatives moved an application for the Chairperson’s recusal. The application was brought more than two years after the commencement of the Commission’s hearings and the invitation to the applicant to give evidence. It was also brought more than three years after the appointment of the Chairperson, by
the applicant, in his capacity as President of the Republic.
22. At the end of argument on the recusal application, which took up a full day, the Chairperson indicated that he would give his ruling the following day. However, on 17 November 2020, the Chairperson announced that the ruling would be given on 18 November 2020, at which stage the applicant’s legal representative informed him that the applicant was unavailable on 18 November 2020 and would return to the Commission’s proceedings on 19 November 2021.
23. On 19 November 2020, the Chairperson dismissed the recusal application. A copy of that ruling is attached as “AA2”.
24. At that stage, the Head of the Commission’s Legal Team, Adv Paul Pretorius, was prepared to commence questioning the applicant, in accordance with the summons that had been issued. However, the applicant’s then legal representative, Adv Sikhakhane SC, informed the Chairperson of the applicant’s
decision to “excuse himself” from the proceedings. The allegation in the founding
affidavit that the applicant understood that he was excused by the Chairperson is simply not true. It also stands in contradiction with the reason he gave in the review application. I attach, as annexure “AA2.1” the portions of his affidavit in the review proceedings where he explains his departure that day.
25. Adv Sikhakhane SC also informed the Chairperson of the applicant’s decision to take the recusal ruling on review, and to report the Chairperson to the Judicial Service Commission on the basis that, by deciding the applicant’s recusal application, he had adjudicated a matter to which he was a party.
26. Despite being advised that he was not entitled to leave the proceedings and that his absence would constitute a criminal offence, the applicant left the proceedings during the tea adjournment, without the permission of the Chairperson. He further did not appear on 20 November 2020 as required by the summons.
The first application to the Constitutional Court
27. Given the applicant’s refusal to comply with the summons issued by the Commission, the Commission approached the Constitutional Court for an order:
-
27.1. declaring that the applicant, as the former President, is obliged to account before the Commission for his exercise of public power and performance of his constitutional obligations whilst holding that office, in respect of the matters under investigation by the Commission;
27.2. declaring the applicant’s failure to remain in attendance at the Commission on 19 November and to appear on 20 November 2020 unlawful;
27.3. directing the applicant to appear before the Commission whenever served with a summons validly issued by the Secretary of the Commission unless he has an excuse valid in law for not complying with such summons;
27.4. directing the applicant to give evidence and answer any questions that may be put to him once sworn in, subject only to the privilege against self-incrimination;
27.5. directing the applicant to comply with the fresh summons issued by the Commission, directing him to appear and be examined under oath on 18 to 22 January 2021 and 15 to 19 February 2021, all dates inclusive (copies of which are attached as “AA3” and “AA4” respectively);
27.6. directing the applicant to answer the allegations that witnesses at the Commission have made against or that concern him at the time that he held the office of the President of the Republic;
27.7. directing the applicant to comply on or before 10 January 2021 with directives already issued against him by the Chairperson of the Commission in terms of Regulation 10(6) of the Regulations of the Commission which has already been served on him by delivering the affidavit(s) contemplated in those directives; and
27.8. directing with any directives that the Chairperson may validly issue against him in the future under regulation 10(6) of the Regulations of the Commission in connection with matters being investigated by the Commission.
28. A copy of the notice of motion in that application is attached as “AA5”.
29. The application was argued before the Constitutional Court on 29 December 2020. The applicant was duly served with the papers but elected not to oppose the application. Instead of filing answering papers or an explanatory affidavit before the Constitutional Court, he caused his attorneys of record to address a letter to the Commission indicating that he would not be participating in those
proceedings “at all”. A copy of that letter is attached as “AA6”.
The applicants’ refusal to appear in January 2021
30. By 11 January 2021, the Constitutional Court had not yet delivered its judgment.
In terms of the fresh summons that was served on the applicant, however, he was required to appear before the Commission a week later, on 18 July 2021. The Commission accordingly wrote to the applicant’s attorneys, advising the applicant that he was required to comply with the summons and appear before the Commission from 18 to 22 January 2021, notwithstanding the fact that the Constitutional Court had not yet delivered its judgment. The summons requiring him to appear on those dates remained valid and binding, as it had not been withdrawn, set aside or suspended. A copy of that letter is addressed as “AA7”.
31. On 15 January 2021, the applicant’s attorneys addressed a letter to the Commission, recording that the applicant would not be appearing between 18 and 22 January 2021. Two reasons were given for this: (a) that “President Zuma can only be legally obliged to appear after his review application has been determined”; and (b) that “the Commission must await the decision of the Constitutional Court which has a bearing on President Zuma’s appearance”. A
copy of that letter is attached as “AA8”. [Underlining added].
32. The applicant did not appear at the Commission between 18 and 22 January 2021 as directed.
The Constitutional Court’s first judgment
33. The Constitutional Court delivered its judgment on 28 January 2021. It declared that the applicant was obliged to comply with all summonses lawfully issued by the Commission and directed him to do so. For the convenience of this Court, a copy of that judgment is attached as annexure “AA9”. After delivery of that judgment, and on 15 February 2021, the applicant caused his then attorneys of record, Mabuza Attorneys, to address a letter to the Commission stating that he would not be presenting himself at the Commission. A copy of that letter is attached as annexure “AA9.1”
34. The question of the review application and its impact on the summonses was fully canvassed in the founding affidavit in that application. The applicant elected
not to deal with it then. Importantly, the Constitutional Court granted its order, notwithstanding the fact that the review application was pending before the High Court.
35. The Constitutional Court also emphasised the public importance of the applicant’s evidence before the Commission. It records as follows in paragraphs 21 and 22 of the judgment:
[The Commission’s] terms of reference place the former President at the centre of the investigation. They seek to establish whether he abdicated his constitutional power to appoint Cabinet members to a private family and whether he had acted unlawfully. These are all matters of public concern .
. . and some of them fall particularly within the personal knowledge of the ex-President. . . .Sight must not be lots of the fact that it was he who was the subject of the investigation and who drew up the terms of reference that placed him at the heart of the investigation. Some of those matters may not be properly investigated without his participation. Indeed, the terms of reference require all organs of state to cooperate fully with the Commission and extend the application of the Commissions Act to it, including the power to secure and compel witnesses to appear before the Commission for the purposes of giving evidence.”
36. The Court remarked further (in paragraphs 69 to 70) that:
“the respondent is firmly placed at the centre of those investigations which include the allegation that he had surrendered constitutional powers to unelected private individuals. If those allegations are true, his conduct would constitute a subversion of this country’s constitutional order. . . It must be plainly stated that the allegations investigated by the Commission are extremely serious. If established, they would constitute a huge threat to our nascent and fledgling democracy. It is in the interests of all South Africans, the respondent included, that these allegations are put to rest once and for all. It is only the Commission which may determine if there is any credence in them or clear the names of those implicated from culpability.”
37. The Constitutional Court accordingly ordered the applicant to comply with the summons and directives issued by the commission, and to appear and give evidence before the Commission on the dates determined.
38. Both the Constitutional Court’s judgment and order were served on the applicant by Sheriff on 5 February 2021, at his residences in both Forest Town and Nkandla, as per the attached returns of service marked “AA10” and “AA11”.
The applicant’s continued refusal to appear before the Commission
39. On 1 February 2021, the applicant issued a public statement in his own name, entitled “Statement on Constitutional Court Decision Compelling Me to Appear before the Commission of Inquiry into Allegations of State Capture.” A copy of that statement is attached as “AA12”. In it, the applicant informed the public that:
“The Commission into Allegations of State Capture led by the Deputy Chief Justice, has followed in the steps of the firmer Public Protector in how it has also continued with creating a special and different approach to specifically deal with Zuma. The chairperson of the commission, unprovoked, has called special press conferences to make specific announcements about Zuma. This has never happened for any other witness. Recently the commission ran to the Constitutional Court on an urgent basis to get the Constitutional Court to compel me to attend at the commission and to compel me to give answers at the commission, effectively undermining a litany of my constitutional rights including the right to the presumption of innocence. I have never said that I do not want to appear before the commission but have said that I cannot appear before the Deputy Chief Justice Zondo because of a well-founded apprehension of bias and a history of personal relationships between the Deputy Chief Justice and myself. I have taken the decision by the Deputy Chief Justice not to recuse himself on review as I believe his presiding over the proceedings does not provide me with the certainty of a fair and just hearing.
The recent decision of the Constitutional Court also mimics the posture of the commission in that it has now also created a special and different set of circumstances specifically designed to deal with Zuma by suspending my Constitutional rights rendering me completely defenceless against the commission. . . . The Commission . . . should have been rightly named the Commission of Inquiry into Allegations of State Capture against Jacob Zuma as it has been obviously established to investigate me specifically.
. . .
It is clear that the laws of this country are politicised even at the highest court in the land. Recently at the State Capture Commission, allegations made against the judiciary have been overlooked and suppressed by the chairperson himself. It is also patently clear to me that I am being singled out for different and special treatment by the judiciary and the legal system as a whole. I therefore state in advance that the Commission into Allegations of State Capture can expect no further co-operation from me in any of their processes going forward. If this stance is considered to be a violation of their law, then let their law take its course.
I do not fear being arrested, I do not fear being convicted, nor do I fear being incarcerated . . .
In the circumstances, I am left with no other alternative but to be defiant against injustice as I did against the apartheid government. I am again prepared to go to prison to defend the Constitutional rights that I personally fought for and to serve whatever sentence that this democratically elected government deems appropriate as part of the special and different laws for Zuma agenda.” [ Underlining added].
40. On 15 February 2021, and despite being summoned to do so, the applicant failed to attend the Commission. Instead, his lawyers addressed a letter to the Commission to inform it “as a matter of courtesy” that he would not be appearing between 15 and 19 February. Again, the letter cited two reasons:
40.1. First, that the Constitutional Court did not consider, determine and/or adjudicate the application to review the Chairperson’s decision not to recuse himself, and that appearing before the Commission “would undermine and invalidate the review application.” This claim, however, was without merit, in part because the applicant had had the opportunity to oppose the order sought from the Constitutional Court, including on the basis of his pending review application, and elected not to do so. It was therefore not open to him to use the pending review application as a basis to defy the Court’s order.
40.2. Secondly, the applicant’s attorneys contended that the summons issued to the applicant to appear on 15 to 19 February 2021 was “irregular and not in line with the Fourth order of the Constitutional Court”. This contention was not substantiated at all.
41. A copy of this letter is attached as “AA13”.
42. Accordingly, on 15 February 2021 and after being informed of the applicant’s refusal to comply with the summons and appear before the Commission, the Chairperson announced that the Commission would institute contempt of court proceedings for a punitive order holding the applicant in contempt of court.
43. On the same day, the applicant issued a further public statement, attached as “AA14”, and entitled “Final Statement on Constitutional Court Decision Compelling Me to Appear before the Commission of Inquiry into Allegations of State Capture and my Refusal to Appear before the Zondo Commission”. This statement included the following assertions:
“I have accepted that Deputy Chief Justice Zondo and due process and the law are estranged;
. . .
My lawyers, a s a courtesy, advised the Constitutional Court that I would not participate in the proceedings, the judges of the Constitutional Court concluded that my election not to waste their time deserved a cost order against me. It has become common place for some of our courts to make these costs orders against me in order to diminish my constitutional right to approach courts.
. . .
It is not the authority of the Constitutional Court that I reject, but its abuse by a few judges. It is not our law that I defy, but a few lawless judges who have left their constitutional post for political expediency. . . . I protest against those in the judiciary that have become an extension of political forces that seek to destroy and control our country.
. . .
None can claim not to see that the recent judgment of the Constitutional Court is a travesty of justice.
. . .
I protest against our black, red and green robes, dressing up some individuals that have long betrayed the Constitution and their oath of office.
. . . It is a protest against some in the judiciary that have sold their souls and departed from their oath of office.”
44. These statements confirm the applicant’s defiant attitude to the order issued by the Constitutional Court on 28 January 2021. It also goes further to scandalise not only the Constitutional Court, but also all other courts that have issued orders against him. It is evidently calculated to undermine public confidence in the integrity of the Constitutional Court and the judiciary more broadly. It exposes fully the allegations in the founding affidavit for what they are – untruths.
The contempt of court application
45. Given the applicant’s persistent refusal to appear before the Commission, despite a Constitutional Court order compelling him to do so, as well as his egregious undermining of the rule of law and authority of the courts, the Commission applied to the Constitutional Court on an urgent basis for an order in the following terms:
45.1. declaring that the applicant is guilty of contempt of court in that, in disobedience of paragraphs 4 and 5 of the Constitutional Court’s order of 28 January 2021 under case number CCT 295/20, he –
45.1.1. Intentionally and unlawfully failed to appear before the Commission on 15 to 19 February 2021 in compliance with the summons issued by me on 20 November 2020, which directed him to appear and give evidence before the Commission on the said dates; and
45.1.2. Intentionally and unlawfully failed or refused to furnish the Commission with affidavits in compliance with the directives issued by the Chairperson of the Commission under regulation 10(6) of the Regulations of the Commission on 27 August 2020 and 8 September 2020;
45.2. The applicant is sentenced to imprisonment for a term of two (2) years.
45.3. The Minister of Police and the National Commissioner of the South African Police Service are ordered to take all such steps as may be required to give effect to the order in paragraph 45.2 above; and
45.4. The applicant is directed to pay the costs of the application on an attorney and own client scale, including the costs of two counsel.
46. A copy of the notice of motion in that application is attached as “AA15”.
47. The Chief Justice was requested to issue directions for the further conduct of the matter, which he did on 1 March 2021. A copy of these directions is attached as “AA16”. As per these directions, the applicant was invited to file an answering affidavit, if any, by Monday 8 March 2021 and to file written submissions on or before Friday 19 March 2021.
48. On 19 March 2021, and in the attached directions issued by the Chief Justice marked “AA17”, the applicant was invited to file written submissions in response to the submissions of the amicus curiae, namely the Helen Suzman Foundation.
49. On 6 April 2021, and after the hearing of the application, the Chief Justice issued a further set of directions (attached as annexure “AA18” to this affidavit) giving the applicant a further opportunity to make submissions to the Constitutional
Court. Those directions invited the applicant to file an affidavit dealing with the following issues:
49.1. In the event that he was found to be guilty of the alleged contempt of court, what constitutes the appropriate sanction; and
49.2. In the event that the Constitutional court deemed committal to be appropriate, the nature and magnitude of sentence that should be imposed, supported by reasons.
50. The applicant did not file any affidavit as requested. Rather, he responded via a letter (“AA18.1”) as follows:
“I received your directions dated 9 April 2021 in which you direct me to “file an affidavit of no longer than 15 pages on or before Wednesday, 14 April 2021” to address two theoretical questions relating to sanction.
. . .
I have thought long and hard about the request in your directives. I have also been advised that addressing a letter of this nature to the court is unprecedented as a response to a directive to file an affidavit. However, given the unprecedented nature of my impending imprisonment by the Constitutional Court, we are indeed in unprecedented terrain.
The purpose of this letter is two-fold. First, although I am directed to address in 15 pages and within three court days my submissions on sanction in the event, I am found guilty of contempt of court and “in the event that this court deems committal to be appropriate, the nature and magnitude of the sentence supported by reasons.”, I wish to advise you that I will not depose to an affidavit as presently directed. Second, I wish to advise that my stance in this regard is not out of any disrespect for you or the Court, but stems from my conscientious objection to the manner in which I have been treated. Accordingly, I set out in this letter my reasons for not participating and deem it prudent, for the record, to appraise you of my objections.
At the outset, I must state that I did not participate in the proceedings before the Constitutional Court and view the directives as nothing but a stratagem to clothe its decision with some legitimacy. Further, in directing me to depose to an affidavit, the Chairperson of the Commission, as the applicant, and some politically interested groups styled as amicus curie are given the right of rebuttal. That is in my view not a fair procedure in circumstances where my rights under sections 10, 11 and 12 of the Constitution are implicated. I am resigned to being a prisoner of the Constitutional Court because it is clear to me that the Constitutional Court considers the Zondo Commission to be central to our national life and the search for the national truth on the state of governance during my presidency. It has also become clear to me that even though the Constitutional Court has no jurisdiction Deputy Chief Justice Zondo was determined to place the matter before judges who serve as his subordinates in order to obtain the order he wants
. . .
The directions took me by surprise in their breadth and scope. I understand them to be your attempt at giving me a right to hearing only on the question of sanction in the alleged theoretical or hypothetical basis that I am found guilty of contempt of court. That is of significant concern to me firstly because the Court would have known that I had decided not to participate in the proceedings of the Court. I did not ask for this right to hearing and since it is an invention of the Chief Justice I would have expected the Chief Justice to have been concerned about the motive of seeking my participation in mitigating by speculating about a decision concealed from me.
. . .
It is a matter of record that I filed no notice to oppose. Nor did I file an answering affidavit or written submissions. I also did not request or brief Counsel to appear on my behalf to address the Court on the issues raised by Chairperson Zondo on matters arising from the Commission of Inquiry. I was content to leave the determination of the issues in the mighty hands of the Court. If the Court is of the view, as it does, that it can impose a sanction of incarceration without hearing the “accused” I still leave the matter squarely in its capable hands.
. . .
My decision not to participate in the contempt of court proceedings was based on my belief that my participation would not change the atmosphere of judicial hostility and humiliation reflected in its judgment against me. It is my view or my feeling that the judges of the Constitutional Court do not intend to ensure that they address disputes involving me in a manner that accords with the independence, impartiality, dignity, accessibility, and effectiveness of the Court.
. . .
Your directive, Chief Justice provides that I must answer the questions in a 15- page affidavit within 3 days. Regrettably, if I accede to your request, I purge my conscientious objection for having not participated in the proceedings of the Constitutional Court. So, please accept this letter as the only manner in terms of which I am able to convey my conscientious objection to the manner in which your Constitutional Court Justices have abused their power to take away rights accorded to me by the Constitution. I invite you to share this letter with them as it is relevant to the directions that you have issued . . .”
51. This left the Constitutional Court with no choice but to proceed on the strength of submissions from the Commission and the amicus curiae, which went unchallenged by the applicant.
52. The Constitutional Court issued the order that forms the subject matter of this application.
Conclusion on the historical context
53. The following may be gleaned from the above facts:
53.1. the applicant’s suggestions that he has not had the opportunity to present his case are to be denied. The applicant has persistently and belligerently refused to recognise and engage in the court processes leading up to the order holding him in contempt of court and imposing a sanction of imprisonment.
53.2. the applicant has instead chosen to make public statements in which he deliberately and vexatiously undermines the dignity and authority of the courts and the rule of law; and suggests that members of public should do the same.
53.3. the intention expressed by the applicant in his founding affidavit in this application not to comply with the order of the Constitutional Court is only one of a series of orders which he has refused to comply with. The applicant has gone to great lengths to avoid the consequences of his actions and to undermine the foundational values of the Constitution. This cannot be condoned any longer.
54. Accordingly, his current application is not a bona fide effort to assert his rights.
He had various opportunities to assert these rights in courts but either defied or turned them all down. The applicant simply refuses to comply with orders lawfully issued against him. That is his modus operandi.
REQUIREMENTS FOR AN INTERDICT HAVE NOT BEEN MET
55. I am advised that an applicant for interdictory relief must show:
55.1. a prima facie right;
55.2. a reasonable apprehension of irreparable harm;
55.3. that the balance of convenience favours the granting of an interim interdict; and
55.4. the applicant has no other remedy available to him.
56. I am also advised that in the context of this case, where an interim interdict is sought against organs of state, the applicant is required to demonstrate that exceptional circumstances exist warranting the granting of an interdict.
57. I submit that the applicant has failed to meet these requirements, for the reasons that follow.
58. In an attempt to establish a prima facie right, the applicant relies on a series of rights that he ought to have asserted in the proceedings before the Constitutional Court, that culminated in the order that forms the subject matter of this application. He deliberately and expressly declined the opportunities to do so. I submit therefore, that to the extent that any of the applicant’s rights are implicated by the Constitutional Court’s order, that result is of his own making and could easily have been avoided through his participation in those proceedings.
59. The applicant was expressly invited to make submissions on the appropriate sanction for contempt of court, and, if a custodial sentence were to be imposed, what the appropriate length of the sentence would be. He ignored that invitation.
60. I deny that the minority judgment of the Constitutional Court, penned by the Honourable Madam Justice Theron J, can in any way ground the prima facie right that the applicant claims. The applicant is bound by the majority judgment of the Constitutional Court and cannot undermine that through reliance on a decision that is not binding.
61. The applicant’s contentions in relation to his reasonable apprehension of harm amount to contentions as to why he ought not to be committed to prison, and not why he ought to be granted an interim stay of the execution of the Constitutional Court’s order. The applicant was afforded several opportunities – including an express invitation – to persuade the Constitutional Court as to why he ought not to be committed to prison, and he persistently refused to participate in the court process. It is accordingly not permissible for him to raise these issues at this stage.
62. Moreover, I am advised that the applicant’s concerns about his age, health and conditions in prison are all matters he is entitled to raise with the Correctional Services authorities, including in any application that he may make for early parole.
63. The applicant’s contentions in relation to the balance of convenience fail to take account of the ongoing damage his actions are causing to the rule of law and the integrity of the judiciary. With respect to the applicant, it is not relevant at this stage whether any considerations ordinarily applicable in bail applications apply to him; he has already been found guilty of contempt of court and sentenced to a period of fifteen months’ imprisonment.
64. It is, with respect, disingenuous for the applicant to contend that he has no alternative remedy available to him. While I appreciate that no appeal lies against an order of the Constitutional Court, what is of critical importance is that the applicant had multiple opportunities to assert his rights, and he deliberately refused to do so. Having elected not to pursue any avenues offered to him to vindicate his rights, the applicant is not entitled to argue that at this stage there are no other remedies available to him.
65. I now turn to respond to the founding affidavit ad seriatim. Allegations in the founding affidavit that I do not specifically traverse, or that are inconsistent with what I ha e set out above must be deemed to have been denied.
AD SERIATIM RESPONSES AD PARAGRAPHS 1 – 3
66. Save to deny that the contents of the founding affidavit are true and correct, the contents of these paragraphs are admitted.
AD PARAGRAPHS 4 – 12
67. The contents of these paragraphs are admitted.
AD PARAGRAPHS 13 – 16
68. I deny that this Court has the requisite jurisdiction to entertain this matter.
69. I further deny that the applicant’s constitutional rights are at stake. He has had ample opportunity to assert his constitutional rights and has deliberately elected not to do so. The only inference here is that he is abusing the processes of this court to avoid going to prison.
AD PARAGRAPHS 17 – 23
70. I note the purpose of this application as stated by the applicant. I deny that he has made out a case for the relief that he seeks under Part A of the Notice of Motion.
AD PARAGRAPH 24
71. I deny that the applicant has established an entitlement to the hearing of this matter on an urgent basis. To the extent that this matter is urgent, the urgency was created by the applicant himself.
AD PARAGRAPHS 25 – 38
72. I have provided the Court with a full exposition of the history of the interaction between the applicant and the Commission and also the Constitutional Court. Allegations in these paragraphs that are inconsistent with what I set out above are denied.
73. The applicant’s account of the facts leading up to this application is not complete and does not provide an adequate explanation as to why he has not until now sought to participate in court proceedings. It is not open to the applicant to take a deliberate decision to ignore the authority of the courts and decline the opportunity to assert his rights, only to subsequently seek to assert those rights after the conclusion of the proceedings against him.
74. It is also not open to the applicant to seek to blame his legal representatives for the fact that he has now been found guilty of contempt of court and sentenced to imprisonment for 15 months. The applicant has all along challenged the authority of both the Commission and the courts in his personal capacity, through the issue of a series of public statements. I deny that the applicant’s approach to the proceedings before the Commission and the Constitutional Court was informed only by legal advice which he accepted with no question. The evidence makes clear that the applicant himself deliberately sought to undermine the authority of those processes.
75. It is relevant to note that the applicant’s application for the rescission of the order against him has been set down for hearing in the Constitutional Court on 12 July 2021. I refer in this regard to the attached directions issued by the Chief Justice marked “AA16”. The applicant has not, however, made out a case for the stay of execution of the order sought to be rescinded pending the hearing of that application. In any event, as I have addressed above, I submit with respect that this Court does not have the requisite jurisdiction to grant such an order.
AD PARAGRAPHS 39 – 45
76. I deny that the applicant has made out a case for the rescission, reconsideration or variation of the order of the Constitutional Court. I further deny that this Court has the requisite jurisdiction the rescind or vary an order granted by the Constitutional Court, or to stay the execution of that order.
77. I also deny that the applicant has effectively been sentenced to a term of imprisonment without trial. He has been afforded multiple opportunities to put his case before the Courts, but he has refused on each occasion to do so. At no stage did he seek to have any matter referred to oral evidence, nor did he make any submissions as to the constitutional validity of contempt of court proceedings. Having failed to do so when given the opportunity, the applicant cannot now raise these arguments as a poorly disguised attempt to undermine the courts once again.
AD PARAGRAPHS 46 – 53
78. I reiterate that the applicant was given ample opportunity to persuade the Constitutional Court not to hold him in contempt of court, not to order a sanction of imprisonment and to impose a lesser period of imprisonment on him. He was at that stage entitled to raise any arguments regarding how his constitutional rights would be affected by the order of the Court. he was also entitled at that stage to raise the question of the constitutional validity of contempt of court proceedings.
79. The applicant, however, refused to participate in those proceedings. He cannot be permitted to use this deliberate choice to undermine the order granted by the Constitutional Court .
AD PARAGRAPHS 54 – 59
80. I deny that the applicant has established a prima facie right, for the reason set out more fully above.
81. I further submit that any right that the applicant may assert to approach this Court for the relief sought in Part A of the Notice of Motion is negated by the fact that this Court does not have the requisite jurisdiction to grant such an order.
AD PARAGRAPHS 60 – 62
82. I deny that the applicant has demonstrated any reasonable apprehension of harm. I have noted above that to the extent that he is concerned about conditions of imprisonment at his age and state of health, he is entitled to raise these with the Correctional Services authorities, including in an application for early parole. This is the route that all others sentenced to a period of imprisonment would be required to follow.
83. As indicated above, the applicant was afforded multiple opportunities to make submissions to the Court regarding his constitutional rights and the constitutionality of contempt of court proceedings. He deliberately refused to take up the opportunities when they arose and cannot be permitted to do so now.
AD PARAGRAPHS 63 – 66
84. The contents of these paragraphs are denied. The applicant had ample alternative remedies available to him. He decided not to pursue them.
AD PARAGRAPHS 67 – 72
85. I deny that the balance of convenience favours the granting of the relief sought in Part A of the applicant’s Notice of Motion.
AD PARAGRAPHS 73 – 74
86. I deny that the applicant has good prospects of success in his application, for the reasons set out above. Indeed, his application amounts to an abuse of the court process and a further attempt to undermine the rule of law.
AD PARAGRAPHS 75 – 81
87. I deny that the applicant has made out a case for this matter to be heard on an urgent basis. I have addressed this issue above. To the extent that the allegations in these paragraphs are inconsistent with what has been set out above, they are denied.
88. I further deny that the applicant’s fundamental rights are under direct and imminent threat. His refusal to participate in the proceedings that culminated in the order of the Constitutional Court, during which proceedings he was afforded ample opportunity to assert those rights, was a deliberate choice.
WHEREFORE the fourth and fifth respondents seek an order dismissing the application with costs, including the costs of two counsel.
