A penniless old man with health issues who, with hindsight, had listened to bad legal advice.
That is the picture advocate Dali Mpofu painted of his client, former president Jacob Zuma, when he argued before Pietermaritzburg high court judge Jerome Mnguni on Tuesday for an order that the warrant of arrest, signed by the Constitutional Court, be stayed.
In contrast, he labelled the secretary of the commission of inquiry into state capture, its chair judge Raymond Zondo and the Helen Suzman Foundation as “vengeful” in opposing the application.
He said they were “uninvited busybodies”, and their opposition was “inappropriate because their role in the matter ended when the Constitutional Court, by majority, granted the order that Zuma was in contempt of court and ordered him to serve 15 months in jail.
The court has subsequently agreed to hear a rescission application on Monday July 12, but as things stand, the warrant of arrest still stands.
Zuma did not hand himself over within the stipulated five days and the minister of police is now on terms to arrest him by Wednesday.
In argument, which took two-and-a-half-hours, Mpofu said Zuma’s refusal to participate in the contempt proceedings, which came about because he refused to comply with an order by the apex court that he appear before the commission, was because he was unable to fund litigation “which is not necessary”.
“That is what got him into the soup in the first place. He was of the view that the prospects of the [contempt] application were slim. With hindsight that turned out to be wrong.”
Mpofu submitted there were at least a dozen reasons why Mnguni did and the issue was a “red herring”.
He said the fact that the apex court had agreed to grant Zuma’s application that he be heard, and that the minister and national commissioner of police had indicated that they would abide by the decision of the court, should count in his favour.
He said the opposition by the commission and Zondo was “peripheral” and based on the acrimony between the judge and Zuma.
“Whether he [Zuma] is arrested this week or next week should really be no skin off their nose. What interests are they trying to protect? If the police were opposing, one could say they were protecting the interests of their constitutional duties. The law enforcement agencies are not opposed because of the aggravated situation,” he submitted, suggesting that Mnguni take judicial notice of the volatile security situation.
Mpofu argued that a stay would effectively “freeze” the warrant of arrest, pending the further litigation and there was no point in throwing Zuma in jail when there were good prospects that he would succeed in the rescission application.
He also pointed to the fact that Zuma had, in the application before Mnguni, also launched a “part B”, a constitutional challenge to the Criminal Procedure Act in that it doesn’t provide for a trial in contempt of court proceedings like those he faced.
This, he said, meant the entire application was squarely in front of the court, in terms of jurisdiction, coupled with the fact that Zuma lived in the jurisdiction and would be imprisoned in the province.
Advocate Tembeka Ngcukaitobi, for the commission and Zondo, is expected to argue on Tuesday afternoon.