Entertaining application would be permitting appellant to blow hot and cold – justice Khampepe
Former president Jacob Zuma’s last chance to have the ruling ordering his imprisonment rescinded was dealt a blow on Friday after the Constitutional Court dismissed his application.
Delivering the judgment, justice Sisi Khampepe said entertaining Zuma’s application would be equal to permitting him to “blow hot or cold”, as he had deliberately refused to participate in the litigation that resulted in him being jailed.
In June, the apex court sentenced Zuma to 15 months behind bars for contempt of court relating to its order that he complies with the directives of the Zondo commission what he was required to answer to allegations of state capture.
Zuma had refused to attend the commission as he accused its chairperson, acting chief justice Raymond Zondo, of bias and called for his recusal.
Zuma had also refused to participate in the court proceedings initiated by the commission before the apex court as he also accused judges of being politically biased against him.
With no prospects of appealing the conviction, Zuma challenged his conviction through a rescission application.
Rule 42 of the uniform rules of court states that a court may “rescind or vary an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby or an order or judgment granted as the result of a mistake common to the parties”.
Khampepe said the majority for the ConCourt justices had ruled that Zuma’s rescission application be dismissed with costs.
“It would fly in the face of the interest of justice for a party to be allowed to willfully refuse to participate in litigation and then expect the opportunity to reopen the case when it suits them. It is simply not in the interest of justice to tolerate this manner of litigious vacillation,” Kampepe said.
Zuma’s legal counsel has argued that the ConCourt had violated his constitutional rights by not first affording him the chance to mitigate his sentence before it slapped him with direct imprisonment.
Zuma’s lawyer, advocate Dali Mpofu SC had told the apex court that it had exceeded the bounds of the Constitution by slapping him with direct imprisonment without a formal trial in lower courts where he would have had an opportunity to appeal.
Mpofu also pointed out that Zuma was very old and sick to be thrown into jail.
This was however refuted by the commission’s counsel, which argued that Zuma had squandered repeated opportunities to mitigate his sanction as he had chosen to abandon all court proceedings and instead to publicly attack the commission and the ConCourt.
The commission’s lawyer, advocate Tembeka Ngcukaitobi SC, counter argued that Zuma had known about his age and medical condition but that he had deliberately “reconciled himself with the possibility of imprisonment”.
Khampepe said there had been no new information brought by Zuma which warranted for the rescission of the judgment against him.
“Although there may be circumstances in which the interest of justice requires rescission, those circumstances must be exceptional to justify a departure from the doctrine. There is nothing in Mr Zuma’s case that can be construed as truly exceptional to the extent that the court should depart from the underlying principle and ordinary tenets of the rule of law,” she said.
Khampepe said the court had emphasised that the importance of protecting the principle of finality in litigation.
“It is precisely to protect this principle, that the orders of the ConCourt are immune from appeal,” she said.