In a last-ditch bid to avoid going to prison, Jacob Zuma on Wednesday evening wrote to the Constitutional Court asking it to suspend the execution of the warrant for his arrest.
The former president wants the suspension in place, pending the outcome either of Friday’s ruling by the Pietermaritzburg high court on his urgent application to have the warrant stayed, or of the apex court’s own ruling on his bid to have his 15-month sentence for contempt rescinded.
“We write to request that you issue a directive in terms of which the execution of the committal orders of the Constitutional Court is suspended pending the outcome of the judgment on Friday 9 July alternatively pending the outcome of the judgment to be heard by the Constitutional Court on Monday, 12 July 2021,” the letter reads.
The 11th-hour approach is, according to legal experts, the route Zuma and his lawyers should have taken all along as he tries to avoid arrest.
In the letter, Zuma makes reference to preparations by the police to detain him on Wednesday evening, as the clock runs out on the Constitutional Court’s order to the minister and national commissioner of police to arrest Zuma in the event — now reality — that he defied the same court’s order to hand himself over by no later than midnight on Sunday 4 July.
The Pietermaritzburg high court hearing was dominated by argument as to whether it has jurisdiction to intervene on a ruling by the highest court in the land.
Counsel for the Zondo commission on state capture, which approached the apex court for a contempt ruling and punitive term of committal, argued that it does not, and Judge Bhekisisa Mnguni said this pointed to his difficulty with the application.
The commission’s lawyers moreover argue, in its answering affidavit in the Constitutional Court, that the rescission application is not only doomed but further proof of Zuma’s contemptuous refusal to accept that court rulings apply to him.
In his latest approach, Zuma effectively pre-empts the high court dismissing his application for a stay of arrest.
“We understand that the Constitutional Court may direct the suspension of its orders, which if granted would be binding on the high court, to prevent our client from being arrested prior to all legal processes being finalised,” his letter reads.
“We await your urgent response.”
In the absence of a court ruling on the matter, Police Minister Bheki Cele and commissioner Khehla Sitole will find themselves in contempt of court should they fail to execute the warrant.
But if the high court’s jurisdiction in the matter is moot, it is not clear either whether the apex court can at this stage alter its own order, a senior jurist told the Mail & Guardian.
Furthermore, it appears that Zuma is precluded from filing an application to the apex court and constrained to sending a letter by the fact that he already has an application pending before the high court, pointing to a somewhat confused legal strategy.
Cele and Sitole, through the state attorney, wrote to the office of the chief justice on Monday indicating that they would not give effect to the warrant pending the outcome of the rescission application.
But in court on Tuesday, counsel for the commission deemed their letter “nonsensical”.