Former President Jacob Zuma. (Mlungisi Row/Getty Images)
Jacob Zuma's lawyer said on Friday that the Constitutional Court judges who imprisoned him for contempt in 2021 may have unconscious bias against him, making it difficult for him to run for parliament. He argued that he should recuse himself from the lawsuit that would determine whether he could do so, but was unsuccessful. Elections will be held later this month.
After morning arguments on this point, Deputy Chief Justice Mandisa Maya said the application was dismissed. The court did not specify its reasons, but is expected to do so in a later ruling.
The consensus is that Mr Zuma faced severe challenges to evade, but failed to meet them.
South Carolina defense lawyer Dali Mpofu asked why Judge Zukisa Tsiki, the same judge who sentenced Zuma to 15 months three years ago, did not object when he heard an application to set aside the sentence. After asking if it was true, he claimed he was biased.
He added that reasonable applicants also did not challenge the same Bench of the High Court that heard the stay of appeal application and ruled against them.
“We need to understand what your problem is for us,” she said.
“The nature of your judicial system is that when you sit as a judge in the High Court and an application for suspension of appeal is filed, a reasonable litigant would think that you, as a judge, would file an application for suspension. I believe that you will listen.Speak your heart and apply it.
“The same applies to the revocation judgment. You filed the application,” she added, noting that Mr Mpofu was the head of the court team when Zuma made the emergency application in July 2021. He referred to the fact that the trial had been unsuccessful, and that the court had made an error and should be struck down. Both a contempt order and a prison sentence. ”
Mr Tsiki asked why this case was different, in which the Supreme Court has to decide whether the prison sentence disqualified Mr Zuma from being a member of parliament in terms of Article 47(1)(e) of the Constitution. Asked.
This article prohibits anyone who has been sentenced to imprisonment for more than 12 months without the option of a fine from becoming a member of parliament for five years.
The South African Electoral Commission (IEC) upheld Mr Zuma's claim that he was not qualified to be a member of parliament, but it was overturned by the Electoral Tribunal last month.
The court reasoned that the sentence imposed by the Constitutional Court was reduced because President Cyril Ramaphosa waived the remainder of Zuma's sentence after his medical parole was found to be illegal.
“So why should this be any different when we are being asked to investigate whether a presidential pardon affected the sentence we imposed?” Tsiki continued.
Mr Mpofu is not seeking immunity because the judge was unable to rule on the impact of remission, but whether Mr Zuma's 2021 conviction was a conviction and the sentence was legal. He answered that this was because they disagreed on his other major issue.
This was the case of Mr Zuma, who was imprisoned without being tried by the Supreme Court, but this argument emphasizes the complex nature of contempt, whereas civil contempt imposes punitive sanctions. It overturns the well-established principle that it is possible.
Mr Zuma was jailed for failing to comply with a court order to testify before the Commission of Inquiry into State Capture.
Mr Tsiki said that in this respect too Mr Zuma and his legal team should be pleased that the case was heard by the Supreme Court and questions could finally be answered.
“There is a simple answer. They are not happy. The reason is their conviction and their sentence is the cause of their unhappiness,” Mpofu replied, then used his client's fear of prejudice to support his opponent. He likened it to the fear of a sports team facing a referee who does the same. side.
“The human tendency, it may not even be a conscious bias, the human tendency to defend, it's just human nature, and that's where fear comes from.
“No litigant would be happy about that. The only possible happiness would be for the matter to be decided by this court and not by you.”
According to Mpofu's reasoning, about half of the Constitutional Court judges should have recused themselves from the case.
But IEC advocate Thembeka Ngukaitobi argued the application should be rejected.
The test for recusal is rigorous and objective.
The Constitutional Court has emphasized in the past that judges are supposed to be impartial and must hear cases where possible.
Mr Ngcukaitobi told the court that an applicant seeking a challenge must also pass the so-called double reasonableness test: the applicant must be reasonable, and the concern of bias must itself be unreasonable. It reminded me of what not to do.
