The first hurdle for the application to the Constitutional Court to compel former president Jacob Zuma to testify at the state capture commission will be getting its foot in the door.
The Constitutional Court rarely allows litigants to come straight to the highest court without first passing the lower courts.
On Thursday, the secretary of the state capture commission, Itumeleng Mosala, filed the much anticipated application to the Constitutional Court to compel the former president to comply with two summonses, issued in the preceding week, to come before the commission and answer questions. The summonses have been issued for dates in January and February.
Commission chair and deputy chief justice Raymond Zondo announced that he would approach the ConCourt after Zuma absconded from the commission on November 19, in breach of a summons.
Mosala's affidavit details, over 23 pages, the efforts made - from as far back as September 13 2018 - to invite Zuma to address allegations against him and secure his attendance to testify in response to the evidence of more than 30 witnesses that had, or may have, implicated him in state capture.
"Mr Zuma's failure or refusal to appear before the commission totalled no less than five weeks of scheduled hearing time. This is apart from the dates of 16 to 20 November 2020, which were also lost as a result of Mr Zuma's belated application for recusal and his walkout of the commission's proceedings," Mosala writes. Also, it was clear that even though he attended in November, as per his summons, "he never intended to give evidence".
But, writes Mosala, "I do not believe that Mr Zuma will defy an order of this court".
However, before the Constitutional Court will even hear the application, it must be persuaded to entertain it in the first place - a high hurdle to clear, as acknowledged by Mosala: "I do not make this application lightly. This court is ordinarily a court of final instance. However ... I believe that only this court can grant effective relief."
Mosala's case for going straight to the highest court is, firstly, that this case falls within the Constitutional Court's exclusive jurisdiction. The constitution says that certain matters may only be decided by the Constitutional Court. One of these is whether the president has "failed to fulfil a constitutional obligation".
This case falls into this category, Mosala says, because Zuma had a "special constitutional obligation to be open, responsive and accountable" for what he did as president, and was called upon to fulfil this obligation by appearing at the commission and being questioned. The duty does not end because he is no longer president, he writes.
The duty to account as president also comes from the fact that it was directed as remedial action by the public protector in her "State of Capture" report, says Mosala. "The remedial action specifically required the investigation of Mr Zuma's compliance with his duties as the president."
In the Constitutional Court's 2015 Nkandla judgment, the court granted direct access to the EFF based on exclusive jurisdiction. Chief justice Mogoeng Mogoeng said that the constitutional obligation in question had to be one that was "specifically imposed on the president". "An obligation shared with other organs of state will always fail the section 167(4)(e) test," he said.
Zuma is not a sitting president as he was during the Nkandla case. But the argument made by Mosala for exclusive jurisdiction is similar to one that was accepted by the Constitutional Court in its Nkandla judgment - where the specific obligation on the president in section 83 to uphold the constitution is combined with other duties attached to all cabinet members and with remedial action directed by the public protector.
But Mosala goes further. He argues that the state capture commission itself has a special constitutional status and purpose - "it is a constitutional mechanism for fact-finding, for uncovering the truth in matters of public concern and for promoting transparency and accountability, in the public interest". He says the fact that the chief justice was tasked with selecting the chair of the commission shows it was an "exceptional matter".
"This shows the intensity of the political issues involved in this case, and justified the exclusive nature of the jurisdiction of this court," he says.
However, Mosala does not put all his eggs in the exclusive jurisdiction basket. He also argues that direct access should be granted in the interests of justice - because there are exceptional circumstances: "A former president is no ordinary witness," he says.
The commission has a special status and its subject matter elevates it and gives it an important constitutional dimension. The defiance of summonses by the former president implicates the rule of law and the principle that everyone is equal before the law. "By his conduct, in failing to comply with the commission's summons and the chairperson's directives, Mr Zuma has sought to place himself above the law," says Mosala.
He also says that the limited lifespan of the commission - it must in terms of a court order deliver its report to the president by the end of March - means there is an "incentive for recalcitrant witnesses to delay accountability through court challenges and appeals". If the case has to go to other courts first, it might defeat the whole purpose.
He has asked that Zuma answer the application within five days.
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