Although the pivotal issue is the court’s jurisdiction to stay the Constitutional Court’s order that President Jacob Zuma be jailed for contempt of court, Zuma’s counsel resorted to appealing to Judge Bhekisisa Mnguni to view with sympathy the plea of ‘a penniless, old man with health issues’ when the matter played out in the KZN High Court (Pietermaritzburg) yesterday ...

... and Dali Mpofu SC went a lot further, darkly hinting of another Marikana if the court didn’t side with his client’s argument.

The court was hearing Zuma’s interdict application to stay his arrest, with the Zondo Commission arguing that ‘the recalcitrant lawbreaker’ must be arrested and Zuma contending that his arrest an imprisonment would be tantamount to detention without trial.

Mpofu, who initially said the case would ‘take a matter of a few minutes’, spent more than two hours arguing why the High Court had jurisdiction to interfere in the matter.

The hearing, notes a Business Day report, is the latest in the saga around Zuma’s contempt of court finding for refusing to abide by a Constitutional Court order that he give evidence to the Zondo Commission.

It says SA has been on tenterhooks since the apex court's judgment a week ago as Zuma supporters threatening violence descended on his Nkandla home and uncertainty reigned over whether the police would comply with the order to arrest him. Judgment will be handed down at 11.30am on Friday.

Police Minister Bheki Cele and SA Police Service boss Khehla Sitole have until midnight tonight to make the arrest.

Zuma is to serve 15 months in jail and was obliged by law to report to police on Sunday to begin his sentence. Mpofu argued that to arrest Zuma for contempt of court where there had been no trial was a violation of his rights and amounted to detention without trial, notes the Business Day report. 

Mpofu dismissed questions of jurisdiction as a ‘red herring’, which the opponents raised as ‘scarecrow tactics’ when common law rules regarding interdicts applied.

He argued that, since the apex court’s order could be set aside at the rescission hearing scheduled for Monday, the High Court order had jurisdiction.

‘Can I make an order as a lower court nullifying the execution of the Constitutional Court order?’ Mnguni asked Mpofu. ‘I think that’s the main issue, really.’

Mpofu claimed that the decision by President Cyril Ramaphosa and Cele not to oppose the interdict was evidence that Zuma’s application was on solid ground.

‘Your lordship must read between the lines of why the Police National Commissioner, Minister of Justice, the President have not opposed this matter and are quite happy that your lordship should grant the relief that is sought.’

But Tembeka Ngcukaitobi, for the Zondo Commission, urged Mnguni to shun Zuma’s bid to have the police’s action interdicted.

‘We are dealing with a repetitive, recalcitrant lawbreaker in the form of Mr Zuma. He has now come to ask you to assist him in breaking the law further. You should reject that,’ he said.

Despite obtaining legal advice that police must arrest Zuma or be in contempt themselves, Cele is reluctant to act. 

He has written to the Constitutional Court indicating that, failing direction from it, he does not intend to carry out the arrest until Zuma’s rescission application at the Constitutional Court on Monday has been heard. Represented by State Attorney Kantoro Chowe, Cele, and Sitole said they would ‘hold further actions’ on arresting Zuma out of ‘respect’ for the litigation underway, unless directed otherwise.

Cele’s letter sparked talk of a constitutional crisis in political and legal circles, including fears his defiance of the order could place the rule of law in jeopardy, reports Business Day, noting Ngcukaitobi said in court that the police letter to the Constitutional Court was ‘nonsensical’ and the judgment must be heeded.

‘Their deadline lapses tomorrow (today). So, the order remains operative ... they remain bound by the order,’ he said.

Full Business Day report