5 Mr Jacob Gedleyihlekisa Zuma is directed to pay the costs of this application on the attorney and own client scale, including the costs of two counsel.

6  Further and/or alternative relief.

TAKE NOTICE FURTHER THAT the Chief Justice is requested to issue directions for the further conduct and disposal of the matter, in accordance with Rule 12 of the Constitutional Court.

TAKE NOTICE FURTHER THAT the Applicant has appointed the State Attorney, Johannesburg, as its attorney of record and his address, as set out below, as the address where it will accept notice and service of all documents in these proceedings.

TAKE NOTICE FURTHER THAT the accompanying affidavit of the Applicant will be used in support of this application.

DATED AT JOHANNESBURG ON THIS  DAY OF FEBRUARY 2021.

***

FOUNDING AFFIDAVIT

I, the undersigned

ITUMELENG MOSALA

do hereby make oath and state that:

1. I am an adult male employed as the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State ("the Comm ission" ), with its main place of business situated at Hillside House, 17 Empire Road, Parktown, Johannesburg. My appointment as such was with effect from 1 October 2020. I am duly authorised to institute these proceedings and to depose to this affidavti by the Chairperson of the Commission.

2. All the facts stated herein are, unless the context indicates otherwise, within my own personal knowledge or are contained in records of the Commission under my control, and are to the best of my belief both true and correct.

3. Where I make legal submissions, I do so on the advice of the Legal Team of the Commission and the Commission's legal representatives in these proceedings. I believe such advice to be correct.

THE PARTIES

4. I am the applicant in this matter and institute these proceedings in my capacity as the Secretary of the Commission.

5. The first respondent is Mr Jacob Gedleyihlekisa Zuma rMr Zuma"), a former President of the Republic of South Africa. Mr Zuma resides at Kwadakwadunuse Homestead, KwaNxamalala, Nkandla, King Cetshwayo District, Kwazulu-Natal.

6. The second respondent is the Minister of Police, cited in his official capacity, care of the State Attorney, Pretoria, at Salu Building, 316 Thabo Sehume Street, Pretoria. The second respondent is cited because in terms of section 207 of the Constitution, the National Commissioner of the police service exercises control over and manages the police in accordance with the policy and directions of the second respondent.

7. The third respondent is the National Commissioner for the South African Police Service, cited in his official capacity, care of the State Attorney, Pretoria at Salu Building, 316 Thabo Sehume Street, Pretoria. The third respondent is cited because in terms of section 207(2) of the Constitution, he must exercise control over and manage the police service.

8. No costs order is sought against the second and third respondent, save in the event of opposition. They are cited because the services of the South African Police Service are required to implement the order the applicant seeks.

STRUCTURE OF THIS AFFIDAVIT

9. This affidavit is structured as follows:

9.1 First, I shall set out the purpose of the application;

9.2 Secondly, I will deal with the urgency of the application;

9.3 Third, I shall explain why this Court has jurisdiction;

9.4 Fourth, I will deal with the facts of the matter;

9.5 Fifth, I shall deal with the elements of contempt; and

9.6 Finally, I will explain the relief sought including submissions on appropriate sentence.

10. The purpose of this application is to secure an order of this Honourable Court declaring Mr Zuma guilty of contempt of court and for his committal to prison, arising from his wilful refusal to comply with this Court's order in Secretary of the Judicial Commission of Inquiry into A/legations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma (CCT 295/20) [2021] ZACC 2, which was handed down on 28 January 2021.

11. This Court's order specifically and unambiguously directed Mr Zuma to comply with the summonses and directives issued by the Commission, and to appear and give evidence before the Commission on the dates determined by the Commission.

12. As I detail below, Mr Zuma has intentionally disobeyed the order. Shortly after the Court gave judgment, on 1 February 2021, Mr Zuma publicly stated his intention to defy the Court's order and to continue to refuse to heed the Commission's summonses and directives. In keeping with his stated intention, Mr Zuma failed to appear and give evidence at the Commission on 15 to 19 February 2021, despite being summoned by the Commission to do so. Mr Zuma also failed to file any affidavits with the Commission, despite being directed to do so.

13. This application has been brought at the earliest opportunity following the defiance of Mr Zuma of the order of this Court. Mr Zuma was required by this Court to be in attendance at the Commission from 15 to 19 February 2021, in accordance with a summons issued by the Commission. Mr Zuma did not attend at all during the whole week. The application is brought immediately after the last day of the contempt of court, being 19 February 2021.

14. The main application was heard on an urgent basis. The reasons why the main application was urgent remain, as the Commission is yet to finalise its hearings. In addition, the conduct of Mr Zuma, which is dealt with below, requires the urgent attention of this Court.

15. The seriousness of the threat that Mr Zuma's conduct poses to public trust in, and respect for, the authority of the courts andthe rule of law requires this Court to intervene and assert its authority without delay.

16. As a former President and leader of the Republic, Mr Zuma is expected to set an example by his words and conduct. He has the position and influence to do so, as others look up to him as a leader. When Mr Zuma undemiines the integrity and authority of this Court, and the judicial system as a whole, there is a grave risk that he will inspire others to do so and that the rule of law will be fundamentally weakened.

17. I submit that particularly where someone who has held the highest public office, such as Mr Zuma, has defied an order of court, an application for contempt of court should be heard urgently. A delay in hearing the application means a delay in the court vindicating its honour and authority, and may result in more acts of defiance of court orders by others, in the belief that court orders may be defied with impunity.

18. In this case, the high position and influence Mr Zuma holds in society, coupled with the public and forceful nature of his defiance of this Court and attack on the judiciary, pose an extraordinary and potentially grave threat to the rule of law. The interests of justice require a swift response.

19. Moreover, Mr Zuma's contempt of this Court's order and his defiance of this Court and its members are ongoing. He has chosen to attack this Court in a series of public statements. While he has labelled his latest statement a ''final statement", there is no guarantee that he will not issue further public attacks against this Court and its members.

20. The Commission seeks an order of direct imprisonment. Should this Court be inclined to grant a suspension of the order of imprisonment on condition that Mr Zuma appears and gives evidence before the Commission and submits his affidavits as directed under regulation 10(6), the Commission would need to make appropriate logistical arrangements. For such relief to be possible and effective, a special arrangement would need to be made to hear Mr Zuma's evidence before 31 March 2021.1

21. I submit that, for all these reasons, the Court should hear the application on an urgent basis.

JURISDICTION

22. I am advised and submit that a court that grants an order retains jurisdiction to ensure that the order is complied with. This Court has heard applications for contempt of court where its own orders have been disobeyed, and has also initiated hearings in respect of contempt of court in relation to its orders at its own instance (mero motu).²

23. This contempt application engages the Court's inherent jurisdiction under section 173 of the Constitution, to protect its own process and ensure that its orders are obeyed. This Court's jurisdiction is also engaged because Mr Zuma's contempt undermines the Commission's entitlement, in the previous application before this Court, to effective relief. Further, since Mr Zuma's contempt of this Court ls ongoing, the remedy for contempt is concerned with regulating how the matter is to proceed.

24. In all these respects, the assumption of jurisdiction is a manifestation of the continuance of this Court's jurisdiction in the previous matter and it is appropriate for this Court to hear the application.

25. This accords with what this Court stated in Pheko II:

"The object of contempt proceedings is to impose a penalty that will vindicate the court's honour, consequent upon the disregard of its previous order, as well as to compel performance in accordance with the previous order."3

26. It is also in the interests of justice for this Court to hear this application given

the very serious affront by Mr Zuma to this Court's authority and integrity. As is detailed below, Mr Zuma has deliberately disobeyed this Court's order of 28 January 2021 and issued public statements that specifically attack the integrity

of this Court and its members. In light of Mr Zuma's pointed attack against this

Court and its members, it is appropriate that this Court take measures to protect its honour.

27. Mr Zuma has not spared the rest of the judiciary from his attack. He has published scurrilous statements about the courts and certain other members of the judiciary too. As the highest court in the land, with special moral authority in our constitutionaldemocracy, I respectfully submit that it is necessary for this Court to step in to defend the judiciary as a whole against Mr Zuma's unwarranted attacks.

28. As this Court has previously noted, the authority of courts and obedience to their orders -the very foundation of a constitutional order founded on the rule of law - depends on public trust and respect for the courts. This Court observed in S v Mamabolo:

"Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights - even against the state .. .

In the final analysis it is the people who have to believe in the integrityof their judges. Without such trust, the judiciary cannot function properly; and where the judiciary cannot function properly the rule of law must die."4

29. The seriousness of the threat that Mr Zuma's conduct poses for undermining public trust in, and respect for the authority of, the courts calls for this Court's intervention and assertion of its authority.

30. For all these reasons, I submit that it is in the interests of justice for this Court to grant direct access and hear the application.

THE RELEVANT FACTS

31. As is detailed in this Court's judgment of 28 January 2021, Mr Zuma failed to remain in attendance and give evidence at the Commission in the week of 16 to 19 November 2020 as he had been summoned by the Commission to do.

32. The Commission proceeded to issue two fresh summonses requiring Mr Zuma to appear and give evidence at the Commission on future dates.

32.1. The first new summons required Mr Zuma to attend at the Commission from 18 to 22 January 2021. It is attached as NIM1 ".

32.2. The second new summons required Mr Zuma to attend at the Commission from 15 to 19 February 2021. It is attached as ''IM2".

32.3 . Both summonses were served on Mr Zuma at his residence in Forest Town in Parktown, Johannesburg and at his residence in Nkandla, KwaZulu-Natal over the period 26 November 2020 to 1 December 2020. The Sheriffs' returns of service are attached as annexure "IM3''.

33. The Commission also instituted proceedings in this Court for various orders against Mr Zuma, including an order that he comply with the fresh summonses and the directives of the Commission requiring Mr Zuma to submit affidavits.

34. The application was argued before his Court on 29 December 2020. Mr Zuma did not oppose the Commission's application and indicated by way of a letter from his attorneys that he would not participate in the proceedings "at all".

35. By 11 January 2021, judgment in the Commission's application had not yet been delivered. The Commission accordingly wrote to Mr Zuma, through his attorneys, to advise that Mr Zuma was obliged to heed the summons and appear before the Commission from 18 to 22 January 2021 notwithstanding that this Honourable Court had not yet handed down its judgment. The Commission informed Mr Zuma that the summons remained valid and binding, as it had not been withdrawn, set aside or suspended. This letter is attached as "IM4".

36. On 15 January 2021, Mr Zuma's attorneys informed the Commission that Mr Zuma would not heed the summons and appear before the Commission on 18 to 22 January 2021. Two reasons were given for Mr Zuma's refusal to heed that summons: first, that "President Zuma can only be legally obliged to appear after his review application has been determined"; and second, that "the Commission must await the decision of the Constitutional Court which has a bearing on President Zuma's appearance". The letter is attached as "IMS".

37. Mr Zuma did not appear at the Commission on any of the days of 18 to 22 January 2021, despite the summons and the Commission's instruction.

38. On 28 January 2021, this Court handed down its judgment. This Court declared that Mr Zuma was obliged to comply with all summonses lawfully issued by the Commission and directed him to do so. I wish to note here that the question of the pending review was fully canvassed in the founding affidavit. This Court, being fully aware of the pending review, granted the order sought by the Commission. Mr Zuma also had a full opportunity to oppose the application, and to make any arguments about the implications of the pending review application, but he chose not to do so.

39. This Court confirmed that, like any other witness summoned to appear and give evidence at the Commission under section 3(2) of the Commissions Act, Mr Zuma was obliged to heed such summonses.

40. This Court also recognised the particular public importance of Mr Zuma's evidence at the Commission, noting that -

"[21] [The Commission's] terms of reference place the former President at the centre of the investigation. They seek to establish whether he abdicated his constitutional power to appoint Cabinet members to a private family and whether hehad acted unlawfully. These are all matters of public concern ... and some of them fall particularly within the personal knowledge of the ex-President.

[22] Sight must not be lost of the fact that it was he who was the subject of the investigation and who drew up the terms of reference that placed him at the heart of the investigation. Some of those matters may not be properly investigated without his participation. Indeed, the terms of reference require all organs of state to cooperate fully with the Commission and extend the application of the Commissions Act to it, including the power to secure and compel witnesses to appear before the Commission for purposes of giving evidence "

And:

"[69] The respondent is firmly placed at the centre of those investigations which include an allegation that he had surrendered constitutional powers to unelected private individuals. If those allegations are true, his conduct would constitute a subversion of this country's constitutional order.

[70) It must be plainly stated that the allegations investigated by the Commission are extremely serious. If established, they would constitute a huge threat to our nascent and fledgling democracy. It is in the interests of all South Africans, the respondent included, that these allegations are put to rest once and for all. It is only the Commission which may determine if there is any credence in them or to clear the names of those implicated from culpability."

41. This Court's order directed Mr Zuma to comply with the summons and directives issued by the Commission, and to appear and give evidence before the Commission on the dates determined by the Commission. The pertinent parts of the order read as follows:

"4. Mr Jacob Gedleyihlekisa Zuma ls ordered to obey all summonses and directives lawfully issued by the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Commission).

5. Mr Jacob Gedleyihlekisa Zuma is directed to appear and give evidence before the Commission on dates determined by it.

6. It is declared that Mr Jacob Gedleyihlekisa Zuma does not have a right to remain silent in proceedings before the Commission.

7. It is declared that Mr Jacob Gedleyihlekisa Zuma is entitled to all privileges under section 3(4) of the Commissions Act, including the privilege against self-incrimination."

42. For ease of reference, I attach a copy of the Court's judgment and order marked

"IM6".

43 . Mr Zuma responded publicly to the Court's judgment and order on 1 February 2021, by issuing a public statement in his own name. The statement, which is entitled 'Statement on Constitutional Court Decision Compelling Me to Appear before the Commission of Inquiry into Allegations of State Capture', is attached marked "IM7". Given its relevance, I quote the important passages from the statement below. Mr Zuma informed the public that:

"The Commission Into Allegations of State Capture led by the Deputy Chief Justice, has followed in the steps of the former Public Protector in how it also has continued with creating a special and different approach to specifically deal with Zuma. The chairperson of the commission, unprovoked, has called special press conferences to make specific announcements about Zuma. This has never happened for any other witness. Recently the commission ran to the Constitutional Court on an urgent basis to get the Constitutional Court to compel me to attend at the commission and to compel me to give answers at the commission, effectively undermining a litany of my constitutional rights including the right to the presumption of innocence. I have never said that I do not want to appear before the commission but have said that I cannot appear before Deputy Chief Justice Zondo because of a well-founded apprehension of bias and a history of personal relationships between the Deputy Chief Justice and myself. I have taken the decision by the Deputy Chief Justice not to recuse himself on review as I believe his presiding over the proceedings does not provide me the certainty of a fair and just hearing.

The recent decision of the Constitutional Court also mimics the posture of the commission in that it has now also created a special and different set of circumstances specifically designed to deal with Zuma by suspending my Constitutional rights rendering me completely defenceless against the commission TheCommission of Inquiry into

Allegations of State Capture should have been rightly named the Commission of Inquiry Into Allegations of State Capture against Jacob Zuma as it has been obviously established to investigate me specifically.

It is clear that the laws of this country are politicized even at the highest court in the land. Recently at the State Capture Commission, allegations made against the judiciary have been overlooked and suppressed by the chairperson himself. It is also patently clear to me that I am being singled out for different and special treatment by the judiciary and the legal system as a whole. I therefore state in advance that the Commission Into Allegations of State Capture can expect no further co-operation from me in any of their processes going foiward. If this stance is considered to be a violation of their law, then let their law ta9 e,

I do not fear being arrested, I do not fear being convicted nor do I fear being incarcerated...

In the circumstances, I am left with no other alternative but to be defiant against injustice as I did against the apartheid government. I am again prepared to go to prison to defend the Constitutional rights that I personally fought for and to serve whatever sentence that this democratically elected government deems appropriate as part of the special and different laws for Zuma agenda.

JG Zuma

1 February 2021"5

44. This Court's judgment and order was served on Mr Zuma on 5 February 2021, at his residences in Forest Town and Nkandla. The Sheriffs returns of service are attached as annexure "IMS" and "IM9".

45. There can be no doubt that Mr Zuma was aware of this Court's order and what it required of him.

46. Nevertheless, on 15 February 2021, Mr Zuma failed to attend at the Commission in defiance of the summons and, this time, also in defiance of this Court's order.

47. Instead, Mr Zuma's lawyers addressed a letter to the Commission to inform it "as a matter of courtesy" that Mr Zuma would not be appearing on 15 to 19 February. This letter is attached marked "IM10". In summary, Mr Zuma's lawyers gave two reasons for his non-appearance:

47.1. First, they contended that Mr Zuma's application to review the Chairperson's decision not to recuse himself Hwas not before the Constitutional Court and, accordingly, was not considered, determined and/or adjudicated by that court". They stated that appearing before the Commission ''would undermine and invalidate the review application".

47.2. Second, they contended that the summons issued for Mr Zuma to appear on 15 to 19 February 2021 was "irregular and not in line with the Fourth order of the Constitutional Court".

48. Both claims are contrived and stand to be rejected.

49. As regards the first claim, it is incorrect that the implications of Mr Zuma's review application, for his duty to comply with the Commission's summons and directives, was not placed before and considered by this Court.

49.1. While this Court was not called upon to decide the review application, the fact of Mr Zuma's pending review application was pertinently brought to the Court's attention.

49.2. In motivating for the orders I sought, I submitted that Mr Zuma's review was irrelevant to his duty to comply with the summons and give evidence at the Commission. I refer to paragraphs 139 and 140 of the founding affidavit where I stated, under the heading "Mr Zuma's duty to comply with the summons was not affected by the recusal decision and his pending review" -

"139. I am advised and submit that Mr Zuma's intended application for the review of the Chairperson's recusal decision did not alter Mr Zuma's duty to comply with the summons. The summons was lawfully issued and served, and had to be obeyed, notwithstanding the fact that Mr Zuma's legal -representatives indicated an intention to bring review proceedings in respect of the Chairperson's recusal decision.

140. Likewise, I am advised and submit that Mr Zuma's intended application for the review of the recusal decision does not alter Mr Zuma's duty to comply with the fresh summons issued against him by the Commission for his attendance and examination in January and February 2021. Those summonses too have been validly issued and served, and must be obeyed, notwithstanding the fact that Mr Zuma's legal representatives have indicated an intention to apply for review of the Chairperson's recusal decision. The recusal decision is not suspended pending Mr Zuma's application for review, and such review has in any event not yet been instituted."

50. When the Court granted the order, it was fully aware of the pending review application. In any event as a matter of law, a pending review application does not suspend the duty to comply with the summons.

51. It bears emphasis that Mr Zuma was advised that this issue was raised before this Court. He received the application papers and was given an opportunity to oppose the application andthe relief sought, on any grounds he wished to raise. Mr Zuma elected not to oppose the application, and must therefore be taken to have abandoned any grounds to oppose the orders the Commission sought including on the basis of his pending review application. It is not open to Mr Zuma to raise the review application as a ground to oppose the order granted by this Court at this stage or as a ground to justify his blatant defiance of the order of this Court.

52. The second claim by Mr Zuma's lawyers is not explained or substantiated at all - it is no more than a bald claim. Whatever the basis for the claim may be, it cannot alter the legal validity of the summons issued by the Commission and its binding force against Mr Zuma. Absent a court order setting aside the summons (or a decision by the Commission to suspend or withdraw the summons), the summons remained valid and of full legal force and effect. Mr Zuma's lawyers must have been aware of this trite legal principle. Mr Zuma did not institute any court proceedings to have the summonses set aside.

53. The reasons advanced by Mr Zuma's lawyers for his non-appearance at the Commission are evidently not the same as those given by Mr Zuma for his defiance of the summonses and order of this Honourable Court. The reasons Mr Zuma gives appear in the public statement that Mr Zuma issued in his own name on 1 February 2021, which has been quoted above.

54. On 15 February 2021, which was the first of the five days in February 2021 on which Mr Zuma was obliged to appear before the Commission in terms of annexure IM2 and the order of this Honourable Court, Mr PJ Pretorius SC (who was to lead Mr Zuma's evidence and question him) addressed the Chairperson on the spurious grounds given by Mr Zuma's lawyers for his non-appearance, as well as on the import of Mr Zuma's continued failure to give evidence before

55. After hearing these submissions, and engaging with Mr Pretorius on these matters, the Chairperson expressed his concern at the seriousness of Mr Zuma's defiance of this Court's order, and announced that the Commission would institute contempt of court proceedings before this Court for a punitive order for contempt of court. I attach the transcript of the submissions of Mr Pretorius and concluding remarks of the Chairperson on 15 February 2021, marked as "IM11". The Chairperson's concluding remarks summarise what had transpired and the steps the Commission intended to take. They appear at pages 69ff of the transcript.

56. Later on 15 February 2021, Mr Zuma issued another public statement, headed 'Final Statement on Constitutional Court Decision Compelling Me to Appear before the Commission of Inquiry Into State Allegations of State Capture and my Refusal to Appear before the Zonda Commission'. This statement is attached marked "IM12".

57. This statement confirms Mr Zuma's defiant attitude to the order issued by this Court on 28 January 2021. It also goes further to scandalise this Court and other courts that have made orders against him. It is evidently calculated to undermine public confidence in the integrity of this Court and the judiciary more broadly. I address some of the pertinent allegations in the statement further below.

58. As the order of this Court required Mr Zuma to obey both summonses and directives issued by the Commission, Mr Zuma was also obliged to comply with the directives issued by the Commission's Chairperson under regulation 10(6) of the Commission's Regulations, which directed Mr Zuma to file affidavits in respect of certain matters. I attach a copy of the directives, issued on 27August 2020 and 8 September 2020, as annexures "IM13" and "IM14".

59. Mr Zuma's failure to file such affidavits is also contemptuous of this Court's order, which specifically directed Mr Zuma to obey both the summonses and directives issued by the Commission (see paragraph 4 of the order).

60. Mr Zuma was aware of the directives he had not complied with. He was also aware of the order of this Court. He defied this Court's order in failing to submit the affidavits required in terms of regulation 10(6). When this Court issued its order, it did not exclude from its order the directives that were extant and pending when the proceedings were instituted and the matter decided. As such, Mr Zuma remained under a duty to furnish the Commission with his affidavits as directed.

61. Mr Zuma's concerns about the alleged partiality of the Chairperson bear no relation whatsoever to his duty to submit affidavits as required by regulation 10(6). Mr Zuma has previously undertaken to submit these affidavits. Despite previous assurances that he would submit the affidavits, and the court order instructing him to comply with the directives issued by the Commission, he has failed to do so.

62. It is clear, therefore, that Mr Zuma's defiance of this Court's order is not limited to his refusal to appear and give evidence before the Commission, but includes his refusal to furnish affidavits as directed. If Mr Zuma had intended to limit his defiance to his appearance only, but to submit the affidavits as required, he would have stated so in his public statements. In fact, Mr Zuma's public statements say that he will not cooperate with the Commission in any respect.

63. This constitutes an additional ground of contempt of court and an appropriate order is sought.

CONTEMPT OF COURT

64. I am advised that the Court's power to impose a punitive sanction for contempt of court is derived from the constitutionalimperative to protect judicial authority, the rule of law, the supremacy of the Constitution, and the dignity and effectiveness of the courts.

65. Contempt of court is the commission of any act or statement that displays disrespect for the authority of the court or its officers acting in an official capacity. This includes wilful disobedience and resistance to court orders.

66. The object of contempt proceedings is to secure a finding that a person who has intentionally disobeyed a court order is guilty of the crime of contempt of court and for the court to impose a penalty that will vindicate the court's honour consequent upon the disregard of its previous order or to compel performance in accordance with the previous order, where appropriate.

67. In this case, the Commission seeks a punitive order of committal of Mr Zuma to vindicate the court's authority and the rule of law. Mr Zuma's statement of 1 February 2021 and his 'final statement' of 15 February 2021 indicate that he considers himself above the law, or subject to a different rule of law than that which applies to everyone else. It would be an extremely serious matter for any person to act under this belief, but it is especially serious and dangerous for a former President to adopt this stance.

68. As I have already noted, given his status as a former President and leader of the Republic, when Mr Zuma undermines the integrity and authority of this Court (and indeed, the judicial system as a whole) there is a grave risk that he will inspire others to do so and that the rule of law will be fundamentally weakened.

69. By displaying wilful disobedience to this Court's order of 28 January 2021, Mr Zuma not only undermined the authority of this Court and the work of the Commission, but also committed a public injury to the administration of justice.

70. It is, therefore, imperative that this Court assert its authority and punish Mr Zuma for his wilful contempt of its order.

71. This Court's closing statement in its judgment of 28 January 2021 bears repeating in light of Mr Zuma's recent conduct:

"[87] The respondent's conduct in defying the process lawfully issued under the authority of the law is antithetical to our constitutional order. We must remember that this is a Republic of laws where the Constitution is supreme. Disobeying its laws amounts to a direct breach of the rule of law, one of the values underlying the Constitution and which forms part of the supreme law. In our system, no one is above the law. Even those who had the privilege of making laws are bound to respect and comply with those laws. For as long as they are in force, laws must be obeyed."

72. I am advised that an applicant for a punitive sanction for contempt of court must establish that the alleged contemnor (i) had knowledge of the court's order; and

(ii) failed to comply with the order. Once these facts are established, wilfulness andmala fides are presumed unless the respondent leads evidence to establish a reasonable doubt. Thus, once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.6

73. In this instance, there can be no doubt that Mr Zuma had knowledge of this Court's order. Mr Zuma was served with this Court's judgment and order on 5 February 2021. Mr Zuma's knowledge of the Court's order is also plain from the statement Mr Zuma issued on 1 February 2021 and the correspondence the Commission received from his attorneys on 15 February 2021.

74. There can also be no doubt that, despite knowledge of the Court's order, Mr Zuma deliberately refused to obey it. I submit that Mr Zuma had no valid or acceptable reasons for not complying with the order of this Court.

75. Mr Zuma's wilfulness and mala fides in refusing to comply with the Court's order is evidenced by both of his public statements. These statements demonstrate a clear intention to defy this Court's order, regardless of the consequences.

76. Several statements contained in Mr Zuma's latest public statement are clearly scandalous and malicious against this Court and its members. These include the following:

"I have accepted that Deputy Chief Justice Zonda and due process and the law are estranged" (paragraph 6);

"My lawyers, as a courtesy, advised the Constitutional Court that I would not participate in the proceedings. The judges of the Constitutional Court concluded that my election not to waste their time deserves a cost order against me. It has become common place for some of our courts to make these costs orders against me in order to diminish my constitutional right to approach courts (paragraph 14);

"... It is not the authority of the Constitutional Court that I reject, but its abuse by a few judges. It is not our law that I defy, but a few lawless judges who have left their constitutional post for political expediency....

I protest against those in the judiciary that have become an extension of political forces that seek to destroy and control our country." (paragraphs 17 to 18);

"None canclaim not to see that the recent judgment of the Constitutional Court is a travesty of justice" (paragraph 21};

And further:

"I protest against our black, red and green robes, dressing up some individuals that have long betrayed the Constitution and their oath of office It is a protest against some in the judiciary that have sold their

souls and departed from their oath of office" (paragraphs 30 to 31).

77. These statements prove clearly that Mr Zuma's election not to comply with this Court's order, and to persist in his refusal to attend the Commission's proceedings, is intentional. The statements are also calculated to scandalise this Court and its members in the eyes of the public. They are intended to create the impression - falsely - that this Court was not guided by the application of legal principles when it granted its order.

78. In his recent statements of 1 February and 15 February, Mr Zuma seeks to rehash some of the reasons why he claims he should not be required to appear before the Deputy Chief Justice. In this regard he draws a facile distinction between the Commission and its Chairperson. At any rate, Mr Zuma has no valid reasons to refuse to appear before the Chairperson of the Commission. Mr Zuma has had more than enough time to prove his claims, but has thus far failed to do so, instead relying on innuendo and conspiracies. These appear to be part of a deliberate strategy to refuse to account to the nation for the role he is alleged to have played during his tenure in office as President.

79. The letter from Mr Zuma's attorney which seeks to create different reasons for his non-appearance and defiance can thus be rejected.

APPROPRIATE RELIEF

80. This case is about the contempt of this Court's order and there is no specified sentence that may be imposed. The Commission has asked for a term of imprisonment of two years. This is informed by the following considerations:

80.1. First, Mr Zuma's contempt of this Court's order has entailed several discrete and compounding acts of contempt. These include:

80.1.1. Mr Zuma's failure to appear at the Commission on any of the five days he was summoned and directed by the Commission to appear in February 2021;

80.1.2. Mr Zuma's failure to file any affidavits at the Commission in defiance of two directives by the Commission and this Court's order specifically directing compliance with the Commission's directives;

80.1.3. Mr Zuma's publicly stated intention to defy this Court's order shortly after the Court gave judgment and his public entrenchment of that stance; and

80.1.4. The scurrilous statements Mr Zuma has made against this Court and its members, and the judiciary as a whole, in purporting publicly to justify his contempt.

80.2. Second, the statutory instruments that impose penalties for non­ compliance with a summons or directive of the Commission recognise that periods of imprisonment of up to 6 months (under section 6(1) of the Commissions Act, 8 of 1947) or 12 months (under the Commission's Regulations, which were signed by then President Zuma)7 is appropriate for just a single failure to comply with a summons or directive from the Commission. The sentence sought in these contempt of court proceedings appropriately reflects the views of the legislature and the executive as to the appropriate sentence for the type of conduct that is at issue here. In this regard, it must be taken into account that on each day- ofthe five days reserved - that Mr Zuma failed to appear, he was committing a new offence of violating the summons. Had he been tried in a criminal court for breach of the summons, it is submitted that the appropriate sentence would have factored in that each day of non-appearance would be a violation of the summons. The same applies to the failure to submit affidavits as directed under regulation 10(6). Mr Zuma has breached two directives issued under regulation 10(6). In respect of each failure to comply with such directive, Mr Zuma is liable under the Commission's Regulations to imprisonment for a term of 12 months. Thus viewed, Mr Zuma would, in a criminal court, in fact be liable to a combined period of four years and six months if he had been tried and sentenced to the maximum period allowed.

80.3. Third, this is no ordinary case of contempt. The contemptuous conduct of Mr Zuma is especially egregious. He has not only failed to comply with the order of this Court, but has also engaged in conduct calculated to undermine the integrity of this Court and the judiciary in general. The language that he has used, the platforms he has selected to announce his intentions, and the challenge to state institutions that heis prepared to be arrested are a grave and serious threat to the rule of law. The sentence must reflect the seriousness of the conduct of Mr Zuma.

80.4. Fourth, it is necessary for the sentence to reflect the expectation of society that a person in a position of leadership and with immense influence, like Mr Zuma, should comply with the law rather than displaying his contempt of the law.

80.5. Fifth, the sentence should also reflect the fact that these contemptuous acts have been committed by a former President, who took an oath to "obey, observe, uphold and maintain the Constitution and all other law of the Republic", and who was entrusted by the public to do so.

81. Given the history of Mr Zuma's recalcitrance and the limited time available to the Commission to complete its hearing of evidence (which was fully canvassed in the Commission's urgent application in this Court), the Commission does not seek a suspended order of committal. However, this Court may yet deem it appropriate to suspend such an order, if the Court is of the view that Mr Zuma should be afforded a final opportunity to comply with its order before he can be imprisoned.

82. The punitive costs order is justified by the fact that Mr Zuma has intentionally and without any valid reasons defied an order of court. Furthermore, Mr Zuma has again, by his reprehensible conduct, required the Commission to approach this Court. He has also launched scurrilous public attacks on the Constitutional Court, the Commission and its Chairperson, and the institution of the judiciary.

83. In the circumstances, I pray for the relief set out in the Notice of Motion, including the punitive order of costs.

ITUMELENG MOSALA

22 February 2021

Footnotes:

1 The Commission has applied to the High Court for the extension of its term by a further three months, to the end of June 2021. The intention of the Commission is not to hear evidence during the period of extension, but to use the last three months to write its report. Arrangements could, however, be made to hear Mr Zuma's evidence during the period of the extension if necessary.

2 Pheko and Others v Ekurhu/eni Metropolitan Municipality (No 2) [2015) ZACC 10; 2015 (5) (CC); 2015(6) BCLR 711 (CC)(Pheko para 13.

3 Id at para 28.

4 S v Mamabolo [2001) ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) paras 16 and 19.

5 Emphasis added.

6 Fakie NO v CCII Systems (Ply) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) paras 41-42, endorsed by this Court in Pheko II at para 36. See also Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited (2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 {1) SA 1 (CC) at para 67 on the applicable standard of proof.

7 See regulation 12(2)(c)(ii) of the Commission's Regulations pubIished under Government Gazette No. 41436, on 9 February 2018; and the amendment of regulation 12 in Proclamation 8 of 2020 published under Government Gazette No. 42994, on 4 February 2020.