By hearing the state capture inquiry’s application to hold former president Jacob Zuma in contempt directly, and not as an appeal from a lower court, the Constitutional Court had to treat itself the same way it treated any lower court: if its judgment breached Zuma’s constitutional rights, it must reverse it, argued Zuma’s counsel advocate Dali Mpofu.

Mpofu was making Zuma’s case to the Constitutional Court — the apex court, from which there is no appeal — that it must reverse or “rescind” its earlier judgment which found Zuma in contempt and sentenced him to 15 months in prison. Zuma was taken into custody last Wednesday.

The state capture inquiry went straight to the ConCourt to ask it to order that Zuma be compelled to obey its summons, and the court granted that order in January.

The inquiry then summoned him to appear in February but he did not go, putting him in breach of the court’s order. The inquiry then went back to the Constitutional Court to ask for an order that Zuma be held in contempt of court. That order was granted earlier this month and Zuma was sentenced to 15 months in prison.

Both times the inquiry approached the ConCourt, Zuma refused to participate in the proceedings. He also declined a further direction from the court to address him on an appropriate penalty if it were to find him in contempt. Instead he made public statements claiming he was being targeted and accusing some judges of betraying their oath of office.

In court on Monday, Mpofu said a contempt order had “criminal consequences” but Zuma had not been granted the rights of other criminal accused. These included the right not to be detained without trial, the right to a fair trial and the right of every criminal accused to have their conviction and sentence reassessed on appeal, he said.

When this happened, it was a “rescindable error” that the majority did not consider whether these limitations of his rights were justifiable under the constitution.

He said the rules on rescission — which normally require the court be given new information that, if it were known at the time, would have led to a different judgment — should not be applied mechanically.

If the ConCourt agreed the majority decision of the court was unconstitutional, it would have to do something about it, he said.

Even if Zuma’s application did not fit neatly within the rescission rules, the court still had the duty to fix its error under section 38 of the constitution, which allows a person who believes their rights have been infringed to approach a competent court, and section 172 of the constitution, which says a court must declare conduct that is unconstitutional to be so and make an order that is just and equitable.

In response to questions from the bench, Mpofu said the court had to rescind its judgment, notwithstanding the fact that Zuma had steadfastly refused to participate in the litigation up to this point.

Certain constitutional rights — including the right to a fair trial, the “flagship right” in Zuma’s case — cannot be waived, he said.

He implored the court to “look beyond the history, look beyond the insults, look beyond the cocking a snook at the opportunities that were granted by the Constitutional Court,  and simply say, as they said in S v Makwanyane, the rights in the constitution are reserved for the worst among us”.

S v Makwanyane was the seminal judgment that invalidated the death penalty as unconstitutional.

Mpofu also asked that if the court did not hand down judgment immediately, Zuma be released from custody in the meantime.

Argument continues.

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