Tshiqi asked whether he was saying that in every judgment, is it OK for a party to sit back and not reply and then come with an application of a rescission?
Mpofu asked whether a person would be remedy-less because they had earlier elected not to oppose an application.
“It simply cannot be our law, even in logic,” Mpofu argued.
He said the court cannot say that an applicant could forfeit his right to life, simply because he had thought a matter which he believed would be frivolous was entertained by the court, which ultimately ruled against him.
He highlighted that there were several rights that a person could not waive on, including the right to a free trial.
“At any point when you perceive that your rights have been infringed, there should be a remedy ... For every right, there should be a remedy, otherwise the rights of the Constitutional Court are hollow,” Mpofu argued.
Mpofu had submitted that the Constitutional Court itself that may have exceeded the bounce of the constitution. “We don’t say this very lightly but we say it because it relates to the supremacy of our constitution,” Mpofu said.
Mpofu has argued that it is the constitution that is supreme and not the Constitutional Court.
But trying to soften his blow, Mpofu said such errors were made even in lower courts.
“If you could assume that the order [to jail Zuma without trial] was unconstitutional or exceeded the defence of the Constitutional Court, the question is what should happen? What should happen is what happens on a daily basis ... The aggrieved must approach the court and seek relief,” Mpofu said.
He said while there was “awkwardness” in bringing the order before the same apex court, there is however “nothing earth shattering about that”.
He said all the court needed to establish was whether it infringed on Zuma’s rights when it took a move to jail him without trial. If that is the case, it should move to rectify this.
This case is being heard as Zuma last week started serving his 15-month sentence in a correctional facility in Estcourt in KwaZulu-Natal.
Proceedings continue.
Background
Zuma had filed the application on Friday, June 2, shortly after the court had ordered that he had a matter of days to hand himself over to police to start serving a 15-month jail term.
Jacob Zuma's fate to be decided: Will he stay in jail?
The Constitutional Court on Monday began hearing the application by jailed former president, Jacob Zuma, to have its own ruling that sent him to jail, set aside.
This after he was found guilty of contempt of court for repeatedly snubbing a call by the commission into state capture, chaired by the now acting chief justice, Raymond Zondo, to appear and give evidence.
10am update
“Who shall guard the guardians?”
This was the question posed by Zuma’s lawyer, Dali Mpofu SC, as Zuma’s case began.
Mpofu laid out his argument, saying it seemed the Constitutional Court may have erred in its own judgment that led the former president to jail last week after he was found guilty of contempt of court.
After hearing Mpofu's case, justice Zukisa Tshiqi asked: “Here, the former president was notified that there was an application that was brought to this court. He was aware that what was sought was for him to be held in contempt. He knew that the application was to hold him in contempt and he elected not to participate. The court then made it an order to hold him in contempt.”
Tshiqi asked whether he was saying that in every judgment, is it OK for a party to sit back and not reply and then come with an application of a rescission?
Mpofu asked whether a person would be remedy-less because they had earlier elected not to oppose an application.
“It simply cannot be our law, even in logic,” Mpofu argued.
He said the court cannot say that an applicant could forfeit his right to life, simply because he had thought a matter which he believed would be frivolous was entertained by the court, which ultimately ruled against him.
He highlighted that there were several rights that a person could not waive on, including the right to a free trial.
“At any point when you perceive that your rights have been infringed, there should be a remedy ... For every right, there should be a remedy, otherwise the rights of the Constitutional Court are hollow,” Mpofu argued.
Mpofu had submitted that the Constitutional Court itself that may have exceeded the bounce of the constitution. “We don’t say this very lightly but we say it because it relates to the supremacy of our constitution,” Mpofu said.
Mpofu has argued that it is the constitution that is supreme and not the Constitutional Court.
But trying to soften his blow, Mpofu said such errors were made even in lower courts.
“If you could assume that the order [to jail Zuma without trial] was unconstitutional or exceeded the defence of the Constitutional Court, the question is what should happen? What should happen is what happens on a daily basis ... The aggrieved must approach the court and seek relief,” Mpofu said.
He said while there was “awkwardness” in bringing the order before the same apex court, there is however “nothing earth shattering about that”.
He said all the court needed to establish was whether it infringed on Zuma’s rights when it took a move to jail him without trial. If that is the case, it should move to rectify this.
This case is being heard as Zuma last week started serving his 15-month sentence in a correctional facility in Estcourt in KwaZulu-Natal.
Proceedings continue.
Background
Zuma had filed the application on Friday, June 2, shortly after the court had ordered that he had a matter of days to hand himself over to police to start serving a 15-month jail term.
Zuma has given three reasons as to why he did not heed the call to attend proceedings.
In the media summary of the case, issued by the Constitutional Court, reasons given by Zuma are that he “did not participate in the contempt proceedings for medical reasons, he lacked financial resources, and because he had sought the recusal of the chairperson of the commission, Zondo, and accordingly, felt that his abstention from the commission was reasonable, notwithstanding that it was at odds with the order made by the Constitutional Court compelling him to attend”.
Zuma's application is being heard virtually, as he is behind bars after handing himself over to authorities on Wednesday night. He is detained at the Estcourt Correctional Centre in KwaZulu-Natal.
The Helen Suzman Foundation has added its voice to the matter, joining as a friend of the court. In its papers, it labelled Zuma's latest court action as “another attempt by Mr Zuma at making a mockery of legal process and the judiciary”.
The foundation has submitted that Zuma has failed to meet the requirements for a rescission application, and that there is no patent error or omission in the order granted by the court.
“Moreover, HSF submits that the Constitutional Court, in the contempt proceedings, already dealt with all the issues that Mr Zuma has raised in this application. Accordingly, these reasons, all of which have been previously traversed, cannot now be presented as rescindable errors. In any event, HSF submits that Mr Zuma’s failure, by choice, to plead these issues during the contempt proceedings does not have the effect of rendering the consequent judgment erroneous,” the foundation said.
This application is being heard as #FreeJacobZuma protests have flared up across the country. Pro-Zuma supporters went on the rampage in KZN, and the protests have turned into more widespread looting and torching of shops and establishments.
The protests have spread to other provinces.
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