Advocate Tembeka Ngcukaitobi makes a fool of himself in ConCourt

The state capture inquiry contends that former president Jacob Zuma should pay the legal costs of its urgent Constitutional Court bid to compel him to give evidence - even though he chose not to participate in the case.

"We are using state funds to ensure his [Zuma's] participation in a process where it is almost manifest that he is obliged to participate, also using state funds against somebody who has displayed a very high level of recalcitrance," advocate Tembeka Nkgcukaitobi, for the inquiry, argued on Tuesday.

The country's highest court, which heard the inquiry's multi-pronged application against Zuma without the presence of Chief Justice Mogoeng Mogoeng, has reserved judgment in the case.

Whatever the court decides will have potentially massive consequences for the commission, which is due to complete its work on 31 March next year and maintains that Zuma's evidence is pivotal to that process.

Ngcukaitobi has contended that Zuma's decision to send a one-page lawyer's letter, rather than a formal legal notice, to the country's highest court in response to the commission's application against him demonstrated his "disdain for the legal system".

In that letter, Zuma's attorney Eric Mabuza stated that he would not participate in the case "at all".

"Historically, we [the inquiry] have been trying to ensure that Mr Zuma participates in the proceedings of the commission.

Ngcukaitobi argued:

The state capture inquiry, chaired by Deputy Chief Justice Raymond Zondo, has captivated South Africans, with testimonies that often "shocked" the chairperson.

"His election not to participate in the proceedings before this court 'at all' is itself demonstrative of the general disdain with which he has been treating the legal system."

Ngcukaitobi further pointed out that Zuma had missed the deadline given to him by the Inquiry to respond to its application and only sent his letter to the Constitutional Court after Chief Justice Mogoeng Mogoeng issued his directions for the further progress of the case.

The letter, he said, was "a slight on the Chief Justice's directions".

"One cannot be generous in construing a contemptuous letter," Ngcukaitobi said. "It was never intended to be a legally acceptable document and it came across that way. It was intended to tell everyone who intended listening or reading that, 'actually, you can do whatever you wish, I am not participating'."

By not participating in the case, Ngcukaitobi argued, Zuma had also chosen not to explain why he had walked out of the Inquiry – an act which the commission contends amounted to criminal contempt.

Ngcukaitobi had previously argued that it "would be wrong for Mr Zuma not to pay costs at all, in the light of his past conduct, in the light of the conduct that he has displayed before this court".

"Mr Zuma's conduct illustrates that he regards himself as being above the law," he argued.

Ngcukaitobi also contends that, by bringing a challenge to Deputy Chief Justice Raymond Zondo's refusal to recuse himself as inquiry chair, Zuma was "definitely playing out the system".

While Justice Chris Jafta stressed that Zuma had the right to challenge Zondo's decision, he agreed with Ngcukaitobi that the Constitutional Court needed to take cognisance of Zuma's previous conduct of "delaying or trying to avoid going before the commission".