By Mzwandile Masina
An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality, expressing the highest respect for the law. – Martin Luther King, Jnr
On June 29, 2021, the Constitutional Court of the Republic of South Africa handed down judgment in the matter between the Commission of Inquiry into State Capture, popularly known as the Zondo Commission, and former president Jacob Zuma, in relation to what purportedly seemed to be the former president’s non-compliance and/or defiance of a Constitutional Court order to attend the Zondo Commission – conduct that amounts to contempt, as the Constitutional Court found.
The Court sentenced the former president to a 15 month unsuspended sentence that is set to begin five days from the date of the announcement of the verdict and sentence. The judgment was not unanimous, and in this opinion piece, I will explore whether the judgment was legal and whether there had been any irregularities in the judgment, particularly the majority judgment of Khampepe J.
In the early months of 2021, Deputy Chief Justice Zondo advised that he would approach the Constitutional Court following several failures by former president Zuma’s to present himself before the Commission, which he (DCJ Zondo) chairs.
This came as a surprise for two reasons. Firstly, former president Zuma has stated on numerous occasions that his refusal to present himself before the commission was not a snub of the entirety of the process – an important point to note since the former president was, in fact, the one who instituted the said commission in an attempt to deal with the scourge of corruption and the capture of the state.
His argument was that he had a relationship with the chair of the commission, DCJ Zondo, which obliged the DCJ to recuse himself from hearing the former president’s testimony. The former president’s application for the DCJ’s recusal was heard and adjudicated by the DCJ himself – an action that is highly questionable.
It is a trite principle of law that a judge cannot sit in his own case or in the adjudication of factual disputes arising from his own statement of facts judged against allegations raising disputes with his statement. And yet, this occurred in this case, and yet, the inherent dangers of this were blatantly ignored.
The second surprising aspect of this is that because former president Zuma’s purported conduct did not seem far off from what is generally understood as an act of contempt, except in this case, we could not clearly make this conclusive decision because a commission of enquiry cannot necessarily be deemed as a court – precisely due to the limitations of its powers and jurisdiction.
Be that as it may, one could understand the need to approach a court of law in order to compel the former president to testify at the commission, and a court of law would make just the right order to compel attendance, and if that fails, an act of contempt would materialise.
The surprise, as earlier indicated, was the choice of court used by DCJ Zondo – the Constitutional Court, which he presides over as the deputy and whose Justices are his close colleagues. Such considerations put aside, it is also the highest court in the land.
Granted, following the seventeenth Constitutional amendment, the Constitutional Court became a court of first instance. This means that people can have direct access to the Constitutional Court without approaching the lower courts, including the High Court and the Supreme Court of Appeal. This could prove catastrophic (as it has done in this case), as there is no recourse for appeal or review in South Africa beyond the Constitutional Court.
It is thus more apt to approach the lower courts and only escalate matters to the Constitutional Court as and when it becomes necessary to do so. In any event, there are two requirements that ought to have been met before this matter was referred directly to the Constitutional Court.
THE CONSTITUTIONAL COURT AS A COURT OF FIRST APPEAL
In Dormehl v Minister of Justice and Others, Chaskalson J traversed the provisions of Rule 17 of the Constitutional Court Rules, which deal with grounds for direct access and use of the Constitutional Court as a Court of first appeal, wherein he opined that:
“a) The Constitutional Court is the highest court in all constitutional matters. It acts as a court of appeal and, in limited circumstances, as a court of first instance.
b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions. Nor is it in the interests of justice for eleven judges of the highest court in constitutional matters to hear matters at first instance, which can conveniently be dealt with by a single judge of a high court.
c) The Constitution recognises this, and for that reason, provides that direct access to 1 (CCT10/00) (2000) ZACC 4 at paragraph 5. the Constitutional Court is permissible only with leave of the Court and if the interests of justice so require.
d) One of the factors to be taken into account in dealing with such matters is the prospects of success. But this is not the only consideration. Since a high court has jurisdiction in constitutional matters and is the court which ought ordinarily to be approached to deal with constitutional matters at first instance, compelling reasons are required to justify a different procedure. An applicant for direct access must establish that there are such reasons and that the circumstances of the case justify a departure from the ordinary rule and the granting of direct access.”
The above is an excerpt from the above-mentioned case. Notably, Chaskalson states that it is permissible for the Constitutional Court to act as a court of the first instance only when two requirements are met, namely; (1) With leave of the Court and (2) If the interests of justice so require.
It is my belief that contempt is not so robust that it would be regarded as being of public and greater social interest, and as such, the matter could have been referred to the High Court. Consequently, it makes little to no sense why the Constitutional Court granted such leave, except for the considerations provided above.
PITFALLS OF THE MAJORITY JUDGMENT
In dealing with whether the judgment was lawful, I wish to first reiterate that judges are guided by the law, and thus, should apply the law. The Constitution, however, allows for the Courts to develop the common law, as we saw in the majority judgment of Khampepe. Such development is lawful and permissible, in line with our Constitution.
In her majority judgment, Khampepe recognises that the appropriate sanction for contempt is imprisonment, part of the sentence being suspended. The reasoning for this is that the suspension is meant to be a deterrent from future contempt and meant to deter the contemptor from any future contempt. This means that the contemptor will be dissuaded from their action as they fear the possibility of direct imprisonment.
And yet, as we saw in the judgment, Khampepe J deviated from this standard sentencing rule by making the imprisonment to be wholly direct. Her reasons are that the Zondo Commission is coming to an end and that the suspended sentence would serve no purpose as there would be no commission in existence to compel the attendance of the former president.
Thus, the purpose of deterrence served by the suspension would be of no effect, and there would be no option of being in contempt because no such commission would exist.
While this is well and good, it seems that the Constitutional Court had a major blind spot – its superiority in relation to other courts and the precedence it has now set for other courts when issuing sentences for contempt. In her minority judgment, Theron J awakens all of us to this danger. Her judgment can be read from paragraph 143 of the judgment. Notably, in paragraph 262, Theron J states:
“The main judgment, in my view, allows our law of contempt to be hijacked by the peculiar, and indeed, frustrating facts of this case. One has to wonder: what would the main judgment have done if Mr Zuma had refused to comply with this Court’s order but not issued public statements attacking this Court? Absent these scandalous remarks, this Court would be left with civil contempt simpliciter.
How then could it justify a purely punitive order in civil contempt proceedings that has never been made by our courts and that is at odds with the dual purpose of civil contempt proceedings, which marry the coercive with the punitive? The simple answer is that it could not.
Mr Zuma’s scandalous remarks might constitute the crime of scandalising the Court but their relevance, as far as the appropriate sanction for civil contempt (disobedience of a court order) is concerned, is, at most, that they constitute aggravating circumstances which have a bearing on the length of committal.
What this counter-factual reveals is that the main judgment develops the law to meet the peculiarly frustrating circumstances of this case. It leaves in its wake law that is not only bad; but also unconstitutional.”
As Theron J indicates, the majority/main judgment herein alters our law and jurisprudence adversely. Henceforth, are we saying it is reasonable and rational to directly imprison people for contempt? How does this serve justice?
To answer the question of whether the judgment meets the muster of the law – the simple answer is yes. However, the judgment has created and set a dangerous precedence which has the potential of frustrating future commissions or even courts of law, as people will opt for direct arrest over cooperation.
Interestingly, Rule 29 of the Constitutional Court Rules, read together with Rule 42 of the Uniform Rules of Court, allows for rescission of this judgment. But whether former president Zuma would be successful in this regard is unclear, and based on the conduct of the Constitutional Court in the matter of his sentencing, probably unlikely. The effect of the recession is that the arrest would be stayed (halted) until such a time the courts can ascertain that the judgment is fair and just, and thus, should not be rescinded.
WHAT IS THE POSSIBILITY OF JUSTICE FOR ZUMA?
Former president Zuma has approached the High Court in Pietermaritzburg for a Rule 29 application. The court will likely dismiss his application on grounds of its lack of jurisdiction, following which he will approach the full bench of the same court, which will likely give him the same outcome.
He will likely then approach the Supreme Court of Appeals, where he will likely get the same outcome, and ultimately, approach the Constitutional Court. And so, it is clear that the Constitutional Court has placed the former president in an almost impossible situation in so far as his option to challenge it. That this is morally questionable is undebatable.
THE POLITICAL IMPLICATIONS OF THE JUDGMENT
The implications of the Constitutional Court judgment are not only legal but also political, for the country and the African National Congress. For the country, the judgment demonstrates a systematic erosion of criticism of the Constitutional Court. The minority judgment of Theron J begs us to question whether the harsh sentence imposed on the former president was not the result of his open and public criticism of the judicial system.
If this is the case, then what is being communicated is that criticism of the judicial system can be met with punitive measures – a highly unconstitutional and undemocratic practice. The strength of any constitutional democracy lies in the ability of ordinary people to criticise even the very institutions of democracy that anchor society.
For former president Zuma to be punished for this is reflective of a somewhat authoritarian tendency that needs to be arrested in its infancy before it becomes normative, and thus, annihilates the democracy for which many died for.
For the African National Congress, the implications are just as potentially catastrophic. The last time a democratically-elected president of the organisation left office without any acrimony was in 1999 with the departure of the late president Nelson Mandela. Since then, we have had two presidents removed from office before the end of their terms of office.
In the case of former president Zuma, a slew of criminal charges have followed him – none of which have been successfully tested in a court of law, but which, nonetheless, have cemented a narrative that he is corrupt and more troublesome, a constitutional delinquent. Parameters are being set for a future reality in which presidents of the ANC will not want to leave office, for it is clear that to lead South Africa is akin to sitting on the back of a lion and holding on tightly as it thrashes about.
The only way to survive under these circumstances is to continue to hold on for dear life, for if one dismounts the lion, they are bound to be eaten alive. This does not bode well for the future of our country and of the movement. The ANC needs to have an urgent conversation about the catastrophic dangers of this tendency because if we do not, soon enough, there will be no organisation to be part of and to lead. And this starts with questioning the law that governs our existence and that of the country, for in the words of St Augustine: “An unjust law is no law at all”.
* Masina is the ANC Ekurhuleni Regional Chairperson.
** The views expressed here are not necessarily those of IOL.