The decision by Chief Justice Mogoeng Mogoeng to ask former president Jacob Zuma to submit suggestions as to what kind of sanction he should face for defying the Constitutional Court’s order that he testify at the Zondo Commission is an important step in a vital and intricate process. 

Some will say that Zuma is being treated with kid gloves, while others will believe Zuma is being mistreated. But, for the moment, Mogoeng’s action has put Zuma on the back foot. In a case this important, this could be the masterstroke that changes the political and legal equations around the issue.

The past 15 years of our democracy have been about the tension between the power of law and the power of politics. At the centre of most of this has been the figure of Zuma.

It was Zuma who was able to demonstrate so convincingly in 2009 that politics was more powerful than the law when he was able to prevail upon the then National Prosecuting Authority acting head Mokotedi Mpshe to withdraw charges of corruption against him.

Since then it has been about if, and when, the rule of law would catch up.

Now, with Zuma no longer president, and with large parts of the ANC turning against him (much of it through his own actions), the wheel is turning. His refusal to simply answer questions under oath resulted in a stand-off, after which the Constitutional Court is now considering the application by the Zondo Commission that the former No 1 serve two years in prison.

Zuma has, until now, refused to argue against the commission’s application, simply stating that he will play no part in the court’s hearings on the case.

It is in this context that Mogoeng’s communication to Zuma, to make a suggestion as to what sanction he should face, is quite extraordinary. To many people it would seem bizarre for a potential convict to be asked by a presiding judge what punishment they should face if found guilty.

But nothing about this case is ordinary.

The Constitutional Court is being asked to do something it has never done before, which is to hear a case as the court of first instance (normally, the court only hears appeals of decisions made by lower courts) and then to possibly send someone to prison.

While it is true that in most other proceedings a judge or a magistrate will make a decision about the guilt or innocence of a person and then make a decision about the sentence they would face, in all of those cases there is still the option of an appeal.

There are usually several mechanisms: a person can appeal to the full Bench of the High Court, or the Supreme Court of Appeal or to the Constitutional Court itself.

If there is some error or mistake or miscarriage of justice there is a way to fix it. That is not the case here. The Constitutional Court is flying without a parachute.

And it may well be this which has persuaded Mogoeng to go this route. He needs to be absolutely certain that the court makes the correct decision, and is seen to make the correct decision, especially after multiple attempts by Zuma and his legal team to undermine trust in the judiciary, one of the few remaining institutions Zuma was unsuccessful in ruining during his time in power.

This is still a case against a former head of state, and there can be no doubting the political consequence of this decision for Zuma.

This case was never going to be normal. But it should also not be forgotten that it will set a precedent; what the Constitutional Court decides here will have a huge impact on others who defy court rulings.

He and his legal team are now in a position in which they are compelled to make a decision – in other words, to take part.

Should Zuma opt to refuse to make a submission, he will be seen as losing his option to complain afterwards. He would appear to not only have rejected an opportunity to be heard, but even to have aggressively rejected it. He could be perceived as having cold contempt for the Constitutional Court even as it has bent over backwards to accommodate him.

This would make it much harder for him to play the “victim of injustice” card should the case go against him.

But still, should he now decide his unwillingness to respond has been dented, what response does he give?

If he argues that there should be a suspended sentence, he is admitting guilt, should he demand no jail term whatsoever it could appear that he is countering the commission’s argument that his defiance cannot go unpunished.

And how could he argue that he is both in contempt and yet not be punished?

How can he argue that he should be punished at all?

No matter which response Zuma gives, he may find himself in a sticky corner.

It is here that Mogoeng may have played a masterstroke.

In a sense, while the current argument is about which has more power, the political elite or the rule of law, in another sense it is also about what most people want more.

The rule of law only works if people respect judges; if they don’t see them as neutral and fair arbitrators of disputes using the Constitution as their only guide, then people will ignore their orders and their rulings. And they will support those who do the same.

But if a person who wishes to ignore or dispute a court ruling has very little or even no popular support, then they will find it impossible to do this.

Put more starkly, if thousands of people gather outside Nkandla to stop Zuma from being arrested because they agree he is a victim of injustice, then it’s going to be difficult to enforce the law. But if very few people support him because they believe the court has acted fairly, then it should be easier to enforce the law.

This case was never going to be normal. But it should also not be forgotten that it will set a precedent; what the Constitutional Court decides here will have a huge impact on others who defy court rulings.

It would make sense then that the court is seen to be doing everything in its power to ensure fairness.

It would appear that this is what it is doing here.

In the process, the pressure has shifted on to Zuma. DM