South Africa

THE JUDGMENT

Lady Justice thunders at Zuma as former head of state sentenced to 15 months without option of an appeal 

Acting chief justice Sisi Khampepe has sentenced former president Jacob Zuma to 15 months' imprisonment without the option of an appeal. (Photo: Archive image)

The vigour with which former president Jacob Zuma is peddling his disdain of the Court will inspire others, the Constitutional Court finds. Acting chief justice Sisi Khampepe delivers a decisive defence of the rule of law; a minority judgment criticises the Commission of Inquiry for passing the buck.

In a Constitutional Court judgment that will go down as one for the ages, Acting chief justice Sisi Khampepe took no prisoners as she delivered the majority verdict in a contempt of court case on June 29: former President Jacob Zuma is sentenced to 15 months in prison without the option of an appeal.  

He must report to the Nkandla police station or to the Central Johannesburg police station in five working days (likely Monday, 5 July) to be escorted to the nearest correctional facility. If he does not, Police Minister Bheki Cele and the National Commissioner of Police Khehla Sitole are ordered to take all steps to deliver him to a jail in three days (likely Thursday, 8 July).

Zuma has been found guilty of contempt of court for disobeying the ConCourt to appear before the Commission of Inquiry into State Capture.  The Court had asked itself, “What length of punishment is capable of vindicating the court’s authority and which rebukes his (Zuma’s) contempt?”  The answer was a 15-month term of imprisonment. Two members of the nine-person bench dissented. Judge Leona Theron and Judge Chris Jafta argued for a suspended sentence which would have given Zuma a final chance to appear before the Zondo Commission. The former head of state has dodged answering any of the 40 substantive areas about his involvement in state capture for almost three years now. He appeared twice but would not be cross-examined; on the second occasion, he left without being excused by Judge Zondo, which is a criminal offence in terms of the Commissions Act. 

“The Constitutional Court cannot be naïve to hope for his co-operation. He has repeatedly said he would rather be imprisoned. A suspended sentence would prolong his defiance,” said the judgment.

“This society,” said Khampepe, “is one in which deference is shown to the rule of law.” If the court did not show the seriousness of Zuma’s breach, then it “would plunge the integrity of the court into deeper waters”.  The judgment repeatedly found Zuma’s actions to be “unprecedented” and the case before it “distinct” or “extraordinary”.  The judges, therefore, admitted the case on a plea for direct access to the court.

“It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs,” started Khampepe, as she read the judgment, which was delivered in just over an hour but which sets a hefty precedent for the rule of law. 

“The corollary duty is borne by all members of South African society — lawyers, laypeople, and politicians alike — is to respect and abide by the law,” she said, setting out the crux of the rule of and by law.

Zuma must be stopped now

“…the strength of the judiciary is being tested,” the judgment reads. The court called Zuma’s various statements against it “…a set of direct assaults…calculated and insidious efforts…to corrode (the courts) legitimacy and authority…Never before has this Court’s authority and legitimacy been subjected to the kinds of attacks that Mr Zuma has elected to launch against its members.”

The judgment says Zuma’s actions must be stopped now. “…it is becoming increasingly evident that the damage being done by his ongoing assaults on the integrity of the judicial process cannot be cured by an order down the line. It must be stopped now.

“…there is a real and imminent risk that a mockery will be made of this Court and judicial process in the eyes of the public,” the judgment says.  Zuma’s long statements questioning the court’s integrity and impugning various judges were all launched on social media and distributed by channels like WhatsApp, which made the contempt for the rule of law viral in the digital media age.  

Khampepe revealed that the ConCourt had given Zuma the last chance. On 9 April 2021, he was asked to file an affidavit setting out his version of events in formal testimony or evidence before the court. “Instead of filing an affidavit, he addressed a 21-page letter to the Chief Justice.” This letter included inflammatory statements intended to undermine the court’s authority, said Khampepe.  

“If he did not want to participate, he could have sought an interim stay of proceedings,” said Khampepe.  “The Constitutional Court went to great lengths to safeguard Mr Zuma’s rights. There are no grounds on which Mr Zuma could claim to have been treated unfairly,” she said. 

“The court must send a resounding message that this kind of recalcitrance is unlawful and will be punished.” The majority of seven judges, therefore, decided on “an unsuspended order of committal” — or a jail sentence. The court found a “matrix of factors” which made the case exceptional and that these included Zuma’s ongoing volley of attacks on the judiciary as well as his position as a former president. “The judiciary must not be sheltered from the public and public criticism.”  

 Tolerable or intolerable criticism? 

“The judiciary is in no way exempt from accountability it owes. Protecting courts from slanderous public statements has little to do with the feelings of judges but everything to do with protecting the authority of the law,” said Khampepe. “His (Zuma’s) statements do not fall into the category of tolerable criticism; they are intolerable.” 

She said that Zuma is not a mere ordinary litigant but a highly influential member of society. “If his conduct is met with impunity, it will do significant damage to the rule of law.” As a former president, his responsibility for upholding the rule of law is “heightened.” The court noted that “he who twice swore allegiance (to the Constitution as the embodiment of the rule of law) has sought to undermine and destroy the rule of law.”   

The court said that Zuma’s “vituperative” statements had been a calculated effort to impugn the judiciary and that the punitive costs awarded against him were warranted. “She or he who abandons all ethical standards do so at their peril and must meet the award of punitive costs,” said Khampepe.  

The court awarded legal costs order against Zuma in favour of the Commission of Inquiry into State Capture. Khampepe quoted Nelson Mandela’s speech from the dock as she completed the judgment. “I too cherish the ideal of a democratic and free society.”  

The minority judgment

In their minority judgment, Judges Theron and Jafta warned that an unsuspended sentence trampled on Zuma’s constitutional rights.  Zuma has been found guilty of civil contempt (not criminal contempt), and the judges argued that this set the bar higher for allowing him to resolve this contempt. They argued that the urgency of the case, allowed by the court, prevented fair procedure because the sentence can’t be appealed. It limited the right to silence. The two judges concluded that these deficiencies amounted to a serious violation of Zuma’s constitutional rights. 

The minority judgment also repeated the criticism the judges had raised when they first granted the Commission a court order to compel Zuma to appear before Zondo in January. 

“The court laments the invidious position the Constitutional Court has been placed in by the Commission,” said Judge Theron, with Judge Jafta concurring. Zondo should have used criminal proceedings as permitted by the National Commissions Act, they said. “The Commission transformed the case into between the Constitutional Court and Mr Zuma, and not one between the Commission and Mr Zuma.” DM

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All Comments 27

  • About damned time! My respects to our Judiciary. May these learned people continue to uphold and protect our awesome Constitution with prejudice, favour or fear.

  • A good and forceful judgement, well reasoned and pointed at anyone else who might want to try their luck. A not-so-small victory that will go a long way to restoring respect for the Constitution and the judiciary.

  • Congratulations Acting deputy chief justice Sisi Khampepe! Finally, Jacob Zuma has met his match and the law has stood its ground. Today I am proud to be a South African.

  • I trust that the eminent Lady Justice Sisi Khampepe is provided with personal protection. Both the Zuma and EFF camps are a danger to law and order; hopefully that does not include any direct confrontation with those who are mandated to ensure that the requirements of the Constitution are upheld.

  • An excellent judgement. It sets out exactly how dangerous it is to democracy to disobey the Rule of Law and impune the judiciary.

    Had Zondo used criminal proceedings as permitted by the National Commissions Act, Zuma would without doubt been found guilty of contempt. From his past performance he would have appealed, and carried on doing so until the matter eventually arrived at the Constitutional Court, thus wasting more time and prolonging the Zondo Commission.

  • Ferial, I already had my say to your previous article posted a few hours ago on the same subject. But my question to you, now, is why did it take so long? Not this particular judgement, but the fact that it has taken almost 20 years to bring this animal to book. His arms deal case will still take years. Will his corrupt involvement in state capture also take years? He should be sitting in jail for the rest of his life, not 15 months, if indeed he will sit there at all. For at least 15 years the ANC protected him with all their might. More than half the population voted for his party (and thus him), and more than half of ANC branches voted for him for 9 long years. In a live interview an hour ago on Newzroom Africa, Pule the spokesperson of the ANC, was already stumbling to find words. Zuma was protected by the ANC NEC and the so-called top 6, of which Ramaphosa, Duarte, and Mantashe were part of. And still Zuma wields power. Only time will tell whether he will actually enter a prison cell. Knowing the ANC, I have some doubts

    • …a bit glass half empty there Coen. Everyone knows the country’s been screwed, that there is still a mountain to climb, and yes, that tomorrow could yield further problems, but these are definitely positive moves.
      Enjoy them.

  • Well done indeed to the Concourt-a truly epic defense of our democracy! Whatever happens now, at least a strong signal has been sent- and malevolent reaction will certainly follow. We wait to see

    • Unfortunately ‘the signal’ is only as strong or good as the implementation of that ‘signal’ by whoever sends it.

  • The die is cast.
    What happens now?
    Will the arrest be resisted?
    What then?
    It is perhaps too late in the day to bring this malignancy to book without some level of upheaval

  • A good judgment but I feel so sad that the country has been broken into tiny fragments only to nab this guy on contempt of court charges. For goodness sake, his corruption charges go back to the 1990s and the NPA is hardly out of the starting blocks. I suppose we need to be grateful for small mercies.

  • Judges Theron and Jafta need to be examined as to judiciary capture. Offering Zuma another opening to attack the judiciary despite a 7-2 verdict. Shame on you.

    • No shame. No ‘capture’.They took full cognisance of Zuma’s offenses, but merely felt that he should’ve been treated as most other CIVIL defendants would’ve been. The majority drew the distinction that, as former president twice swearing fealty to the Consitution, he had a greater responsibility/duty to obey the Law & Constitution. So…for the legal beagles…I see their dissent as more obiter than ratio.

  • So does this mean he is off the hook to ever answer state capture questions? Or can we have another go at him when he comes out? That is if he even ever will see a cell from the inside…I still have my doubts!

    • Absolutely NOT off the hook. This imprisonment is merely the hors d’oeuvre….to encourage him to partake in the main course! (…and, in keeping with my lame theme, round off with his just dessert¯\_(ツ)_/¯ )

  • The dissent would not have been relevant had he participated in the hearing, so once more he has managed to cast doubt in his feeble minded followers and simultaneously insult the judiciary by remote. The evil, warped mind of a veteran manipulator who has always been in it solely for himself is on display for all to see.

  • “The corollary duty is borne by all members of South African society — lawyers, laypeople, and politicians alike — is to respect and abide by the law,” she said, setting out the crux of the rule of and by law.

    Now there is an original thought for our country!
    This woman is my new role model!

  • Hopefully the criminal charge for walking out of the Zondo Commission without permission is ongoing? Being found guilty in that case, which should be open-and-closed, will ensure that the taxpayers will stop being forced to support this imbecile.

  • How dare he swear allegiance to the Constitution as the embodiment of the rule of law, o and then seek to destroy it for his own selfish benefit. The man’s a disgrace in too many ways to count and deserves the full wrath of the law and the people of his country.