South Africa

COURTING DISASTER

Lady Justice says Zuma can’t butcher proceedings at will – dismisses application for rescission of judgment

Original Photo: Waldo Swiegers/Bloomberg via Getty Images

But two minority judgments show the ConCourt was divided on the former president’s request for rescission of the judgment which jailed him. The decision is moot since Zuma is free on medical parole.

A majority of the Constitutional Court bench of nine judges have dismissed former president Jacob Zuma’s application for a rescission of the July 2021 judgment, which ordered his jailing for 15 months without the right to an appeal.

Zuma is out on medical parole and currently in a Pretoria hospital, which makes the judgment moot, but it is a legal smackdown for the former head of state. Judge Sisi Khampepe, who delivered the judgment, said the court had been “far from persuaded” that Zuma had met the two grounds for rescission. These are that a litigant had been absent from court proceedings and judgment against them, and an error in the law had been made. 

“(The law) protects litigants whose presence was precluded, not whose absence was elected,” said Khampepe in her oral judgment. Zuma ignored several summonses to appear before the Commission of Inquiry into State Capture before the Constitutional Court ordered that he appear before it.  Zuma was jailed for contempt in July. He also failed to submit arguments in mitigation when the Constitutional Court asked him to do so. The court said he had been an architect of his misfortune. “Litigants can’t butcher (judicial proceedings) at their own will,” said Khampepe.  

The majority judgment said Zuma had attempted to stage a belated defence in the rescission application, which the law did not allow. “Mr Zuma had multiple opportunities to bring these arguments to the attention of the court,” said Khampepe, adding: “He only hopes to justify his absence now that the shoe pinches.”

Zuma’s legal team had also argued that the grounds for rescission ought to be expanded, but the judges gave short shrift to his argument. “Far from inviting courts to develop grounds for rescission – we must do the opposite. The legislature had (deliberately) carved out narrow grounds for rescission.  (If not), the administration of justice would be compromised by chaos,” said the judge.

The judges said that nothing in Zuma’s case was “truly exceptional” to require that the court depart from ordinary tenets of the law, and said Zuma would bring the administration of justice into dispute if the court were to reconsider it. “The principle of finality in litigation must be protected,” said Khampepe, adding that a relaxation of this provision would be to dismember the rule of law.

Justice Sisi Khampepe. (Photo: Sydney Seshibedi / Gallo Images)

“The uncertainty of this application has done untold damage to the rule of law,” said Khampepe. The judgment added that Zuma was blowing “hot and cold” with legal processes. His decision to ignore the summons and a request to make an application to the Constitutional Court during the contempt of court judgment deliberations meant that he had resigned himself to any decision the court would make. “Litigious vacillation can’t be tolerated,” said Khampepe.

A divided ConCourt 

The court heard the rescission application on 12 July 2021 and took more than two months to make a finding. It emerged that the court was split three ways, with a majority judgment and two minority judgments penned.  This is what the two minority judgments say:

Minority judgment one by Judge Chris Jafta (with Judge Leona Theron concurring) made the following points:

  1. The contempt of court judgment was “unconstitutional and uncompliant with international law”;
  2. This international law is Article 9 of the International Bill of Rights and is the International Covenant on Civil and Political (ICCPR) Rights to which South Africa is a signatory; and
  3. That Zuma had been sentenced without the option of an appeal was in effect detention without trial.

The majority judgment said it accepted that Section 39 of the Constitution enjoined it to consider international law in its deliberations but noted that the status of international law should not be mischaracterised. It pointed out that the ICCPR had not been adopted into domestic law in South Africa and only bound the country at a global level, and that the focus on the Covenant was misguided. The court said the Zuma case was a straightforward rescission case and that Zuma had not met the two basic requirements for rescission and that a consideration of the Covenant would amount to reopening the defence. The court had asked for submissions from Zuma’s legal team and the team acting for the State Capture Commission on this point.  

Minority judgment two by Judge Leona Theron made the following points:

  1. Any individual detained has a right to a fair trial;
  2. The limitation on Zuma’s rights was not justifiable;
  3. His detention on 7 July was therefore unconstitutional and invalid; and
  4. The ConCourt should declare the detention invalid and set it aside. 

The ConCourt dismissed Zuma’s application for rescission with the costs of two counsel. The judgment is moot since Zuma is out on medical parole after Correctional Services Commissioner Arthur Fraser overrode the recommendation of his medical appeal parole board to free his mentor.  Three organisations (the DA, the Afrikaner civil rights movement AfriForum and the Helen Suzman Foundation) have launched court proceedings to review Fraser’s decision which got a nod and wink from President Cyril Ramaphosa before Zuma was released. Fraser’s decision cannot be overturned except by a court, even if Zuma’s health improves.  

The judgment starts with a flourish, reading: “Like all things in life, like the best of times and the worst of times, litigation must at some point, come to an end.” DM

Update: Reaction to the ruling 

Spokesperson for the Jacob Zuma Foundation, Mzwanele Manyi ,spoke to broadcaster Newzroom Afrika after the judgment, saying they were “disappointed, but this decision is not unexpected” by Friday’s decision by the Constitutional Court. 

Manyi called on South Africans to donate to their campaign because “we have to pay, that is no debate”. 

Reacting to Friday’s judgment, Lawson Naidoo from the Council for the Advancement of the South African Constitution (Casac) told Daily Maverick the ConCourt judgment “reaffirmed the rule of law”. Casac was a friend of the court in this application, which Naidoo said was done on the principle that the concept of finality was “one that must be respected”. 

IOL reported that Zuma’s son, had Edward said “We are going to show our anger and the whole world will see our anger” about the dismissal of the application.  – Sune Payne. DM 

Gallery

Comments - share your knowledge and experience

Please note you must be a Maverick Insider to comment. Sign up here or sign in if you are already an Insider.

Everybody has an opinion but not everyone has the knowledge and the experience to contribute meaningfully to a discussion. That’s what we want from our members. Help us learn with your expertise and insights on articles that we publish. We encourage different, respectful viewpoints to further our understanding of the world. View our comments policy here.

All Comments 19

  • Having read part of the judgement I do not see the “moot” claim. It will appear Zuma sought interim relief which was overtaken by events (he was granted parole). The judges did not say the matter was moot because Zuma got parole as far as I can tell.

    In my view it will be more correct to say the majority judges found that he waived the right to participate repeatedly hence there being no grounds for rescinding the judgment. “Rescissions applications” are generally when a party received no notice of the proceedings.

  • IOL reported that Zuma’s son, had Edward said “We are going to show our anger and the whole world will see our anger” about the dismissal of the application.
    This comment by son Edward is tantamount to inciting unrest all over again so let’s hope the security forces are better prepared this time around. Just shows that there is a total disregard for the law and our constitution, unless of course the outcomes suit the complainant!

    • This is incitement to violence, again! Classic bully: if I don’t get my way, I’ll start breaking things. Where are all the arrests after the July violence?

  • Zuma of course started proceedings to exit SA from the ICC, as it interfered in too much in African leaders indulgings.
    How nice, and ironic, to see international law being cited by the minority view for the Zuma victim(s).

    • Agreed. The full-stop after “far from persuaded”, should be changed to “that”. Thus . . . the court was “far from persuaded” that Zuma met the grounds for recession.

  • Zuma senior thought he needed a court case before being given a jail sentence for not adhering to a Con court order. The court order was a result of a court case! Then he went to the high court to try to overturn a Con court judgment and finally tried to rescind the Con court’s judgment without any arguments at all. I think that is what the judgement was saying.

    Edward Zuma is now very angry the court did not accept the complete lack of arguments.

    Shame man looks like the entire Zuma family are legally challenged. Can some educational institution not provide some free basic legal literacy training to the Zumas? SA really needs to try to get them to the legal equivalent of 1 + 1 = 2.

    • An utter waste of time. The Zuma rule of law says that 1 + 1 can equal 1, 2, 3, 4, 5, 6 or anything else that suits them. They want tribal law where the chief makes up the law that will apply until he changes his mind again.

  • ” not surprised” is a sly way of saying ” we expected it because they are all against me”. The weak point in this judgement is that Mpofu and his team should also have been hit with costs. The courts should put a stop to contrived argument and invented legal concepts which the lawyers know or should know are hopeless. A first term International Law student knows such a law does not apply domestically if it is not incorporated into domestic law.

  • The tragedy of justice Theron’s first point about a detainees ‘right to a fair trial’ … is that in this case the individual refuses to stand trial … and if he does, HE will decide who the presiding judge will be ! Something quite bizarre about a ‘legal mind’ having come to such a conclusion without considering the consequences of such averment … and serving on the highest court in the land ! It negates everything else she concludes. As for the title of the article re ‘lady’ justice or for that matter ‘lord’ justice, I hope justice is transgender ! This judgement must throttle to death the testosterone levels of the uber males trying to make ‘case’ where they have none. This dilly Dali’ing has to be stopped !

    • I agree with you about with respect to Justice Theron’s conclusions. Moreover, I don’t like the way in which the DM’s sub-headline suggests that two minority judgments point to a significant ConCourt division. The division was to be expected since the same justices who differed in the first judgement differed in this recision judgement. The Concourt’s rulings in both cases have been overwhelmingly against Zuma. That is the point to emphasise.

  • To Edward and his co-conspirators – not only will the world ‘see your anger’ but also your continued stupidity … and that of your so-called counsel also ! Playing to the ‘audience’ of two ‘dissenting’ but confused judges who have bought onto the ‘conspiratorial thinking’ is not going to advance his case, though it may enhance the judicial ‘politics’ he wishes to promote.