The deeply entrenched practice in our law of requiring presiding judges who disagree with the outcome of a case, or the reasons advanced by the majority of the court to justify the outcome of that case, to pen or sign onto a dissenting opinion, is a salutary one. It allows for structured judicial dialogue, provides an additional measure to hold judges accountable for their judgments, fosters judicial transparency, and enriches the jurisprudence of our courts as well as our understanding of it.

There is nothing wrong with a dissenting judge penning a robust, but good-faith, defence of the minority view – even when the dissenting judgment contains pointed, even biting, criticism of the majority judgment. (The same holds true for criticism by the majority of a dissenting judgment.) 

But the caveat here is that judges should avoid judicial decadence – winning an argument or wanting to be seen as having been right at all costs, regardless of the consequences. To avoid this, criticism should be honestly offered, should be based on the sincerely held views of the dissenting judges, should not deliberately or negligently misconstrue the law, should not be informed by a judge’s hurt ego, and should not aim to discredit or undermine the integrity of the majority, or be wholly indifferent to the negative impact the manner in which the dissent was written will have on the legitimacy and authority of the court or the legal system more generally.

My fear is that the dissenting opinion in the recent Constitutional Court judgment of Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture (penned by Jafta J and signed onto by Theron J), may not have avoided all these pitfalls. I am not saying this because I happened to have preferred the original majority judgment over the dissenting judgment, in which the majority held that our law permits the imprisonment of an individual found guilty of contempt of court in motion proceedings instead of during a criminal trial, and sentenced Zuma to 15 months’ imprisonment for his contempt of court. 

It is true that the failure of the minority to acknowledge the severity of the threat posed to the Constitutional Court and the legal system more broadly by Zuma’s unprecedented and mostly fact-free attacks on the court, worried me. But its main point – that there may, in most instances, be constitutional problems with sending a contemnor to prison using motion proceedings instead of a criminal trial – is one over which reasonable people could easily differ, and with which I have some sympathy. Our jurisprudence was enriched by having the benefit of the dissenting judgment in the original case – despite a few odd, politically incendiary phrases making their way into the judgment. 

I fear the same cannot be said for the judgment of the dissenters in the rescission matter. The judgment is a bit of a mess: reading it is like watching a snake swallow its own tail. This is because it treats a rescission application as an appeal, and tries to re-argue the original case in which the dissenters lost the argument, but claims that it is doing no such thing. 

To pull off their magician’s trick, the dissenters had to contend that the binding, thoroughly reasoned and considered decision of the majority in the original judgment was not in fact a binding, thoroughly reasoned decision. This is so because thoroughly reasoned, binding decisions of the majority of the Constitutional Court cannot be appealed, nor can they be rescinded, except on very narrow grounds not present in this case. This the dissenters did by arguing what looks like a constitutional impossibility, namely that the majority judgment itself is in breach of the Constitution and thus “unconstitutional”, not because it contains an uncontested and catastrophic mistake of fact or law, but rather because it differs from the view held by the dissenters. 

The effect, if not the intent, of the dissenting judgment is to create the false impression that the justices in the majority somehow acted unlawfully and even scandalously and are therefore constitutional delinquents. This is made worse by the claim that the majority used an unconstitutional procedure when they sentenced Zuma to a term of imprisonment, despite the fact that both the Supreme Court of Appeal (SCA) and the Constitutional Court itself had previously endorsed this procedure for contempt cases, and despite the fact that the Constitutional Court is the final arbiter of what a permissible constitutional procedure may be. 

How can judges, who are bestowed with the final authority to determine what is and is not constitutionally permitted, act unconstitutionally when they interpret and apply the Constitution, and do so by applying binding precedent, as they interpret it? Yet, stripped of the bells and whistles, this seems to be the nub of the dissenter’s complaint against the majority.

The dissenters accept that Constitutional Court orders cannot be challenged before the court “on the basis that they were wrong in law or fact” because the Constitutional Court “cannot sit on appeal against its own orders”. This should have been the end of the matter. The dissenters nevertheless proceed to argue at length that the original order should be overturned, not because the rescission application meets the requirements of rescission in terms of rule 42 of the Uniform Rules of Court, but rather because the minority believes that implementing the binding order of the majority in the original decision “would result in significant or manifest injustice”.

No wonder, then, that Justice Khampepe complained in exasperation in the majority judgment that Justice Jafta had “misconstrued the case before us and is inadvertently permitting an appeal of this Court’s thorough and reasoned decision on the law of contempt”. The dissenters deny this, but this denial is not plausible, as the following explanation by Jafta himself must make clear: 

“The purpose of this inquiry is not to determine whether that decision [of the majority in the original judgment] was right or wrong. The objective is a narrow one. It is whether the detention ordered is vitiated by non-compliance with the relevant provisions of the Bill of Rights. Put differently, the question is whether the impugned order gives rise to an injustice… The fact that this issue might have arisen in an appeal as well does not alter the nature of the inquiry. It remains a reconsideration of the impugned order with a view to setting it aside if it is inconsistent with the Constitution.”

In the original judgment, the majority held – after extensive discussion – that the order did comply with the relevant provisions of the Bill of Rights. This means the question of whether the original judgment was wrong, and the question of whether the order complied with the relevant provisions of the Bill of Rights, is the same question. Pretending otherwise is no good. Here the dissenters are drawing a distinction without a difference. The snake has started swallowing its own tail.

The dissenters tried to justify their “sophistry” by accusing the majority of acting unconstitutionally. But in terms of section 167(3) of the Constitution, the Constitutional Court is the highest court in the land and thus the final arbiter on the interpretation and application of the Bill of Rights. The reasoned and carefully considered judgments by the Constitutional Court are therefore final and binding. (Whether you believe the court got it wrong or that the outcome was unjust does not change the finality of the binding nature of the decision.) If it was otherwise, any litigant on the losing side of a matter before the Constitutional Court would be able to appeal to that same court (but call it a rescission application) on the basis that the majority got it wrong and that the dissenting decision should prevail.)

The dissenters faced another problem: that the majority followed the existing binding precedent of our courts and applied this precedent in the Zuma case. (Whether they applied the precedent correctly goes to the question of whether the decision was wrong, not to the question of rescission.) The way the dissenters tried to deal with this, was by arguing that the existing precedent allowing a contemnor to be found guilty and imprisoned for contempt of court in motion proceedings should be overturned. 

This precedent was first established in the SCA judgment in Fakie NO v CCII Systems (Pty) Ltd, where the court held that a person could be found guilty of contempt of court in motion proceedings and punished, provided that the person was afforded substantially similar protections as an accused person in a criminal trial, but adopted for motion proceedings. The dissenters thus argued in the most recent case that Fakie was wrongly decided and that it should be overruled (something that would be possible in an appeal, but not in any rescission application known to our law) as Fakie was “inconsistent with the principle of supremacy of the Constitution”. 

But the problem is not only Fakie, as Fakie was endorsed by the Constitutional Court in both Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) and in Matjhabeng Local Municipality v Eskom Holdings Limited. In the latter judgment, the Constitutional Court explicitly endorsed the use of motion proceedings in contempt of court cases. This is the odd thing about the dissent: while the majority invoked these cases establishing binding precedent in the original judgment, the dissent now argues that the majority acted “unconstitutionally” when it did so. 

The dissenting opinion also suffers from another worrying defect: that it quotes selectively from some of the judgments, in a manner that misrepresents what the judgments said. One example is the manner in which the dissenters dealt with the Constitutional Court judgment in S v Mamabolo. This case dealt with the conviction of Mr Mamabolo for the crime of contempt known as “scandalising the court” in motion proceedings. As the dissenters explain:

“The Court [in Mamabolo] held that it was inappropriate for a court of law, ‘the constitutionally designated primary protector of personal rights and freedoms’, to apply the summary [motion] procedure that was ‘a wholly unjustifiable limitation of individual rights’. And the Court concluded that justice would have been better served if the matter was reported to the Director of Public Prosecutions instead.”

But this is, at best, a misleading statement as it leaves out the part of the sentence from Mamabolo quoted above that provides for an exception to this rule, an exception that fits remarkably well into the fact pattern in the Zuma matter. What the Constitutional Court actually wrote in Mamabolo was the following: “The summary contempt procedure employed in the present case is, save in exceptional circumstances such as those in Chinamasa’s case where ordinary prosecution at the instance of the prosecuting authority is impossible or highly undesirable, a wholly unjustifiable limitation of individual rights.” 

The dissenters left out the qualifying statement (which I highlighted above), perhaps because the Chinamasa case also dealt with a powerful politician launching a scandalous attack on the courts which required speedy action to protect the integrity of the court and thus allowed for summary contempt proceedings like the kind approved by the majority in the Zuma matter. The dissenters thus selected the passages from Mamabolo supporting its view on the merits, and omitted that part of the passage that completely changes its meaning. 

The snake had now completely swallowed itself. DM