Opinionista Omphemetse S Sibanda 9 February 2021

Jacob Zuma has an uphill battle ahead if he wants to defy the Zondo Commission

Anyone who wants to continue the argument that the Constitutional Court committed a cardinal sin by refusing Jacob Zuma his right to assert his silence in the non-criminal proceedings of the Zondo Commission, please note that this is a legal mountain to climb.

The mystery of the Zuma and Malema Nkandla tea party on Friday 5 February 2021 and the secrecy around what they actually discussed is one of the biggest talking points around. Everyone who was at the tea party is silent about what really happened or was discussed, and speculation abounds in the media over the party with some concern about the implications of the Zuma fightback strategy.

And others indicate that Julius Malema was to there to convince the former president to cooperate with the Zondo Commission and use the platform to expose Deputy Justice Raymond Zondo’s alleged bias towards Jacob Zuma. What we know is that the tea like any other tea was hot and nice.

One curious report is a statement attributed to Bonginkosi Khanyile, a #FeesMustFall activist, that Zuma remained resolute. With the reported resoluteness of the former president and the general storm in a teacup over his declared defiance of the Constitutional Court, it is not surprising that the South African Council of Churches is reportedly worried and concerned about what the ramifications of all these can be for our fragile democracy.

“We are deeply concerned about where this might go and the possible dent in our national reconciliation journey, as well as respect for the law. Mr Zuma is an immediate past head of state and government, as well as the immediate past leader of the governing party”, said the statement.

Talking about silence: Mr Zuma’s right to silence remains one of the contentious issues and is part of the basis of his gripe with the Constitutional Court. Politics of tea in Nkandla aside, as a legal scholar I found it apposite to deal with the following questions being posed all over the Zuma vs Zondo vs Constitutional Court discourse: What is the right to remain silent and the right against self-incrimination? Is the law clear and absolute that Mr Zuma cannot claim to exercise the right to silence at the Zondo Commission, because the commission is not a criminal trial? Could the Constitutional Court have derogated from the confines of traditional criminal evidential practices to achieve a certain level of procedural and substantive fairness justice for Zuma, and avoid him plunging the country into a constitutional crisis?

Before I answer the above questions, I would also like to pose a further question myself: is the nub of those making noise that the Constitutional Court has been unfair on Zuma’s contention that the court erred in its interpretation and application of the right to silence contained in Section 35 of the Constitution? And what is our understanding of the right to remain silent and the right against self-incrimination?

Back to the questions, in particular on the right to remain silent as guaranteed in Section 35 of the Constitution of 1996: “The right to remain silent has application at different stages of a criminal prosecution. An arrested person is entitled to remain silent and may not be compelled to make any confession or admission that could be used in evidence against that person. […]. The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence,” said Justice Pius Langa in the 2000 ruling of Allan Boesak v The State.  

By necessary implication, this right applies only to criminal proceedings. The issue, therefore, hinges on whether the proceedings at the Zondo Commission are “criminal proceedings” or “semi-criminal proceedings” or are in essence “criminal cases”.

Section 39(1)(c) of the Constitution states that: “When interpreting the Bill of Rights, a court, tribunal or forum may consider foreign law.”

The foreign law that comes to mind as helpful in answering the question is US law and jurisprudence. The question of whether the application of Section 35 should extend to non-criminal proceedings, which was conclusively answered by the Constitutional Court, was at a point also crippled with respect to the Fifth Amendment of the American Constitution.

The US Supreme Court in the case of MacCarthy v Arnstein, decided on 20 October 1924, ruled: “The constitutional privilege against self-incrimination applies to civil proceedings” [at p 266]. In this case, the Supreme Court stated that such a right can even be asserted in administrative bankruptcy cases. The US Supreme Court dismissed the government’s argument “that broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding” and that “the contrary must be accepted as settled”.

If Secretary-general of the ANC Ace Magashule’s comments on changing the Constitution are anything to consider, then it is written all over the wall of Constitutional Hill that our Constitution and the Bill of Rights may be changed should the famed progressive forces of the ANC have their way.

To this end, the court held that “the privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it…” [at p 266].

In 1997, the United States 11th Circuit Court put things in perspective in United States v Gecas by stating that the threat of future prosecution must actually be “reasonable, real, and appreciable” for a person in civil proceedings or non-criminal proceedings to be justified in asserting their Fifth Amendment rights. The court referred to the 1972 Supreme Court ruling in Kastigar v United States, in which Mr Justice J Powell, delivering the court opinion, stated that the privilege against self-incrimination “reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used” [at p 445].

Thus, on the strength of this jurisprudence you do not need to provide answers to any inquiry that can be a smoking gun for the law enforcement agencies or the police to use as evidence to investigate and/or incriminate you.

On a precautionary note: even if one was to use the above US Supreme Court rulings as authority to build a case against the rationality of the decision of the Constitutional Court, and for the defence of the position taken by Mr Zuma against the judgment of the Constitutional Court, it would not mean that he can bluntly refuse to provide answers at the Zondo commission. Nor can any other witness for that matter.

Before anyone gets excited about using the reason and logic of cases cited in this opinion, please note that simply claiming that your right to silence and not to incriminate yourself has been violated or denied and that you fear future prosecution just to avoid providing information at the commission, is not enough. Furthermore, the South African Constitution in Section 39(1)(c) is clear that foreign jurisdiction does not have authority over South Africa and does not set precedence for South African courts, but can only mutatis mutandis (Latin for with the necessary qualification) be of influential value to our law.

Anyone who wants to continue the argument that the Constitutional Court committed a cardinal sin by refusing Mr Zuma his right to assert his silence in the non-criminal proceedings of the Zondo Commission, please note that this is a legal mountain to climb.

Further, if you are thinking of using the rulings of the US Supreme Court cases of MacCarthy v Arnstein and Kastigar v United States as an influential authority, take note that it is not as easily done as two political heavyweights from two opposing political parties arranging to have tea on a Friday afternoon.

First of all, one should start adopting the habit of going to court to defend his or her case or to state his or her side of the story. It is a self-inflicted wound that Zuma and his lawyers administered and they missed a perfect opportunity to convince the Constitutional Court otherwise.

Fortunately, unlike a British individual named “Freeborn John” Lilburne who in 1637 was determined not to answer any self-incriminating questions and refused to take an oath in court to tell the truth, Mr Zuma will not be “whipped and pilloried”. As reported in a 1972 article by Richard McMahon, Lilburne “refused to take an oath to answer all questions truthfully because such an oath meant that he could not refuse to answer any question, no matter how broad or incriminating” [at p 317].

Unfortunately, the South African legal system will take a beating and the country’s constitutional framework will be forever on shaky grounds. The story goes that Lilburne was relentless in his quest to be accorded the right to remain silent, and successfully filed a petition to parliament that resulted in parliament establishing his right to remain silent.

If Secretary-general of the ANC Ace Magashule’s comments on changing the Constitution are anything to consider, then it is written all over the wall of Constitutional Hill that our Constitution and the Bill of Rights may be changed should the famed progressive forces of the ANC have their way. We may be in for a surprise with some in Parliament arguing that Section 35 of the Constitution must be amended or broadened to apply to non-criminal legal proceedings. DM

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