Tuesday, 29 June 2021, was an astonishing day for South Africa and a defining moment for the Constitutional Court as the highest court in the land. 

Up to the point of Tuesday’s judgment against former president Jacob Zuma, the court in my view had failed to resolve a very important question in law with regard to the need for contempt proceedings in protecting the administration of justice, and also failed to live up to its constitutional obligations as the uppermost protector of the Constitution and the rule of law.

I previously asked the question: “Does the Constitutional Court have the fortitude to defend the rule of law and the judiciary?” Finally, the Constitutional Court showed the courage to rule on a politically sensitive case involving the former president in a matter that has been dragging on for three months, ever since the bench heard the urgent application by the State Capture Commission to hold Zuma in contempt of court and to send him to prison for two years.

Notable is that the judgment starts with a quote from former president Nelson Mandela at the inauguration of the Constitutional Court on 14 February 1995, when he said: “We expect you to stand on guard not only against direct assault on the principles of the Constitution but against insidious corrosion.”

Mandela’s words were a clarion call to judges of the court to protect the rule of law as a duty. And it is the same duty that acting chief justice Sisi Khampepe spoke of when delivering the majority judgment in Zuma’s case: “My duty, as I pen this judgment, is cloaked in the duty and loyalty that I owe to our Constitution and the rule of law that undergirds it. I find myself left with no option but to commit Mr Zuma to imprisonment in the hope that doing so sends an unequivocal message: in this, our constitutional dispensation, the rule of law and the administration of justice prevails.”

The court, through Khampepe, was scathing about the conduct of Zuma, referring to his various statements claiming that the Zondo Commission and the Constitutional Court were politically motivated and biased against him.

In delivering the majority judgment, Khampepe noted the precarious position the Constitutional Court found itself in, in having to deal with Zuma’s defiance. Most importantly, though not having said so explicitly, the case against Zuma created a soft constitutional crisis because it involved constitutional issues. The court decried the disdain and disrespect shown by Zuma towards the apex court.

The court ruled it was clear that Zuma was in contempt, something Daily Maverick labelled a “thunderous indictment of former president Jacob Zuma’s contempt of court on behalf of a Constitutional Court majority”.

Contempt of court is an offence against the administration of justice, like any other criminal offence. When it comes to applicable penalties and sentencing for contempt of court, the processes to be followed by the Constitutional Court should not be dissimilar to the traditional judicial practices of the courts concerning matters such as purposes of punishment, aggravating and mitigating circumstances.

Without regurgitating what Justice Khampepe said, the judge was at pains to explain and put into context the shame Zuma had brought to the integrity and legitimacy of the judiciary and the Constitutional Court in particular.

“Scurrilous attacks on the judiciary cannot be answered with impunity,” said Khampepe, as she slammed Zuma’s illogical, “casual” attacks on the judiciary. According to Khampepe, a coercive order such as a conditional suspended sentence “would likely be a brutum fulmen (an empty threat) and, for that reason, inappropriate”.

On matters such as the respect of the administration of justice and equality of justice dispensed by courts, everyone realistically expected some form of sanction against Zuma. To imagine any other outcome, one would have to suppose that our judiciary was captured and that the courts were acutely deprived of the character to act impartially and independently, without betraying the Constitution’s promise of equality before the law.

But most importantly, one would have to agree with a comment that South Africa was becoming a Mafia state when it came to respect of the law and judicial institutions.

I had expected the Constitutional Court to issue a suspended sentence, thus paving the way for the Zondo Commission to call Zuma back to testify, especially after the Gauteng High Court extended the lifespan of the commission to 30 September. 

My expectation was partly based on what happens in other jurisdictions, including what happened in February this year when former French president Nicolas Sarkozy was convicted of corruption and handed a three-year prison sentence. However, two years were suspended, which means it is unlikely Sarkozy will physically go to prison.

In the case of Zuma, the court saw it differently. Khampepe did not see any chance of Zuma dragging himself back to the commission. The court was convinced that Zuma would never respect any order to present himself before the commission, given his reputation as the most recalcitrant of individuals. 

“The Constitutional Court cannot be so naive… Mr Zuma has repeatedly reiterated that he will rather go to prison than work with the commission. It defies logic that another chance would have any effect other than to prolong defiance and signal impunity,” Khampepe said.

The effect of the judgment demonstrates that nobody is above the law and that the judicial process is still effective. “Orders of court bind all to whom it applies,” said the court. 

Some pushback from Zuma’s supporters is expected. 

The court has directed that Zuma report to the Nkandla or Johannesburg central police stations within five days for the station commander to ensure that he is committed to a correctional facility, with a directive to the minister of police and the national commissioner of police to ensure this happens within three days if Zuma fails to report to begin his sentence.

An interesting fact that may be lost among the hype is the fact that the judgment was not unanimous, and that the dissent or minority judgment might have favoured Zuma, at least in terms of sentencing, had it been the majority judgment. The two-judge minority would have hoped for an order for non-coercive committal.

Judge Leona Theron, with Judge Chris Jafta concurring, gave a dissenting judgment. Interestingly, Theron started her judgment by quoting Holmes J of the Supreme Court of the US in the 1904 case of Northern Securities Company v United, who stated that: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

The footnote in the judgment is the observation that “by great cases, Holmes J referred to those cases that come before the United States Supreme Court from time to time and capture the attention of the public, placing the Court in the vortex of a current public controversy”. These cases are similar to that of Zuma’s. The fact that the Constitutional Court was not unanimous in its decision has the potential to stir up something of a hornet’s nest.

I believe history will absolve me. I know I have dedicated my life to the cause of advancing the interests of my people. I will serve the term of imprisonment imposed by the Constitutional Court [judgment was reserved in the case so this outcome is yet to be determined by the apex court] that has already become the focal point of the Defend our Democracy campaign.

Theron, justifiably so, used the remarks by the acting chief justice in part to justify the dissenting judgment: “The main judgment acknowledges that ‘it is indeed the accepted practice in contempt matters to seek compliance, using punishment as a means of coercing same’ and my Sister Khampepe admits that she has ‘yet to come across a case in which a solely punitive order of immediate committal has been made, or where punishment is not calculated to coerce the recalcitrant to comply with the initial order’,” said Theron.

The fact that the dissenting judgment was not in favour of a wholly punitive sentence is now being used as the basis for an argument that the majority judgment is itself unconstitutional. 

Soon after the judgment was delivered, the spokesperson of the Jacob Zuma Foundation, Mzwanele Manyi, slammed the ruling as unconstitutional, leaning heavily on the minority judgment by Theron and Jafta.

The minority decision is the perfect gift for spin doctors. 

It is obvious that Manyi is referring to the part in Theron’s dissenting judgment where she stated that: “The main judgment, by its own admission, has pushed the bounds of our law of contempt in order to meet these exceptional circumstances. The danger of this approach is foreshadowed in the well-known aphorism quoted at the outset of this judgment. 

“It has led to the creation of bad law. As I demonstrate, the law is not just bad; it is unconstitutional.”

Theron’s judgment will be a thorn in the side of the majority judgment on one hand, and also considered an easier way out of the controversy by the dissenting judges on the other. In particular, because it makes the argument that Zuma’s rights can never be waived even if he decides to waive them by not participating in the court proceedings.

The fact that Theron and Jafta ruled that the majority judgment is unconstitutional makes a very interesting read for constitutional law scholars.

But one must not forget that the judgment is exactly what Zuma called for. 

Zuma has clearly made it known that he is ready to be imprisoned: “I believe history will absolve me. I know I have dedicated my life to the cause of advancing the interests of my people. I will serve the term of imprisonment imposed by the Constitutional Court [judgment was reserved in the case so this outcome is yet to be determined by the apex court] that has already become the focal point of the Defend our Democracy campaign. 

“This campaign is dangerous to our democracy and when its true fruits are seen in time, I will be vindicated,” Zuma once said in a statement.

Before we get too excited about today’s ruling and its impact with regard to the respect of the rule of law, I write with reluctance to applaud the Constitutional Court. The court must not be given a free pass because it finally came up with a judgment, and it must be reminded that it failed to expeditiously address the matter, and that it has in the process created an unsustainable precedent of inviting an accused person to decide his penalty and sentence.

This is the court that failed to be attentive to legal and public opinion with regard to its strange decision to afford Zuma a pre-judgment and pre-sentencing opportunity to influence its decisions. Also, it failed to appreciate the extent to which its decision will impact the trajectory of its positive decision-making.

If you recall, on 9 April 2021, chief justice Mogoeng Mogoeng issued an instruction to Zuma to “file an affidavit of no longer than 15 pages” in which he must indicate in detail “what constitutes the appropriate sanction” if he is “found to be guilty of the alleged contempt of court”. The former president defied the directive and instead alleged that he has been persecuted in the same way the apartheid government persecuted PAC leader Robert Sobukwe.

The indecision by the highest court in the land may prove to be costly in the long term. The book by Matthew P Hit, titled Inconsistency and Indecision in the United States Supreme Court, explains exactly what I regard as the poor performance of the Constitutional Court with regard to the Zuma contempt of court saga. 

The existence of a democratic state governed by the rule of law presupposes as essential that the decisions of the Constitutional Court are accepted and respected voluntarily. Respect of the court is central to its legitimacy.

In this case, the Constitutional Court is responsible for any respect lost when it failed to uphold its dignity and authority as the highest court in the land, and expected Zuma to help it enforce its authority by suggesting to the court how it should rule against him.

The relative merits of the grounds upon which both the main and dissenting judgments were made will surely give us something to chew on, as we wait to see if Zuma complies with the ruling. DM