The initial optimism about the South African Constitution as one of the most exemplary and best in the world concerning the protection of rights and freedoms, and the Constitutional Court as the ultimate enforcer of the rule of law and the interpretation and protection of our rights and freedoms, seem to be fading with time.

The Constitutional Court judgment, in the case of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18 sought to remind us that courts are established as the last line of defence for the South African constitutional order and the rule of law and to help the country ward off the threat from new authoritarians. 

Justice Leona Theron, in her dissenting judgment with the judgment of the majority penned by the then acting Chief Justice Sisi Khampepe, referred to it as bad and unconstitutional because the judgment “has pushed the bounds of our law of contempt in order to meet these exceptional circumstances” [at par:191]. The unequivocal message by the majority judgment that the Constitution is sacrosanct and that the rule of law must be respected has not gone down well, obviously, with Zuma.

As a disclaimer, it must be noted that I do not take a position here on the correct outcome in the Zuma case. I do, however, hold a view that the majority judgment was convincingly well reasoned in light of the facts of the case compared with the minority judgment, though I have described the dissenting decision as the perfect gift for spin doctors. So important to the Zuma defence is the Theron dissenting judgment that even his supporters, sympathisers and ordinary citizens refer to it as they gather at Nkandla in a show of unwavering support, some pledging even to die for the former president before he can be arrested if their disregard of the Covid-19 pandemic threat has not killed them by then.

More worrisome is the threat of violence by Umkhonto weSizwe Military Veterans Association (MKMVA) spokesperson, Carl Niehaus, in his briefing to the media at the Nkandla homestead on Friday, and the ominous warning to the ANC national leadership that there would be “dire” consequences should Zuma be imprisoned.

“Our country would be torn apart. There will be instability and unrest,” said Niehaus. Are we facing a possibility of another Marikana bloodbath? One cannot ignore the possibility of another Marikana moment considering that some of the protesters at Nkandla brandished firearms and knobkerries. Or are we facing the possibility of a coup against the current ANC government should law enforcement agencies align themselves to the MKMVA position? Nobody wishes any of such happening because we will all be losers.

We are entering another week of uncertainty and being on tenterhooks as a country after the Constitutional Court agreed to hear Zuma’s application for a rescission of its contempt judgment and sentencing against him in terms of Rule 42 of the Uniform Rules of the Court. Rule 42 makes provision for instances in which a court may reconsider its final decision. It will be interesting to hear how the cases on Rule 42 previously entertained by the Constitutional Court itself, such as Molaudzi v S 2015 (8) BCLR 904 (CC); Daniel v President of the Republic of South Africa and Another 2013 (11) BCLR 1241 (CC); and  Zondi v MEC, Traditional and Local Government Affairs, and Others 2006 (3) SA 1 (CC), will be used by the Zuma defence to secure rescission.

As a fiasco unfolds, with different public discourses ascribing responsibility or displacing blame, I wish I had more writing space to reflect on the content of the founding affidavit by Zuma pleading for the Constitutional Court to reconsider and withdraw its judgment against him last week. I can only outline broad issues, without delving into nuances.

A careful reading of the affidavit by Zuma indicates that he is appealing to humanity in the form of its “judicial being” and to the intelligence of the court, and also making a case that the majority judgment by Khampepe made a serious error on merits and in the process betrayed the Constitution and the Constitutional Court itself as an institution.

Further, that the Constitutional Court is dangerously overreaching under the guise of protecting constitutional values. Zuma, in essence, aligned himself to the minority judgment of Theron, and considers the majority judgment of Khampepe unconstitutional, irrational and pronounced by a court that lacked independence and impartiality. There is some kind of chastising language in Zuma’s affidavit, and although a bit toned down compared with his previous statements, public speeches and defiance of the Constitutional Court, is not surprising.

Notable contentions by Zuma, without in-depth discussion in this opinion, include: admitting in the alternative that he is guilty of the offence of contempt of court and that he needs to take advantage of the opportunity previously given to him by the court — which he scorned — to argue in mitigation of sentence [par.11]; and reminding the court that he is aware of the passionate disdain it holds against him for defying its orders [par:11].

More interesting is Zuma’s note that his freedom and “health challenges facing the country should all combine” in favour of the Constitutional Court hearing the application [par:14]. Reference to the country’s health challenges is curious, unless the statement was meant to mean health challenges facing Zuma as further in paragraph 16 of the affidavit he notes that incarceration threatens his health. Perhaps this is a sneak preview into the possibility of Zuma applying for medical parole or release from prison fearing that Covid-19 and overcrowding in prison pose serious health risks to him.

To this end, Zuma will be taking full advantage of what is permissible in terms of the Correctional Services Act should he not be paroled after serving a quarter of his sentence or get mercy from President Cyril Ramaphosa by authorising presidential parole or correctional supervision under section 82 of the Act.

Zuma makes it clear that his health will be key to his sentence mitigation statement. In his affidavit, he alerted the court that he suffers from ill health that will require him to be in and out of hospital to receive the appropriate medical attention. [Par:18]

It is interesting that as an icon of the freedom Struggle and a role player in the liberation of the country towards constitutional democracy steeped in the rule of law, Zuma declared that he is not proud of being the first prisoner of the Constitutional Court in post-apartheid South Africa [par:19]. Perhaps if he was given substantively proper counsel and defence he could have dragged himself to the Zondo Commission and the Constitutional Court, despite his disdain of the two.

Or perhaps this is just a belated change of heart about his respect for the administration of justice. So far one does not know what to believe in now. Zuma swears that he never vowed not to attend the commission, and instead levelled a serious allegation that the commission acted in bad faith in issuing summons when kept in notice of his inability to attend the commission [par:21].

The politicisation and out-of-context prominence given to the dissenting judgment by Theron has the potential and threat of transforming justice into a spectacle, and individualisation of justice. Come on South Africa! The rhetorical trick of conflating the majority judgment with politics, illegality and unconstitutionality is a dangerous shot in the dark.

It must be emphasised that there is nothing unusual about the sharp disagreements between the majority and the minority judgments in this case. Judges do not always agree and this should not be strange. Like lawyers and judges would say, what would be strange would be if judges agree on everything, for the law is not, like mathematics, an exact science — it is at best an analysis, a person’s opinion, a judgment.

Of course, one must acknowledge that we may have reached an impasse in the Zuma matter; and that expecting the Constitutional Court to jettison last week’s judgment because of the adverse reception of the judgment, without anything new to indicate that indeed the court was wrong, will further plunge the country into anarchy.

The Constitutional Court was essentially doing its job of protecting the rule of law like it did when it asserted its judicial oversight against Parliament in several of its cases. This has not prevented some experts, including legal experts in the form of academics and lawyers, to have taken opportunities to write commentaries to fuel and incite defiance of the judgment, planting fears that there is a third hand controlling the South African judiciary.

I am not a prophet of doom, but signs are that those who hold the firm view that the judiciary is politically biased against Zuma seem prepared to throw out of the window any respect for the judiciary left in their fibre. It has been a long and winding road to this cul de sac between Zuma and the courts, and there is no strong, unequivocal assurance from the ANC as the governing party that things will not deteriorate further.

It is unclear if the Constitutional Court agreeing to hear Zuma’s rescission application will be met with an acknowledgement of its authority, of respect for whatever its decision will be. So far, acting Chief Justice Raymond Zondo has been singled out by Niehaus as having gone out of his way to target Zuma.

“We see here that Mr Zondo is going out of his way to try and get the harshest sentence, to target him again. Those actions just confirm to us once again that he’s biased against president Zuma and that Zuma will not be able to get a fair hearing as long as it is chaired by Zondo,” said Niehaus. He also fired a warning shot that imprisonment of Zuma “will be entirely unacceptable to us” and that the arrest “will inevitably lead to upheaval and instability in South Africa and cause further divisions within the ANC”.

The possibility of an argument after the hearing and judgment that the judges who concurred with Khampepe in the majority judgment are a poisoned chalice and should not have sat on the bench or been allowed to pen the ruling should not be discounted.

Another likelihood could be the allegation that the Constitutional Court was never going to rule in favour of Zuma because its head and Zuma’s alleged chief tormentor, Zondo, is now the acting Chief Justice. The Constitutional Court is thus placed in a corner by political rhetoric to consider legally unprecedented and sometimes epistemologically unsound demands.

The Zuma defence sees value in the dissenting judgment, but it depends on what value they see. I would thus like to briefly talk about the value of dissenting judgments, dealt with extensively by David Vitale in one of the instructive writings of dissent titled: The Constitutional Adjudication: A Context-Specific Analysis. 

According to the late US Supreme Court Justice, Ruth Bader Ginsburg, the “dissenting judgment signals that, in the dissenters’ view, the Court’s opinion is not just wrong, but grievously misguided”. Another US Supreme Court justice, Antonin Scalia, once commented that “dissent judgments augment rather than diminish the prestige of the Court”.  

What is crucial in Scalia’s view is that “when history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting… to look back and realise that at least some of the Justices saw the danger clearly and gave voice, often eloquent voice, to their concern”.   

The external impact of a dissenting judgment is thus part of its value. 

Chief Justice Charles Hughes of the US Supreme Court in his 1936 book, The Supreme Court of the United States, famously remarked that dissent judgments are a last resort appeal to the intelligence of the future. In his remark, often quoted by scholars, Hughes said that “a dissent in a Court of last resort is an appeal… to the intelligence of a future day, when a later decision may correct the error into which the dissenting judge believes the court to have been betrayed”. 

The politicisation and out-of-context prominence given to the dissenting judgment by Theron has the potential and threat of transforming justice into a spectacle, and individualisation of justice. Come on South Africa! The rhetorical trick of conflating the majority judgment with politics, illegality and unconstitutionality is a dangerous shot in the dark.

In conclusion, I am indebted to Lise Rye, Tomasz Tadeusz Koncewicz and Cristina Fasone for the following quote from their 2019 project titled Ideas of democracy and the rule of law across time and space: Developments in the EU, Poland and Italy, which I bend and borrow to apply to the South African context as we look forward to this week:

“Rather the democratic backsliding must force political leaders and constitutional lawyers alike into asking uneasy questions: Is [South Africa] still a celebration of liberal democracy? Are the values still shared by all parties to the original bargain? Does the authority of law and respect for the law continue to bind [South Africans] together? Is the Court of Justice still considered one court for all the member states? To what extent is mutual trust the backbone of the legal system of [South Africa]?  [at p.60-61]” DM