On 12 July 2021, the Constitutional Court will hear an urgent application for an order setting aside the term of imprisonment of 15 months it ordered Jacob Zuma, former president of SA, to serve for his contempt of its order that he present himself to the State Capture Commission to answer its questions concerning his widely and serially alleged involvement in the affairs it is investigating.
Zuma has now resorted to invoking the rules of court that provide for the setting aside of orders granted in error. He is entitled to do so. His prospects of demonstrating any relevant or discernible error seem slim on any careful reading of the papers he has filed in the proceedings.
Quite rightly, the courts need to hold him to account for his refusal to testify before Justice Raymond Zondo at the commission and for his contemptuous approach to the order that he do so. His founding affidavit is a worrisome collection of finger-pointing allegations, bereft of contrition, apology or regret on the part of Zuma.
He blames Justice Zondo for not recusing himself, despite the absence of grounds justifying recusal and the lateness of the recusal application, given that the appointment of Zondo was effected years ago to Zuma’s knowledge and without demur by him. He accuses his legal team of giving him bad advice, without saying why he accepted the palpably poor counsel. He is careful not to reveal what the bad advice was when doing so might further harm his case.
In a worrisome fashion, he admonishes the court to “dig from the depth of its judicial being, to extract the requisite calmness and restraint, and to adjudicate my application solely based on its legal merits”.
These words reveal a remarkable display of unbounded arrogance, a lack of respect and show, for all the world to see, that Zuma is a complete stranger to constitutionalism in general and the role of the courts in SA’s governance structures in particular. His words reveal that his sense of entitlement is huge, his willingness to be a professional victim is unlimited, and that he is totally unapologetic.
Zuma’s founding affidavit shows that he is largely the author of his own misfortune because he has made wrong choices, accepted bad advice and behaved with the deviance of a delinquent teenager whose immature and unjustifiable wail “it’s not fair” echoes through the papers he has filed in support of his ill-conceived application.
Civil imprisonment for contempt of court, Zuma’s current fate, is not novel in SA law. The basic textbook, The Law of South Africa (Lawsa), Volume 5 paragraph 69, sets out the law succinctly:
“Although civil imprisonment has been abolished [in 1977], the court’s power to order committal for contempt has not been affected… The procedure is reasonable and justifiable in terms of the Bill of Rights.
“Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court other than a money judgment…
“Where the respondent displayed an unacceptable degree of arrogance and perceived inviolability of its executive officers and a disregard for the rule of law, the penalty had to be commensurate with the degree of the contempt, the intention with which it was committed and the interests affected and had to act as a deterrent and be punitive. [The Uncedo Taxi Service Association case].”
An overview of the uncontrite affidavit supporting the application reveals very little evidence displacing the findings that Zuma was both wilful and mala fide in his refusal to give evidence and in the way in which he conducted himself in the subsequent contempt proceedings.
The reliance upon the fate of Zuma’s misconceived recusal application of November 2020, which was correctly and justifiably refused by Justice Zondo, is misplaced. Not only was there no proper basis for it, the need to recuse has fallen away because the commission no longer requires the evidence of Zuma. It seeks only that he be punished for his contempt of the order of the highest court in the land requiring him to give evidence. His failure to seek an interim interdict preventing the commission from hearing his evidence is fatal to his bona fides. He says he was advised not to seek the necessary interdict. He does not, as he should have done, say why he was so advised.
Cynical observers may claim that it is plain that the interdict was not sought because its prospects of being granted were, and always have been, extremely slim. Notwithstanding these considerations, Zuma continues to seek to rely on his review application which is now moot as the commission has decided to dispense with his evidence. The committal for contempt sought by the commission is purely punitive and it is necessary to protect the authority of the courts. It is the dignity and efficacy of our highest court that is affected by Zuma’s contempt of its order. As Lawsa puts it in the same paragraph quoted from above:
“All orders of court, whether correctly or incorrectly granted, have to be obeyed until set aside. Since it is vital to the administration of justice that those affected by the court orders obey them, disregard cannot be tolerated and contempt applications are by their nature urgent.”
The Constitution itself values the need to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. As a former head of state Zuma should know, respect and uphold these requirements. Instead, he belatedly pleads poverty, ill-health and poor legal advice as the causes of his being in contempt.
These factors did not lead to the contempt order being granted in error, certainly not the type of error that justifies the invocation of Rule 42. It was entirely Zuma’s own fault that the order was granted in his absence. One searches in vain to find any error in the order that would enable it, or any part of it, to be properly set aside by the proceedings now pending before the Constitutional Court.
It will be interesting to see whether the commission, which asked for 24 months and received 15 months in jail for Zuma, construes the tenor of his founding affidavit as aggravation of his contempt. A proper conspectus of what Zuma relies on suggests that there are certainly grounds for doing so. Casting himself on the mercy of the court without showing any contrition for his actions, his poor choices and his inappropriate public responses is aggravating. So is the attempt to hide behind the skirts of those in the Jacob Zuma Foundation whose scurrilous response to the proceedings is already a matter of public record and stands uncontradicted by Zuma.
His generally unapologetic stance is hardly going to endear him to the court being asked to condone his errors in order to spare him incarceration. If the court finds that Zuma is indeed guilty of aggravating the contempt, it is at large to increase his sentence. As less than four months of the sentence will be served should section 73(6)(aA) of the Correctional Services Act be invoked, the hearing may well be the occasion for revisiting the punishment meted out last month. Whether the act applies at all to civil imprisonment for contempt of court is an open question, the answer to which will or could determine the duration of Zuma’s stay in prison.
There are also good grounds for arguing that the rescission application is a political stunt rather than a seriously intended legal challenge. Zuma makes no bones about his continuing attachment to his earlier criticisms of the court and the commission nor does he disguise his dread of the prospect of presenting his application in court. Much of the material placed before the court by Zuma is for public consumption rather than of any assistance to the court in determining the application. It could properly be struck out as irrelevant, vexatious or even “odious political posturing”.
It may be that the commission will elect to ask for a punitive costs award again. It was awarded punitive costs in the contempt proceedings. It is even conceivable that those advising Zuma will be put on notice that punitive costs will be sought against them personally for encouraging ill-advised litigation and for settling papers with so much irrelevant, inflammatory and scurrilous content.
Whatever emerges from the hearing scheduled for 12 July, it will be of importance for the rule of law and the exacting of accountability in our still fragile and fairly new constitutional dispensation. The independence and impartiality of the highest court in the land is being challenged by Zuma. May it be equal to the occasion. DM