“Butchering the judicial process”, “trying to play the absent victim”, “litigious skulduggery”, “unprecedented state of affairs” and “fruit of the poisoned tree” are some of the references made in the Zuma rescission of judgment application to the Constitutional Court.

Once again, the Constitutional Court ruling in the Zuma rescission case handed down on Friday, 17 September 2021, came with ballyhoo and controversy.

My big takeaway from the judgment was that Justice Sisi Khampepe, in announcing the majority judgment, marked a final confirmation that the court is not to be moved from its initial decision. The apex court sought to stamp its authority as the uppermost court in the land and to rescue its respect and integrity back from perceived falling into oblivion.

Justice Khampepe’s opinion also does something remarkable: shifting a lot of the spotlight away from arguments that the court has acted unconstitutionally and that it is on its high horse of judicial dictatorship, to improper use of court processes and the right to access to justice and vexatious litigation.

By now, it is quite clear that the only possible inference that can be drawn from Zuma’s conduct in these proceedings is that this application constitutes “an effort to backtrack on a failed, but deliberate, litigious strategy”, noted the majority judgment. Clearly, the absence of Zuma at the previous court sitting did not make the hearts of the majority justices grow fonder of him. “Elected absence like that of Mr Zuma constitutes litigious skulduggery, which does not have the effect of turning a competently granted order into one erroneously granted,” noted the court.

The Merriam-Webster Dictionary defines skulduggery as “underhanded or unscrupulous behaviour” or “a devious device or trick”.  The majority judgment, in essence, accuses Zuma of vexatious and frivolous litigation, because the legal action was never likely to lead to any practical result.

The majority judgment has been described by Zuma as a “judicial dictatorship”. The judicial dictatorship claim was made by Zuma previously and reported on several platforms including Daily Maverick and News24, with the former president arguing for resistance against the alleged dictatorship.  

This is an important allegation that should interest students, professionals in law, political scientists, and those interested in not seeing the sins of apartheid visited upon anybody – including Zuma. The judicial dictatorship, or the use, abuse or instrumentalisation of the judicial, constitutional, courts’ power and the entire machinery of the judiciary for political and geopolitical purposes, remains a preoccupation not dissipating anytime soon in South Africa.

It would seem that the fight is far from over because it has been reported that Zuma has instructed his lawyers to petition the African Court on Human and Peoples’ Rights (the African Court), alleging he was being  subjected to a trial in absentia. In this regard, and if true, the Zuma camp is surely emboldened once more by the minority judgment of Justices Chris Jafta and Leona Theron.

Jafta and Theron were not shaken from their position that the initial judgment was unconstitutional. They are of the view that the punishment was harsh and inconsistent with section 12(1)(b) of the Constitution: “There can be no doubt that Mr Zuma’s disobedience of this Court’s order deserves to be dealt with firmly and that it calls for an appropriate punishment that may include imprisonment. But the egregiousness of his conduct cannot, as the majority held, justify a departure from ‘ordinary procedures’ and be an endorsement of a procedure that is inconsistent with section 12(1)(b) of the Constitution,” held Jafta [par:237].

Notable and relevant in light of reports of Zuma having instructed his lawyers to approach the African Court is the minority judgment by Jafta that advised the next possible recourse for relief for Zuma: “However, here since no appeal lies against a decision of this Court if the order of 29 June 2021 is not set aside, Mr Zuma would be entitled to approach the Committee on a claim that articles 9 and 14 of the ICCPR have been violated,” said Jafta [par:245]. 

Jafta’s decision, in my view, was a perfect gift and unsolicited or unwitting legal advice to Zuma to the effect that if you are not happy with the majority decision, then approach the African Court because someone in Sri Lanka, convicted of contempt of court like you are, has been successful in that forum.

It would seem that this will be bogged down and headed to the continental court as an appeal. Obviously, this round of litigation will involve the assertion that the South African Constitutional Court judgment and imprisonment violated his rights under the African Charter on Human and Peoples’ Rights (the African Charter).

This will not be the first case to be seized by the court. A typical example is the 20 November 2015 case of Alex Thomas v Tanzania, in which the complaint sought the assistance of the African Court to overturn a mandatory minimum 30-year prison sentence for armed robbery, alleging among other things that the Tanzanian courts had violated his due process rights by trying him in absentia. 

In this the African Court ruled in favour of Thomas, holding that Tanzania had violated his right to a fair trial, particularly his rights that included among others the right to be tried within a reasonable time by an impartial court, and the right to an appeal, as required under Article 7 of the African Charter.

Relevant to the argument we have heard in the Zuma case, and which found support from the minority judgment, is that the court also found the denial of due process to violate Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR).

I am not insinuating that the Zuma lawyers are guilty of the archaic crime of barratry or vexatious litigation. However, any honest and apolitical legal analyst must ask the question of whether or not they ever believed that the defence strategy was sound and sustainable, including the possible approach to the African Court.

In another case (African Commission v Libya, application 002/2013, para. 96), the African Court found that the domestic prosecution of Saif Gaddafi, in which the hearings were either conducted in his absence or through video link, violated the right to a fair trial under article 7 of the African Charter.

One must, however, remember that the cardinal rule of litigation or court action is that each case must be considered on its own merits. In the Thomas case, for example, the complainant alleged that he was admitted to the hospital for eight months for an asthmatic condition and pulmonary tuberculosis.

In my view, the African Court or commission will still entertain the question of whether Zuma did waive his rights to be tried in person in accordance with South African and international law. Further, decisions such as the 2000 International Criminal Tribunal for Rwanda case of Prosecutor v Barayagwiza, where it was held that in a case where an accused waived his right to attend his trial, “neither the Statute nor any human rights law prevents the case from proceeding in his absence”, are relevant.

How robustly and relentlessly can lawyers pursue their clients’ cases without falling foul of litigious skulduggery? The South African legal system permits persons to file civil actions to seek redress for injuries committed against them or injustices perpetrated by the legal system. 

But such a pursuit for justice must be done cautiously. Under the common law, the frequent incitement of lawsuits by an attorney constituted the crime of barratry. According to a 1964 article by Wayne Rhine, the antiquated common law offence of barratry was defined as frequently exciting and stirring up quarrels and suits either at law or otherwise.

I am not insinuating that the Zuma lawyers are guilty of the archaic crime of barratry or vexatious litigation. However, any honest and apolitical legal analyst must ask the question of whether or not they ever believed that the defence strategy was sound and sustainable, including the possible approach to the African Court. Is taking this fight to the African Court worth pursuing by the Zuma defence? Is the minority judgment forceful enough to persuade any trier of fact to rule otherwise? All things said and done, it would seem that the odds are against Zuma, even at the African Court.

Reactions to the judgment have been varied. Lawson Naidoo from the Council for the Advancement of the South African Constitution, speaking to Daily Maverick, branded the judgment as reaffirmation of the rule of  law. On the other hand, Mzwanele Manyi of the Jacob Zuma Foundation has described it as a “miscarriage of justice”. Was this a classic case of miscarriage of justice and judicial dictatorship by the justices of the Constitutional Court? Or instead unfortunate litigious skulduggery by the Zuma defence? 

Debates are still to continue whether this was a good judgment or not. Yet, nobody can with certainty determine that the judgment is not good just because of the language used by the judges. A lot of ink has been spilled in the effort to understand what a good judgment consists of and what language is considered appropriate to use in a judgment. Obviously, it would be unethical for judges to use insulting words or profanity against accused persons.

Generally, gratuitous use of bad language in courts and in writing judgments is never justified. But there are words such as recalcitrant witness that are tools of the trade. Let us wait and see how the African Court will deal with this hot potato from the South African soil. DM