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Legal finality in Zuma’s ConCourt case is crucial – must not compromise justice

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

It is imperative to ensure that any constraints on the right to appeal are reasonable and justifiable within the constitutional framework.

The Constitutional Court has reserved judgment on the Electoral Commission of SA’s (IEC’s) appeal concerning Jacob Zuma’s eligibility to run in the upcoming general elections under the uMkhonto Wesizwe Party (MKP) banner.

The case was not without drama. Particularly memorable was the tense moment between Justice Leona Theron and advocate Tembeka Ngcukaitobi, prompting Deputy Chief Justice Mandisa Maya to intervene, urging Ngcukaitobi to maintain a more composed demeanour befitting his position as a senior advocate and officer of the court. Advocates Ngcukaitobi SC and Dali Mpofu SC represented the IEC and Zuma/MKP, respectively, and made interesting presentations on behalf of their clients.

Let us get out of our way the fact that the court has rejected the request to remove some of the justices from the case. As I mentioned before the judgment, the request to remove them was always going to be tricky in the circumstances of the case and could have gone different ways.

One possibility I pointed out was that the court might decide not to remove them, allowing the case to proceed. This could happen based on a previous case such as the Sarfu II case, or the operation of the common-law principle of necessity, which says that judges have to hear cases brought before their court even if it is uncomfortable, or however disagreeable it may be. 

Public interest remains high as the Constitutional Court deliberates on the reserved judgment concerning section 47(1)(e) of the Constitution. The anticipation of the verdict, regardless of its outcome, is significant because of the potential implications it holds.

However, the extended period of waiting must not be unreasonable, as emphasised in concerns raised by the IEC. The IEC has already argued that delays in clarifying the interpretation and application of this section could jeopardise the credibility of the upcoming elections and undermine the integrity of the Constitution.

Ngcukaitobi put it bluntly when he said, “The country will therefore be sleepwalking into an unfree and unfair election, and the consequences will be grave for our own commitment to the rule of law and commitment to our own Constitution. It will create the impression that we don’t respect the rule of law and we are prepared to risk the legitimacy of our own electoral process.”

A crucial argument

Zuma’s participation, he added, “will poison the election and produce a disputed outcome”.

Ngcukaitobi made a crucial argument during the case, emphasising the importance of precedent regarding the “finality” of a matter brought directly to the Constitutional Court under section 167. It is widely acknowledged across various legal systems that adhering to prior decisions enhances the credibility of the judicial process and upholds the rule of law by promoting stability, consistency, and predictability in legal outcomes.

However, blindly following precedent is akin to promoting a tunnel-vision approach that limits our broader goal as a nation to evolve our Constitution and constitutional jurisprudence. Progress toward this goal should not be hindered by precedent when it does not serve the interests of justice.

In this case, Justice Theron highlighted that had the Constitution’s drafters anticipated that direct access would not override other provisions, they would have ensured that both were fully honoured when textual or implementation tensions arose. Our legal system demands a balanced approach, prioritising the fundamental right to a fair trial, which encompasses the right to appeal.

While achieving legal finality is crucial, it must not compromise justice. Hence, it is imperative to ensure that any constraints on the right to appeal are reasonable and justifiable within the constitutional framework.

In 1765, the English jurist William Blackstone argued that there is a common-law presumption that judges would “abide by former precedents, where the same points come again in litigation”. However, he cautioned that precedents cannot be unquestionably followed when “flatly absurd or unjust”.

Read more in Daily Maverick: 2024 elections

This sentiment resonates with Mpofu in his perception of the irrationality and unjustness of precedence related to direct access to the Constitutional Court, and the denial of the right to appeal against decisions by the court. Mpofu’s arguments about the fair trial rights denied to Zuma by the Constitutional Court in the contempt of court case were recently asserted by two researchers at the Helen Suzman Foundation, Christopher Fisher and Divashnee Naidoo.  

In their article Revisiting the Imprisonment of Jacob Gedleyihlekisa Zuma for Contempt of Court by the Constitutional Court, they contend that the majority of the Constitutional Court erred in its reasoning in the case. The authors argue that Zuma was owed fair trial rights — in particular, the section 35(3)(o) “right of appeal to, or review by, a higher court” — because the primary relief sought against him was direct imprisonment.

What we know is that there is no existing precedent regarding the interpretation and application of section 47 of the Constitution concerning candidates with presidential pardons or remitted sentences seeking election to the National Assembly.

This aspect adds intrigue to the anticipation of the reserved judgment by the Constitutional Court. I lean towards the likelihood of the apex court affirming the Electoral Court’s decision that Zuma is eligible for the National Assembly, albeit possibly with different reasoning.

However, this might also entail discarding its previous rulings suggesting that direct access eliminates the accused person’s right to appeal, and at the same time aligning section 167 with the guarantees in the Bill of Rights.

In conclusion, both the Electoral Court and the Constitutional Court need to expect to see their judgments critically analysed and sometimes trashed. As Sir Robert Megarry said in the English case of Erinford Properties Ltd v Cheshire County Council: “No human being is infallible, and for none are there more public and authoritative explanations of their errors than judges. Any decision can on sound reason be ‘upheld’, ‘confirmed’, ‘approved’, ‘reversed’, ‘distinguished’, ‘overruled’, and even ‘doubted’.”

The higher expectation is on the justices of the Constitutional Court to ensure that there remains public confidence in the legitimacy of the awaited decision, particularly in the event of a close decision or significantly split decision. DM

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  • Errol Price says:

    Unfortunately Judge Theron is guilty of a well-known fallacy of logic known as ” inverse reasoning ” and the writer for some reason fails to grapple with the issue at all.
    The problem is simply this : assuming Zuma is guilty of an offence for the purposes of the section and assuming the sentence remains at 15 months as matter of law- how can he be in a more advantageous position a situation where a sentence of a lower court is confirmed on appeal by the Constitutional Court compared to where the Constitutional Court imposes it as a court of first instance. A criminal could end up as a law-maker simply as a matter of luck.
    This would be a manifest absurdity and courts must , based on a wealth of authority interpret constitutions and statutes to avoid such absurdity

  • Denise Smit says:

    The writer writes for Dali Mpofu

  • David C says:

    It honetsly appears very simple to me: the drafters of the Constitution could not envisdage EVERY scenario that would play out, and it is apparent from the wording of the Constitution that they were expecting at least a modicum of ethics, morality and intelligence in Publicly-elected Officials in the future (they were probably projecting too much, in this case). It is clear, therefore, that the purpose of s47 was to prevent criminals from governing the country. The technical argument around a sentence with/without apeal is nothing more than Legal intellectual masturbation – fun for the participant but amounting to nothing.

  • Greeff Kotzé says:

    Thank you for linking the essay by the Helen Suzman Foundation’s researchers — it makes for some considered and compelling reading.

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