In the first place, the Constitutional Court correctly dismissed the application brought by Jacob Zuma for the recusal of six justices of the court. Given that the case before the court turned on only two legal questions, both of which required an interpretation of section 47 of the Constitution, it was irrelevant that the selfsame court had, in June 2021, ordered Zuma to be imprisoned for contempt of court.
Manifestly, the judges of the highest court in the land can apply themselves to the interpretation of the Constitution in an impartial manner. That Zuma considered the court’s decision to order his imprisonment to be unfair, if not illegal, could never meet the test for recusal, which the court had set out comprehensively in the President of South Africa v Sarfu, some 25 years earlier.
Second, the court exhibited great patience and stamina in sitting from 10am to 8pm — an exhibition of overtime that is a fine example of judicial diligence.
So why then the absence of a third cheer?
In the main, it is due to the manner in which the hearing proceeded.
The court had increasingly moved toward the model of the US Supreme Court in limiting oral argument, and rightly so.
The object of oral argument is to supplement comprehensive papers that set out the case of the contesting parties and which are accompanied by approximately 50 pages of written argument. By the time the appeal is heard, the court has enjoyed the benefit of the judgment of the court which is the subject of the appeal and knows the case of each party as set out in the written arguments.
The issues before the court are generally clear. Take this case. The court was asked to decide on the meaning of section 47(1) (e), which disqualifies a person from being a member of the National Assembly,
“...who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.”
The key questions were thus: does a term of imprisonment imposed by the Constitutional Court, where there is no right of appeal as it is the highest court, provide an exception to the disqualification? Or does the reference to appeal mean only when there is such a right and hence the disqualification does not apply until the appeal process (where there is one) is exhausted?
Second, if the President remits the sentence to below 12 months, does that expunge the disqualification?
The entire debate on the merits concerned just these two questions. The counsel for the Electoral Commission of SA, the appellant, provided a precise set of oral arguments which addressed these two key questions. It took him no more than 30 minutes, a testimony to precise, analytical advocacy.
Unfortunately, he was then inundated with a host of questions from the Bench that appeared to re-litigate the majority judgment of the Constitutional Court in convicting Zuma of the offence of contempt of court.
Once the precedent of the court is respected, the issue of whether Zuma could be convicted and sentenced without a further appeal because the Constitutional Court is the apex court from which there is no appeal, had been decided. The conviction and sentence complied with the law. Yet in different ways, justices based their interventions on the basis that this reading of the law was wrong.
Finally, it was the turn of the counsel for Zuma. Astonishingly, but not surprisingly, he took almost two hours without interruption. When the Deputy Chief Justice sought to remind him that he had exceeded his time limit, he simply ignored her. Understandably, the court was anxious to appear scrupulously fair, particularly to a litigant like Zuma who adopts the Trump-like tactic of blaming the justice system for discriminating against him.
But there are limits. For example, Judge Juan Merchan has, under significant pressure, ensured that defence lawyers in the Trump trial in New York City know the limits of conducting the trial.
The failure to abide by the judicial conduct of a case can only weaken the image of the court. After all, counsel argue for the convenience of the court as opposed to the converse. Compounding the problem was the next two hours, when the exchange between counsel and the Bench amounted to further lengthy speeches which extended way beyond the two questions. Little attempt was made by the Bench to ensure focus on the key questions
The hearing was televised. The public had a ringside seat of the proceedings. The conduct of these proceedings helps to shape the public image of a key institution which protects and promotes the Constitution. The conduct of these proceedings should serve as a model of how appellate hearings should not be conducted in the future. This was why the court had instituted US Supreme Court-type time limits. DM