Former president Jacob Zuma at the Zondo commission in Johannesburg. (Gallo Images/Sharon Seretlo)
It was, perhaps, inevitable. Two years and five months after first asking former president Jacob Zuma to reply to grand corruption allegations, the Zondo commission has been left to mull asking the Constitutional Court to find him in contempt and possibly impose a coercive prison penalty.
It is a prospect Zuma confronted openly in his statement on Monday where he said he would not testify and spoke of being prepared to face prison rather than, in his view, a hostile, biased commission.
“In the circumstances, I am left with no alternative but to be defiant against injustice as I did against the apartheid government, I am again prepared to go to prison to defend the Constitutional rights that I personally fought for.”
The five-page missive reads like a dare to Deputy Chief Justice Raymond Zondo and shows a cornered man prepared to insult the apex court to politically undermine not just the commission but the judiciary itself ahead of his trial on corruption, fraud and racketeering charges stemming from the 1990s arms deal.
Where to from here
It leaves Zondo with two options.
He could ask the commission’s secretary, Itumeleng Mosala, to file another complaint with the police for breach of section 6 (1) of the Commissions Act.
Mosala filed the first complaint at the Hillbrow police station on December 7, a few weeks after Zuma walked out of a sitting in November in protest at Zondo’s dismissal of his application that he recuse himself as chairperson of the commission.
The docket was swiftly passed to the Hawks. Still, sources said this week the case remained under investigation and almost two months later, no recommendation has been taken to the National Prosecuting Authority (NPA).
Should Zondo take this route, and should the NPA institute charges, Zuma risks a fine or a six-month prison sentence, as Judge Chris Jafta noted in the Constitutional Court ruling last week that compelled him to head a summons to appear before the commission from 15 to 19 February.
“Upon conviction, he or she would be liable to a fine or a period of imprisonment not exceeding six months or to both such fine and imprisonment.”
The commission risks the matter winding its way through the courts while the inquiry’s lifespan runs out.
The bolder choice would be to turn directly to the Constitutional Court again and ask it to find the former president in contempt, with or without seeking a prison penalty.
South Africa’s most senior judges, including Jafta, have grappled with the requirements for contempt rulings in the post-1996, constitutional dispensation and have taken the overall view that it remains an important mechanism to enforce respect for the authority of the courts and the rule of law.
The precedent
There are three key pieces of case law on contempt: the Supreme Court ruling in the Fakie case, and those of the Constitutional Court in Pheko and Matjhabeng. They suggest that the remedy is available to the commission, should Zondo have the stomach for further fuss from Zuma and his acolytes.
Defying a court order, as Zuma has vowed to do, falls in the category of civil contempt and the courts have deliberated at length on the burden of proof that applies in such cases.
The appeal court held that because a contempt ruling could result in the deprivation of the fundamental right to freedom enshrined in the Constitution, the applicable burden in all cases has to be that of beyond reasonable doubt and not a balance of probabilities.
“The court commits a contempt respondent to jail for rule of law reasons, and this high public purpose should only be pursued in the absence of reasonable doubt,” it said.
The Constitutional Court has given a more nuanced reading, but in the Pheko case accepted that at least in all cases where the applicant seeks committal as a sanction for defying an order, the standard must be that of reasonable doubt.
The first three requirements for contempt are that a court order must exist, that it must have been served on the person alleged to be in contempt and that there must have been noncompliance with the order.
The commission will have met all three when it ensures that a Constitutional Court order is served on Zuma, as it said last week it would do.
The fourth requirement is that the failure to comply must have been wilful or in mala fide.
Once the first three elements are established, the fourth will be presumed and the person alleged to be in contempt will have the onus of creating reasonable doubt that the noncompliance was not wilful or in bad faith.
“The presumption rightly exists that when the first three elements of the test for contempt have been established, mala fide and wilfulness are presumed unless the contemnor is able to lead evidence sufficient to create reasonable doubt as to their existence.
“Should the contempt prove unsuccessful in discharging this evidential burden, contempt will be established,” the Constitutional Court said in endorsing the appeal court judgment.
It means Zuma’s lawyers will have the task of convincing the court that his refusal to heed its order does not signify outright bad faith.
Zuma’s action ‘antithetical to our constitutional order‘
It’s worth noting that Jafta, in last week’s ruling, meticulously traced a timeline of how Zuma had frustrated the work of the commission — starting in September 2018, when it asked him to file an affidavit in response to testimony alleging that he was doing the bidding of the Gupta brothers on government matters — and in doing so violated the rule of law.
“The respondent’s conduct in defying the process lawfully issued under the authority of the law is antithetical to our constitutional order. We must remember that this is a republic of laws where the Constitution is supreme. Disobeying its laws amounts to a direct breach of the rule of law, one of the Constitution’s values and forms part of the supreme law. In our system, no one is above the law,” he concluded.
If a contempt ruling is sought, arguments from both sides will be made in affidavits to the court, and a hearing date will then be set. It is possible, but unlikely, that the court may call for oral evidence from Zuma.
He did not oppose the commission’s application in December for a court order and could again elect not to participate if it files for contempt. But the appeal court in Fakie cautioned that this strategy is risky in contempt cases, noting “the accused is entitled to remain silent, but does not exercise choice without consequence”.
If the court finds there was contempt, it could impose a coercive sentence, aimed at bringing Zuma to take the stand to escape prison time. But it could also give declaratory relief, which the court noted in Matjhabeng serves to “vindicate the rule of law rather than to punish the transgressor”.
Zuma risked a contempt order if he had taken the stand and refused to answer questions, because the order also compelled him not to remain silent, save where he could show that the privilege against self-incrimination applied.
It is not clear what relief Zondo will seek best to safeguard the commission’s integrity and its eventual findings.
But he and his colleagues on the Bench must now accept that Zuma’s response to the bitter end will remain street fighting politics and that it is part of a broader game by those facing trial for his regime’s abuses to discredit the judiciary and to dislodge his successor from office.
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