Former president Jacob Zuma. (Kim Ludbrook/AFP)
The Constitutional Court has given former president Jacob Zuma five days to hand himself over to the police after ruling him in contempt of court and sentencing him to prison for 15 months for violating the authority of the court and attacking the dignity of the judiciary.
Should Zuma fail to report to either the Nkandla or Johannesburg Central police stations by Sunday, the minister and the national commissioner of police, must within three days, take the necessary steps to ensure he is taken to prison to begin his sentence.
In a majority judgment penned and delivered by acting Deputy Chief Justice Sisi Khampepe on Tuesday, the court said it was compelled not only by Zuma’s defiance of its order to comply with summons to testify before the Zondo commission, but his casual and “scandalous” attacks on the courts.
“The sentence is related both to the seriousness of the default and the contumacy of the respondent and the order is influenced by the need to set an example and assert the authority of the court,” it read.
It would be naive to believe that handing down a suspended sentence, aimed at still bringing him to testify, would have the desired effect, Khampepe said.
In fact, it only posed the likely risk of the former head of state redoubling his efforts to undermine the rule of law. Khampepe referred to Zuma’s repeated statements that he would rather be jailed than co-operate with the commission.
“It defies logic to believe that a suspended sentence, which affords Mr Zuma one final opportunity to submit to the authority of the commission, would have any effect other than to prolong his defiance and to signal dangerously that impunity is to be enjoyed by those who defy court orders,” Khampepe said.
She said although the case and its circumstances were exceptional, it would be wrong to think that the majority was writing legal precedent with its sentence. It was simply applying the law and doing so evenly.
“It is disturbing that he who twice sought allegiance to the republic, its laws and its constitution has sought to ignore, undermine and in many ways destroy the rule of law altogether,” she said.
“In taking stock of the cumulative effect of these exceptional circumstances, the majority finds that it must grant an order that will vindicate the court’s order and protect and maintain public confidence in the legitimacy of the judiciary.
“Accordingly the only appropriate sanction is a direct, unsuspended order of imprisonment, because the alternative would be to effectively sentence the legitimacy of the judiciary to inevitable decay,” Khampepe said.
The majority judgment seeks not only to punish Zuma for failing to obey the court’s order in January that he heed directives from the commission to testify, but his sustained efforts to impugn the courts. These were aggravating factors, she said, as was his failure to file submissions to the court despite invitation to do so.
Khampepe said the public had an interest in Zuma appearing before the commission; it also had equal, if not greater, interest in the protection of the rule of law and the dignity of the courts.
The minority judgment, by justices Chris Jafta and Leona Theron, lamented that the commission placed the court in an invidious position by asking that it deal with a situation created in part by the commission’s failure not to deal with Zuma’s recalcitrance more firmly earlier on.
It held that it would be unconstitutional, in a case of civil contempt, to hand down a sentence Zuma could not avert by agreeing to testify. Pointing to the hybrid nature of civil contempt cases, it cautioned that the rights of an accused to fair trial under section 35 (3) of the constitution, would be limited by imprisonment without the possibility of appeal.
“The minority judgment concluded that it is unconstitutional to grant a punitive committal order with no paired remedial relief in the context of civil contempt proceedings,” Khampepe read.
She said the majority held the view that the rights enshrined in section 35 of the constitution did not “easily find application in civil contempt proceedings”, but that the person accused of contempt remained entitled to protection of his or her rights under section 12, namely that nobody be arbitrarily deprived of their liberty.
The letter the court sent to Zuma in April asking him to weigh in on what an appropriate sanction would be, meant that he was duly afforded the protection dictated by section 12, Khampepe said, in a manner comparable to the section 35 fair trial rights.
“Instead of filing an affidavit as he was directed to do, Mr Zuma addressed a 21-page letter to the chief justice. Unfortunately, but not entirely unexpectedly, Mr Zuma once again squandered an opportunity to respect this country’s legal processes,” she said.
“He again aired his views through inflammatory statements intended to undermine the authority of the constitutional court and to portray himself as a victim. All of this besides being scandalous is totally irrelevant to the question.”
She said the majority judgment dissented with the view insinuated by the minority that the court was creating precedent.
“The majority judgment does no more than apply the law cautiously to these new and unusual circumstances.”
The court awarded costs against Zuma.
Read the full judgment here.
Secretary of the Judicial Commission of Inquiry v Zuma Judgment by Mail and Guardian on Scribd