The high court in Pietermaritzburg has dismissed Jacob Zuma’s bid to avoid prison in his attempt to challenge his conviction for contempt, holding that the former president’s only recourse was to the constitutional court and directing himself elsewhere for relief read as an attempt to usurp the apex court’s authority.
“It is common cause that in this country there is no higher authority than the constitutional court, and that its decisions cannot be undermined by a lower court,” Judge Bhekisisa Mnguni said.
He concluded that Zuma following the wrong process had sent his case collapsing “like a house of cards”.
Mnguni’s 19-page judgment came two days after Zuma was arrested, in line with the constitutional court’s deadline that he be taken into custody by Wednesday to begin serving his 15-month prison term for contempt if he failed to surrender himself by Sunday.
It has no effect on Zuma’s immediate fate in terms of his sentence, but significantly makes plain that he cannot resort to the high court to alter or challenge the judgment of the apex court, either in terms of orders or rationale.
Mnguni dismissed not only Zuma’s bid for a stay of the execution of the constitutional court’s order of arrest pending the outcome of his application to that court to rescind its judgment, but also his attempt to challenge the constitutionality of the law on contempt.
Mnguni said advocate Dali Mpofu had failed to convince the court that it had jurisdiction to hear the matter in terms of section 172 of the Constitution as well as rule 45 of the Uniform Rules of Court, in that the latter allowed for the suspension of any order.
The argument was ill-conceived, he said, because a court cannot suspend if it was not competent in the matter in question. Mpofu’s further argument that the court had territorial jurisdiction because the arrest warrant was to be executed in KwaZulu-Natal was fundamentally flawed.
“The flaw seems to lie in the failure to appreciate the principal issue in this application, which is: is it permissible for a high court to suspend the execution of an order by the Constitutional Court?” Mnguni said, adding that the answer was no, and to allow otherwise would disturb the hierarchy of the courts.
“Should this court accede to the contentions advanced on behalf of Mr Zuma, then the hierarchy will be disturbed and there will be no finality to legal decisions.”
“What, in my view, this application seeks to achieve is to entangle this court in judicial adventurism … and to make whimsical orders which have the effect of granting unlawful and unwarranted relief.”
On Zuma’s attempt to challenge the constitutionality of the law on contempt, Mgnuni said the case law was clear and the high court would not entertain it.
Zuma contends that his rights have been violated because he was sentenced to prison without a criminal trial.
This however ignores the fact that in civil contempt matters, the burden of proof is that of beyond reasonable doubt, as in criminal matters, and here he had not availed himself of the opportunity to dispute that his defiance of the constitutional court’s first order in January — that he cooperate with the Zondo commission on state capture — was in bad faith.
Zuma refused to file papers to the Constitutional Court when the Zondo commission subsequently sought a contempt order, Mnguni recalled, and excluded himself from the process.
Mnguni said the courts had affirmed, notably in the Fakie judgment in the supreme court of appeal, that civil contempt procedures survive constitutional scrutiny in the form of motion court applications.
“In my view, this conclusion has the effect of removing all the wind from the sails of the boat upon which Mr Zuma’s contention is journeying,” he said.
Given the conclusion on jurisdiction, Mnguni said it was not strictly necessary to consider whether Zuma met the test for interim relief, but that he would nonetheless make observations as to why he failed.
First, Zuma had an alternative remedy available to him, namely approaching the constitutional court with an urgent application in terms of rule 12 of its rules.
Second, the balance of convenience argued against the granting of an interim interdict because it would “be harmful to the rule of law and our Constitution, as this court will permit Mr Zuma to disregard the courts and their authority”.
“Unsurprisingly, faced with this seemingly insuperable difficulty in relation to the invocation of the incorrect and unprecedented procedure, the rest of Mr Zuma’s case then collapses like a deck of cards,” Mnguni concluded.
The Constitutional Court is due to hear Zuma’s rescission application on Monday.
Papers filed by his counsel on Thursday suggest that should the high court not rule in his favour, he could yet ask the apex court to order his release from prison pending its decision on the recession application.