The Constitutional Court on Monday evening reserved judgment on Jacob Zuma’s application to have his 15-month sentence for contempt rescinded after hearing close on 10 hours of argument dominated by his counsel’s insistence that the former president was denied his constitutional rights.
Advocate Dali Mpofu SC hammered the point that Zuma’s sentence did not flow from a criminal trial, in the process taking sweeping issue with legal precedent on civil contempt in the post-apartheid era.
As bloody unrest in his name spread, Mpofu said the court’s binding majority ruling distinction between section 12 and section 35 rights in the case of civil contempt matters meant that Zuma was the only prisoner in the country who was jailed without trial, and moreover without right to appeal.
The latter was the case because the apex court’s decision to grant the Zondo commission direct access when it sought a contempt order against Zuma made it the court of first and final instance in the matter.
“For legal purposes, it then relegates itself to be treated as any other court of first instance in criminal proceedings, whether that is the high court, the regional court or what have you,” Mpofu argued.
It followed, he suggested, that the court had to be lenient in reading rule 29 of its rules together with Rule 42(1)(a) of the Uniform Rules of Court,
That rule allows for a court order to be rescinded if it were “erroneously granted in the absence of any party affected thereby”, and on the face of it, Zuma fails the test as his absence was not that of “a bewildered litigant” unaware of proceedings, but of someone who deliberately, in highly political fashion refused to oppose it.
The ramifications of this was promptly raised by Justice Zukisa Tshiqi.
But Zuma’s further difficulty, as pointed out by advocate Tembeka Ngcukaitobi SC, counsel for the Zondo commission, is that rescission also requires that the court made an error, whereas had it been aware of this, it would have reached a different conclusion.
On Mpofu’s arguments for Zuma, the error appeared to be that he preferred the dissenting minority ruling which held that a punitive sentence, rather than a coercive one aimed at bringing him to testify before the commission, was a violation of his clients’ rights.
This was not the normal stuff of rescission applications.
The Constitutional Court’s majority judgment held, in line with legal precedent, that as someone alleged to be in contempt in a civil matter was not an accused in the strict sense of a criminal trial, though the alleged contempt was a crime, and although he or she was not availed of all rights in terms of section 35, they were still ensured of not being arbitrarily deprived of freedom.
However, justices Leona Theron, who penned the minority ruling, and Chris Jafta, who concurred with it, engaged Mpofu, Ngcukaitobi and advocate Max du Plessis SC, appearing for the Helen Suzman Foundation, on the subject at length.
Jafta asked whether it could not be argued that motion court proceedings did not constitute a trial in the normative sense and therefore fell short of the requirements of section 12.
Ngcukaitobi replied that it was established precedent that the motion procedure for contempt was compatible with section 12, and that this had been articulated expressly by the Supreme Court of Appeal in the Fakie case.
“That question is in our respectful commission completely covered by evaluating whether or not the motion procedure for contempt breaches section 12, which is what Fakie is about, and Fakie says it is perfectly compatible with section 12,” he said.
“Mr Zuma had a trial, and it was in accordance with the approved procedure for contempt of court proceedings,” he said.
Pressed further on the point by Jafta, Ngcukaitobi demurred that this was not strictly the question.
“That is not the question before the court, the question before the court is examining an error, a basis to re-enter the debate, and I have shown now that you have no basis to re-enter the debate.”
He said the further question was how the court should approach the question of interpreting the concept trial.
“Is a motion-court process for contempt an infringement of section 12? That in fact is the pertinent question,” Ngcukaitobi said.
Jafta interrupted: “The section uses the word trial, no one would be detained without a trial, you have a right not to be detained without a trial. Meaning you can be detained if there was a trial?”
Ngcukaitobi said the appeal court was explicit on the matter, as was Justice Sisi Khampepe in the majority ruling in Zuma’s case. If Jafta disagreed, he added, he feared that he would have to “substantially revisit your authorities if you were to find that motion court proceedings are inappropriate for contempt proceedings”.
He described his debate with Jafta as interesting but said it was not a bar to upholding the court’s ruling and the commission’s position that Zuma’s contempt of its earlier ruling — handed down in January and compelling him to testify before it — merited punitive sanction.
Of Mpofu’s argument that the apex court had to allow for appeal in cases where it granted direct access and delivered criminal sanction, Ngcukaitobi said one only had to say it aloud to realise how absurd it sounded.
Advocate Michelle le Roux SC, for the Council for the Advancement of the South African Constitution, said if Mpofu were allowed to succeed with this argument it would spell the end of precedent and legal certainty in South Africa as lawyers who lost cases could repeatedly return to court simply because a better argument finally came to mind.
She added that the former president’s application may have fed into the violent protest and looting that was spreading from his base in KwaZulu-Natal to the rest of the country.
“[The] false hope of this application may have had a hand in the current situation in the country.”
Mpofu pleaded with the court to release Zuma pending its ruling on the rescission applications, saying if it were to revise its ruling, his continued incarceration in the interim would amount to a travesty.
He contended that his client never said he would not cooperate with the commission, only that he would not appear if Deputy Chief Justice Raymond Zondo presided because it was his view that he was biased.
But Ngcukaitobi said this was testament to continued contempt as the court had ordered him to appear before the commission with no provision for Zondo’s recusal.