Advocate Dali Mpofu.
The moment the Constitutional Court agreed to grant direct access to a litigant in a criminal matter, it had to follow that its ruling was open to review, counsel for former president Jacob Zuma contended on Monday as the apex court heard the former president’s bid for the rescission of his prison sentence.
“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,” advocate Dali Mpofu SC argued.
He submitted that it flowed from this, firstly, that the court must accept that its ruling did not have finality; and secondly that the defendant must enjoy all the protections inferred on an accused person by section 35 of the constitution.
“Of course we know this is the highest court in the land, of course we know it is the apex court and so on … but in this instance it dressed itself as a court of first instance, and to that extent then it must extend the rights in section 35,” Mpofu said, adding that this section was effectively a catalogue of rights that must be read as instructions by the court.
“And if any of those instructions is not carried out, then a breach has happened.”
It meant that in the process leading to Zuma’s imprisonment, the Constitutional Court exceeded the bounds of the constitution, because it limited his safeguard to those in section 12, and hence the outcome could not be allowed to stand, Mpofu added.
“There is nowhere else we can turn to to get that remedy except yourselves.”
The fact that the majority judgment accepted legal precedent that a person alleged to be in contempt in a civil matter was not an accused in the classical sense, and did so in a case where it was the court of first and final instance, meant that Zuma was the only person in the country sent to prison without a trial or the prospect of appeal.
“Why should every accused be entitled to rule 35(3)(o) except former president Jacob Zuma?” Mpofu asked, referring to the rule relating to the right to appeal to, or review by, a higher court.
“There cannot be a situation where everyone who is sitting in jail right now had rule 35(3)(o) available to them except one man. Now if that is so, then plainly there has been an infringement.”
Justice Chris Jafta asked Mpofu whether the question of the rights of contemnors had not been settled in recent case law that developed the common law on contempt in line with the constitution and acknowledged the hybrid nature of contempt in civil matters.
Mpofu said accepting the hybrid nature of civil contempt did not rob those, like Zuma, alleged to have committed it of any of their rights, and ventured that the case law was not followed correctly as it did not put section 35(3) beyond their reach.
But beyond that, he said, the constitutionality of the law as it stood on contempt was questionable.
“The one thing we must agree on is that they are human, whether you call them an accused, whether we call them this or that, the question is are they human? And if they are human they are entitled to all the human rights that are listed in our constitution, without fail,” Mpofu said.
“It does not matter if you are a bad person, if you are a child molester, if you are an unpopular president, if you are involved in state capture.”
The Zondo commission contends that Zuma’s rescission application is a veiled appeal bid, because it falls wide of the requirements for rescission as set out by Rule 42(1)(a)of the Uniform Rules of Court, which allows for a court order to be rescinded if it were “erroneously granted in the absence of any party affected thereby”.
On the face of it, Zuma fails the test but submits that in this instance the rule must be read with Rule 29 of the Rules of the Constitutional Court.
Again Jafta intervened to note: “Rule 29 itself does not grant you rescission.”
Mpofu conceded that the court may find that “the case does not straight-jacket into 42” and that it should not be applied as it normally would in a high court.
“Rule 29 must mean that the remedies that might be available to this court in its application of rule 42 might be wider that the remedies available to the high court.”
The Zondo commission approached the apex court directly and on an urgent basis after Zuma defied the same court’s order to heed summons to testify before it. It argued that the former president’s persistent attacks on the dignity of the court and the judiciary as a whole had to be sanctioned swiftly to protect the rule of law.
It also said the Constitutional Court was the appropriate authority because it was its order to cooperate with the commission that Zuma had flouted.
But Mpofu argued that the matter belonged in a lower court where Zuma would have been treated fairly.
“Whether the letter was so scandalous must be answered in the magistrate’s court in Nkandla, not in Braamfontein [where the apex court sits], most of all by the people who were victims of that insult. It must be answered by someone else dispassionately,” he said.
As protests raged across parts of South Africa in response to Zuma’s jailing, Mpofu asked that, should the Constitutional Court reserve judgment on the rescission application, it order his release in the interim.
It would be a travesty, he said, if the court did not do so, only to later rescind his 15-month sentence.