/ 16 February 2021

The case for the ConCourt’s nonintervention in the latest Zondo drama

State Capture Inquiry: Zuma's Third Day On The Stand
Former president Jacob Zuma leaves the state capture commission of inquiry on his third day of testifying after his legal team asked for a postponement. Photo: Thulani Mbele

The late former chief justice Ismail Mahomed once described the power of courts in this country as “awesome”. There was, however, an inherent paradox about this power. 

“Unlike parliament or the executive, the court does not have the power of the purse, or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier … Its [the court’s] ultimate power must, therefore, rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity. No politician anywhere, however otherwise popular, would want to be seen to defy the order of a court enjoying within the nation a perception of independence and integrity; his or her future would then be at mortal risk.”

I’m almost certain that the good justice did not have in his mind our former president, Jacob Zuma. But before we get into the nitty-gritty of this latest drama, a brief comment on Mahomed’s remarks above. What is left unaddressed is the source of the courts’ authority. Yes, it’s in the constitution. But constitutional rules are easily broken if the enforcing agencies no longer believe in them. 

The source of the courts’ authority is moral. It is the belief by the public that the courts exist to do justice and that justice is, therefore, always done. The public will accept the courts and their decisions as legitimate even when they disagree, because they believe in the ability of the courts to dispense justice.

It stands to reason, then, that any erosion of trust in the courts’ ability to dispense justice is a diminution of their authority, or at least, the legitimacy of that authority.

Act two; scene one: enter Jacob, our antagonist. Days after the Constitutional Court ordered him to appear before the Zondo commission to give testimony, the Jacob Zuma Foundation, his alter ego, issued a statement in which it said that he would defy the order. On 15 February, the date that the commission set for his appearance, his lawyers sent a letter stating his intention not to appear, which cited Zuma’s review application against the chairperson’s refusal to recuse himself. 

The review, they said, would be undermined and invalidated if he were to appear before the commission. Also, the letter says, the summons issued by the commission was an irregular process and not in line with the Constitutional Court’s order, adding finally that this refusal to appear “should not be construed to suggest any defiance of a legal process”. Class.

Of course these objections are silly, and can be deftly disposed of. First, the institution of the review application did not suspend the order of the Constitutional Court. Nor could it. It deals with an issue separate from the one that was before the court and is, in any event, instituted in a court of lower status. The order must be adhered to. 

Second, it is not clear what is meant by the statement that the summons were not in line with the order. Part of the court’s order was that “Mr Jacob Gedleyihlekisa Zuma is ordered to obey all summonses and directives lawfully issued” by the commission. If I understand the objection correctly, it seems to suggest that the summons were not lawfully issued. 

But who is to decide whether that is the case? Certainly not Zuma’s lawyers. For as long as those summons stand, he is obliged to comply with them. That last bit about this not being a defiance of the legal process was just banter, I can assure you.

In line with keeping things interesting, later on Monday the commission announced that it would be seeking a contempt of court order against Zuma. But these would not be ordinary contempt proceedings; instead, the commission would approach the Constitutional Court directly and would seek Zuma’s committal to prison for his defiance of the court’s earlier order.

Act 2; Scene 2, enter Jacob, stage left. Another statement from the foundation: this time, 12-pages long. In it, he bemoans the commission’s alleged unfair treatment of him, remarking that the chairperson is going to the Constitutional Court to seek “a sentence against him” that was not “ordinarily how contempt proceedings would commence”, but that he has accepted that “Deputy Chief Justice [Raymond] Zondo and due process and the law are estranged”. These are fighting words. 

He further states that it is not the law nor the authority of the Constitutional Court that he is defying, but “its abuse by a few lawless judges who have left their constitutional post [sic] for political expediency”. Importantly, he says that the stance he has adopted is not borne of a refusal to recognise the failures of his presidency, but because “we continue to allow some in the judiciary to create jurisprudence and legal inconsistencies” that apply only to him.

It is a stunning statement and much of what he says is false, but that will not and does not matter to those who believe Zuma and hang on his every word.

Before I discuss the statement in more detail, let us turn to the law. Contempt of court is a criminal offence that entails the wilful and intentional disobedience of a court order. In Matjhabeng local municipality vs Eskom holdings, the court noted that “breaching a court order, wilfully and with mala fides, undermines the authority of the courts and thereby adversely affects the broader public interest”. 

It is important to understand that it is a criminal offence to disobey a court order, whether criminal or civil. And because of the sanctions that may be imposed on a contemnor (the person who is in contempt) — which include committal to prison — it takes on a hybrid nature. 

The standard of proof in criminal matters is “beyond a reasonable doubt”, whereas in civil matters it is “on a balance of probabilities”. In contempt proceedings, however, the party seeking the order only needs to prove its existence; that it has served it on the respondent; and that they have not complied with it; whereas the respondent has to show that their noncompliance was not intentional and not in bad faith. So the burden shifts: unlike in a criminal proceedings where only the state bears the onus of proof, here both parties each have an evidentiary burden.

This is hardly the stuff of constitutional legal theatre. So exactly why would the commission approach the Constitutional Court directly to obtain such an order? In my last post I argued that the Constitutional Court should be slow to grant direct access when exceptional circumstances do not justify it. I also argued that direct access does not by itself establish jurisdiction. Jurisdiction must be established independently.

I do not think the court would have jurisdiction to entertain this contempt application. The first objection, and one apparently raised by Zond, is that the contempt order sought in this case is in respect of an order of the Constitutional Court and, therefore, it is the only court that can grant the order. 

This strikes me as manifestly untrue. Contempt proceedings are, as I pointed out above, normal motion proceedings over which the high court has jurisdiction. It is not a requirement in law that the court that granted an order must be the one that compels a party to comply with it, or that only it can sanction a party for noncompliance. 

This is simply a matter of principle. The Constitution vests “the judicial authority of the Republic” in the “courts” and an order of court is binding on “all persons to whom and organs of state to which it applies”. Any competent court (barring perhaps the magistrate’s courts) may compel compliance with any existing court order.

The second objection, also related to the first, is that only the court could grant the contempt order because the application to which is connected was in its exclusive jurisdiction. This is also untrue. Firstly, none of us knows what the basis of the court’s jurisdiction in the previous application was (some may argue direct access). It explicitly stated that it was not decided on the basis of exclusive jurisdiction. 

Secondly, just because a matter falls within the court’s exclusive jurisdiction does not mean that everything subsequent that is related to that matter will also fall within the Court’s exclusive jurisdiction. To my mind, the Court’s jurisdiction ends when it hands down judgment. It has discharged its duty. When another matter arises subsequently, jurisdiction must be shown again, all requirements being fulfilled.

The third is our old boy, the “but what if he appeals?” argument. I do not have much patience for this one. I’ve said my piece.

Again, where do we find jurisdiction here? I am worried that constitutional overexcitement about the peculiarities of Zuma’s indifference to the rule of law may lead us down a path of delegitimising and diminishing the authority of the courts. One of the recurring themes in his complaints about various judicial processes has been that judges create new and separate rules just to deal with him: that courts are being expedient instead of principled. This is the kind of critique that has gained traction with his supporters and radical economic transformation types. 

It is unfortunate that good-faith interlocutors like myself, whose critiques are concerned with safeguarding the courts’ institutional power and integrity, should find ourselves lumped together with them. Yet here we are.

I should not be understood to be saying courts are creating new rules to deal with Zuma: that is not true. The exceptional procedures that are being invoked here already exist. But they exist for exceptional circumstances. 

To counter the myth that Zuma is being unfairly treated, we should not be arguing about whether courts are able to deviate from their own rules. We must instead insist that these contempt proceedings be as boring as all other contempt proceedings; that they go through the ordinary contempt process and end up where they will probably end up: with a dismissal order against an application for leave to appeal to the Constitutional Court. 

If our argument is that we are all equal before the law, then let that be seen to be the case. The public should not wonder whether the Constitutional Court will intervene in a case depending on the identity of the parties involved. Of course, I am not suggesting that that is the case, but if the court entertains this application, it should set out clearly on what basis Jane Doe from next door may be able to approach the court directly next time.

To conclude: a minor but not insignificant point. Zondo is a judge of the Constitutional Court. The judges before whom he brings these applications are his colleagues. He will return to work with them after he is done with the commission. 

The court’s strident criticism of the commission’s conduct in the previous application was no doubt embarrassing, and probably uncomfortable for the court to write. It also never had to get that far. Both the court’s and Zondo’s reputation are on the line. Running to Braamfontein every time Zuma breaks the law is surely not the way to go.

If we are not careful, the court’s legitimacy and authority will be undermined. It will no longer have at its disposal the moral arsenal necessary for compliance with its orders. It cannot afford that. It has nary a soldier nor a purse, merely the trust of the people.

Dan Mafora is a lawyer in Johannesburg, who dabbled in corporate law but is now freelance. He is interested in constitutional law and theory, and rule of law issues. This piece was first published on his newsletter

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.