/ 27 July 2021

‘My sister is mistaken’ and other responses to dissent in Zuma contempt case

Sisi Khampepe Sydney Seshibedi Gallo
Justice Sisi Khampepe. (Photo Sydney Seshibedi/Gallo Images)

There were two judgments in the Jacob Zuma contempt of court application: the majority judgment penned by acting Chief Justice Sisi Khampepe and the minority judgment penned by Judge Leona Theron. I have read both closely, but am particularly troubled by the minority’s reasoning, which I found to have created an unfortunate conflict which it itself is unable to resolve. Before I lay out my critique of the minority judgment, a few preliminary thoughts.

Readers of this newsletter will know that I was opposed to the commission’s initial application to the court for direct access as well as the subsequent contempt proceedings. I remain unconvinced by the majority’s finding that the court had constitutional jurisdiction under section 173 of the Constitution, which grants the court the power to regulate its own processes, to hear the case. The majority, having found that the section 173 power was implicated by Zuma’s contempt, reasoned that the matter for that reason raised a constitutional issue which engaged its jurisdiction. I disagree. 

I am not convinced, too, by the implicit finding that only the court is empowered to adjudicate contempt proceedings in respect of its own orders. It is in my view a conceptually and legally unsustainable proposition, which I have discussed previously. This piece is therefore not an unqualified endorsement of the majority’s reasoning. However, on balance, the majority provides a coherent answer to the questions raised by its reasoning. Not so for the minority.

Dissenting and minority judgments are an important aspect of the common law tradition of which we form part. Often, they lay the foundation for the future development of the law and sometimes help clarify the legal issues that arise in a dispute and require majority judgments precision and rigour, which are the hallmarks of good legal reasoning. Dr Helen Taylor, of the South African Institute For Advanced Constitutional, Human Rights, Public and International Law (SAIFAC), has written an excellent piece on the significance and value of judicial dissent, and I can do no better than to link to it here. But what is the value of a dissenting judgment whose sole purpose appears to be to chastise a majority judgment for its perceived shortcomings?

An interesting aftermath of this judgment has been the adoption, by Zuma’s supporters, of the idea that he has been imprisoned without a trial and that the court acted unconstitutionally in sentencing him to imprisonment. This unfortunate development flows directly from the minority judgment which, as I will show, cannot be legally or logically sustained on its own terms.

The minority judgment’s divergence from the majority is on the question of punishment. In the minority’s view, the court could not order direct imprisonment for Zuma without an order affording him a chance to comply with the court’s earlier order. This is because, according to the minority, it would violate his rights to a fair trial, guaranteed under section 35, to sentence him to unsuspended committal without having first gone through a criminal trial. The minority’s reasoning rests primarily on section 12 of the Constitution, which guarantees the right not to be detained without trial, and section 35 which sets out the rights of an accused person in a criminal trial.

Contempt of court as an offence has two elements. Criminal contempt, otherwise known as “scandalising the court”, which involves attacking, insulting, defaming or otherwise undermining a court or the judicial process; and civil contempt, which involves the wilful and mala fide (bad faith) defiance of a court order. Both are offences against the administration of justice. Civil contempt, however, is a unique offence in that a party who has been granted an order in its favour can approach a court for an order finding the other party in contempt for not complying with or obeying that earlier order.

If a court finds the other party guilty of contempt, it may impose a sanction, usually a fresh order requiring the errant party to comply or face imprisonment. This process is purely “civil” in that the state — or prosecution service — is not involved. But the outcome is always criminal (in that a party is convicted of the crime of contempt). Civil contempt proceedings have thus come to be known as “hybrid” proceedings since they are brought as ordinary applications but have criminal consequences. This background is vital to understanding the tension at the heart of the minority and majority judgments.

Criminal contempt has two further aspects: contempt in facie curiae (contempt that takes place in or before court) and contempt ex facie curiae (contempt that takes place outside of court). During the rescission hearing counsel for Zuma argued that a recent judgment of the supreme court of appeal showed why the court’s approach to contempt was indeed unconstitutional and why the SCA’s approach is to be preferred. In De Beer, the case in question, the SCA referred certain conduct by De Beer, including insults he directed at the registrar of that court in correspondence, to the National Director of Public Prosecutions (NDPP) to consider whether a charge of criminal contempt should be proffered against him. Zuma’s counsel argued that the same approach should have been adopted by the court in Zuma’s case. This is the view of the minority judgment as well.

There are two problems with this proposition. The first relates to the offence itself and the second relates to the SCA as a court. Undoubtedly, criminal contempt is a distinct offence from civil contempt. The minority judgment says as much. The locus classicus on criminal contempt is S v Mamabolo where the court held that a court cannot convict and sentence a contemnor for criminal contempt of court without a criminal trial. That case concerned the publication, outside of court, of certain commentary about ongoing legal proceedings and the judge in that case merely summoned the contemnor to appear before him, found him guilty of contempt, and sentenced him without a trial. That, the court said, was unconstitutional. And plainly, you can see why. Mamabolo and De Beer are closer to each other than Zuma is to either of them. In both cases, the contempt was directed at the court itself; the attack was on the court. The contempt did not arise, as here, from a defiance of a court order.

In effect, what both Mamabolo and De Beer show is that when judges, as the human embodiment of judicial authority, are attacked, in or out of court, any accusation or allegation of contempt made against the contemnor must be proven in the ordinary criminal process. There is nothing novel or controversial about this proposition. It follows as a matter of logic: the court alleges that X, through certain speech or conduct, was in criminal contempt of court, and Y, prosecutor, must prove that X’s conduct satisfies the elements of the crime of contempt à la scandalising the court. Civil contempt is different and I will return to this. Suffice it to say at this point that neither De Beer nor Mamabolo are applicable to Zuma’s case.

On the second point, Majiedt J during argument pointed out that if Zuma and De Beer were indeed the same, the SCA would have, in any event, been bound by the court’s approach to contempt since the court’s judgments are binding on the SCA. Quite right. But there is a second reason the SCA, as a court, would not be able to decide contempt in the way the constitutional court was able to in Zuma. The SCA is a court of appeal, it can only hear and decide appeals from lower courts. It cannot, unlike the constitutional court, hear matters as a court of first instance. Where it deals with civil contempt, such contempt will inevitably be in respect of an order of a lower court. But what if a litigant disobeys an order of the SCA? Well, the SCA does not issue fresh orders. It can only, on appeal, set aside, vary, or substitute the order of a lower court and, once such an order is set aside, varied, or substituted, the order of the SCA becomes the order of the lower court. In the case of scandalising the court as in De Beer — contempt in facie curiae — it will also always have to refer those cases to the NDPP to consider prosecution, since, as I’ve just explained, criminal contempt is different from civil contempt and cannot be pursued in civil proceedings. This alone should put paid to any comparison between De Beer and Zuma, which suggests that the SCA’s approach is somehow preferable to the constitutional court’s approach when, in fact, it is dictated by law.

The more crucial dispute relates to whether or not Zuma was imprisoned without trial. This is a serious charge, one made with reliance on the minority judgment which suggested that the majority had acted unconstitutionally in granting a wholly punitive order (imprisonment for Zuma) in motion proceedings. For the minority, “it is unconstitutional […] to order punitive committal for civil contempt in motion proceedings, where no remedial or coercive relief is granted.” Here is where things get murky. After surveying the jurisprudence on the constitutionality of civil contempt proceedings, the minority concludes that civil contempt serves two purposes: one coercive — compelling compliance with an order; and the other punitive — punishing an errant litigant for contempt.

Theron J then points out that the commission approached the court for a purely punitive order and that no court before Zuma had ordered the unsuspended committal of a contemnor in civil proceedings. After analysing the reasoning in Mamabolo, the minority further concludes that “[Mamabolo] endorsed the general principle that a summary contempt procedure intended purely for penal purposes is inconsistent with the fundamental right to a fair trial as protected by sections 12 and 35(3) of the Constitution.  Where a summary procedure is employed for purely punitive purposes, with no countervailing need to enforce compliance with a court order, these limitations cannot be justified.”

Having so concluded, the minority states that it accepts “that a common law rule allowing a civil court to order a punitive sanction of committal with no paired remedial purpose qualifies as a law of general application for the purposes of section 36 of the Constitution” but questions whether “such a rule, and the approach taken in the main judgment, [is] constitutional”. There is some conceptual difficulty here, which I do not think the majority addresses adequately. For background, rights in the Bill of Rights may only be limited by “a law of general application” to the extent that such a limitation is “reasonable and justifiable”. Laws of general application are, well, laws applicable generally to everyone. Acts, regulations, the common law, are all laws of general application.

The minority identifies the law of general application here as “a common law rule allowing a civil court to order a punitive sanction of committal with no paired remedial purpose” and concludes that such a rule unreasonably and unjustifiably limits Zuma’s rights under sections 12 and 35 of the Constitution. One problem: such a rule does not exist. Let me explain. The minority accepts, based on a long line of cases both pre- and post-Constitution, that it is competent for a court to find a litigant guilty of the crime of contempt and to impose a sanction following this conviction in civil, and not criminal, proceedings. In so doing, the courts have held that to the extent that civil contempt proceedings limit a party’s section 12 and section 35 rights — subject to procedural protections “as are appropriate [in] motion proceedings” — such a limitation is reasonable and justifiable.

In other words, the law of general application which limits Zuma’s rights is the common law rule that contempt proceedings may be conducted by way of motion proceedings as opposed to a criminal trial. So understood, the minority’s acceptance that Fakie “concluded that civil contempt proceedings, as a general proposition, are constitutional” should dispose of its argument on this point. In order to avoid this, the minority singles out the imposition of a punitive sanction in motion proceedings as the unconstitutional rule upon which the majority’s reasoning lies. Not so.

The power of a court to grant a particular order flows from the power of a court to hear the matter in the first place. Put differently, that a court has the power to order committal in contempt proceedings conducted by way of notice of motion is a direct consequence of the court’s ability to hear contempt proceedings by notice of motion. If one accepts that it is constitutional for civil contempt proceedings to be conducted in motion proceedings, which the minority does, then one must accept that the exercise of a court’s power to impose a criminal sanction — such as committal — once the elements of the crime of civil contempt have been proven in motion proceedings, is equally constitutional.

Interestingly, in Fakie the question was whether, because the party seeking an order of contempt only sought committal for coercive and not punitive purposes, the civil standard of proof (balance of probabilities) should be applicable. In other words, whether an applicant who only seeks compliance and not punishment shouldn’t have to prove the elements of the crime of civil contempt beyond a reasonable doubt. The SCA rejected this argument saying that it did not matter whether the applicant sought only a coercive order; the crime of civil contempt remained a crime and had to be proven beyond a reasonable doubt. This nuance seems to have been lost on the minority.

The minority’s section 12 analysis is equally perplexing. The minority, in three paragraphs, concludes that “these proceedings limit Mr Zuma’s right not to be deprived of his liberty without a criminal trial”. Section 12 provides in relevant part that “everyone has the right to freedom and security of the person, which includes the right —

  • Not to be deprived of freedom arbitrarily or without just cause; and
  • Not to be detained without trial”.

In the rescission hearing Jafta J made much of the distinction between a trial and motion proceedings. Quite rightly, counsel for the commission was driven to concede that a “trial” is not “motion proceedings”. (Important differences between the two include the ability to lead evidence and cross-examine witnesses in a trial, and the inability to do so in motion proceedings.) The question then arises: does the Constitution require a criminal trial (which is the phrase used by the minority) before any deprivation of liberty can take place? It seems unlikely. The fact that section 12 exists independently of section 35 points to the possibility that the Constitution contemplates the detention of persons who are not “accused persons” in terms of section 35. That is to say, it recognises that persons may be detained for non-criminal reasons. So a “trial” may in fact include a civil trial. If that is true, what then is the value of a trial over motion proceedings in civil contempt proceedings?

First, the court in Fakie established the criminal standard of proof — beyond a reasonable doubt — as the applicable standard in contempt proceedings. This means that where an applicant brings a contempt application, it must prove that: (1) the order exists; (2) the respondent was served with that order; (3) the respondent has not complied with that order; (4) the respondent’s noncompliance is intentional; and (5) the noncompliance is mala fide (bad faith). The respondent in turn needs only present evidence that shows that his noncompliance was not wilful or in bad faith in order to establish reasonable doubt. Before Fakie, the applicant was only required to prove the first three elements and the court would infer wilfulness and mala fides from the existence of those first three elements. The position after Fakie is that an applicant in civil contempt proceedings must prove all the elements of the offence and the respondent is not required to even disprove wilfulness or mala fides to establish reasonable doubt. The respondent in motion proceedings is then not on a lesser footing than a defendant in a trial.

Second, there is an obvious advantage in motion proceedings, which, as far as I’m aware, does not exist in trial proceedings. It’s called the Plascon-Evans rule. In terms of the rule, where there is a dispute of fact in motion proceedings, the court accepts the respondent’s version of the facts, unless that version is farfetched, manifestly false, or absurd, along with any factual allegations made by the applicant which the respondent accepts, as true. In this case, if Zuma had put facts on affidavit before the court, which would have shown that he was not in contempt, provided that they were true and not absurd, the court would have been bound to accept his version of the facts as true and decide the case on that basis. It is a significant advantage that he otherwise wouldn’t have had in trial proceedings. My sense is therefore that the complaint about the lack of a trial procedure in civil contempt proceedings, quite apart from the misguided critique about its impact on section 12, is a complaint about form over substance.

Let’s turn back to the minority judgment for a minute. Having identified the imposition of an unsuspended direct order of imprisonment in civil contempt proceedings as an unconstitutional exercise of the court’s penal jurisdiction, how does it propose that it be remedied? In two ways: the first is to impose a suspended sentence of imprisonment conditional on Zuma complying with a new order compelling his presence before the commission, and the second is to refer the matter to the director of public prosecutions to consider prosecution. These options raise more questions than they answer.

The first, as the majority said, “would only operate upon future non-compliance, which is essentially to say that it would be that act of further non-compliance, as opposed to the already existing non-compliance, that would become punishable”. This is not insignificant. The minority suggests that granting an order of suspended committal subject to the condition that Zuma is not convicted of contempt within a certain period of time would cure the unconstitutionality of which it complains. I am not convinced. Properly construed, the minority’s complaint is not that the court is able to grant purely punitive orders in civil contempt proceedings, that is a power it has always had. The complaint is rather that civil contempt proceedings are able to be conducted in motion proceedings in the first place. Hence the argument that a punitive order cannot be granted in the absence of a criminal trial. In that case, a suspended order of committal is as unconstitutional as an unsuspended one. That is because, if a party against whom a suspended committal order is granted fails to comply with the conditions attached to such an order, they would be liable to imprisonment without trial. The position does not change just because of the interposition of a coercive sentence between the initial conviction and the subsequent noncompliance. On the minority’s own reasoning, a future punitive order, which would proceed from further disobedience of an order of court, can never be granted without a criminal trial. Therefore an order of committal that follows the disobedience of an order compelling a party’s compliance would still be unconstitutional.

What about the second option? At face value, it makes sense. The court merely refers the matter to the director of public prosecutions for further action. I’m afraid not. The minority makes findings that are simply incompatible with this position. It accepts, for instance, that “it is this court’s order that is at stake and it would be inappropriate for the matter to be brought in the high court” (this finding is also implicit in the majority judgment). What this means is that only the constitutional court has jurisdiction over contempt proceedings related to its own orders. A referral to the director of public prosecutions for prosecution is therefore manifestly inappropriate because, if the DPP decides to prosecute, such a prosecution would have to be brought in the high court, or even a magistrate’s court. On the minority’s own reasoning, that cannot happen. So that’s that.

Also, as the majority pointed out, a referral to the director of public prosecutions divests the court of its power to punish errant litigants and vests it in the DPP who exercises a discretion as to the prosecution of matters. But the court could simply direct that the director of public prosecutions initiate prosecution, no? No. That would be the court usurping for itself a power it does not possess. The NDPP and her subordinates are vested with the power to decide, free from interference — judicial or otherwise — whether to prosecute cases. An instruction from the court would in effect do away with that discretionary power, which would itself be unconstitutional. It would also leave a successful civil party without recourse if the director of public prosecutions decides not to prosecute and the minority offers only cold comfort in response — private prosecutions.

This situation is further complicated by this: at the point that the court would be referring the matter to the director of public prosecutions, it would have already made a prima facie finding of contempt in respect of the party in question. In effect, it would only stop short of convicting the party for contempt. Couple this with the fact that a prosecutor would not need to prove, for example, the contemnor’s guilty state of mind or even motive, the picture becomes even more bleak: armed with a judgment of the country’s highest court which traverses facts and law in relation to the “alleged” contempt, the prosecutor would sail through the prosecution. The state would prove its case beyond a reasonable doubt without even breaking a sweat, and the section 35 fair trial protections would be rendered meaningless. Such a trial would, for all intents and purposes, be a box-ticking exercise. It would not only pay lip service to prosecutorial independence, but also hamstring a trial court whose power cannot upend the factual findings of the apex court. In sum, it is an impossibility.

Far from clarifying the issues and sharpening the majority’s reasoning, the minority judgment in Zuma does no more than to muddy the waters and make far-reaching and damaging pronouncements of unconstitutionality and mala fides on the majority’s part. When read closely it does not, and cannot, cohere as a statement of law, or one upon which future courts may further develop the law; it is riddled with internal contradictions and is unsustainable both in law and logic. Instead, as Taylor notes, it has breathed new life into conspiracy theories peddled by Twitter trolls who have used it to impugn the majority’s judgment as an unconstitutional attack on Zuma’s rights, with no basis in law, fact, or even good fiction.

So what is the value of such a dissenting judgment? Perhaps the rescission judgment will reveal that to us; jurisprudence by revelation. As the Good Book tells us, a good tree cannot bear bad fruit, and a bad tree cannot bear good fruit.

Wherefore by their fruits ye shall know them.

This article first appeared on Dan Mafora’s blog, Dan’s Newsletter