/ 3 October 2021

Scrutiny and robust debate are healthy for our courts

Turkey Politics Women Kurds Demo
‘A laboratory of horrors’: Kurdish Peoples’ Democratic Party supporters hold pictures of Figen Yuksekdag, who has been harassed, detained and jailed for her political views in Turkey. Photo: Bulent Kilic/AFP

The Constitutional Court’s two judgments on former president Jacob Zuma’s contempt of court regarding an order of the court caused much debate about judicial independence, coherence and standards.  

Questions were asked: Why did the Zondo commission into state capture approach the Constitutional Court with its contempt-of-court complaint? Was it not a matter for the police, prosecuting authority and a criminal magistrate’s court? And how can judgment in an urgent matter be reserved for several months?

Answers to some questions can be found in the judgments. For example, in an urgent application (such as the contempt case) urgency may be found to be lacking, but the case still needs to be adjudicated on. 

Economic Freedom Fighters leader Julius Malema understandably asked how judgment could be delayed so long in the rescission application, enrolled on a Friday for the Monday, requiring lawyers to prepare throughout the weekend. What if the application succeeded and the sentence were set aside, after Zuma had spent weeks in prison … and in fact been released?

The somewhat harsh language used in the contempt majority judgment of Acting Chief Justice Sisi Khampepe opened the door for Zuma supporters to argue that the judgment resulted from the judges’ anger at — and thus bias against — Zuma for having dared to defy them.  Was the purpose to signify a strong stand for the integrity and independence of the courts and to assert that a powerful or influential politician is not above the law? 

The minority judgment by Justice Leona Theron, supported by Justice Chris Jafta, also contains robust terminology. The majority could not distinguish the wood from the trees, according to the minority. They also asked whether the majority decision would have been the same if Zuma did not insult the judges in his notorious letter. Do they insinuate that the majority judges were as emotional, irrational and devoid of judicial integrity as Zuma’s supporters allege they were? 

The minority addressed a centrally important issue, namely whether Zuma had a fair criminal trial as required by section 35(3) of the constitution. After all, it does not happen every day that a constitutional court, functioning mostly as an appeal court, convicts and sentences a perpetrator as a court of first instance. 

The minority judgment states that the timelines of urgent contempt proceedings did not allow adequate time to prepare a defence, as required by section 35(3)(b). This would mean the Constitutional Court should not have entertained the matter as an urgent one; and should never have reached the stage of having to decide on conviction and especially sentencing.

The minority, however,  agreed that Zuma was indeed in contempt of court and that direct access ought to have been granted on an urgent basis. They conclude that the matter should be referred to the prosecuting authority “for a decision on whether to prosecute Mr Zuma for contempt of court”. 

A question of logic arises:  What would remain for the prosecution to decide and a criminal court to consider after the highest court in the country has already unanimously stated that he was guilty of contempt? And, what could the Constitutional Court be expected to say if the lower court’s verdict reaches it on appeal? 

Furthermore, why did Zuma or his legal representative not simply appear before the court to ask for a postponement in order to prepare properly? Experience has not shown the Zuma team to shy away from requesting postponements. 

The rescission application puzzled many. Judges from Zimbabwe, Namibia and Lesotho, who followed the proceedings live — with some anxiety – asked me questions. 

A court can rescind its own judgment and set aside an order that was erroneously sought or granted; or in the case of a “patent error”. Orders are rescinded, for example, when they were issued in the absence of a litigant who got lost and ended up in the wrong court; or when names or numbers in the order are accidentally wrong.

The basis of the rescission application seemed to be that the entire judgment was “a patent error”.  This made it an appeal, which it was not and could never be. Why did the Constitutional Court agree to hear the matter if there were never any prospects of success? Did it mainly want to be seen to give Zuma every possible opportunity? 

And as to the image of our legal system, one can only hope that law students and other aspirant lawyers did not regard the repetitive, long-winded, baseless oral arguments on behalf of Zuma as examples of good (rather than profitable) lawyering. 

Together with the above, the conspicuous absence of Chief Justice Mogoeng Mogoeng resulted in some doubt about the integrity and efficiency of our apex court.

But some perspective could be useful. Last week I was — pro bono in my personal capacity — a member of an independent international tribunal about alleged human rights abuses in Turkey, especially after the failed 2016 coup. Harrowing testimony was given on the systematic torture of perceived “terrorists”, especially Kurds and members of the Gülen movement. While being physically abused, witnesses were told that their wives and daughters would be raped … like the women whose screams they could hear.

Numerous people have been abducted inside Turkey and in other countries. When the blindfold over the eyes and black hood over the head of one witness were removed, he asked his abductors where he was. The chilling reply was: “You are in a place that neither exists, nor does not exist.”

According to journalists in exile, press freedom has virtually been destroyed. One described the situation as “a laboratory of horrors”. 

From an expert report by a respected Italian judge, as well as the evidence of Turkish lawyers, it appears that very little is left of judicial independence, in cases about perceived terrorists. Many prosecutors and judges were dismissed or transferred soon after the coup. According to Human Rights Watch, about 1 700 prosecutors and judges (probably including judicial officers we know as magistrates) have been placed in pretrial detention — by their colleagues in courts!  

One prosecutor, after 12 years in his job, was sentenced to almost eight years’ imprisonment. A judge with 15 years’ experience told the tribunal how his two autistic sons had been irreversibly damaged by his detention of 16 months. He had very little hope that the judiciary would recover. All of this in a powerful country that has been an applicant to accede to the EU since 1987 (but whose accession has been stalled in negotiations since 2016).

Our judiciary can certainly be criticised. Our legal system is very far from perfect. But every judgment in favour of the government, or from which the ruling party or its dominant faction benefits, is not an indication of captured courts. We can also overcome the bizarre religious utterances of the chief justice, who retires this month, and his alleged loss of interest in his job.  

Criminals thrive on the undermining of our courts by continuously raising doubt about integrity. And yet, we do need constant scrutiny and debate if we do not want to end up in a very dark place that neither exists, nor does not exist.

Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and former inspecting judge at the Judicial Inspectorate for Correctional Services