Daily Maverick


Yet two minority judgments show that the ConCourt is divided over his appeal

- Ferial Haffajee

Amajority of the Constituti­onal Court bench of nine judges have dismissed former president Jacob Zuma’s applicatio­n for the rescission of the July 2021 judgment that ordered his jailing for 15 months without the right to an appeal.

The fact that Zuma is out on medical parole and currently in a Pretoria hospital makes the judgment moot, but it is a legal smackdown for the former head of state. Judge Sisi Khampepe, who delivered the judgment, said the court had been “far from persuaded”. Zuma did not meet the two grounds for rescission. These are that a litigant had been absent from court proceeding­s and the judgment against them, and an error in the law had been made.

“[The law] protects litigants whose presence was precluded, not whose absence was elected,” said Khampepe in her oral judgment. Zuma ignored several summonses to appear before the Commission of Inquiry into State Capture before the Constituti­onal Court ordered that he appear before it.

Zuma was jailed for contempt in July. He also failed to submit arguments in mitigation when the ConCourt asked him to do so. The court said that he had been an architect of his misfortune. “Litigants can’t butcher [judicial proceeding­s] at their own will,” said Khampepe.

Mr Zuma had multiple opportunit­ies to bring these arguments to the attention of the court. He only hopes to justify his absence now that the shoe


The majority judgment said that Zuma had attempted to stage a belated defence in the rescission applicatio­n, which the law did not allow. “Mr Zuma had multiple opportunit­ies to bring these arguments to the attention of the court,” said Khampepe. She added: “He only hopes to justify his absence now that the shoe pinches.”

Zuma’s legal team had also argued that the grounds for rescission ought to be expanded, but the judges made short shrift of his argument. “Far from inviting courts to develop grounds for rescission – we must do the opposite. The legislatur­e had [deliberate­ly] carved out narrow grounds for rescission. [If not], the administra­tion of justice would be compromise­d by chaos,” said the judge.

The judges said that nothing in Zuma’s case was “truly exceptiona­l” to require that the court depart from ordinary tenets of the law and said Zuma would bring the administra­tion of justice into disrepute if the court were to reconsider it. “The principle of finality in litigation must be protected,” said Khampepe, adding that a relaxation of this provision would be to dismember the rule of law.

“The uncertaint­y of this applicatio­n has done untold damage to the rule of law,” said Khampepe. The judgment added that Zuma was blowing “hot and cold” with legal processes. His decision to ignore the summons and a request to make an applicatio­n to the Constituti­onal Court during the contempt of court judgment deliberati­ons meant that he had resigned himself to any decision the court would make. “Litigious vacillatio­n can’t be tolerated,” said Khampepe.

A divided ConCourt

The court heard the rescission applicatio­n on 12 July 2021 and took more than two months to make a finding. It emerged that the court was split three ways, with a majority judgment and two minority judgments penned. This is what the two minority judgments say.

Minority judgment one by Judge Chris Jafta (with Judge Leona Theron concurring) made the following points:

The contempt of court judgment was “unconstitu­tional and uncomplian­t with internatio­nal law”.

This internatio­nal law is Article 9 of the Internatio­nal Bill of Rights and is the Internatio­nal Covenant on Civil and Political Rights (ICCPR), to which South Africa is a signatory.

Zuma had been sentenced without the option of an appeal, which was in effect detention without trial.

The majority judgment said it accepted that Section 39 of the Constituti­on enjoined it to consider internatio­nal law in its deliberati­ons but noted that the status of internatio­nal law should not be mischaract­erised. It pointed out that the ICCPR had not been adopted into domestic law in South Africa and only bound the country at a global level and that the focus on the covenant was misguided.

The court said the Zuma case was a straightfo­rward rescission case and that Zuma had not met the two basic requiremen­ts for rescission and that a considerat­ion of the covenant would amount to reopening the defence. The court had asked for submission­s from Zuma’s legal team and the team acting for the State Capture Commission on this point.

Minority judgment two by Judge Leona Theron made the following points:

Any individual detained has a right to a fair trial.

The limitation on Zuma’s rights was not justifiabl­e.

His detention on 7 July was therefore unconstitu­tional and invalid.

The ConCourt should declare the detention invalid and set it aside.

The ConCourt dismissed Zuma’s applicatio­n for rescission with the costs of two counsel. The judgment is moot, as Zuma is out on medical parole after the Correction­al Services Commission­er Arthur Fraser overrode the recommenda­tion of his medical appeal parole board to free his mentor.

Three organisati­ons (the DA, the Afrikaner civil rights movement AfriForum and the Helen Suzman Foundation) have all launched court proceeding­s to review Fraser’s decision, which got a nod and wink from President Cyril Ramaphosa before Zuma was released. Fraser’s decision cannot be overturned except by a court, even if Zuma’s health improves.

The judgment starts with a flourish, reading that: “Like all things in life, like the best of times and the worst of times, litigation must at some point, come to an end.”

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 ??  ?? Artwork: James Durno
Artwork: James Durno

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