CONSTITUTIONAL COURT JUDGES THROW OUT THE RULE BOOK

AS EXPECTED, the meeting between former president Jacob Zuma and the leader of the EFF was bound to occupy pride of place in the public discourse.

This is headline and editorial material. And mainstream media did not disappoint. Speculation is rife regarding the import of the meeting. Those prone to apocalyptic visions argue that this is a game-changer and the beginning of the end of the Ramaphosa presidency. For others, this is a storm in a teacup and a useful and necessary distraction and respite from the Covid19 disaster. But the import of the cupof-tea meeting lies in Zuma’s decision to defy the judgment of the Concourt.

Zuma was ordered to obey all summonses issued by the commission on “state capture”, and denied the right to remain silent when questioned – except in cases where he might incriminate himself. To close the loop, he is expected to explain why an answer to each question put to him may tend to incriminate him. As if that was not enough, he was ordered to pay the costs of the secretary’s application, despite Mr Zuma not having opposed the application.

This bizarre judgment actually puts the cart before the horse. The Commissions Act criminalises the refusal or failure by a witness to obey a summons without good cause or legitimate excuse. And that existence of good cause cannot be adjudicated by a court in advance.

Moreover, the Concourt did not address the matter of high court litigation in which Zuma challenges the lawfulness of the establishment of the commission and its impartiality. Pending litigation in which a party seeks clarity from the high court on a critical legal issue may constitute legitimate grounds for requesting that a commission defer to the high court in view of the pending matter.

The Concourt has no constitutional authority to pre-empt and render academic court proceedings pending before another judge in the high court.

That explains why the Concourt eschewed that issue and never once referred to the pending high court action. Section 166 of the Constitutjuiodnicieasrtya,balinsdheiss btihnedihnigeroanrchalyl joufdgoeusr.

The dominant narrative has been that Zuma’s position is a threat to both our constitutional order and, by extension, our democracy. Scant attention is paid to whether, in directing Zuma to account, as he must, the Constitutional Court may have violated his constitutional right or not.

In his recent must-read column, An Unembedded Take on Law, advocate Vuyane Ngalwana, SC, argues that the judges of the Constitutional Court may have misdirected themselves in this matter. To ensure that he is not misunderstood, Ngalwana is unwavering that accountability is a foundational principle of the Constitution.

But Ngalwana is of the view that the Constitutional Court has become victim to tunnel vision – a tendency to view the world through a single or limited lens. This happens when people are subjected daily to the same uninterrogated hypothesis based on the same information about the same issues by almost all media houses.

In truth, this so-called general view is a result of a few influential people saying the same thing through numerous platforms.

The court of public opinion is often a hurried brew, flavoured by and often pungent with prejudice. It will be a bitter and toxic spill if our Constitutional Court descends to the same level.