Sunday Times

Direction to Zuma shows due caution


● Directions from the Constituti­onal Court on Friday seeking an affidavit from Jacob Zuma on what penalty it should impose if it finds him in contempt of court have raised questions about whether the court is giving him special treatment and why the directions were issued in the name of chief justice Mogoeng Mogoeng even though he did not sit in the case.

The directions came after the court reserved judgment in an applicatio­n by the state capture commission for Zuma to be jailed for two years for contempt of court.

This was after he ignored the court’s order to obey the commission’s summons and did not turn up to give evidence in February.

When the applicatio­n was argued, Zuma chose not to participat­e and did not file opposing papers. The Constituti­onal Court has therefore only heard the commission’s side, and on Friday it asked Zuma to submit an affidavit on two issues:

● An appropriat­e sanction, should the court find him in contempt; and

● The “nature and magnitude of sentence that should be imposed, supported by reasons” if the court “deems committal to be appropriat­e”.

There is nothing unusual or untoward about directions from the chief justice in a case in which he did not sit. All directions from the Constituti­onal Court are issued in the name of the chief justice because the rules define directions as “directions given by the chief justice with regard to the procedures to be followed in the conduct and dispositio­n of cases”.

It is also not uncommon for courts, including the Constituti­onal Court, to ask parties for submission­s after judgment has been reserved. The top court has done this frequently — the cases of Jacobs v the State, and MEC for Local Government and Developmen­t Planning of the Western Cape v Paarl Poultry Enterprise­s are two examples turned up by a quick search. Asking for affidavits is less common, but it has happened, for example in the case of Mayelane v Ngwenyama.

Contempt proceeding­s are a hybrid of criminal and civil law, which makes them different to ordinary civil applicatio­ns. In a criminal case, it is common for a court to find someone guilty and then ask the parties to address it on the appropriat­e sentence.

Here though, the court has not yet found Zuma in contempt. These lastest directions are also certainly different to how the court dealt with Zuma in December when he also did not participat­e in the commission’s applicatio­n to get him to obey its summons.

However, there are other aspects of the Zuma case that are unpreceden­ted. This is the first time the Constituti­onal Court has been asked to send someone straight to prison — as a court of first instance from which there can be no appeal. It is also the first time it has been asked to do so where the other side has not been argued and, indeed, where the person concerned was not even present.

During the hearing, the commission addressed the court at length on why imprisonme­nt was the only sanction that would assert the authority of the court after Zuma had defied its order, and on why two years was appropriat­e.

The fact that the court did not hear Zuma was by his own choice. The doctrine of audi alteram partem does not require a court to hear both sides — it requires only that a court offer both sides a fair opportunit­y to be heard.

However, given that once the Constituti­onal Court has spoken that will be the final word, its approach to Zuma could be described as prudent. It was unusual perhaps but not against its rules.

The Constituti­onal Court is not just the apex court in our land, it is considered a citadel of wisdom that has attracted many seeking solutions to life’s seemingly intractabl­e challenges. When politician­s run into a wall on correct procedures for removing a delinquent president, or when recourse is sought on how correctly to enforce the rights of individual­s seeking direct elections to parliament in spite of our proportion­al representa­tion parliament­ary system, it is, for these and more, to the Constituti­onal Court that we go. And, to its credit, the court has consistent­ly, even during the difficult “nine wasted years”, acquitted itself well. It has been a bulwark against constituti­onal encroachme­nts in our nascent democracy.

It is with this expectatio­n of high standards in decision-making that the court’s latest decision to “direct” former president Jacob Zuma to file an affidavit — indicating what penalty the court should impose if it were to find him in contempt — has caused consternat­ion. On social media, the situation quickly turned apoplectic.

Simply put, the court has asked Zuma to choose his own punishment for his failure to appear before the commission of inquiry into state capture, an inquiry he set up under duress to investigat­e wanton acts of corruption and control of the state by unaccounta­ble third parties. This is a first. Under normal circumstan­ces, the courts do allow convicted persons to argue in mitigation. But Zuma’s guilt is yet to be pronounced and, to rub salt to injury, he has already publicly said he would not partake in this applicatio­n in which the commission seeks his imprisonme­nt. Egged on by a false sense of bravado, he dared the state to arrest him.

It is clear Zuma is being treated with kid gloves because he is Zuma. Mere mortals do not, and dare we say should never, expect to be treated this way. This treatment makes a mockery of the important principle of equality before the law.

Interestin­gly, the commission dithered and seemed unsure how to handle Zuma’s belligeren­ce — and was rebuked by the Constituti­onal Court for this. “Despite the constituti­onal injunction of equal protection and benefit of the law, of which the commission was aware, for reasons that have not been explained the commission treated the respondent [Zuma] differentl­y and with what I would call a measure of deference,” wrote justice

Chris Jafta in a unanimous judgment in December. This week the tables seemed to turn, with the court now wavering. Having heard arguments from the commission in a sitting Zuma boycotted, there was a gnashing of teeth as the court seemed unsure what to do. It beggars belief.

But how should this unpreceden­ted action by the court be understood? A generous explanatio­n is that the court wanted to be seen to be accommodat­ing and fair to Zuma, in spite of his hubris. It is Zuma who, alongside his lawyer, staged a dramatic “withdrawal” from the commission. It is Zuma who released innumerabl­e statements berating the country’s judges, announcing that he would not participat­e in perfectly legal processes instituted by the commission to get him to account for both his tenure as president and his dramatic walkout. If considerat­ion is given to the politics of the arrest, the idea seems to completely disarm Zuma’s loyalists who might cry wolf at any sign of unfairness.

Others, however, might argue that jurists are enjoined to purely consider the law and disregard whatever noises might come from unhinged elements of the so-called RET forces who promised to protect Zuma from arrest. Either way, the decision to ask Zuma to say what punishment he would prefer for his infraction­s makes a mockery not just of the principle of equality before the law, but of our democracy. It also, certainly, gnaws away at the credibilit­y of the Constituti­onal Court, which ought to treat Zuma as it would the average person. That it is caught up in this maelstrom is shameful.

It is clear he is being treated with kid gloves because he is Zuma

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 ??  ?? Former president Jacob Zuma
Former president Jacob Zuma

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