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