Contempt of court is ‘a crime against the rule of law’
Contempt of court is a crime against the administration of justice, said Tembeka Ngcukaitobi SC, counsel for the Electoral Commission of South Africa (IEC), in the Constitutional Court on Friday.
“It is a crime against the state ... it is a crime against the rule of law, it is a crime against the constitution. And the primary duty of MPs is to uphold the rule of law,” he said.
That was why, when the constitution disqualified people sentenced to more than 12 months in prison from being MPs, this ban should cover those who had committed the crime of contempt of court, he said.
The Constitutional Court was hearing argument in the IEC’s urgent application for leave to appeal against the judgment of the Electoral Court that cleared the way for former president Jacob Zuma to stand for election to the National Assembly as an MP. When the MK Party added Zuma to its parliamentary list, the commission upheld an objection to his inclusion as a potential legislator on the basis of section 47(1)(e) of the constitution.
Section 47(1)(e) disqualifies people from being MPs if they have been “convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine”. The section also contains a proviso which says that “no-one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined”.
It was a marathon day of argument that ended only after 8pm. The entire morning session was preoccupied with a counter-application brought by Zuma and the MK Party for the recusal of five members of the court because they had sat on the bench that sentenced Zuma to 15 months in prison for contempt of court. Despite the lengthy submissions, it took only about 15 minutes for the justices to decide to dismiss the recusal application.
Zuma’s counsel, Dali Mpofu SC, also made several other arguments. But it was the correct interpretation of section 47(1)(e) that elicited the most questions from the bench.
Ngcukaitobi was addressing an argument by Mpofu that, because Zuma had been held in contempt by the Constitutional Court during civil proceedings, and not during a criminal trial, he had not been “convicted” of an offence in the manner contemplated by section 47.
Before the hearing, the court had asked the parties for submissions on whether there was a “distinction between a conviction following criminal proceedings as opposed to a conviction following civil proceedings”, and whether, when interpreting section 47, the disqualification should apply to both types of convictions.
These directions touched on what had divided the court in its earlier judgments, when it had held Zuma in contempt and refused to reverse, or “rescind”, that order. In those two judgments, Justices Leona Theron and Chris Jafta had been troubled by the idea that the apex court, sitting as first and last court to hear a case, with no appeal, could send Zuma directly to prison without the procedural safeguards afforded to a criminal accused by the constitution, such as the right of appeal.
Mpofu argued section 47 should not apply to those found to have been in contempt in civil proceedings, saying Zuma was the only person in South Africa “since 1652” who had been sent to jail without having been given a chance to tell the court whether he pleaded guilty or not guilty to an offence.
Mpofu argued that it was for a similar reason that the Electoral Court had found that Zuma was not hit by section 47, saying he had not been “sentenced” within the meaning of section 47.
In the Electoral Court’s judgment, Justice Dumisani Zondi said: “The drafters of the constitution recognised that a person convicted and sentenced has a right to appeal ... if that was not important to them, they would not have inserted the proviso.”
But Ngcukaitobi argued that Electoral Court had made a fundamental “misdirection in law” on this score. He said section 47(1)(e) had various components, the first being a “substantive component” that defined the category of disqualified candidates: “persons convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine”. The second component was the proviso, and it was “crucial to keep those components separate for a proper analysis”.
The purpose of the disqualification component was to ensure that those who had broken the law in a serious way (hence the 12-month requirement) should be disqualified from being legislators.
Counsel for friend of the court Corruption Watch, Max du Plessis SC, said section 47 had “a democracy-affirming [purpose] that serves to protect ... the sanctity of constitutional office”.
The proviso’s purpose was to do with timing, said Ngcukaitobi: the disqualification should only kick in once all appeal avenues had been exhausted. When a sentence had been imposed by the Constitutional Court from which there was no appeal — the sentence kicked in the day it was imposed: “Finality, which is the real object behind the proviso, is achieved,” he said.
He had a heated debated with Theron, who suggested the constitution did not contemplate that fundamental rights such as the right to appeal “would be taken away”. Ngcukaitobi said this question had already been settled by the Constitutional Court in the earlier Zuma judgments, which said the constitution specifically allowed for matters to come to the Constitutional Court by way of “direct access”.
In that way, the constitution itself envisaged there would be times when the Constitutional Court would be the first and last court to hear a case.
Ngcukaitobi said: “But Justice Theron, you’ve had that debate with your colleagues
— twice. This is not the case to have that relitigated.”
Mpofu was also asked about the purpose of the disqualification component of section 47. He said the overall purpose of section 47 was to protect people’s rights to become MPs.
Acting justice David Bilchitz said: “But you haven’t answered what is the purpose of the disqualification.” Mpofu said it was wrong to determine the purpose of a provision by “cutting it into small pieces”, saying it had to be looked at holistically. “You can’t butcher it,” he said.
Judgment in the matter was reserved.