Yet again, the Constitutional Court vindicated SA’s young constitutional democracy in a moment of distinct reckoning. The decision marked the end of the road for former president Jacob Zuma’s defiance of the court, most recently in a “cynical manoeuvre” to evade accountability at the Zondo commission.
In a blistering majority finding against Zuma — which acting deputy chief justice Sisi Khampepe authored with coherent, rigorous and forceful legal reasoning — the spirit of the constitution was affirmed, with Zuma being handed a 15-month jail sentence for defying an order to appear before the state capture commission of inquiry.
“I pen this judgment in response to the precarious position in which this court finds itself on account of a series of direct assaults, as well as calculated and insidious efforts launched by former president Jacob Gedleyihlekisa Zuma, to corrode its legitimacy and authority,” said Khampepe, who began her delivery with a quotation from the late former president Nelson Mandela.
“We expect you to stand on guard not only against direct assault on the principles of the constitution, but against insidious corrosion,” Mandela had said during the inauguration of the apex court in August 1995.
The judgment unleashed a wave of praise and jubilation from civil society organisations, opposition parties and legal experts, heralding the Constitutional Court’s reassertion of the supreme law of the land as one of the most important moments in SA's history.
Defend Our Democracy, a cohort of former anti-apartheid activists and leaders from religious, civil society and business organisations, described it as “vindication of the constitution’s authority”.
“The judgment is an important vindication of the constitution’s authority, the independence of SA’s judiciary and the rule of law. In particular, today’s judgment underlines the essential principle that all are equal before the constitution and our law,” the movement said.
Even though Zuma’s allies and spokesperson Mzwanele Manyi said they were considering the legal options, there is broad consensus among legal experts and law professors that Zuma has reached the end of the road.
“The Constitutional Court has spoken,” Prof Mcebisi Ndletyana from the University of Johannesburg said. “Other than divine intervention, I don’t see any other source of intervention.”
After Zuma had flouted a Constitutional Court order to comply with summonses to appear and testify at the state capture inquiry over five days in February, Itumeleng Mosala, the inquiry’s secretary, approached the court once more.
He made an application to the court on an urgent basis, supplying a motivation for Zuma’s imprisonment rather than a fine or suspended sentence.
A court may issue a suspended sentence contingent on conditions, such as the respondent not committing the same crime again. The commission’s argument, unopposed by Zuma, was heard in late March. The Helen Suzman Foundation (HSF) was admitted as a friend of the court — or amicus curiae.
Khampepe said on Tuesday that the court found the foundation’s submissions were relevant and helpful, especially on the question of what sanction Zuma should face.
Legal councillor with the HSF Anton van Dalsen said on Tuesday he found it interesting that the judgment addressed Zuma’s “attack on the judiciary” over the last few months. “I think this in part an explanation for the strong wording in the judgment,” he said.
“There is no appeal from it. So, you have to live or die by its decision,” Van Dalsen said.
The Constitutional Court is the highest court in the country. It is also known as the court of last instance, which means its decisions are unequivocally and irrevocably final.
Prof Pierre de Vos, who teaches constitutional law at the University of Cape Town, also saw no way out for Zuma to avoid prison.
“What is Zuma’s next legal move? The answer is: a move to prison. I assume the next legal option for him would be parole. They can’t appeal,” he said.
De Vos read the majority judgment as a “forceful and eloquent defence of the judiciary.” Ulrich Roux, an attorney and legal analyst, found its tone “admittedly stern” in direct relation — he believed — to a letter Zuma wrote to chief justice Mogoeng Mogoeng in April.
Roux noted that the court’s decision was singular. “It’s definitely a landmark ruling. The reason I say that is because it’s the first time the Constitutional Court has sent anyone to prison for contempt.”
In a letter dated April 9, Mogoeng had instructed Zuma to file an affidavit of up to 15 pages. He ordered Zuma to detail what he considered the appropriate sanction (in other words, punishment) if he were found guilty of contempt of court. Zuma replied by means of a 21-page letter to Mogoeng dated April 14. In it, he declared he was prepared to become “a prisoner of the Constitutional Court” if sentenced.
“It was basically a genuine attempt to be fair towards Zuma,” De Vos said.
While the majority of the country’s top judges concurred with Khampepe’s scathing ruling against Zuma, two members of the Constitutional Court held a minority view. Van Dalsen emphasised that the majority and minority judgments agreed that Zuma was in contempt of court, whereas the sanction they proposed diverged.
In his interpretation, there was a “quite sharp” jockeying between the two sides.
“The majority, I’m interpreting now, is saying the minority is not facing reality and the facts. The minority is saying they need to think about this beyond the former president’s conduct,” De Vos said.
“It is two very different kinds of approaches to the law and the former president’s conduct.”
Prof Zozo Dyani-Mhango from the University of Pretoria, who specialises in international constitutional law, was especially interested in studying the minority judgment.
Justice Leona Theron authored it, while justice Chris Jafta concurred.
Dyani-Mhango emphasised that Theron made it plain the full bench agreed that Zuma was guilty of contempt for defying the Constitutional Court’s order.
“She found that the main judgment did not take into account Zuma’s rights,” she said. Though Theron was in the minority, Dyani-Mhango was of the view that she had “provided leadership” in clarifying applicable law.
“She cautioned against developing the law for a particular person. She points to the dangers of the main judgment to other litigants in Zuma’s shoes who may be punished,” Dyani-Mhango said.
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