A version of this brief appeared on “News24” on 2 July 2021.
Introduction
By now most, if not all of us, have at least a basic idea of what the Constitutional Court’s ruling in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud un the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma (“Contempt Case”) is all about. In essence, it is the result of ex-President Zuma’s refusal to appear and testify before the State Capture Commission which has been investigating the myriad of corrupt activities and the near total gutting of our state institutions under his presidency. Years of unchecked corruption and greed are slowly being brought to the surface at the State Capture Commission and Mr Zuma obviously decided that it was not in his interests to make an appearance.
His actions resulted in one of the strongest judgments in defence of the rule of law this country has ever seen.
The fact that Mr Zuma was in contempt of court could never really be up for any serious debate. As both the majority and minority judgments point out, he was well aware of the relevant court order and he wilfully and intentionally refused to comply. Therefore a guilty finding is no surprise. However, more important is the majority judgment’s consideration of Mr Zuma’s action and conduct outside of non-compliance with the court order. His contempt goes further. What the majority judgment so eloquently achieved is to explain what the nature of contempt of court is. It accentuates the public interest nature of the crime and clarifies that conduct as outrageous and destructive as that of ex-President Zuma is a threat to the Judiciary as a whole. It is clear that the unprecedented and unwarranted attacks systematically meted out by Mr Zuma against the Judiciary will no longer be tolerated and the Judiciary will not be silenced.
The minority judgment disagrees in terms of sanction. However, Mr Zuma has made it abundantly clear that he would not step foot nor say a word in the State Capture Commission. Therefore, whether a suspended sentence had been ordered to attempt coercion (as suggested in the minority judgment) or whether, as did happen, an unsuspended sentence was ordered, the outcome is the same. Mr Zuma would see the inside of a prison cell.
The culture of impunity that has for so long reigned unchecked in relation to ex-President Zuma’s term of office has been dealt a blow. The majority judgment was at pains to highlight the exceptional nature of this matter. This does not mean that it can only be applicable to Mr Zuma, or that it was designed specifically for himself alone. Rather, it indicates that the decision was not arrived at lightly. It is unlikely that everyone who defies a court order will be sentenced to an unsuspended term of imprisonment. But it confirms that if a contemnor acts with such disdain of the integrity of the Judiciary that this is an option the courts may use to vindicate the rule of law.
Although Mr Zuma has avoided entering an appearance at the State Capture Commission, it does not prevent negative findings being made against him and it does not prevent the National Prosecuting Authority (“NPA”) from investigating anything that does arise from the Commission. The judgment handed down by the Constitutional Court is not the end of the matter.
What this judgment means is that the Constitutional Court affirmed, with strength and vigour, that the Judiciary is not a tool to be wielded by those with political influence. The rule of law will prevail and everyone is equal before the law. In short, the Constitutional Court has re-established its authority as the final arbiter of the law and ultimate guardian of the Constitution. It does this in the name of the Judiciary as a whole.
What should we be thankful for?
But in the final analysis, what should we be thankful for, in addition to the content of the judgment? It is simply the fact that in terms of the Constitution, the President is not empowered to appoint judges at his own discretion. A procedure is set out in terms of which the Judicial Service Commission (“JSC”) makes recommendations for such appointments - and the JSC is made up of a mixture of representatives of the executive, the legislature, judges, the law profession and academics. Mr Zuma was therefore unable to appoint judges on his own during his term of office (or to remove judges he didn’t like). If he was able to hire and fire judges at will, as he did with the heads of the NPA, the Hawks, SARS and state-owned entities, it must be assumed that the Judiciary would simply have ended up as yet another instrument at his personal disposal.
For this reason, the Helen Suzman Foundation is advocating that even less members on the JSC should be appointed by the majority political party and the executive, with greater power to judges, representatives of the legal profession and academics. The most recent public interviews of applicants to judicial positions clearly showed how the existing process can be hijacked by politicians who want to advance their own interests (even if there are not many of them on the JSC). This development needs to be stopped in its tracks - the independence of the Judiciary needs to be guarded at all costs. It is in this context that the Constitutional Court judgment should also be viewed.
Chelsea Ramsden
Legal Researcher
chelsea@hsf.org.za
