On 29 June 2021, the Constitutional Court of South Africa ran out of patience with former President Zuma’s very public recalcitrance, finding the former President guilty of contempt of court and sentencing him to 15 months’ direct imprisonment. The decision arose from Zuma’s failure to comply with an earlier Constitutional Court order directing him to obey all summonses and directives issued by, and appear before, the Commission of Inquiry on State Capture, a commission Zuma himself had appointed as President.
The Court was unanimous in finding Zuma on contempt, applying the criminal standard of proof beyond reasonable doubt. The Court split on the appropriate order flowing from the contempt finding. A majority of seven justices, in a judgment by Acting Deputy Chief Justice Khampepe, concluded that the only appropriate order was direct imprisonment. The majority found – the minority agreeing on this point – that there was no longer any possibility of securing compliance with the original order because the Commission of Inquiry’s term was about to expire. This left only one option – an order of imprisonment. The majority had regard to the seriousness of the offence, which was aggravated by Zuma’s standing as a former president and his public statements attacking the Court and the judiciary. It concluded that a sentence of 15 months was appropriate, to commence in 5 days.
A two-judge dissent by Theron J would have referred the matter to the Director of Public Prosecutions to enable Zuma to be prosecuted in an ordinary criminal trial. For the minority, the imposition of direct imprisonment with an unsuspended sentence in purely punitive contempt proceedings unjustifiably limits the rights to freedom of the person and to a fair criminal trial under the South African Constitution. While such limitations of rights may be justifiable where it is still possible to secure compliance with the underlying court order, it is not permissible where the only purpose of proceedings is to punish past contempt.
The matter presented a vexing tension between the constitutional imperative to vindicate the rule of law, a founding value of the Constitution, and the human rights of contemnors. This tension arose in the muddy waters of the procedural dilemmas presented by the hybrid civil-criminal nature of contempt proceedings. Such proceedings originate in civil proceedings, but culminate in a finding of guilt – beyond reasonable doubt – of a crime, for which imprisonment is a competent sentence. All this happens without an ordinary criminal trial or any of the protections it offers.
For the majority, Zuma’s ‘brazen’, ‘recalcitrant’ contempt of an order of the highest court concerning his refusal to co-operate with a commission of inquiry into massive alleged corruption, implicating Zuma among others, was the paramount consideration. The majority began the judgment with an evocative quotation from former President Nelson Mandela, speaking at the inauguration of the Constitutional Court in 1995:
“We expect you to stand on guard not only against direct assault on the principles of the Constitution, but against insidious corrosion.”
Khampepe ACDJ drew further inspiration from South Africa’s first democratic president in the conclusion to her judgment. Mandela had ended his 1964 speech from the dock with the iconic words:
“I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”
If the quotation from Mandela’s speech inaugurating her Court proclaimed the call to duty that the majority sought to answer in this case, Khampepe ADCJ’s veiled borrowing from Mandela’s speech from the dock reveals how high the majority considered the stakes to be in answering this call:
“I, too, cherish the ideal of a democratic and free society in which all persons are both as equal in opportunity, as they are in accountability, before the law.” (para 139)
For the minority, Zuma’s contempt being in the past and impossible to cure, there was no particular urgency or imperative to conclude contempt proceedings and sentence him in the Constitutional Court.
On Friday 2 July, Zuma launched eleventh hour urgent proceedings in the High Court to interdict the execution of his sentence pending an urgent application to the Constitutional Court to rescind its contempt decision. The high constitutional drama continues!