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How Zuma’s urgent high court application collapsed

Application sought to entangle the court in ‘judicial adventurism’ – judge.
Jacob Zuma addressed supporters outside his home at Nkandla last Sunday, ahead of his incarceration on Wednesday. Image: Emmanuel Croset/AFP/Getty Images

Friday morning (July 9) saw Judge Bhekisisa Mnguni of the Pietermaritzburg High Court hand down his judgment dismissing the urgent application by former president Jacob Zuma to stay the order of his arrest.

Having handed himself over to the Estcourt Correctional Centre just after midnight on Wednesday, Zuma was already ensconced in prison on Friday, when he would have heard that his urgent application was not only dismissed, but that costs had been awarded against him.

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Parties to the hearing

The opposing parties to Zuma’s application were the minister of police; the national commissioner for the South African Police Service; the minister of justice and correctional services; the secretary of the Zondo Commission of Inquiry into allegations of state capture, fraud and corruption in the public sector, including organs of state; commission chair Acting Chief Justice Raymond Zondo; the president of the Republic of South Africa; and the Helen Suzman Foundation, which was joined as amicus curiae (friend of the court).

The respondents were represented by Tembeka T Ngcukaitobi SC, and the Helen Suzman Foundation by M du Plessis SC. Zuma was represented by Dali Mpofu SC. 

Background to the contempt of court finding

The background to Zuma being found guilty of contempt of court is briefly sketched below:

  • The commission summonsed Zuma to appear from November 16 to 20, 2020. Zuma appeared on November 16, and his counsel argued for recusal. The recusal application was dismissed on November 19. Zuma left the proceedings. The commission approached the Constitutional Court (ConCourt) for an order. Zuma’s lawyers notified the commission that he would not participate in the proceedings, and he did not oppose the ConCourt application on December 29, 2020.
  • The commission summonsed Zuma to appear on January 18, 2021. Zuma did not appear.
  • The ConCourt delivered its first judgment on January 28, directing Zuma to obey all summonses and directives issued by the commission. Zuma’s attorneys notified the commission that he would not appear.
  • The commission again summonsed Zuma to appear on February 15. Zuma did not appear. The commission announced that it would institute contempt of court proceedings for a punitive order holding Zuma in contempt of court. Zuma issued a public statement on why he would not appear.
  • The commission instituted urgent contempt of court proceedings in the ConCourt. Zuma did not file an answering affidavit and did not appear at court. The matter was heard on March 25. The ConCourt invited Zuma to make submissions with regard to an appropriate sanction. Zuma wrote a letter to the ConCourt instead of filing an affidavit.
  • On June 29, the ConCourt found Zuma guilty of contempt of court, and sentenced him to 15 months’ imprisonment.

Mnguni considered that the public statements issued by Zuma confirmed his “defiant attitude …evidently calculated to undermine public confidence in the integrity of the Constitutional Court and the judiciary more broadly”.

Locus standi of the commission and the foundation

Counsel for Zuma, Mpofu, challenged the locus standi of the commission and the foundation. Zuma questioned what constitutional and legal interest the commission had in opposing his application, and contended that the Helen Suzman Foundation is a “busy body”.

Mnguni determined that Mpofu’s contentions in regard to the commission “are grounded on an unsound rationale”, and Mpofu’s comments in regard to the Helen Suzman foundation, “misplaced, and falls to be rejected”.

Hierarchy of courts

Mnguni noted that the constitution provides for the hierarchy of courts, and the ConCourt is the highest court.

Mpofu submitted that:

  • The circumstances of this matter are “extraordinary and exceptional”, and that had the high court convicted Zuma, the high court or ConCourt would have had the power to suspend the committal order, pending the outcome of the appeal. In those circumstances, Mpofu said, Zuma would be entitled to bail.
  • As the ConCourt’s order cannot be appealed, Zuma’s only recourse is to challenge his conviction and sentence by way of a rescission application, and it was for this reason that he sought a suspension of the committal order.
  • “The Constitutional Court was not constituted as a criminal court”, and could therefore not convict a person of civil contempt, as it was not a court “constituted in the manner prescribed by the CPA [Criminal Procedure Act]”.
  • The Constitutional Court “did not have the jurisdiction to conduct a criminal trial as the lower courts have, as the Constitutional Court was the ‘ultimate appeal court’”.
  • The high court has jurisdiction to suspend the ConCourt’s committal order because the committal order is to be executed within the jurisdiction of the high court.

Ngcukaitobi and Du Plessis disagreed and contended that the high court only has the power to “suspend its own decisions”.

Mnguni found Mpofu’s argument that the high court has concurrent jurisdiction with the ConCourt because of territorial jurisdiction over Zuma, to be “fundamentally flawed”, and that “a high court cannot suspend the execution of an order by the Constitutional Court”.

The value of precedence

Mguni expounded on the certainty of the law and said it is the duty of the judge to follow previous decisions that have set legal precedence.

Mnguni opined that precedence is a core component of the rule of law, providing “certainty, predictability, reliability, equality, uniformity, convenience”.

Without which, in the words of Judge of Appeal Cameron in Turnbull-Jackson v Hibiscus Coast Municipality and others: “The courts would operate in a tangle of unknowable considerations”.

Mnguni reasoned that should he “accede to the contentions advanced on behalf of [Zuma], then the hierarchy will be disturbed and there will be no finality to legal decisions” and declared that “[what] this application seeks to achieve is to entangle this court in judicial adventurism (which has been strongly deprecated in constitutional democracies), and to make whimsical orders which have the effect of granting unlawful and unwarranted relief”.

Zuma also challenged the constitutionality of the CPA

Mnguni dismissed Mpofu’s submission that the provisions of the Criminal Procedure Act (CPA) are unconstitutional, and referred to Fakie NO v CCII Systems in which the majority affirmed that “the civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of motion court applications, adapted to constitutional requirements”.

Mnguni said that in his view “this conclusion has the effect of removing all the wind from the sails of the boat upon which Zuma’s contention is journeying”.

Mnguni held that:

  • Zuma can submit an urgent application to the ConCourt.
  • For the high court to grant an urgent interdict would allow Zuma to “disregard the courts and their authority”.
  • Zuma’s “concerns about his health are not supported by any evidence” to date.

Mnguni concluded: “Unsurprisingly, faced with this seemingly insuperable difficulty in relation to the invocation of the incorrect and unprecedented procedure, the rest of Zuma’s case then collapses like a deck of cards”.

Zuma’s rescission application will be heard by the ConCourt on Monday (July 12).

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COMMENTS   15

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So this mess is entirely Zuma’s making. He set up the Zondo commission. All he had to do was go and testify. He is not in contempt for any other reason than not doing what the court ordered him to do (testify).

Well now he is in bigger trouble if it can be proved that he had some doing in the orchestration of the unrest following his arrest.

This is about ego, a classic narcist. He was trying to show that he is above the law and it backfired on him. Eat humble pie and agree to testify and he will probably be released the same day.

Mpofu’s tv time too.

Talks himself into a blik each time.

Why do we need a judicial system staffed with learned and erudite and people if all the crowd wants is mob rule?

Why do we need a policeforce when it is riddled with criminals?

Why do we need draconian labour laws when 42% of the nation are unemployed?

Why do we need farmers to secure food security when we can just expropriate their lands without expropriation?

Why do we have destructive protests against poor service delivery if we are just going to vote for the same crowd again?

Why are we still amazed at the state our land is in?

And why do 6% of the population have to pay >90% of the income tax to fund this madness?

Zuma & Cali-2 prize fools. Only in Africa can fools like this be a president and a lawyer.

Makes one think of the caliber of the electorate, not so?

Release Jacob Zuma.

We get nothing out of this.

We get law and order which has been in short supply for some time. Its about time that an ANC members has to account for their actions. Unfortunately this is only for contempt.

We get nothing from sticking it to a 79 year old unemployed man, especially from a political squabble amongst friends turned enemies.

The looting and violence perpetrated in this guys name has sealed the fate of these previously disadvantaged “supporters”.

They will now be known as a “forever disadvantaged” lot. It will be inherited by their children and many generations that follow.

Cant expect them to realize this as this is the “Utopia” zuma and the anc promised them. This is how they want to live.

Not sure who will keep running a business that will be looted routinely by this forever disadvantaged lot.

“Utopia” as they know it might be a short-lived fantasy. But probably well deserved.

Again hes costing the taxpayer money by sitting in jail

Money well spent some more need to be spent to get other corrupt cadres out of the system to reduce the amount of taxpayer’s money being syphoned off through corrupt contracts.

The mere fact that so many people/voters want a corrupt convict that stole their own future out of jail makes me think their is very little of a future for any of us!

From the ConCourt to the High Court to Estcourt.

This is a culture clash between constitutional democracy and tribal feudalism.

End of comments.

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