It was on March 25 that the Constitutional Court heard the urgent contempt of court application brought by the Zondo Commission of inquiry against former president Jacob Zuma. The Helen Suzman Foundation joined the application as amicus curiae (friend of the court).
The court handed down its judgment on Tuesday (June 29).
The majority found Zuma guilty of the crime of contempt of court for failure to comply with the order made by the same court in January, and sentenced Zuma to 15 months in prison, with no right to appeal. Zuma has been given five days to hand himself over to either the Nkandla or Johannesburg Central police stations.
Judges Jafta and Theron penned a minority dissenting judgment which holds no sway over the majority judgment.
Certain allegations had been made to the Public Protector concerning state capture and the then president Zuma, which she outlined in a report issued in 2016. The Public Protector recommended that a commission of inquiry be appointed to investigate these allegations.
Zuma established the commission, and drew up the terms of reference which covered the allegations flagged by the Public Protector, despite the fact that he was implicated as one of the culprits.
ConCourt ordered Zuma to testify
On January 28 the Constitutional Court ordered that Zuma:
- Must appear and give evidence before the commission on the dates determined by it.
- Does not have a right to remain silent in proceedings before the commission.
- Is entitled to all privileges under Section 3(4) of the Commissions Act, including the privilege against self-incrimination.
- Must pay the commission’s costs in Constitutional Court, including the costs of two counsel.
Zuma decided not to participate in these proceedings, and the court noted: “This means that the matter will be determined on the basis of the version provided by the Commission.”
The ConCourt opined that “if the attendance of a witness is sought, a summons should be issued, directing the witness to appear before the commission on a specified date” and that “Once a summons is duly signed by the secretary, it should be served upon the witness …”
The court also noted that if a witness fails to appear at the appointed time, they would be guilty of an offence, and liable to a fine and/or imprisonment.
The court confirmed that the Zondo Commission was investigating matters of public concern, and that the terms of reference placed Zuma at the centre of the investigation, such as:
- Whether Zuma informed the Guptas about appointments to the cabinet.
- Whether Zuma had unlawfully facilitated the awarding of tenders by state-owned entities to the Gupta family or any other person or company.
- Whether Zuma had abdicated his constitutional power to appoint cabinet members to a private family and whether he had acted unlawfully.
Zuma’s participation was essential in order to properly investigate these matters.
Zuma’s response to the January court order
Zuma’s response was to issue a public statement in which he alleged that the Zondo Commission and the Constitutional Court were victimising him, driven by political motives. He also did not attend the commission as required by the summons, and as directed by the ConCourt.
Zuma addressed a 21-page, unsigned letter to the ConCourt, and did not furnish an affidavit.
Zondo Commission’s submission
At the hearing the Zondo Commission submitted that:
- Zuma’s conduct constitutes a particularly egregious affront on judicial integrity, the rule of law and the Constitution of the Republic of South Africa itself.
- That it is appropriate that the court deal with Zuma’s calculated efforts to undermine the administration of justice and public trust in the judiciary.
- And that this should be dealt with on an urgent basis as Zuma’s conduct poses a grave threat to the administration of justice and the rule of law.
- And Zuma wields the power to inspire others to defy courts.
- Zuma has effectively conducted a politically-motivated smear campaign of this court, the commission and the judiciary.
Zuma’s marked disregard for the authority of the highest court in the country
The Constitutional Court found that Zuma had “demonstrated a marked disregard for the authority of this Court and is resolute in his refusal to participate in the Commission’s proceedings”, and “has done more than enough already to deserve a punitive sanction”.
The court further said: “The extent and gravity of the contempt in this matter is singularly unprecedented and absolutely inimitable.”
And that a fine or suspended sentence would be inappropriate.
It noted Zuma’s “unfounded accusations and insults”, and decided to only deal with one: Zuma’s insistence that commission chair Deputy Chief Justice Raymond Zondo recuse himself from the commission.
The court dealt with this swiftly. “Of course, this view is totally misconceived and calculated to confuse the public. If Mr Zuma did not want to participate in the Commission’s hearings whilst his review application was pending, it was open to him to seek an interim stay of proceedings insofar as they related to him.”
The court also expressed the view that as former president, Zuma had a “heightened obligation … by virtue of her or his position … to conduct her or himself in a manner that accords with the Constitution”.
The court found that Zuma’s conduct is “all the more outrageous when regard is had to the position that he once occupied”.
It stated that: “Never before has the legitimacy of this Court, nor the authority vested in the rule of law, been subjected to the kind of sacrilegious attacks that Mr Zuma, no less in stature than a former President of this Republic, has elected to launch.
“Never before has the judicial process, nor the administration of justice, been so threatened,” said Acting Chief Justice Sisi Khampepe.
“It is my earnest hope that they never again will.”
Is this a wrap?
After some 20 years of dodging justice on the arms deal, and after some three years of the Zondo Commission hearing testimonies on state capture, Zuma will be going to prison for a completely different reason – his refusal to cooperate with the commission, his refusal to give his side of the story, and his insistence on remaining silent, and ultimately, ignoring the direct order of the Constitutional Court.
The presumption of innocence – that one is innocent until proven guilty – is a basic legal principle.
But one cannot cry ‘I am innocent’ in the face of mounting evidence without attempting to rebut it and shunning a fundamental right enshrined in the constitution, the right to be heard.
Listen to Nompu Siziba’s interview with Standard Bank Group chief economist Goolam Ballim (or read the transcript here):