On the magical thinking of the minority in the Zuma contempt of court judgement

The decision by the majority of South Africa’s Constitutional Court to sentence former President Jacob Zuma to prison term of 15 months acknowledges the seriousness of the threat posed by Mr Zuma’s co-ordinated and scurrilous full-frontal attack on that court, the administration of justice and the rule of law. Unfortunately, the minority – indulging in magical thinking – failed to grasp the severity of this threat, thus abdicating its responsibility to protect the Constitution.

Should a court ever be entitled in civil contempt proceedings to sentence an individual to a mandatory jail sentence if that individual resolutely refuses to obey a court order as part of the individual’s deliberate and co-ordinated all-out assault on the legitimacy and authority of that court, the legal system, and the rule of law?

Earlier this week, acting Chief Justice Sisi Khampepe (for the majority of the Constitutional Court) held that it was entitled to do so in the case of Mr Jacob Zuma because it was the only way to protect the court, the legal system, and the rule of law, from the existential threat posed by Mr Zuma’s scurrilous and fact-free war on the judiciary. The majority emphasised in several passages in its judgment that it had no choice but to act, as such an order was necessary to assert the courts’ authority and the rule of law.

Somewhat surprisingly, Justice Leona Theron (for the minority) held that it was not permissible for the court to do so, arguing that the judicial system could effectively be defended by offering Mr Zuma yet another opportunity to obey the court order, or by referring the matter to the prosecuting authority for possible prosecution of a constitutional delinquent Zuma. In doing so, the minority indulged in magical thinking by ignoring the gravity of the threat posed to the authority of the court and the rule of law by the all-out assault on the judiciary spearheaded by Mr Zuma and his lawyers.

The majority and the minority agreed that civil contempt proceedings have dual remedial and punitive purposes. In most cases the primary aim of the court would be to try and coerce the contemnor into obeying the court order, which could be done by imposing a prison sentence for the contempt that was suspended on the condition that the contemnor obeyed the court order.

But our courts – in a long line of cases – have long accepted that a contemnor could also be punished – with the imposition of a fine, a suspended prison sentence, or an unsuspended prison sentence – to protect the authority of the court and the rule of law. However, as both Khampepe and Theron pointed out, our courts have never before imposed an unsuspended prison sentence on a contemnor, which was not linked to an attempt by the court to coerce the contemnor to comply with the court order.

At the heart of the disagreement between the majority and the minority in this case, was the different views they took of the threat posed by Mr Zuma’s contemptuous behaviour, the nature of the court’s duty to counter that threat, and the effectiveness of other measure available to counter the threat. The majority took this threat very seriously, while the minority, focusing narrowly on the specific act of contempt by Mr Zuma and thus ignoring the surrounding circumstances of the case, played down the threat.

The majority judgment, correctly in my view, depicted Mr Zuma’s contempt of the Constitutional Court, the judiciary, and the rule of law as posing an existential threat to the authority of the Constitution itself. Acting Chief Justice Khampepe described Mr Zuma’s behaviour as “outlandish”, a “direct assaults, as well as calculated and insidious efforts to corrode [the] legitimacy and authority of” the Constitutional Court, which posed a severe threat to the judicial process. Khampepe further noted that it was “unbecoming and irresponsible of a person in Mr Zuma’s position to wilfully undermine the law in this way” and characterised Mr Zuma’s contempt as posing an“egregious threat… to the authority of the Constitution, the integrity of the judicial process, and the dignity of this Court” which warrants “swift and effective judicial intervention”. According to the majority:

At its core, this matter is about an egregious threat posed to the authority of the Constitution, the integrity of the judicial process, and the dignity of this Court…. It cannot be gainsaid that the longer that Mr Zuma’s recalcitrance is allowed to sit in the light, and heat, of day, so the threat faced by the rule of law and the administration of justice, curdles. The ongoing defiance of this Court’s order, by its very nature, renders this matter urgent. In fact, rarely do matters arrive at the door of this Court so deserving of decisive and urgent intervention.

The minority viewed Mr Zuma’s contempt in a less serious light because it insisted that his contempt of the Constitutional Court order should be judged in the abstract, without having regard to the actual impact, obviously heightened by Mr Zuma’s other statements and actions. Justice Theron insisted that it would be impermissible for the court to take account of Mr Zuma’s derisive statements and other conduct linked to his all-out attack on the legitimacy and authority of the Constitutional Court, the judiciary in general and on the rule of law. She conceded that these statements and conduct may in future expose Mr Zuma to conviction for the separate criminal offence of “scandalising the court”, but argued that these had no bearing on the nature or intensity of the threat to the rule of law posed by Mr Zuma’s contempt.

In my view the minority, relying on formalistic arguments and a-contextual analysis, wrongly averted its eyes from the potential harm caused by Mr Zuma’s scandalous full-frontal attack on the Constitutional Court and the judiciary, to allow it to conclude that Mr Zuma’s interests in this case trumped the interest of the court and the public to protect the judiciary and the rule of law.

Minimising the potential threat posed by Mr Zuma’s conduct, assisted the minority when it proceeded to do a section 36 limitations analysis. As this analysis requires the court, amongst other things, to weigh up the seriousness of the threat posed against the severity of the alleged infringement of the contemnor’s rights, underestimating the threat would inevitably lead to the court striking the wrong balance between the competing interests. If the minority had accepted the majority view on the seriousness of the threat posed by Zuma, it would have made it very difficult for it to conclude that the imposition of an unsuspended jail sentence was not constitutionally justified in this case.

Another factor to consider in section 36 analysis is whether there were less restrictive means available to protect the courts and the rule of law against the contemptuous actions of the contemnor. Because the minority minimised the seriousness of the threat posed by Mr Zuma’s contempt, it assumed that there was no urgent need for the court to deal with the contempt to assert its authority in the face of the attack by Zuma. This allowed it to argue that “a referral to the DPP” [one assumes this is a mistake and that the minority means NPA or NDPP], which would have allowed the prosecuting authority to eventually prosecute the contemnor, would have been an effective method to restore the authority of the court and protect the rule of law against the full-frontal assault on them. Theron J thus argued that:

Punitive contempt proceedings, like all proceedings invoking the penal jurisdiction of the courts, can be resolved by means of ordinary prosecution at the instance of the prosecuting authority, or if that authority declines to prosecute, by means of a private prosecution brought by the civil complainant.  The main judgment says a referral to the DPP [sic] would be inappropriate because the prosecution of Mr Zuma would be left to the discretion of another branch of government.  But again, the Commission is free to prosecute Mr Zuma privately in accordance with section 8 of the Criminal Procedure Act.

This misses the point, which is that the court itself had a constitutional duty to protect its own authority, the legitimacy of the entire judiciary and the rule of law against a full-frontal attack by the contemnor. But this view is a logical result of the failure of the minority to recognise the severity of the threat and the urgency of the action required, and of it seeming lackadaisical approach to the obligation of judges to upholding the Constitution.

In any event, it is unclear how the minority could have concluded that in this particular case, referring the matter to the prosecuting authority would effectively have reaffirmed the authority of the court or protected it against the cynical and dishonest onslaught on the court by Mr Zuma and his supporters. Surely, no one in the reality-based community could believe that the minority’s solution would have been met with anything but laughter and contempt by Mr Zuma and everyone else who have been waging a campaign to delegitimise the Constitutional Court and the rest of the judiciary.

The minority faced another problem, namely how to explain that an order imposing an unsuspended jail term of the contemnor infringed on the contemnors rights, but its chosen order (jail term suspended on condition that the contemnor obeys the order) did not. Having regard to the facts of this particular case, the logic is difficult to understand as Mr Zuma would almost certainly also have gone to prison if the minority approach was followed. Unless Mr Zuma lied on the many occasions that he vowed not to obey the court order, the only practical difference between the approach of the minority and majority was that Mr Zuma would only have gone to prison in a few weeks’ time, instead of in 5 days. As ACJ Khampepe points out:

Were Mr Zuma to defy this Court once again by electing not to purge his contempt, the result would be the same: Mr Zuma would be imprisoned without having gone through an ordinary criminal trial, and without being afforded the opportunity to exercise the rights of an accused person in terms of section 35. This suggests that the constitutional concerns raised in the second judgment pertain to committal through civil contempt proceedings whether the order is suspended or unsuspended. Not only does this contradict the order the second judgement would arrive at, but it is at odds with our jurisprudence on contempt proceedings – both that which establishes suspended committal paired with a coercive order as the commonplace sanction, and this Court’s findings on the constitutionality of contempt proceedings.

While the majority’s vigorous defence of the authority of the court and the rule of law must be preferred over the minority’s lacklustre exercise of this constitutional mandated obligation, the majority judgment was weakened by the absence of a list of factors or criteria clearly spelling out the exceptional situations in which a court in civil contempt proceedings would be permitted to impose an unsuspended prison sentence on the contemnor. This is necessary to ensure that the court restricts the use of this mechanism to the most exceptional situations in which there is no other effective way for the court to protect itself, the judicial system and the rule of law, other than to send the contemnor to jail.

Despite this criticism of the majority judgment, the judges for the majority should be lauded for recognising the threat posed by Mr Zuma’s direct assault on the judiciary, and for being prepared to take action to stop it in its tracks.

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