Quote of the week

An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)
15 February 2021

Why Zuma’s justification for disobeying a court order is legally absurd, and why the Constitutional Court must have the final say on the matter

As expected, Jacob Zuma defied a summons to appear before the State Capture Commission this week, thus almost certainly acting in contempt of a Constitutional Court order. This places Zuma in the same category as the deadbeat dads who fail to pay maintenance and the spendthrift grifters who refuse to repay their creditors, despite being ordered to do so by a court of law. And as is the case with so many petty miscreants, Zuma’s “justification” for his lawless behaviour is both self-serving and legally absurd.

Two weeks ago Jacob Zuma issued a statement in which he asserted that “the Commission Into Allegations of State Capture can expect no further co-operation from me in any of their processes going forward”, defiantly adding that “if this stance is considered to be a violation of their law, then let their law take its course”. Zuma also stated that he was prepared to go to jail for his defiance of the law.

But on Monday, his lawyers – while confirming that Zuma will refuse to obey the summons – claimed that this “should not be construed to suggest any defiance of a legal process”. It is difficult to reconcile the two statements, suggesting that Zuma is hedging his bets, signalling defiance of the law when it is politically convenient, while claiming not to be defiant of the law when it is legally advantageous.

The problem with the second claim is that it is untrue. Zuma’s refusal to testify in contempt of an order issued by the Constitutional Court is unlawful and therefore does show defiance of the legal process. In fact, the reasons advanced to justify Zuma’s contempt of court is not only a legal nonsense – as Zuma and his lawyers must surely know – but also undermines respect for the Rule of Law and for the Commission of Inquiry Zuma created and whose work Zuma asked South Africans to support.

It is not clear why Jacob Zuma’s lawyers would willingly advance such clearly misguided legal arguments, seemingly aimed at undermining public trust, not only in the Deputy Chief Justice, but also in the Constitutional Court and the entire legal system. Although this is all self-evident, let me nevertheless explain why, from a legal perspective, Zuma’s excuses hold no water.

Zuma and his lawyers argue that as the High Court is yet to decide on Zuma’s application reviewing Deputy Chief Justice (DCJ) Zondo’s decision not to recuse himself as chair of the Commission, “appearing before DCJ Zondo in the circumstances, would undermine and invalidate the review application over his decision not to recuse himself”. Somehow the fact that the review application was allegedly “not before the Constitutional Court and, accordingly, was not considered, determined and/or adjudicated by that court”, is supposed to bolster this argument.

This argument is based on a misrepresentation of both the facts and of the law. The majority of the Constitutional Court based its decision to order Zuma to testify partly on the “undisputed facts” that “Zuma had failed to remain in attendance after his application for recusal was dismissed on 19 November 2020”. The Court also signalled that it was aware of  Zuma’s plan to have the decision reviewed by the High Court. The Court nevertheless ordered Zuma to to obey all summonses and directives lawfully issued by the Commission and to appear and give evidence before the Commission on dates determined by it.

But even if the Constitutional Court had not been aware of the review application when it issued its order, it would have been of no legal relevance to the present matter. Such an application, launched in another court, dealing with a different legal issue, cannot magically undo the order issued by the Constitutional Court, or magically suspend Zuma’s legal obligation to obey it.

This is because no one is above the law, and individuals do not have the option of disobeying a court order because they believe the court got it wrong or because another court is considering another aspect of the case. If people in Zuma’s position had the power to decide for themselves which court orders to obey, the entire legal system would collapse.

When a lower court orders someone to do or not to do something, that person may appeal the judgment to a higher court and such an appeal will normally suspend the order until the appeal is finalised. But one cannot appeal a judgment of the Constitutional Court, which means one has no option but to obey such an order or face a contempt of court finding and potentially imprisonment.

If Zuma and his lawyers had wanted to advance their claim that the Constitutional Court order would invalidate the review application, they would have had to advance that argument before the Constitutional Court when the court considered the Commission’s application against Zuma. This they did not do.

Instead, they declined to take part in the Constitutional Court proceedings, only to resurrect the argument in a letter to the Commission. But sending a lawyers letter to a Commission of Inquiry cannot undo a binding court order, no matter in whose name the letter was written or how powerful the lawyers’ client might once have been. Even if Zuma’s argument had legal merit, Zuma should have advanced it before the court and cannot now blame the Court for his own failure to do so.

As court orders cannot be undone by a letter written by a private party to another litigant, the letter sent to the Commission by Zuma’s lawyers on Monday is a curious but revealing document. It suggests that Zuma believes he is above the law and that he therefore does not need to obey court orders that do not serve his personal interests and that he does not agree with.

Zuma’s lawyers also stated on Monday that Zuma is disobeying the Constitutional Court order because the summons issued for Zuma to appear was “irregular and not in line with the Fourth Order of the Constitutional Court judgment of 28 January 2021”. This is not a coherent or easily understandable claim. One assumes it refers to paragraph 4 of the Constitutional Court order which states that “Mr Jacob Gedleyihlekisa Zuma is ordered to obey all summonses and directives lawfully issued by the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Commission).”

As it is not open to Jacob Zuma or his lawyers to decide whether a summons was lawfully issued, the claim is also a legal nonsense. If Zuma and his lawyers believed the summons was not lawfully issued, they could have approached the court to have it set aside. The fact that they have not done so, suggests that they know that this claim is legally untenable. In other words, it suggests that they are taking their chances in the court of public opinion because they know they have no chance in an actual court of law where legal rules, not hot air and innuendo hold sway.

Whether one is a deadbeat dad, a spendthrift drifter, or a dodgy former head of state desperately trying not to account for one’s actions, ignoring a court order is an outrageous thing to do as it poses a direct challenge to the authority of the law and the legal system. Few South Africans would tolerate or condone this type of lawlessness if indulged in by somebody other than Jacob Zuma.

For example, I can’t imagine that many South Africans would support a decision by a convicted murderer not to report for prison duty because of a spurious and a legally absurd claim that the court got it wrong or that a complaint was lodged at the JSC against the presiding judge. (Admittedly, some deadbeat dads may well support a fellow deadbeat dad’s decision not to pay maintenance as ordered by the court, which is perhaps why some people will continue to support Zuma despite his criminal behaviour.)

In our law, contempt of court in this context is defined as the deliberate, intentional (wilful), disobedience of an order granted by a court of competent jurisdiction. The High Court in Victoria Park Ratepayers’ Association v Greyvenouw CC and others explained that the “principle purpose of contempt of court proceedings when an order has been disobeyed has been held to be ‘the imposition of a penalty in order to vindicate the Court’s honour consequent upon the disregard of its order … and to compel the performance thereof’”.

While Zuma all but admitted that he was acting in contempt of court in the letter sent two weeks ago, this does not mean Zuma is automatically held to be guilty of contempt. The Commission will have to make an application to the Constitutional Court asking it to hold Zuma in contempt of court and to impose a suitable punishment, which can include imprisonment.

The Constitutional Court explained the legal position on contempt in its judgment in Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Shadrack Shivumba Homu Mkhonto and Others v Compensation Solutions (Pty) Limited where it pointed out that section 12(1) of the Constitution grants those fingered for contempt with procedural safeguards. The applicant in contempt proceedings in which the other party seeks imprisonment must prove all the requisites of contempt beyond reasonable doubt. However, “once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides”.

Zuma will find it close to impossible to show that he had not deliberately or wilfully disobeyed the Constitutional Court order. This is because the excuses advanced by Zuma’s lawyers on Monday do not attempt to show that Zuma lacked the intension to disobey the court order (something that would, in any case, have been difficult to do as Zuma had previously signalled his intent to disobey the court order). Instead, the letter bizarrely attempted to show that Zuma deliberately disobeyed the court order because he believed it was wrongly issued.

If Zuma had pulled this stunt when he was still President of South Africa, it would have caused a grave constitutional crisis as it would have set up a direct clash between the head of the executive and the highest court in the country, the kind of  clash that a court never wins. But Zuma no longer holds any official position of power. He is just another ageing politician facing prosecution for corruption, fraud, and money laundering.

I may be naïve, but I suspect while  Zuma’s defiance of the Constitutional Court constitutes an indefensible attack on our constitutional democracy, it is likely to have a far more devastating effect on Zuma’s own status, political influence and credibility (what innocent person would ever go to such lengths not to have to refute the truthfulness of the allegations made against him?), than on the standing of the Constitutional Court – who is, after all, likely to have the last word on the matter.

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