Nary a soldier nor a purse

The case for the Constitutional Court's non-intervention in the latest Zondo drama

The late former Chief Justice Ismail Mahomed once described the power of courts in this country as “awesome”. There was, however, an inherent paradox about this power:

Unlike Parliament or the executive, the court does not have the power of the purse, or the army or the police to execute its will. The superior courts and the Constitutional Court do not have a single soldier. They would be impotent to protect the Constitution if the agencies of the state which control the mighty physical and financial resources of the state refused to command those resources to enforce the orders of the courts. The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship. Its [the court’s] ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity. No politician anywhere, however otherwise popular, would want to be seen to defy the order of a court enjoying within the nation a perception of independence and integrity; his or her future would then be at mortal risk.¹

I’m almost certain that the good justice did not have in his mind our former president, Mr. Jacob Zuma. But before we get into the nitty-gritty of this latest drama, a brief comment on Mahomed CJ’s remarks above. What is left unaddressed in these remarks is the source of the courts’ authority. Yes, it’s in the Constitution. But constitutional rules are easily broken if the enforcing agencies no longer believe in them. The source of the courts’ authority is moral. It is the belief by the public that the courts exist to do justice and that justice is therefore always done. The public will accept the courts and their decisions as legitimate even when they disagree, because, they believe in the ability of the courts to dispense justice even when that dispensation of justice is against their [the public’s] interests.

It stands to reason, then, that any diminution of trust in the courts’ ability to dispense justice is a diminution of their authority, or at least, the legitimacy of that authority.

Act 2; Scene 1, enter Jacob, our antagonist. Days after the Constitutional Court ordered him to appear before the Commission and to give testimony on a date to be determined by it, the Jacob Zuma Foundation, his alter ego, issued a statement in which it said that he would, for all intents and purposes, defy the order and would not appear before the Commission. On 15 February 2021, the date which the Commission fixed for his appearance, his lawyers sent a letter to the Commission, alerting it of his intention not to appear before it citing his review application against the Chairperson’s refusal to recuse himself. The review, they said, would be undermined and invalidated if he were to appear before the Commission. Also, the letter says, the summons issued by the Commission were irregular process and not in line with the Constitutional Court’s order, adding finally that this refusal to appear “should not be construed to suggest any defiance of a legal process”. Class.

Of course these objections are silly, and can be deftly disposed of. First, the institution of the review application did not suspend the order of the Constitutional Court. Nor could it. It deals with an issue separate from the one that was before the Court and is any event instituted in a court of lower status. The order must be adhered to. Second, it is not clear what is meant by the statement that the summons were not in line with the order. Part of the Court’s order was that “Mr Jacob Gedleyihlekisa Zuma is ordered to obey all summonses and directives lawfully issued” by the Commission. If I understand the objection correctly, it seems to suggest that the summons were not lawfully issued. But who is to decide whether or not that is the case? Certainly not Mr. Zuma’s lawyers. And for as long as those summons stand, he is obliged to comply with them. That last bit about this not being a defiance of the legal process was just banter, I can assure you.

In line with keeping things interesting, the Commission later on in the day (Feb. 15) announced that it would be seeking a contempt of court order against Mr. Zuma. But these would not be ordinary contempt proceedings; instead, the Commission would approach the Constitutional Court directly and would seek Mr. Zuma’s committal to prison for his defiance of the Court’s earlier order.

Act 2; Scene 2, enter Jacob, stage left. Another statement from the Foundation. This time 12 pages long. In it, he bemoans the Commission’s alleged unfair treatment of him, remarking that the Chairperson is going to the Constitutional Court to seek “a sentence against him,” that that was not “ordinarily how contempt proceedings would commence” but that he has accepted that “Deputy Chief Justice Zondo and due process and the law are estranged”. These are fighting words. He states further that it is not the law or the authority of the Constitutional Court that he is defying but “its abuse by a few lawless judges who have left their constitutional post (sic) for political expediency”. Importantly, he says that the stance he has adopted is not borne out of a refusal to recognise the failures of his presidency but because “we continue to allow some in the judiciary to create jurisprudence and legal inconsistencies” that only apply to him.

It is a stunning statement and much of what he says is false, but that will not and does not matter to those who believe him and hang on his every word. But I would like to discuss some of the quoted statements in a bit more detail.

Before we get there, let us turn to the law. Contempt of court is a criminal offence which entails the wilful and intentional disobedience of a court order. In Matjhabeng, the leading authority on this issue, the Court noted that “breaching a court order, wilfully and with mala fides, undermines the authority of the courts and thereby adversely affects the broader public interest”. At the risk of getting too technical, it is important to understand that it is a criminal offence to disobey a court order, whether criminal or civil. And because of the sanctions that may be imposed on a contemnor (he who is in contempt)—which includes committal to prison—it takes on a hybrid nature. You will know that the standard of proof in criminal matters is “beyond a reasonable doubt” while in civil matters it is “on a balance of probabilities”. This means that for a court to convict someone of a crime, the prosecution must prove its case beyond a reasonable doubt, while a plaintiff in a civil suit need only show that his version is true on a balance of probabilities.

In contempt proceedings however, the party seeking the order only needs to prove its existence; that it has served it on the respondent; and that he has not complied with it, while the respondent has to show that his non-compliance was not intentional and not in bad faith. So the burden shifts; unlike in a criminal proceedings where only the state bears the onus of proof, here both parties each have an evidentiary burden.

So far this sounds like just another procedure one would find in the Uniform Rules of Court. Hardly the stuff of constitutional legal theatre. So exactly why would the Commission approach directly to obtain such an order? Dear reader, you will have to indulge me once again. In the last post I argued that the Constitutional Court should be slow to grant direct access where exceptional circumstances do not justify it. I also argued that direct access — which relies on the application of the ‘interests of justice’ standard — does not by itself establish jurisdiction. Jurisdiction must be established independently.

Lo and behold, I do not think the Court would have jurisdiction to entertain to this contempt application. I have had the opportunity to consider several objections to this stance. The first, and one apparently raised by Zondo DCJ, is that the contempt order sought in this case is in respect of an order of the Constitutional Court and therefore it is the only court that can grant the order. This strikes me as manifestly untrue. Contempt proceedings are, as I pointed out above, normal motion proceedings over which the High Court has jurisdiction. It is not a requirement in law that the court that granted an order must be the one that compels a party to comply with it, or that only it can sanction a party for non-compliance. This is simply a matter of principle. The Constitution vests “the judicial authority of the Republic” in the “courts” and an order of court is binding on “all persons to whom and organs of state to which it applies”. Any competent court (barring maybe the magistrates courts) may compel compliance with any existing court order.

The second, also related to the first, is that only the Court could grant the contempt order because the application to which is connected was in its exclusive jurisdiction. This is also untrue. Firstly, none of us knows what the basis of the Court’s jurisdiction in the previous application was (some may argue direct access). It explicitly stated that it was not decided on the basis of exclusive jurisdiction. Secondly, just because a matter falls within the Court’s exclusive jurisdiction does not mean that everything subsequent that is related to that matter will also fall within the Court’s exclusive jurisdiction. To my mind, the Court’s jurisdiction ends once it hands down judgment. It has discharged its duty. Once another matter arises subsequently, jurisdiction must be shown once again, all requirements being fulfilled.

The third is our old boy, the “but what if he appeals?” argument. I do not have much patience for this one. I’ve said my piece.

Again, where do we find jurisdiction here? I am asking genuinely. I am worried that constitutional over-excitement about the peculiarities of Mr. Zuma’s indifference to the rule of law may lead us down a path of delegitimising and diminishing the authority of the courts. One of the recurring themes in his complaints about various judicial processes has been that judges create new and separate rules just to deal with him, that courts are being expedient instead of principled. This is the kind of critique that has gained traction with his supporters and RET types. It is unfortunate that good faith interlocutors like myself, whose critiques are concerned with safeguarding the courts’ institutional power and integrity, should find ourselves lumped together with them. Yet here we are.

I should not be understood to be saying courts are creating new rules to deal with Zuma, that is not true. Exceptional procedures which are being invoked here, already exist. But they exist for exceptional circumstances. To counter the myth that Mr. Zuma is being unfairly treated, we should not be arguing about whether or not courts are able to deviate from their own rules. We must instead insist that these contempt proceedings be as boring as all other contempt proceedings, that they go through the ordinary contempt process and end up where they will probably end up: with a dismissal order against an application for leave to appeal to the Constitutional Court. If our argument is that we are all equal before the law, then let that be seen to be the case. The public should not wonder whether the Constitutional Court will intervene in a case depending on the identity of the parties involved. Of course I am not suggesting that that is the case, but if the Court entertains this application, it should set out clearly on what basis Jane Doe from next door may be able to approach the Court directly next time.

To conclude, a minor but not insignificant point. Zondo DCJ is a judge of the Constitutional Court. The judges before whom he brings these applications are his colleagues. He will return to work with them after he is done with the Commission. The Court’s strident criticism of the Commission’s conduct in the previous application was no doubt embarrassing, and probably uncomfortable for the Court to write. It also never had to get that far. Both the Court’s and Zondo DCJ’s reputation are on the line. Running to Braamfontein every time Mr. Zuma breaks the law is surely not the way to go.

If we are not careful, the Court’s legitimacy and authority will be undermined. It will no longer have at its disposal the moral arsenal necessary for compliance with its orders. It cannot afford that. It has nary a soldier nor a purse, merely the trust of the people.

1. I Mahomed, ‘The Role of the Judiciary in a Constitutional State - Address at the First Orientation Course for New Judges’ (1998) 115 South African Law Journal 111.