Prof Sipho Seepe
Ordinarily, the decision by the Electoral Commission of South Africa (IEC) to uphold the objection to the candidacy of former president Jacob Zuma shouldn't raise any eyebrows. Section 47 of the Constitution is unequivocal: “Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic or outside if the conduct constituting the offence would have been an offence in the Republic.”
It is common cause that Zuma was sentenced to undergo 15 months’ imprisonment by the Constitutional Court after it found him guilty of contempt for failing to comply with its order. But there is nothing ordinary about the incarceration of the former president by the Constitutional Court. Section 47 adds a proviso that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired”.
The very fact that the sentencing was carried out by the Constitutional Court without the right of appeal undermines the provision of this very section. If truth be told, there is everything wrong with how the Constitutional Court conducted itself in its adjudication of this matter. It is nothing short of an abuse of judicial power. The minority judgment couldn't have been more brutal in its castigation of the majority judgment. Justice Leona Theron argued: “The main judgment, in my view, allows our law of contempt to be hijacked by the peculiar, and indeed, frustrating, facts of this case… the main judgment develops the law to meet the peculiarly frustrating circumstances of this case. It leaves in its wake law that is not only bad; but also, unconstitutional.”
Theron concludes: “By depriving contemnors of their liberty without a criminal trial, summary contempt proceedings, even when brought on notice of motion, limit the fundamental right to freedom of the person protected by section 12 and the right to a fair trial protected by section 35(3) of the Constitution.”
For his part, Justice Chris Jafta was uncompromisingly clear: “The problem in this matter is not whether Mr Zuma may be convicted and be punished for contempt of court. Instead, it is whether the motion followed in convicting and sentencing him to imprisonment is consistent with the Constitution. In other words, whether the procedure amounts to a trial contemplated in the Constitution. On the interpretation assigned to section 12(1)(b) here, the motion procedure does not constitute a trial and as a result, the detention is not consistent with the right not to be detained without a trial.”
Indeed, South Africans do not need a lecture from the Constitutional Court regarding the obscenity of detention without trial. They can see and smell injustice from afar. They have lived through it under the evil system of apartheid. Detention without trial was the hallmark of apartheid's repressive arsenal. No one expected that it would be re-introduced by the justices of the Constitutional Court.
Exacerbating this gross injustice is the fact that Zuma’s sentencing arose from a refusal by the chairperson of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector to recuse himself following what had amounted to be a quarrel between him and the former president. With the former president having given notice to subject Chief Justice Raymond Zondo’s refusal to recuse himself for judicial review, one would have expected the Constitutional Court to await the outcome of the review. Such discernment was not to be.
Advocate Vuyani Ngalwana SC was quick to point out that the Constitutional Court had misdirected itself in how it handled the Zuma matter. In his must-read website deliberately titled, An Unembedded Take on Law, Ngalwana SC correctly asks: “How does the commission validly compel Zuma to appear before it and answer questions while that review application has yet to be determined by the High Court and, possibly, the full bench, the Supreme Court of Appeal and, ultimately, the Constitutional Court? The Constitutional Court has not pronounced on this quandary in its judgment.”
This seeming lack of discernment resulted in the major social unrest of July 2021 which cost this country dearly – both in terms of lives lost and its impact on the economy. For ordinary people, the Constitutional Court's sentencing of Zuma was simply hateful. Somehow the dictum that “justice must be seen to be done”, a principle that under-girds the legitimacy of the justice system, was lost to our esteemed justices.
Context is everything. In his book, All Rise, the former Deputy Chief Justice Dikgang Moseneke cautioned: “The judicial role calls for an unfailing attention to detail. First, the facts must be understood in their proper context and sequence and care must be taken to make findings supported by credible facts. A judicial officer must know the law… and apply it to the properly proven facts in the dispute. Even more important is for the judge to decide on an outcome and formulate an order which the facts and the law permit and which is fair and just.”
In my book, and as I argued before, the majority judgment failed in all respects – facts, context, sequence and application of the law. In doing so it plunged the country into turmoil through its lack of judicial prudence.
In opposing the incarceration of Zuma, Judge Theron could not have phrased it better. She wrote: “An order of this court may be reconsidered in exceptional circumstances, and where the interests of justice ‘cry out’ for intervention. This is such a case…. the order made by the majority in the contempt proceedings was made pursuant to an unconstitutional procedure. Most notably, it resulted in Zuma’s incarceration without affording him a right of appeal. This is an unprecedented state of affairs and to uphold the order, which is the fruit of the poisoned tree, would result in substantial hardship and injustice to Zuma.”
The majority judgment wants us to believe that the incarceration of the former president brings finality to the ongoing litigation. It states: “And this finality in turn engenders legal certainty which produces legitimacy and public confidence in our legal system. Both finality and certainty are components of the rule of law, a founding value of our Constitution.” On the contrary, finality and legitimacy can only be guaranteed when precepts of justice are met. No amount of sophistry or pseudo-intellectualism will redeem the obscenity and barbarism of detention without trial. People’s protest was an expression of righteous anger. Characterising it as insurrection is just plain nonsense. An insurrection is a violent uprising against the state. During the now-infamous protest, no single government authority or building was targeted.
Unfortunately, the justices of the Constitutional Court did not have the wisdom exemplified in Justice Mbuyiseli Madlanga’s responses when quizzed by the Judicial Service Commission. Madlanga quipped that the “law does not always coincide with justice”. Madlanga continued. “[what] guides me in the adjudicative process is an instinct that I feel is motivated by an innate sense of justice within me. And I believe that assists me in those instances where the law may not coincide with justice… That innate instinct for justice, motivates me to say, is all that we can do in these circumstances”. The struggle against apartheid was precisely the struggle for justice, not for law. Sacrificing justice because you can, and because of the power entrusted to you, always has tragic outcomes.
It is probably because of this lack of judicial discernment that Dr Ziyad Motala, a professor at Howard University Law School in Washington DC, argued that some of the Constitutional Court judgments “smack of personal predilections and politicking… Of late, some important court decisions represent a prattle of nonsense, leading to whispers that our apex court at times projects as a junior moot court bench”.
Strong words from the learned professor. Motala further contends that “making up of stuff from thin air based on the personal predilections of the judges, like the Constitutional Court, is haemorrhaging into lower court decisions”.
The judiciary does not need help in discrediting itself. It is more than capable of doing so by itself. The IEC decision is a stark reminder of the late African American, Booker T. Washington’s timeless observation that: “A lie doesn't become truth, wrong doesn't become right, and evil doesn't become good, just because it's accepted by a majority.”
For the coming years, the country and legal profession will continue to be vexed by the destructive fragments of debris linked to the Zondo Commission. The fielding of Zuma as a candidate for Parliament served two purposes. First, it is an expression of the will of the members of the MK Party. Positioned at the top of the list debunks the myth that Zuma is a politically spent force. Second, the fielding of Zuma is arguably a deliberate, legitimate, and necessary act to re-open and cast our eyes back on the Zondo Commission.
Taking the IEC’s decision under review would help to revisit all the counterarguments that the Constitutional Court chose to ignore. This would open a can of worms and expose the shenanigans that Ngalwana, Justices Jafta and Theron, Howard professor Motala, and others have alluded to. There will be no peace without justice. There is nothing sacrosanct about the Constitutional Court. Tyranny does not announce itself. Judicial tyranny is no different.
*Prof. Seepe is an independent political analyst
**The views expressed do not necessarily reflect the views of Independent Media or IOL