THE Constitutional Court, in the case of the Secretary of the Judicial Commission of Inquiry into Allegations of Sate Capture, Corruption and Fraud in the Public Sector including Organs of State versus Jacob Zuma, in a seven to two majority judgment, ordered that former president Jacob Zuma be imprisoned for 15 months.
The court believed that any other form of coercive order would be futile and a punitive measure was appropriate under the circumstances.
The Constitutional Court emphasised that the former president has been given ample opportunities to comply with requests of the Zondo Commission as well as the Constitutional Court itself, to give evidence to contest his wilfulness or mala fides. However, he had refused to do so.
Other factors the Constitutional Court considered was that Zuma’s evidence at the Zondo Commission was crucial as he was the sitting president at the time of the alleged corruption. One could say that the slanderous statements towards the judiciary was the final nail in the coffin.
The dissenting justices were of the view that a coercive order would have been more appropriate as the Constitutional Court in this matter was a court of first and final instance and that a punitive order was prejudicial to Zuma.
The majority of justices unanimously disagreed and stated that, despite the order not being appealable, the Constitutional Court had afforded Zuma multiple opportunities to place relevant material before it, which was dismissed with disdain.
The court noted: “Mr Zuma has demonstrated a marked disregard for the authority of this Court and is resolute in his refusal to participate in the Commission’s proceedings. Thus, it is impossible to see that a coercive order would achieve any of the purposes of contempt proceedings.”
With no alternative but to comply, Zuma’s supporters galvanised sufficient media attention, vowing that they would die to protect him.
The Jacob Zuma Foundation stated that Zuma’s rights has been infringed in that he was being incarcerated without a fair trial. An urgent application was instituted in the Pietermaritzburg High Court to have the Constitutional Court order stayed until it has heard Zuma’s application for rescission of judgment.
The application to the high court was done on the basis that Zuma resides within the jurisdiction of the high court and that it was incorrect to state that a single court has inclusive jurisdiction to enforce a court order.
The Constitutional Court is due to hear the rescission application on July 12, 2021. This places the judiciary in a precarious position. Under the legal processes, it is not possible for a lower court to overturn a decision of its superior court.
Furthermore, in terms of considering the application, the high court will have to look at the facts and merits of the case that was decided by its superior counterpart. It is doubtful that the high court will agree to stay the Constitutional Court order as, in doing so, it jeopardises compliance with its own orders, judgments, and rulings.
The application to the Constitutional Court to rescind its order is an application to the Constitutional Court to vary or revoke its initial order. The rules of court make provision for this in the situations where there was an order that was granted erroneously, in the absence of the party affected, where there was an omission, an ambiguity or a judgment was made as result of a mistake.
The Constitutional Court, in making its decision to imprison Zuma, placed much emphasis on the fact that it was a court of first and last instance. It is possible that if Zuma shows sufficient evidence and if it warrants, the Constitutional Court could change its mind.
It must be borne in mind that the Constitutional Court had not received any evidence from Zuma. Therefore, if the evidence provided is so overwhelming in favour and the rights of Zuma was and will continue to be prejudiced, the Constitutional Court may rescind or amend its judgment.
The application can be seen as a petition by someone who has been wronged, and for the wrong to be continued will be a grave constitutional injustice that requires intervention.
Section 167(7) of the Constitution gives the Constitutional Court the freedom to decide a constitutional matter that includes any issue involving the interpretation, protection, or enforcement of the Constitution. The Constitution, therefore, gives the Constitutional Court the power to apply, interpret and develop the law.
The silver lining is that finally evidence will be given on why Zuma did not comply and why he acted the way he did. One could cautiously hope that some light would be shed on the allegations on corruption during his reign as president.
Among all the uncertainty, it was prudent for SAPS, through the state law adviser, to have sought guidance from the Constitutional Court about whether it should proceed with the arrest or wait until all court proceedings has been finalised.
All this creates the impression that if you have sufficient political powers to wield influence, you are above the law. However, no person is above the law, and we hope that this is where the Constitutional Court will rest its decision on whether to rescind or vary its court order.
* Zelna Jansen is a lawyer and chief executive of the Zelna Jansen Consultancy.
** The views expressed herein are not necessarily those of IOL.