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Jacob Zuma arrest: Judge refused to disturb hierarchy of SA’s legal system

Former president Jacob Zuma. File picture: Kopano Tlape/GCIS

Former president Jacob Zuma. File picture: Kopano Tlape/GCIS

Published Jul 9, 2021


Pietermaritzburg - Pietermaritzburg High Court Judge Jerome Mnguni refused to disturb the hierarchy of South Africa’s legal system when he dismissed former President Jacob Zuma’s bid to overrule his arrest order made by the apex court.

In a 19-page judgment handed down on Friday, Judge Mnguni stated that there was no higher authority than the Constitutional Court, and that its decisions cannot be undermined by a lower court.

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“Should this court accede to the contentions advanced on behalf of Mr Zuma, then the hierarchy will be disturbed and there will be no finality to legal decisions.

“What, in my view, this application seeks to achieve is to entangle this court in judicial adventurism (which has been strongly deprecated in constitutional democracies), and to make whimsical orders which have the effect of granting unlawful and unwarranted relief,” Judge Mnguni’s judgment read.

He noted the contentions that were advanced by Zuma’s legal head, Advocate Dali Mpofu.

He found Mpofu’s argument that the High Court had concurrent jurisdiction with the Constitutional Court because of territorial jurisdiction over Zuma as “fundamentally flawed”.

“The flaw seems to lie in the failure to appreciate the principal issue in this application, which is: is it permissible for a high court to suspend the execution of an order by the Constitutional Court? As I see it, any attempt by Mr Zuma to call in the aid of the territorial jurisdiction to answer this principal issue is misguided,” Judge Mnguni said.

Having carefully considered Zuma’s contentions on this issue, Judge Mnguni said he had no doubt that the arguments were grounded on an “unsound rationale”.

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Mpofu also argued that a person cannot be convicted of civil contempt by a court not constituted in the manner prescribed by the Criminal Procedure Act, especially because the Constitutional Court was not constituted as a criminal court. Mpofu argued that consequently, the Constitutional Court did not have the jurisdiction to conduct a criminal trial as the lower courts have, as the Constitutional Court was the ultimate appeal court.

However, Judge Mnguni said that what Zuma was asking of the High Court was “incompetent”, because a high court was being asked to assume an override power, which it did not possess.

Judge Mnguni further cited a “penetrating analysis” of case law on this issue, which he said affirmed that the civil contempt procedure.

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“In my view, this conclusion has the effect of removing all the wind from the sails of the boat upon which Mr Zuma’s contention is journeying,” he said.

Judge Mnguni also found that Zuma did have an alternative remedy available to him, namely that of approaching the Constitutional Court to stay its order.

He said the balance of convenience did not favour the granting of the interim interdict, as it would be “harmful to the rule of law and our Constitution, as this court will permit Mr Zuma to disregard the courts and their authority”.

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“Unsurprisingly, faced with this seemingly insuperable difficulty in relation to the invocation of the incorrect and unprecedented procedure, the rest of Mr Zuma’s case then collapses like a deck of cards,” the judgment read.

Judge Mnguni also said that concerns about Zuma’s health were not supported by any evidence, and the court was then not in a position to determine the nature of the harm, and to what extent it might be irreparable.

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