Nicholas Maweni says Zuma will go down in history as the first prisoner of the Concourt.
Nicholas Maweni says Zuma will go down in history as the first prisoner of the Concourt.

We, the People, are the guards of the guardians now

By Time of article published Aug 31, 2021

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Nicholas Maweni says Zuma will go down in history as the first prisoner of the Concourt.

Nicholas Maweni

WE, the People, no longer think that when judgment is handed down, the trial is the final stage in the justice system process.

Sentenced or convicted persons generally have the right to appeal against or seek review of conviction and sentence. There is no reason to think a convicted person will not exercise this right.

My understanding of common law is that appeals are there to provide for a correction of possible errors of differences of opinion about the finding of the facts or about formulating or applying rules of law. Such a process is indeed an important feature of developed legal systems.

The Constitutional Court (Concourt) is South Africa's highest court when it comes to the interpretation, protection and enforcement of the constitution. The Concourt does not hear evidence or question witnesses.

As a court that functions largely as a court of appeal, it considers the record of the evidence heard in the original court that sat on the matter and has to promote the spirit, purport and objects of the Bill of Rights.

The Bill of Rights is described as the “soul” of the constitution and arguably the part that has had the greatest impact on life in this country.

The Concourt recently sentenced former president Jacob Zuma to 15 months imprisonment for contempt of court when he failed to appear and participate at the Judicial Commission of Inquiry into Allegations of State Capture.

This case, undoubtedly, makes an interesting study for legal tyro scholars like me, for it is filled with many anomalies. This was the first time a case was brought directly to the Concourt that had a criminal element to it which created a precedent, because it also handed down a sentence without a normal trial but rather motion proceedings which are brought on affidavit.

The Concourt has repeatedly emphasised that direct access is an exceptional procedure and that it is not ordinarily in the interests of justice for the Concourt to sit as a court of first and last instance.

I now sympathise with the Concourt, especially their pronouncement of the main judgment:

“[29] The matter is self-evidently extraordinary ... Accordingly, it is appropriate for this Court to exercise its jurisdiction and assert its special authority as the apex Court and ultimate guardian of the Constitution, to the exclusion of the aegis of any Court…”

There were questions raised when Zuma’s legal team applied to the Concourt for a rescission of its judgement. Many believed the Concourt’s judgment is final and cannot be appealed, because after all, it is the apex court and ultimate guardian of the constitution. In this case, one assumes that such an appeal is not frivolous and unmeritorious.

I was always under the impression that the right to appeal in South Africa is guaranteed by section 35(3)(o) of the constitution as a component of the right to a fair trial and that the Concourt has dealt with and considered the content of this right in many cases since its formation.

Granted, Zuma will go down in history as the first prisoner of the Concourt. If he was deprived of his liberty, which is different from that established by law, resulting in possible infringement of his human rights and dignity, who is now meant to judge? I dare say that even the minority judgment only provides scope for self-reflection and jurisprudential creativity.

According to the Concourt’s own statement: "Experience shows that decisions are more likely to be correct if more than one court has been required to consider the issues raised". As unpalatable as it is, we must also concede that moral preconceptions and personal intellectual opinions of judges do intrude on their adjudicative function.

In their application for leave to intervene as amicus curiae, Liberty Fighters Network alleges our Concourt did not consider international law in the interpretation of the Bill of Rights including section 12(1)b and 35(3) when handing judgment in this case.

Who guards the guardians now? The primary function of the modern right of appeal is to protect against miscarriages of justice and allow questions of law to be settled.

I also found comfort in the Concourt’s various dicta that a system requiring leave to appeal is not unconstitutional as this complements the UN-ICCPR and other international bodies.

The right to have one’s conviction and sentence reviewed by a higher tribunal was first identified as a fundamental human right in Article 14(5) United Nations’ International Covenant on Civil and Political Rights (UN-ICCPR), and South Africa is a signatory to this. Even article 7 of the African Charter on Human and People’s Rights echoes the same. Clearly, there are checks and balances internationally for signatory countries to treaties that enable human rights to be conserved and preserved. Are these international bodies now our guards to our guardians?

As a human rights activist, I believe this case has proved that things that might not be necessarily seemingly open to appeal from the Concourt, but because they affect human rights, there are other guards to appeal to, and those guards do not include the Judicial Service Commission that is meant to ensure that judges are being held accountable.

But the guards who are meant to guard the guardians are in the preamble of our constitution: We, the People! Whether by passing amendments to the constitution, that will still require, We, the People. We have a duty of care and a responsibility towards our country. Ultimately, We, the People, are the guards of the guardians now.

* Nicholas Maweni is chairperson of Samro, chairperson of Valued Citizens Initiative, chairperson of Amnesty International South Africa, LLD student and writing in his personal capacity.

Sunday Independent

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