Jacob Zuma “is the first person in the history of South Africa, before or after democracy, to serve a prison sentence without enjoying all the rights associated with a fair trial and the right to an appeal”, his counsel, Dali Mpofu SC, says in written argument to the Constitutional Court.
After resolutely refusing to have anything to do with the state capture commission’s litigation over his not appearing before it to give evidence, Zuma has done an about-turn. His legal team will be at the apex court tomorrow asking it to reverse or “rescind” its judgment that held him in contempt of court and sentenced him to 15 months in prison.
The former president was taken into custody on Wednesday night, minutes before the Constitutional Court ’s deadline for his arrest by the police. An urgent application to the high court to stay the execution of the arrest failed this week.
While Zuma’s liberty could depend on this application, there is also a fundamental principle of the rule of law implicated: that once a case has been finally decided, that is the end of the matter.
Zuma] is the first person in the history of South Africa, before
— Dali Mpofu
or after democracy, to serve a prison sentence without enjoying all the rights associated with a fair trial and the right to an appeal
“There must be an end to litigation and it would be intolerable and could lead to great uncertainty if courts could be approached to reconsider final orders made in judgments,” said former chief justice Arthur Chaskalson in 1997. There are exceptions — where rescission comes in — but this is why the requirements for rescission are strict. Zuma has sought to wedge his application into these narrow grounds and has also suggested that the court refrain from applying the rules “mechanically ”.
Zuma first defied a Constitutional Court order in January to abide by the state capture commission’s summons and directives. When the commission summoned him to give evidence in February, he did not go. The commission then went back to the court, asking it to hold him in contempt. Both times the commission went to court, Zuma was notified but refused to come.
Instead, he issued public statements claiming he was being singled out and targeted and said that some judges had betrayed their oaths of office and “sold their souls”. Then, before the Constitutional Court gave judgment on contempt, it asked Zuma to address it on an appropriate penalty should it find him guilty. Once again, he refused.
Zuma’s very public choice not to participate in the litigation until now is likely to be central to the argument on Monday. The rules allow a judgment to be rescinded if it was “erroneously ” sought or granted “in the absence of any party”. The commission argues that absence here cannot include someone who intentionally did not oppose the case while being aware “of the entire case against him, and its consequences”.
“Mr Zuma was never absent, he was always present. His lawyers were also there,” says Tembeka Ngcukaitobi SC for the commission.
However, Mpofu says in his written argument that the commission “misses the point, only by the proverbial mile”. He says the rights in the bill of rights cannot be waived. If it is a breach of Zuma’s constitutional rights to imprison him for contempt of court, then whether he was there or not is irrelevant, Mpofu argues.
Mpofu says the judgment breached a number of Zuma’s constitutional rights — including his right to a fair hearing, his fair trial rights, his right to an appeal, his rights not to be detained without trial — and that these were, “constitutionally speaking”, rescindable errors.
But Ngcukaitobi goes back to the case law on rescission and says that a rescindable error means an error of fact that, if it were known at the time, would have produced a different judgment. Also, the Constitutional Court has already looked, at length, at the issue of Zuma’s right not to be detained without trial and whether he was entitled to the rights of accused persons.
The court applied the law in line with years of jurisprudence on civil contempt; that fairness may require some processes similar to a criminal trial but not necessarily a duplication.
Here, said judge Sisi Khampepe, Zuma was given a further opportunity to make submissions on sentence but declined. Ngcukaitobi says: “Mr Zuma has not been detained without trial. He had a trial, according to a procedure suitable for contempt of court proceedings.”
Mpofu argues there was information that the commission was duty-bound to tell the court in Zuma’s absence. This included that commission chair Raymond Zondo said he would report Zuma’s breach of summons to the police under the Commissions Act, but instead went to the Constitutional Court for a contempt order, which is in itself unlawful.
But the commission says of these facts that Zuma now brings: “But he was there all along. He decided not to place those facts before this court. Now he expects to reopen the entire case. This is intolerable.”
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