In 2021 the rule of law in SA was taken to the brink. Despite a unanimous order by the Constitutional Court in January that former president Jacob Zuma obey the state capture commission’s summonses and directives, Zuma refused to appear and give evidence.
Commission chair Raymond Zondo could have chosen to file a complaint with the police for contempt and let the criminal justice system do its (very slow) thing. He did not. He went back to the highest court for an order that Zuma be held in contempt and imprisoned. He asked for two years.
Zuma’s response was extraordinary: instead of opposing the case in court, he chose not to participate at all. After the case was heard unopposed, he publicly lambasted the commission, the Constitutional Court and the judges, saying he had boycotted the proceedings because “my experience is that many South African judges, including those of the Constitutional Court, can no longer bring an open mind to cases”.
Ominously, he threatened that if imprisoned “ordinary people” would “find their voices” and “rise up”.
It was an unprecedented case. The highest court of appeal, the Constitutional Court, was breaking new legal ground without the benefit of a judgment of a lower court. It was the first time the court had sent someone to prison under civil contempt proceedings.
In ringing terms, the court held Zuma in contempt and sentenced him to 15 months in prison. But a strident two-judge minority dissent penned by judge Leona Theron called the majority decision unconstitutional
Zuma’s decision not to participate made it harder. The Constitutional Court had, in an unusual move, even given him a second chance to present his side when it asked him, after argument had already been heard, for submissions on sentence. Instead he penned another lengthy diatribe against the court, the commission and the judiciary.
The judgment of Sisi Khampepe, for the majority of the judges, spoke of the “the lofty and lonely work of the judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the constitution and the law at any and all costs”.
In ringing terms, the court held Zuma in contempt and sentenced him to 15 months in prison. But a strident two-judge minority dissent penned by judge Leona Theron called the majority decision “unconstitutional”.
On June 29, the court ordered Zuma to hand himself over within five days. If he did not, the police had a further three days to arrest him. Zuma, suddenly taking an interest in litigation that he had spurned all along, filed an application to rescind the judgment and, simultaneously, a high court application to stay the arrest pending the rescission application.
Though the rescission application was quickly set down for hearing, the application did not suspend the arrest order. The stay application was made to the wrong court. The high court found it had no jurisdiction, but even that judgment came after the day Zuma was to be arrested.
In the meantime, there was no lawful way of escaping imprisonment. Tension mounted as the deadline passed for Zuma to hand himself over, forcing the police to arrest him or risk a constitutional crisis. Crowds gathered at Nkandla and the nation held its breath. It was minutes before midnight when he was taken into custody.
Theron’s dissenting judgment in the contempt application was seized upon by Zuma’s supporters and distorted by the oft-repeated mantra that Zuma had been imprisoned unconstitutionally and without trial. The minority judgment was also the basis for some of the arguments made during Zuma’s rescission application.
As the application was being argued, a wave of civil unrest triggered by the arrest spread across KwaZulu-Natal and parts of Gauteng. The majority of the court stood firm and rejected the rescission application. Theron and Chris Jafta again dissented.
The July unrest is putting SA’s rule of law to the test again, but in a different way. Thousands of people were arrested and politicians have insisted that the unrest was orchestrated. Yet responding to questions, the National Prosecuting Authority (NPA) said that of the 2,167 dockets (each of which could involve more than one person) it has received from the police, 125 have so far resulted in convictions. The NPA could not say how many were for the more serious crimes associated with instigating and planning the unrest because of the department of justice’s “system downtime”. The department’s IT system was hacked in September and this “affected almost all court systems, including the court data management systems”.
In the end, Zuma spent only two months of his sentence behind bars before being granted medical parole in September. The parole decision went against the recommendation of the medical parole advisory board and was set aside by the high court, which earlier this month ordered Zuma back to jail. Zuma is now appealing that judgment.
MOGOENG MOGOENG
Chief justice Mogoeng Mogoeng was conspicuously missing from the Zuma cases, not being on the bench in either of them. He did not respond to a question from the Sunday Times about the reasons for this.
With just seven months to go before he was due to retire, the chief justice was the subject of a blistering rebuke from the Judicial Conduct Committee (JCC) for remarks he made in June 2020 in a webinar hosted by the Jerusalem Post about SA’s foreign policy on Israel, including that it needed a rethink. The committee said he had breached the judicial code of conduct by becoming involved in political controversy. It was the first time a chief justice of democratic SA had been found guilty of misconduct.
Mogoeng was directed to deliver a scripted apology and to “unreservedly retract” a subsequent statement, in which he said: “Even if 50-million people were to march every day for 10 years for me to do so, I would not apologise. If I perish, I perish.”
In his appeal, the chief justice took umbrage at the scripted apology. “It bears the hallmarks of something intended to bring one down to his knees — to crush, to humiliate,” he said. The appeal has yet to be determined.
In January, a second complaint was made to the JCC about a prayer that he gave at Tembisa Hospital, calling on God to destroy by fire any vaccine that is “of the devil, meant to infuse 666 in the lives of people”. The chief justice thus retired with two pending complaints against him.
In choosing a new chief justice, President Cyril Ramaphosa opted for what has turned out to be a lengthy public consultative process, with the Judicial Service Commission (JSC) announcing it would conduct interviews of four candidates in February. By that time, SA will have been without a chief justice for four months.
The Constitutional Court is also a further four permanent judges short. This means that from October to December at least, there were just six out of 11 permanent judges on the Constitutional Court. Though candidates were interviewed in October for two posts and a shortlist sent to the president, the president has yet to make an appointment.
JOHN HLOPHE
The JSC has two main jobs under the constitution: to interview and recommend candidates for appointment the bench and to deal with judicial misconduct. This year it made the momentous decision to find Western Cape judge president John Hlophe guilty of gross misconduct and refer him to parliament for possible impeachment — another first in the history of post-1994 SA.
The meeting that made the decision was challenged in court by Hlophe. The case will be heard by the high court in the new year.
The JSC made the momentous decision to find Western Cape judge president John Hlophe guilty of gross misconduct and refer him to parliament for possible impeachment
The JSC decided it would not recommend suspension for Hlophe, leaving him at the helm of a troubled division and open to criticism for the cases he assigned to himself. These included the criminal trial of former state security minister Bongani Bongo, whom he acquitted, amid much criticism, on attempted bribery charges, and the public protector’s case over parliament’s impeachment rules. In the latter case, Hlophe recused himself after a letter from the DA.
BUSISIWE MKHWEBANE
The Western Cape High Court’s finding in favour of the public protector was a notable victory for Busisiwe Mkhwebane. The court found that the new impeachment rules for the heads of Chapter 9 institutions were unconstitutional in two respects. If the judgment were to stand, it would mean that an impeachment process against Mkhwebane, which had already begun, would have to start from scratch. The Constitutional Court heard an appeal on this in November. Judgment is pending.
It was an important but rare victory for Mkhwebane. She lost against Ramaphosa in the Constitutional Court, which confirmed the high court’s decision to set aside her report that directed the disclosure of financial donations to Ramaphosa’s CR17 campaign at the ANC’s elective conference in 2017. The Constitutional Court said the executive ethics code did not, as it was written, require that donations for internal party campaigns be disclosed.
Mkhwebane, following in the footsteps of Zuma, in July applied to rescind the judgment. Her application is pending.
The Constitutional Court was not so quick to reject an argument made by investigative journalists amaBhungane that if the code did not require disclosure, then it was unconstitutional. The highest court sent this issue back to the high court for a decision. In early December, the high court found the code was indeed unconstitutional and gave parliament 12 months to fix it. The order is forward-looking only, meaning that the CR17 donations will remain confidential for now.
Mkhwebane was also sent packing by the Constitutional Court in her fight with the South African Revenue Service (Sars) about accessing Zuma’s tax records. It refused her leave to appeal against a high court judgment that found the public protector did not have the power to subpoena tax records.
In his judgment, judge Mbuyiseli Madlanga said the public protector had no prospect of success on appeal. He said this might have been different if she had challenged the constitutionality of the Tax Administration Act.
Perhaps this was why amaBhungane successfully persuaded the high court that the Promotion of Access to Information Act was unconstitutional in that it imposed an absolute ban on the disclosure of taxpayer information in the public interest. Sars said it will oppose the confirmation of the high court’s judgment at the Constitutional Court.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.