How Zuma’s urgent high court application collapsed

Friday morning (July 9) saw Judge Bhekisisa Mnguni of the Pietermaritzburg High Court hand down his judgment dismissing the urgent application by former president Jacob Zuma to stay the order of his arrest.

Having handed himself over to the Estcourt Correctional Centre just after midnight on Wednesday, Zuma was already ensconced in prison on Friday, when he would have heard that his urgent application was not only dismissed, but that costs had been awarded against him.

Parties to the hearing

The opposing parties to Zuma’s application were the minister of police; the national commissioner for the South African Police Service; the minister of justice and correctional services; the secretary of the Zondo Commission of Inquiry into allegations of state capture, fraud and corruption in the public sector, including organs of state; commission chair Acting Chief Justice Raymond Zondo; the president of the Republic of South Africa; and the Helen Suzman Foundation, which was joined as amicus curiae (friend of the court).

The respondents were represented by Tembeka T Ngcukaitobi SC, and the Helen Suzman Foundation by M du Plessis SC. Zuma was represented by Dali Mpofu SC. 

Background to the contempt of court finding

The background to Zuma being found guilty of contempt of court is briefly sketched below:

• The commission summonsed Zuma to appear from November 16 to 20, 2020. Zuma appeared on November 16, and his counsel argued for recusal. The recusal application was dismissed on November 19. Zuma left the proceedings. The commission approached the Constitutional Court (ConCourt) for an order. Zuma’s lawyers notified the commission that he would not participate in the proceedings, and he did not oppose the ConCourt application on December 29, 2020.

• The commission summonsed Zuma to appear on January 18, 2021. Zuma did not appear.

• The ConCourt delivered its first judgment on January 28, directing Zuma to obey all summonses and directives issued by the commission. Zuma’s attorneys notified the commission that he would not appear.

• The commission again summonsed Zuma to appear on February 15. Zuma did not appear. The commission announced that it would institute contempt of court proceedings for a punitive order holding Zuma in contempt of court. Zuma issued a public statement on why he would not appear.

• The commission instituted urgent contempt of court proceedings in the ConCourt. Zuma did not file an answering affidavit and did not appear at court. The matter was heard on March 25. The ConCourt invited Zuma to make submissions with regard to an appropriate sanction. Zuma wrote a letter to the ConCourt instead of filing an affidavit.

• On June 29, the ConCourt found Zuma guilty of contempt of court, and sentenced him to 15 months’ imprisonment.

Mnguni considered that the public statements issued by Zuma confirmed his “defiant attitude …evidently calculated to undermine public confidence in the integrity of the Constitutional Court and the judiciary more broadly”.

Locus standi of the commission and the foundation

Counsel for Zuma, Mpofu, challenged the locus standi of the commission and the foundation. Zuma questioned what constitutional and legal interest the commission had in opposing his application, and contended that the Helen Suzman Foundation is a “busy body”.

Mnguni determined that Mpofu’s contentions in regard to the commission “are grounded on an unsound rationale”, and Mpofu’s comments in regard to the Helen Suzman foundation, “misplaced, and falls to be rejected”.

Hierarchy of courts

Mnguni noted that the constitution provides for the hierarchy of courts, and the ConCourt is the highest court.

Mpofu submitted that:

• The circumstances of this matter are “extraordinary and exceptional”, and that had the high court convicted Zuma, the high court or ConCourt would have had the power to suspend the committal order, pending the outcome of the appeal. In those circumstances, Mpofu said, Zuma would be entitled to bail.

• As the ConCourt’s order cannot be appealed, Zuma’s only recourse is to challenge his conviction and sentence by way of a rescission application, and it was for this reason that he sought a suspension of the committal order.

• “The Constitutional Court was not constituted as a criminal court”, and could therefore not convict a person of civil contempt, as it was not a court “constituted in the manner prescribed by the CPA [Criminal Procedure Act]”.

• 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’”.

• The high court has jurisdiction to suspend the ConCourt’s committal order because the committal order is to be executed within the jurisdiction of the high court.

Ngcukaitobi and Du Plessis disagreed and contended that the high court only has the power to “suspend its own decisions”.

Mnguni found Mpofu’s argument that the high court has concurrent jurisdiction with the ConCourt because of territorial jurisdiction over Zuma, to be “fundamentally flawed”, and that “a high court cannot suspend the execution of an order by the Constitutional Court”.

The value of precedence

Mguni expounded on the certainty of the law and said it is the duty of the judge to follow previous decisions that have set legal precedence.

Mnguni opined that precedence is a core component of the rule of law, providing “certainty, predictability, reliability, equality, uniformity, convenience”.

Without which, in the words of Judge of Appeal Cameron in Turnbull-Jackson v Hibiscus Coast Municipality and others: “The courts would operate in a tangle of unknowable considerations”.

Mnguni reasoned that should he “accede to the contentions advanced on behalf of [Zuma], then the hierarchy will be disturbed and there will be no finality to legal decisions” and declared that “[what] 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”.

Zuma also challenged the constitutionality of the CPA

Mnguni dismissed Mpofu’s submission that the provisions of the Criminal Procedure Act (CPA) are unconstitutional, and referred to Fakie NO v CCII Systems in which the majority affirmed that “the civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of motion court applications, adapted to constitutional requirements”.

Mnguni said that in his view “this conclusion has the effect of removing all the wind from the sails of the boat upon which Zuma’s contention is journeying”.

Mnguni held that:

• Zuma can submit an urgent application to the ConCourt.

• For the high court to grant an urgent interdict would allow Zuma to “disregard the courts and their authority”.

• Zuma’s “concerns about his health are not supported by any evidence” to date.

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

Zuma’s rescission application will be heard by the ConCourt on Monday (July 12).