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CONCOURT ORDERS AND ARREST In the previous article, ‘The Rule of Law’, reference was made to the necessity for the protection of The Rule of Law for the functioning of our legal system to protect the integrity of the Constitution and the court’s integral role in this. The Rule of Law was encapsulated as follows: “For this mechanism to work it is essential that measures are in place to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty and avoidance of arbitrary actions with procedural and legal transparency.” By Peter Bagshawe
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n the matter of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18 the Constitutional Court considered the application of the Secretary of the Zondo Commission for an order of imprisonment for Jacob Zuma following
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his refusal to comply with the previously issued Constitutional Court order requiring Zuma to appear before the Commission. In this matter the Zondo Commission Secretariat elected to directly approach the Constitutional Court (instead of an inferior court) and the Court accepted jurisdiction, as it was a Constitutional Court order that Zuma was defying, and also recognised the exceptional and urgent circumstances. The
majority decision of the Court delivered by then Acting Chief Justice Sisi Khampepe was boldly stated and clear in its intention and is notable particularly in that this is the first time that the Constitutional Court has imposed a direct custodial sentence. Due to limited space, the following extracts from the judgment are intended to give an overview of the judgment and do not go into particular detail.
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