THE LAST WORD

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

In 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 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.

Never before has this court’s authority and legitimacy been subjected to the kinds of attacks Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.

– Justice Khampepe

Justice Khampepe stated “I pen this judgement in response to the precarious position in which this court finds itself on account of a series of direct assaults, as well as calculated and insidious efforts launched by former president Jacob Gedleyihlekisa Zuma, to corrode its legitimacy and authority.” This is amplified by her words “Never before has this court’s authority and legitimacy been subjected to the kinds of attacks Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.” Additionally Justice Khampepe said “It is disturbing that he, who twice swore allegiance to the republic, its laws and its constitution, has sought to ignore, undermine and, in many ways, destroy the rule of law altogether.” Turning from this to the sanction imposed the judgment made it clear that a noncustodial sentence was considered. However, the Court would have been “naïve” to believe that a suspended sentence, requiring him to appear at the Commission to testify for the sentence to be stopped, would do anything other than extend the period of Zuma’s defiance. The Court sentenced Zuma to 15 months imprisonment and ordered that he surrender himself to the South African Police Services at either Nkandla or Johannesburg Police Station by midnight on Sunday 4 July 2021. In the event that Zuma failed to comply with this, the Minister of Police and the National Commissioner of Police were instructed to, within 3 days, take the necessary steps to ensure that Zuma is handed to Correctional Services to begin his sentence. The minority judgment of Justices Theron and Jafta broadly held that Zuma had not been treated exceptionally has been seized on by Zuma’s defence team.

Normal circumstances would dictate that Zuma would have handed himself over to the authorities in compliance with an order of the apex court. This was not the case and a new twist has been added. Jacob Zuma refused to surrender himself and launched a further attack on the judiciary as well as an application for a stay of his arrest in the Pietermaritzburg High Court and an application for rescission of judgment to the Constitutional Court. The former hearing took place on 6 July with the decision to be delivered on 9 July and the rescission hearing was scheduled for 12 July 2021. The decision to approach the Pietermaritzburg High Count is of interest in that it is an inferior court to the Constitutional Court and the point of argument put forward by Advocate Dali Mpofu put forward that the High Court had jurisdiction as a fundamental right would be breached by depriving Jacob Zuma of his freedom prior to his rescission hearing. Additionally, Mpofu argued that his client had been sentenced without an opportunity to appear before the Constitutional Court. The counter to this, and pointed out by Justice Mnguni, was that jurisdiction would need to be established. It appears from court papers that Zuma will, in the Constitutional Court advance arguments that imprisonment should not be imposed given his age, medical condition and the pandemic which would collectively place him at increased risk of exposure to illness and potentially death. It is also apparent that the failure to appear at the Commission of enquiry will be justified on the basis of Commission Chair Zondo declining to recuse himself, alleged bias on the part of Zondo, a misunderstanding between his legal team and the Commission when Zuma left proceedings without permission, the mechanism of appointment of the Commission Chair and Thuli Madonselsa’s report as then Public Protector.

A further point of interest is the advice, via a letter from the State Attorney, by Minister of Police Bheki Cele and National Police Commissioner Khehla Sithole to Acting Chief Justice Raymond Zondo that the police will not act in terms of the Constitutional Court order to arrest Jacob Zuma until his rescission hearing has been completed or unless directly instructed otherwise by the Court. Simplistically stated this means that the Minister and Commissioner are in defiance of a court order. This appears to open them to sanction. Turning back to the judgment due to be delivered by Justice Jerome Nguni, the delay does not in any way mitigate against the exposure of the Police Commissioner and Minister. This course of action has been criticised by the Zondo Commission Secretariat which have justified its stance. Additionally the police have been criticised for refusing to act against supporters of Jacob Zuma who have gathered an Nkandla to protect Jacob Zuma from arrest and are in defiance of Covid-19 lockdown Level 4 regulations that ban gatherings, and mandate the wearing of masks. This is patently at odds with the arrest of 465,098 persons charged with breaching lockdown regulations with previous police action, in some instances, being heavy handed. The presence of elements of Umkhonto weSizwe Military Veterans Association and statements attributed to their command structure have been noted as indicative of friction within factions of the African National Congress that has been highlighted by the presence of senior members of the party at Nkandla offering support to Zuma including currently suspended Secretary General Ace Magashule.

The majority decision given by Justice Khampepe is clear in its ambit and the processes that should have followed. Zuma’s refusal to hand himself to the authorities, events at Nkandla and subsequent veiled references to potential civil disorder or Marikana-like events, the referral of the arrest procedure by the Minister of Police and National Police Commissioner to Acting Chief Justice Zondo and the rescission application to the Constitutional Court have substantially clouded the issues. In the interim, and pending court decisions, The Rule of Law and its application remain exposed.

PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.