Constitutionalism, Rule of Law and Judiciary in South Africa: Quo Vadis?

By: Norah Msuya

The South Africa constitutional democracy and the rule of law have been put under threat recently following the former president Jacob Zuma defiance of the Constitutional Court judgement ordering him to appear before the Commission of Inquiry into State Capture led by Deputy Chief Justice Raymond Zondo.

The gist of the matter started way back in In 2016 then, public protector Thuli Madonsela completed her report on systemic corruption in government, referred to as State of Capture. Madonsela required remedial action to be taken against grand corruption and repurposing of state organs for private gain. Jacob Zuma, who was then president, was obliged to appoint a judicial commission of inquiry and the public protector wisely required that the Chief Justice to appoint the Commission chair instead of Zuma. The former president challenged Madonsela’s report and lost. Then the Chief Justice, Mogoeng Mogoeng, chose his deputy, Judge Zondo, to head the Commission of inquiry. And in January 2018, Judge Zondo set up the Commission and began his longwinded journey to uncover the evidence of state capture and its underlying systemic causes.

Defiance of Commission Summonses

Judge Zondo Commission, in his over 300 days of the hearing, has heard evidence from 40 witnesses who have implicated Zuma. However, his attempts to have Zuma appear before him are in vain. The Commission summed the former president Zuma as a witness to respond to the allegations against himself.  Despite his protestations to the contrary, Zuma ascertains that he has no real intention of appearing before the Commission. Having unsatisfactory answers to the evidence that has been adduced against him and fear of further self-implication are assumed to be the major reasons for Zuma’s defiance.

After Zuma defied three summons in a row, the Commission had no option but to apply to the Constitutional Court, inviting it to find Zuma in contempt of court. This paves the way for the unseemly sight of a former president being arrested and then incarcerated. Contempt of court is a common-law offence in South Africa, which attract fine or prison sentence. The Commission denoted to argue for a custodial sentence if Zuma will be convicted for contempt of court.

Acts of defiance on Constitutional Court order

Judge Zondo’s Commission filled application before the court on 19 February 2021, immediately after the last day to the five-day summons applied, to ask the Constitutional Court for an urgent order declaring former president Jacob Zuma in contempt of court and sentencing him to two years in prison for defying summonses served to testify before the inquiry into state capture. The secretary of the Commission, Itumeleng Mosala, stated in a supporting affidavit that Zuma “intentionally” defied the summons, which was made an order of the court in a ruling handed down on 28 January  2021. The 209-page court application then proceeds to deal with the former president’s ongoing attacks on the integrity of the bench and cites these as a further reason for urgently finding him in contempt.

The Constitutional Court judgement ordered Zuma to obey all summonses and directives lawfully issued by the Commission and to appear and give evidence before the Commission on dates determined by it. Zuma, in a letter sent by his lawyer to the Commission’s secretary shortly before the former president, was due to take the stand a raised that the High Court is yet to decide on Zuma’s application which reviewing deputy chief justice Zondo’s decision not to recuse himself as chair of the Commission. He asserted that  “appearing before Judge Zondo in the circumstances, would undermine and invalidate the review application over his decision not to recuse himself”.  This argument is based on a misrepresentation of both the facts and the law since Zuma had failed to remain in attendance after his application for recusal was dismissed on 19 November 2020. And that, such an application, launched in another court, dealing with a different legal issue, cannot magically undo the order issued by the Constitutional Court or suspend Zuma’s legal obligation to obey it.

The clear meaning of contempt of court offence was well elaborated by the then acting Judge Clive Plaskett in a  High Court case in the following words; “Contempt of Court is committed, generally speaking, when a person unlawfully and intentionally violates the ‘dignity, repute or authority of a judicial body or interferes in the administration of justice in a matter pending before such a body. It serves three important purposes, namely to protect the rights of everyone to fair trials, to maintain public confidence in the judicial arm of government and to uphold the integrity of orders of courts.” The Constitutional Court explained the legal position on contempt from some of its judgments. It pointed out that section 12(1) of the Constitution grants those fingered for contempt with procedural safeguards. The applicant in contempt proceedings in which the other party seeks imprisonment must prove all the requisites of contempt beyond a reasonable doubt. However, once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides.

The rule of law and judiciary

The reasons advanced to justify Zuma’s contempt of court are not only legal nonsense but also undermines respect for the rule of law and for the Commission of inquiry that Zuma created and whose work Zuma asked South Africans to support. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary’s affairs. With this independence, the judiciary can safeguard people’s rights and freedoms which ensure equal protection for all.

The effectiveness of the law and the respect that people have for the law and the government which enacts it is dependent upon the judiciary’s independence to mete out fair decisions. No one is above the law, and individuals do not have the option of disobeying a court order because they believe the court got it wrong or because another court is considering another aspect of the case. Zuma, as a former president, has a particular responsibility to respect the Constitution even out of office, and no one is supposed to be above the law. If every individual had the power to decide for themselves which court orders to obey like Zuma, the entire legal system would collapse.

In handing down the order compelling Zuma to respect the summons and testify, Justice Chris Jafta said Zuma had flouted the rule of law by repeatedly frustrating the work of the inquiry into state capture for more than two years. The Constitutional Court boldly articulated the rule of law issue in this case and maintained that  “At the heart of the rule of law is the idea, foundational in civilised society, that the law must be administered by independent courts and that, as Dicey expressed it, ‘no man is above the law’ and ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’ Here, the Constitution Court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest.

Does Zuma’s action Constitute a Constitutional crisis?

However, the action of  Zuma to destabilise the country’s constitutional order, and defy the rule of law, does neither constitute a constitutional crisis nor a grave moment for South Africa democracy, as have been contested by some. The Constitution crisis happens when there is an irresoluble clash or dilemma related to different parts of the constitutional system or if the Constitution has failed or yielded to undue partisan political interference. Things would have been different if Zuma was a sitting president. Nevertheless, his actions could still lead to a political crisis for the balance of power in the African National Congress (ANC), the ruling party. This is an awkward moment for the ruling party as it is seeking to recover lost unity and restore public trust ahead of a significant municipal election later this year and a critical five-yearly national elective conference, which will determine the political future of the current president of the country and the party. Some of the ANC allies have highlighted Zuma’s political isolation on the issue.

Attacks against the judiciary should not be taken lightly as they shake the foundation of South Africa’s constitutional democracy. South Africa is a Republic of laws where the Constitution is supreme. Disobeying its laws amounts to a direct breach of the rule of law, one of the values underlying the Constitution and which forms part of the supreme law. The act of defiance done by the former president in defying the process lawfully issued under the authority of the law is antithetical to the constitutional order. Nonetheless, it is likely to have a far more ravaging effect on his own status, credibility and political influence than on the Constitutional Court’s standing.

Dr. Norah Hashim Msuya is an academician and researcher. She writes in her personal capacity.