Judge blasted for comment about 'what the Constitutional Court did to Zuma'

A Northern Cape High Court judge has been blasted in an appeal judgment for making “egregious” remarks about “what the Constitutional Court did to Zuma”. 

The full bench judgment revealed that, in a contempt application related to the administration of a deceased estate, judge Albert Nxumalo made the following statement: “Now with the greatest respect I’m not going to tell you what the Constitutional Court did to Zuma. I’m not gonna do that. I might be a [indistinct] judge, but I know something about fundamental rights. I’m not going to convict somebody of contempt of court in circumstances when there is an alternative relief.”

The remark was apparently a reference to the Constitutional Court’s 2021 order that held former president Jacob Zuma in contempt of court for disobeying its earlier order to comply with the lawful summons of the state capture commission. The apex court sentenced Zuma to 15 months in prison. 

When the full bench overturned Nxumalo’s order last week, it said these words were “egregious, uncalled for and unprincipled”.

The import of the statement was “plainly that ‘what the Constitutional Court did to Zuma’ was a misdirection”, said the full bench, which included the Northern Cape’s judge president Pule Tlaletsi and its deputy judge president Mmathebe Phatshoane. The words “fly in the face of the doctrine of precedent”, said the court.

The court said the appeal raised matters “of great import as it explores the functions of a judicial officer and adherence to basic tenets”.

The judgment quoted the famous 2009 judgment of the Supreme Court of Appeal, in which the SCA gave KwaZulu-Natal High Court judge Chris Nicholson a similar, blistering back-to-basics lesson after his judgment that set aside a decision by the national director of public prosecutions to indict Zuma.

“For reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that, in exercising the judicial function, judges are themselves constrained by the law,” said the SCA. 

Nxumalo’s remarks on “what the Constitutional Court did to Zuma” were not the only flaws identified by the full bench on appeal.

He was flayed by the court for raising and deciding issues that were not before him and “more significantly ... in the absence of the affected parties”.

The application was for contempt of court in relation to “a main application” about a deceased estate, but the main application was not before the court. Yet Nxumalo decided the main application, which he “had no authority, constitutionally, statutorily or otherwise, to do”, argued the appellants. 

The court agreed. “Unlike the respondents who were served with all the necessary papers and elected not to participate in the proceedings, the appellants were neither served nor made aware that the main application would be adjudicated on March 10 2023,” said the judgment. 

Nxumalo had also trashed the interim order of one of his colleagues, judge Lawrence Lever, who had ordered the parties to come back on a specific date to explain why they should not be held in contempt. Nxumalo had said — “in a busy open unopposed motion court proceeding,” said the appeal court — that this order was “not worth the ink it has been typed with. It’s just a nuisance.” 

The appeal court took a dim view. Lever’s order was a “valid order. It did not deserve [this] gratuitous attack.”