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No easy way to judge Zuma

27 June 2021 - 01:42 By Franny Rabkin
Former president Jacob Zuma.
Former president Jacob Zuma.
Image: Sandile Ndlovu

It has been three months since the Constitutional Court heard the urgent application by the state capture commission to hold Jacob Zuma in contempt of court and asked for him to be sent to prison for two years.

The commission said Zuma's imprisonment was the only order that would vindicate the court's authority after he failed to comply with its earlier order to abide by the commission's summons. Never before has a former head of state defied such an order.

According to norms and standards, judges should try to deliver judgments within three months. The Constitutional Court generally takes longer, over six months on average last year, according to a report by GroundUp.

But this case was brought on an urgent basis. Each day that passes "constitutes an assault to the rule of law", Tembeka Ngcukaitobi SC, the commission's counsel, said at the hearing.

When it comes to urgent cases, the court has moved swiftly when it had to. On December 28 2020, it delivered a fully reasoned judgment allowing a matric pupil, who had been unfairly kept away from an exam in November, to write in January.

It has also moved slowly. When public protector Busisiwe Mkhwebane fired her COO, counsel argued the case was urgent. The court took 10 months.

Examining some urgent cases over the years, it seems the court tries to balance delivering an effective order versus reaching the right decision and for the right reasons, which can take time.

In the case that led to the contempt application, also urgent, Ngcukaitobi was asked by judge Chris Jafta if the commission could rearrange Zuma's appearances to allow the court to "work out a judgment and an order that is delivered before February". Ngcukaitobi said it could. Judgment was delivered on the last Friday of January.

In that case, the urgency was clearer. Then the commission sought an order that would force Zuma to give evidence. The commission was in a race against time because of a court-ordered end date.

But when the commission came back for its contempt order, Ngcukaitobi was clear that it was no longer seeking Zuma's attendance. What it sought now was punitive. The question that arises is, what difference would it make if Zuma went to prison - if the court went this way - now or later?

When Ngcukaitobi was asked about this by judge Leona Theron, he referred to an earlier judgment saying that contempt of court needed to be dealt with swiftly and decisively. This case was an extreme case of contempt, he said. It was continuing and there was a risk that public attacks by Zuma on the judiciary would continue.

There are factors that make it hard for the court to make the right decision and for the right reasons. Ngcukaitobi said his team had searched the law reports and could not find a useful precedent to help the court decide some aspects of this case. "This case stands apart," he said.

The court has no judgment from a lower court to help it. It also heard only one side. This was Zuma's choice, but it is easier (and quicker) to get it right when a court has heard both sides. This may account for why the court later, after the hearing, asked Zuma for submissions on an appropriate penalty.

It was the penalty that occupied the majority of the questioning during the hearing, with Ngcukaitobi acknowledging that two years' imprisonment was a "heavy penalty" but insisting it was appropriate.

Arriving at an appropriate sentence is considered one of the hardest decisions for courts to get right. Many, and often competing, factors must be weighed up, among these the personal circumstances of the accused. The ConCourt must arrive at an appropriate sanction with no input from the "accused", and as a court from which there can be no appeal.

Ngcukaitobi said a fine was manifestly inappropriate because it would not vindicate the authority of the Constitutional Court and "ultimately reduces the assault to the dignity of the court to money exchange". He argued that a suspended sentence was also inappropriate as it would allow Zuma to continue to "run rings" around the commission. Incarceration was the only appropriate sentence.

"The question is, what is the duration of the incarceration that would serve the object of ensuring that [the Constitutional Court's] orders are not in the future disobeyed?"

The Constitutional Court has historically also sought to achieve consensus where it can, especially in contentious cases. But consensus can't always be reached. Where judges disagree, time is also needed to read each other's drafts and consider each other's views.


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