- the court did not accord Zuma a chance to explain himself. He was found guilty, by an affidavit, on the papers, from the Deputy Judge President, who is sitting in the commission of enquiry. No trial, no cross examination of evidence, no mitigation of sentencing.
By Dr Masimba Mavaza
With thanks to Advocate Chitando.
In a show of force, South Africa’s Constitutional Court sentenced former President and apartheid fighter Jacob Zuma to 15 months imprisonment for contempt of court Tuesday, the 29th June 2021. This was a penalty for a contempt of court after he refused to appear at a government-appointed commission investigating alleged corruption during his nine years in office.
The verdict was delivered ironically on behalf of ZUMA’s brother in law who is the Judge presiding on the enquiry. Acting Deputy Chief Justice Sisi Khampepe who accused Mr. Zuma, who was forced by his own party to resign in 2018, of risking a constitution crisis by failing to follow an order by South Africa’s top court to appear at the Judicial Commission of Inquiry into Allegations of State Capture attributed the conviction and the sentence to ZUMA’s social status.
Mr. Zuma appeared once at the commission in 2019, when he denounced the allegations against him as an elaborate smear concocted by foreign intelligence agencies and remnants of the country’s apartheid-era security services. He refused to appear for subsequent questioning, arguing that doing so would violate his constitutional rights.
Reading the majority verdict, Justice Khampepe said it was Mr. Zuma’s position as a former president that led the court to decide on imprisonment, and against a suspended sentence for the 79-year-old former antiapartheid activist. She said the verdict couldn’t be appealed.
“Mr. Zuma is no ordinary litigant. He is the former president of the Republic of South Africa who continues to wield significant political influence and in whom lies a great deal of power to incite others to similarly defy court orders,” she said.
“His actions and any consequences, or lack thereof, are being closely observed by the public. So if his conduct is met with impunity, he will do significant damage to the rule of law.”
Two of the court’s nine judges dissented with the majority ruling, saying that while they agreed that Mr. Zuma was in contempt of court, they believed his sentence should be suspended.
A spokesman for Mr. Zuma highlighted the minority judgment, and said the former president would issue a more comprehensive statement in due course.
“It creates a crisis, actually, in terms of implementation of this unconstitutional judgment,” the spokesman, Mzwanele Manyi, said.
However looking at the case on the round Ione would want to know if this was a fair hearing or a biased one. In terms of Common law, Constitutional Law and criminal procedure, everyone is entitled to a fair hearing. The eyes of Justice should not be limited to status. The hands of Justice do spread beyond social status and position.
Furthermore where the court is minding to curtail your freedom they should allow the accused to be heard. In Zuma’s case and as the judge confirmed Zumba was punished because of his status in society. The judge clearly states in the judgement that she has decided on a fifteen months jail term because Zuma was a president. This is total misdirection by the court.
Furthermore the court did not accord Zuma a chance to explain himself. He was found guilty, by an affidavit, on the papers, from the Deputy Judge President, who is sitting in the commission of enquiry. No trial, no cross examination of evidence, no mitigation of sentencing.
A straight go to jail ticket presided by an interested part. Not even one provision of the Criminal Procedure Act, or the Constitution has been followed. This stinks and indeed is knee shaking.
Furthermore the complainant is a Deputy Judge President. With the Chief Justice on leave, pending retirement, every Judge at the Constitutional Court reports to the Deputy Judge President. That means President Zuma has been found guilty by the complainants subordinates who are motivated by the zeal to please their boss and colleague.
The complainant is Zuma’s brother in law. A fact that the Deputy Judge President did not reveal at the outset of the Commission of Enquiry. He had a duty to recuse himself. He did not. Let that sink in. Your brother in law is a Judge, in a case where you are accused of corruption, & you refuse to give evidence before him, because you believe it’s unfair, & that he should recuse himself. He refuses to recuse himself.
Files an affidavit, which means the Judge becomes a witness, against you, in the same case he is presiding over. For that reason, the complainant refuses to appear in Court. The brother in law refers the matter to his subordinates, who find him guilty and sentences his estranged relative to 15 months in jail, in one motion, no trial. This is highly preposterous and totally illegal.
In South Africa the Constitutional Court is the highest Court in the land. You cannot appeal its judgements. Criminal trials, even for murder, begin at the Magistrates Court level and the process of the court lifts the process up to the highest court. An ordinary accused can appeal to the High Court, then the Supreme Court of Appeal, and then the Constitutional Court if the matter borders on Constitutional matters.
In Zuma’s case the process begun, and ended in the highest Court in the country. This means Zuma was denied an opportunity to appeal any of the several deficiencies in the case against him in a superior Court. The right to appeal a judgment is a Constitutional right, deprived from President Zuma, at the outset.
The complainant, the Deputy Judge President, would have known that referring this matter to the Constitutional Court, where his subordinates sit, would leave Zuma no opportunity to ever appeal any finding against him. He did this deliberately, with malicious intent.
Furthermore there was no constitutional matter posed in the case of contempt and thus its referral to the Constitutional court was unfair unreasonable and vindictive.
Zuma was set to fail. The court had declared his case unique. The judgment says this is a unique case, which ordinarily rules do not apply.
This would mean, on the Courts own finding, Zuma would not have known what the extra ordinary process would have been at the beginning. Zuma’s lawyers came to Court to deal with applicable laws, and not laws being created on the go. On the face of it. The extra ordinary process was by design crafted to deprive Zuma of his constitutional rights, & expedite a guilty verdict and sentence, with no possibility of appeal.
There has been a serious miscarriage of justice by the highest Court in South Africa.
It does not bode well for the future of this country as an internationally recognized constitutional democracy.
There is a serious war wedged against the law. This is indeed abuse of law by the judicial officers. This a situation where judicial activism, and overreach in politics, is damaging the legal system, and administration of justice. Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.
It is sometimes used as an antonym of judicial restraint.It is usually a pejorative term, implying that judges make rulings based on their own political agenda rather than precedent and take advantage of judicial discretion.The definition of judicial activism and the specific decisions that are activist are controversial political issues. The question of judicial activism is closely related to judicial interpretation, statutory interpretation, and separation of powers.
In president ZUMA’s case the judges descended into the arena and blinded themselves with the dust of the case.
The ruling by these judges is a shame to South African legal system and a bad precedence.
It is an insult to fairness.
Adv Simba Chitando
29 June 2021