State Capture Judicial Commission v Zuma

Criminal civil contempt proceedings and by a majority the constitutional court found that the Commission had not followed an improper or unconstitutional process and declared in para [118]

‘In sum, it is trite that our law permits an aggrieved litigant to approach a court for an order of contempt pursuant to an earlier court order being defied. Although, in our law, direct committal has yet to be ordered in proceedings of this kind, this Court’s own words in Pheko II signal to a litigant that he or she is entitled to approach a court for an order of contempt where a previous order has been breached, and that there will be times when a punitive order will be apposite. These conclusions are supported further by the finding in Pheko II, that “courts shall not hesitate to enforce their orders”, and the fundamental principle that contempt proceedings exist as the only mechanism by which courts can assert their authority and preserve integrity in the judicial process and administration of justice.’

Essence

Criminal civil contempt found and constitutional court ordered unsuspended committal in extraordinary circumstances and punitive costs order.

Decision

(CCT 52/21) [2021] ZACC 18 (29 June 2021)

Order:

Granted direct access and declared JG Zuma guilty of the crime of contempt of court for failing to comply with court order and punitive costs awarded. 

Judges

Coram: Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J

Judgments:

Khampepe ADCJ (majority): [1] to [142]
Theron J (minority):               [143] to [268]

Heard: 25 March 2021
Delivered: 29 June 2021

Reasons

“[116] In any event, I cannot support the second judgment’s suggestions that the applicant has no interest in Mr Zuma’s punishment through committal; that it is before us merely seeking the satisfaction of punishing him; and that this Court, in granting a punitive order, is succumbing to entertaining a bitter and personal vendetta held by the Commission against Mr Zuma. That is simply not why we are here.

The applicant took extensive measures to secure Mr Zuma’s co-operation with the Commission’s work, both before approaching this Court in CCT 295/20 and after the order was handed down, to no avail. Of concern to the applicant is that Mr Zuma’s contempt has undermined the Commission’s authority and legitimacy severely, and is detrimental and destructive to its ability to carry out its mandate.

For these reasons, paired with the overall damage that his conduct has done to the integrity of this Court and the Judiciary, it seeks his committal. In other words, the applicant seeks to vindicate the Commission’s, and indeed the public’s, interest in preserving public faith in the work of the Commission, this Court and the Judiciary.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

“We expect you to stand on guard not only against direct assault on the principles of the Constitution, but against insidious corrosion.” (Nelson Mandela, 1995)

Introduction

[1] It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs. The corollary duty borne by all members of South African society – lawyers, laypeople and politicians alike – is to respect and abide by the law, and court orders issued in terms of it, because unlike other arms of State, courts rely solely on the trust and confidence of the people to carry out their constitutionally mandated function. The matter before us has arisen because these important duties have been called into question, and the strength of the Judiciary is being tested.

I pen this judgment 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. It is disappointing, to say the least, that this Court must expend limited time and resources on defending itself against iniquitous attacks. However, we owe our allegiance to the Constitution alone, and accordingly have no choice but to respond as firmly as circumstances warrant when we find our ability to uphold it besieged.

[2] This matter concerns the question whether Mr Zuma is guilty of contempt of court for failure to comply with the order that this Court made in 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 (CCT 295/20). In that order, this Court directed Mr Zuma to comply with summonses issued by the Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Commission) and to appear and give evidence on dates determined by the Commission.

The order also directed Mr Zuma to comply with directives lawfully issued by the Commission. Notwithstanding that order, Mr Zuma did not appear before the Commission on the dates determined by the Commission nor did he file any affidavits in accordance with the Commission’s directives. Consequently, the Secretary of the Commission, the applicant, now seeks an order from this Court declaring that Mr Zuma, cited as the first respondent, is guilty of contempt of court, and sentencing him to imprisonment for a period of two years.

[3] The Minister of Police and the National Commissioner for the South African Police Service (SAPS) are cited as the second and third respondents respectively. They are cited in their official capacities because the implementation of the order sought by the applicant may require their services. As expounded later, the Helen Suzman Foundation (HSF) is admitted as amicus curiae (friend of the court).

Background facts

[4] In December 2020, in the matter of CCT 295/20, the applicant approached this Court on an urgent basis for an order that would, in essence, compel Mr Zuma’s co operation with the Commission’s investigations and objectives. It is unnecessary to repeat the particulars of that matter here, save to state that it culminated in this Court granting an order in favour of the applicant on 28 January 2021, in terms of which Mr Zuma was ordered to attend the Commission and give evidence before it. The judgment and order were served on him by the Sheriff at both of his residences. Mr Zuma responded by releasing a public statement in which he alleged that the Commission and this Court were victimising him through exceptional and harsh treatment, and that both institutions were politicising the law to his detriment.

[5] On 15 February 2021, Mr Zuma did not attend the Commission as required by the summons, and by extension, this Court’s order. Instead, his legal representatives informed the Commission that he would not be appearing before it from 15 to 19 February, these being the dates stipulated in the summons. When it became apparent that Mr Zuma did not intend to comply with the order of this Court and the summons issued by the Commission, the Chairperson announced that the Commission would institute contempt of court proceedings against him. On the same day, Mr Zuma published another statement in which he levelled serious criticisms against the Judiciary and confirmed that he would neither obey this Court’s order in CCT 295/20, nor co operate with the Commission in any respect.

[6] It is this regrettable series of events that led to the applicant, in February 2021, approaching this Court on an urgent basis to launch these contempt of court proceedings.

Submissions before this Court

Applicant

[7] The applicant submits that this matter unequivocally engages this Court’s jurisdiction. The applicant refers to the decision of this Court in Pheko II and submits that a court that grants an order retains jurisdiction to ensure its compliance and thereby to vindicate its authority. Furthermore, considering Mr Zuma’s former and current political position in South Africa, the applicant submits that his conduct constitutes a particularly egregious affront on judicial integrity, the rule of law and the Constitution itself. On this basis, the applicant emphasises that this Court is the rightful guardian of the Constitution and the Judiciary, and it is therefore appropriate for it to respond to Mr Zuma’s calculated efforts to undermine the administration of justice and public trust in the Judiciary.

[8] The applicant submits that there are several reasons that warrant this Court considering the matter on an urgent basis.

  • Firstly, Mr Zuma’s conduct poses a grave threat to the administration of justice and the rule of law.
  • Secondly, Mr Zuma is an influential political figure who wields the power to inspire others to defy courts.
  • Thirdly, the public and forceful nature of Mr Zuma’s defiance compounds the risk posed to the rule of law.
  • Fourthly, Mr Zuma’s contempt of the court order is ongoing as he continues to ignore the summons issued by the Commission, which has a limited lifespan.

Thus, should any order issued by this Court require compliance with the previous order, it is necessary that this be ordered to take place before the mandate of the Commission expires at the end of its term. Finally, the applicant submits that no prejudice is caused to Mr Zuma by this Court hearing the matter on an urgent basis because he has not opposed the application.

[9] On the merits, the applicant submits that Mr Zuma is guilty of the crime of contempt of court. The applicant draws on the decision of the Supreme Court of Appeal in Fakie, and submits that, when the relevant legal test is applied to the current facts, there can be no doubt that Mr Zuma had knowledge of this Court’s order in CCT 295/20 because it was served on him, and he plainly acknowledged it in his public statements. Additionally, the applicant submits that Mr Zuma has once again declined to participate in proceedings before this Court and has instead opted to malign this Court. Accordingly, he has failed to present any evidence whatsoever to avoid the conclusion that his non-compliance was wilful and mala fide.

[10] The applicant further submits that, in ostensibly defending his disobedience of this Court’s order, Mr Zuma has effectively conducted a politically-motivated smear campaign of this Court, the Commission and the Judiciary. According to the applicant, this approach is intended to bring the judicial process into disrepute, which tactic should count as an aggravating factor in the determination of the appropriate sanction. To substantiate this submission, the applicant refers to the specific serious insults that Mr Zuma has directed at this Court, the Commission and the Judiciary. In short, the crux of these insults is that these institutions are politicised and prejudiced. And that, instead of pursuing their legitimate and constitutional mandates, they seek to further their own political agenda and target Mr Zuma personally.

[11] Based on all of the above, the applicant seeks a punitive order in the form of an unsuspended term of imprisonment. To this end, the applicant distinguishes between coercive and punitive orders, and submits that only a punitive order is appropriate in this matter because it involves a unique and extreme case of contempt of court, for which there is no meaningful precedent.

In short, the applicant submits that Mr Zuma did not merely defy a court order. He ventilated his defiance by making scurrilous statements about this Court and the Judiciary at large, and has repeatedly demonstrated disdain for the judicial process. The applicant submits that these unique features of this case, coupled with the fact that Mr Zuma is a former President, must be considered in the determination of the sentence, which must ultimately vindicate this Court’s authority.

[12] In support of the proposed period of two years’ imprisonment, the applicant submits that Mr Zuma’s contempt of court has entailed several discrete and compounding acts of contempt.

These include:

  • his failure to appear at the Commission on any of the five days on which he was summoned to appear;
  • his failure to file any affidavits at the Commission notwithstanding two directives requiring him to do so;
  • his publicly stated intention to defy this Court’s order; and
  • his scurrilous statements made against this Court and the Judiciary, in which he purported to justify his contempt.

The applicant points out that if Mr Zuma were to be tried for contempt in a criminal court in terms of the Commissions Act, each of these acts of contempt would be considered and counted individually in determining the sentence, and that would result in a court arriving at a period of four years and six months’ imprisonment. The applicant, however, instituting contempt of court proceedings rather than proceedings in terms of the Commissions Act, does not seek a sentence of this length.

[13] Finally, the applicant seeks punitive costs against Mr Zuma on an attorney and own client scale, including the costs of two counsel. This, the applicant submits, is justified because, but for Mr Zuma’s reprehensible and malicious conduct, it would not have been required to approach this Court, yet again, at significant public expense.

First respondent

[14] Mr Zuma has not opposed this application, nor has he filed any submissions in this Court, notwithstanding that his submissions on a certain issue were directly sought by this Court after the matter was heard. I return to this in due course.

Second and third respondents

[15] As noted above, the second and third respondents are cited only because the services of SAPS may be required for the purpose of implementing the order sought by the applicant. They have not participated in these proceedings, and no costs are sought against them.

Amicus curiae

[16] HSF applied to be admitted as amicus curiae in this matter. In its submissions, it traversed several legal issues that were relevant to the matter at hand. For present purposes, however, I repeat only its main submission, which is that an appropriate sanction in contempt proceedings must play the dual role of vindicating the dignity of the court and compelling compliance with the impugned court order. Thus, it submits that the order of committal sought by the applicant falls short insofar as it fails to serve any coercive purpose. It submits that there is great constitutional and public value in compelling Mr Zuma to co-operate with the Commission which cannot be ignored and which, it submits, is a view it has adopted based on the pronouncements on the value of the Commission’s work made by this Court in CCT 295/20.

[17] It accordingly suggests that the appropriate sanction may be an order for Mr Zuma’s committal for a minimum compulsory period, coupled with either of the following: an order that would curtail any further imprisonment if Mr Zuma voluntarily complies with the obligation to testify before the Commission; or an order directing the Sheriff of the High Court to bring Mr Zuma to the Commission to testify following a mandatory period of imprisonment. It submits that such a sanction would serve the important objective of enabling the Commission to fulfil its truth seeking purpose, while avoiding the possibility of Mr Zuma successfully and publicly flouting the work of the Commission.

[18] A prospective amicus curiae must satisfy the requirements of rule 10(6) of the Rules of this Court. I am satisfied that HSF’s application to be admitted as amicus curiae did indeed meet these requirements, because its submissions are relevant and of assistance to this Court, particularly in relation to the question of sanction. In this regard, it has provided for an alternative sanction to that proposed by the applicant. Given that this matter is unopposed, and there is little guidance available to this Court in terms of the appropriate sanction, these submissions are useful to this Court.

HSF is therefore admitted as amicus curiae.

Admissibility of evidence

[19] Before I deal with any of the issues for adjudication, I pause to address a preliminary concern that arose during the hearing in relation to the admissibility of certain evidence. The applicant’s submissions rely, to a great extent, on the public statements made and issued by Mr Zuma. Despite being extra-curial documents, these public statements are integral to the uniqueness and gravity of this case. It is thus necessary to immediately dispose of any doubt as to whether I am entitled to admit these documents and consider them as evidence. This doubt arises because Mr Zuma has declined to officially come on record to confirm or deny the veracity of these statements and, consequently, they must be regarded as hearsay evidence as defined by the Law of Evidence Amendment Act (LEAA).

[20] I am mindful that this Court must exercise caution when admitting and relying on hearsay evidence, especially in the context of proceedings where a criminal sanction may be imposed.

I am accordingly guided by section 3(1)(c) of the LEAA, which provides the requirements for admission and reliance on hearsay evidence. Importantly, this Court must consider the nature of these proceedings and the evidence itself, the purpose for which the evidence is tendered, the probative value of the evidence, the reason that it is not given first-hand by the person upon whose credibility it depends, and any prejudice that the admission of the evidence may entail.

[21] These urgent proceedings are neither criminal nor civil, but a sui generis (unique) amalgamation of the two.

More on this later. The evidence in question is a series of public statements purportedly made by Mr Zuma. The applicant relies on these statements as evidence of the severity of this particular case of contempt of court, and to demonstrate that it is part of a deliberate attack on this Court’s authority. The probative value of these statements is merely that they exist in the public domain, and that they were publicised by, or on behalf of, Mr Zuma. The reason that they constitute hearsay evidence in these proceedings is obvious: Mr Zuma has brazenly refused to participate, and it was neither practical nor possible for this Court to secure his participation to admit or refute his connection to the statements.

[22] The main question, then, is whether Mr Zuma will suffer any prejudice if this Court admits and relies on these statements as evidence of the sinister and extreme nature of the contempt. The reason that hearsay evidence is generally inadmissible is that it presents litigants, and particularly accused persons, with the procedural challenge of having to refute evidence without the benefit of cross examination. It follows that this procedural prejudice “must be weighed against the reliability of the hearsay evidence in deciding whether, despite the inevitable prejudice, the interests of justice require its admission”.

[23] In this truly unique matter, the veracity of the hearsay evidence depends on the respondent. The statements were attached to the founding affidavit, and it is inconceivable that Mr Zuma could be unaware of their relevance to the sanction sought by the applicant. If the publication of these statements had no relation to him, he could have provided an explanation – either publicly or in these proceedings. He did not. He even had an additional opportunity to dispute his connection to these statements after the hearing of the matter.

However, to date, Mr Zuma has made no attempt to distance himself from these statements. Although the admission of these statements will undoubtedly prejudice Mr Zuma’s case, the intention behind section 3(1)(c) of the LEAA is to create flexibility so that hearsay evidence may be admitted when the interests of justice, and indeed common sense, demand it.

I am satisfied that these circumstances exist in this matter, and that there is nothing preventing this Court from admitting these statements as evidence. No more needs to be said on this.

Jurisdiction

[24] This matter engages this Court’s constitutional jurisdiction. These being contempt proceedings, at issue is whether Mr Zuma has wilfully defied this Court’s order in CCT 295/20. Accordingly, this Court’s power to protect its own processes in terms of section 173 of the Constitution is implicated. Indeed, section 173 gives this Court the flexibility to be responsive in an emergent and transforming democracy. When the constitutional safeguards for the Judiciary are undermined so egregiously, section 173 empowers this Court to respond swiftly and effectively in its own interests and in the interests of justice.

[25] This matter also concerns the protection of the authority of the Judiciary to carry out its constitutional functions vested in it by section 165 of the Constitution, and the safeguarding of the rule of law, the supremacy of the Constitution, and the values that lie at the heart of our constitutional order.

[26] The thrust of section 165 of the Constitution was expounded by Nkabinde J in Pheko II, in which it was stated that—

“[t]he rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of the courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of State to which they apply, and no person or organ of State may interfere, in any manner, with the functioning of the courts. It follows from this that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.

Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of State. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest.”

[27] Contempt of court proceedings exist to protect the rule of law and the authority of the Judiciary. As the applicant correctly avers, “the authority of courts and obedience of their orders – the very foundation of a constitutional order founded on the rule of law – depends on public trust and respect for the courts”. Any disregard for this Court’s order and the judicial process requires this Court to intervene. As enunciated [by the high court] in Victoria Park Ratepayers’ Association, “contempt jurisdiction, whatever the situation may have been before 27 April 1994, now also involves the vindication of the Constitution”. Thus, the issues at the heart of this matter are irrefutably constitutional issues that engage this Court’s jurisdiction.

Direct access

[28] Whilst our jurisdiction is engaged, I must still apply myself to the question of whether it is in the interests of justice to grant direct access to this Court. This, because the applicant approaches this Court on an urgent basis and seeks direct access in terms of rule 18 of the Rules of this Court.

Rule 18 gives effect to section 167(6)(a) of the Constitution. In terms of these provisions, direct access will be granted when it is in the interests of justice to do so.

[29] The matter is self-evidently extraordinary. It is thus in the interests of justice to depart from ordinary procedures. Never before has this Court’s authority and legitimacy been subjected to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.

Accordingly, it is appropriate for this Court to exercise its jurisdiction and assert its special authority as the apex Court and ultimate guardian of the Constitution, to the exclusion of the aegis of any other court. It goes without saying that neither the public’s vested interests, nor the ends of justice, would be served if this matter were to be required to traverse the ordinary, and lengthy, appeals process that would render the litigation protracted. The urgency with which this matter must be disposed of, a subject I deal with next, does not admit of that kind of delay.

[30] Not only is Mr Zuma’s behaviour so outlandish as to warrant a disposal of ordinary procedure, but it is becoming increasingly evident that the damage being caused by his ongoing assaults on the integrity of the judicial process cannot be cured by an order down the line. It must be stopped now.

Indeed, if we do not intervene immediately to send a clear message to the public that this conduct stands to be rebuked in the strongest of terms, there is a real and imminent risk that a mockery will be made of this Court and the judicial process in the eyes of the public. The vigour with which Mr Zuma is peddling his disdain of this Court and the judicial process carries the further risk that he will inspire or incite others to similarly defy this Court, the judicial process and the rule of law.

[31] It is not insignificant that his assaults and his alleged contempt are ongoing and relentless, as this underscores the urgency. In Protea Holdings, the Court said that

“if there was no continuing contempt of court . . . then the hearing of this application as a matter of urgency in the Court vacation would not be justified”.

It held that—

“the element of urgency would be satisfied if in fact it was shown that [the] respondents were continuing to disregard the order . . . . If this be so, the applicant is entitled, as a matter of urgency, to attempt to get the respondents to desist by the penalty referred to being imposed.”

[32] A similar point was made [by the high court] in Victoria Park Ratepayers’ Association, in which it was said that—

“[c]ontempt of court has obvious implications for the effectiveness and legitimacy of the legal system and the judicial arm of government. There is thus a public interest element in each and every case in which it is alleged that a party has wilfully and in bad faith ignored or otherwise failed to comply with a court order. This added element provides to every such case an element of urgency.”

[33] In that case, the [High] Court went further to state that—

“it is not only the object of punishing a respondent to compel him or her to obey an order that renders contempt proceedings urgent: the public interest in the administration of justice and the vindication of the Constitution also render the ongoing failure or refusal to obey an order a matter of urgency. This, in my view, is the starting point: all matters in which an ongoing contempt of an order is brought to the attention of a court must be dealt with as expeditiously as the circumstances, and the dictates of fairness, allow.”

[34] Accordingly, I am enjoined to take stock of the relentlessness of the alleged contempt at issue. It cannot be gainsaid that the longer that Mr Zuma’s recalcitrance is allowed to sit in the light, and heat, of day, so the threat faced by the rule of law and the administration of justice, curdles. The ongoing defiance of this Court’s order, by its very nature, renders this matter urgent. In fact, rarely do matters arrive at the door of this Court so deserving of decisive and urgent intervention.

[35] I have had the benefit of reading the second judgment penned by Theron J.

My Sister is of the view that, whilst this matter warrants consideration on an urgent basis, unless this Court seeks to compel compliance with the order in CCT 295/20, it was not appropriate for the applicant to bring an urgent application for a punitive sanction through motion proceedings.

To my Sister, this matter is infused with an element of urgency only if Mr Zuma is ordered to co operate with the work of the Commission, and not if a punitive order of direct committal is made. I feel compelled to dispose of this argument, at this earliest opportunity to clarify that, whatever this Court decides to do, it is to be done on an urgent basis.

In the light of all of the above, let me reiterate that it is the continued and persistent contemptuous conduct that renders this matter urgent, because its persistence risks denigrating the rule of law and the authority of the Judiciary.

Accordingly, it is not the lifespan of the Commission alone that justifies urgency, but rather the need to put an end to Mr Zuma’s contempt and vindicate the authority of this Court. Ultimately, urgency does not depend on the nature of the sanction eventually to be imposed, and the second judgment incorrectly takes this approach.

[36] It is perspicuous that it is in the broad public interest that this Court sends an unequivocal message that its orders cannot simply be ignored with impunity. If this Court does not exercise its jurisdiction to do so and thereupon grant direct access, its authority becomes phantasmic, and the Constitution this Court exists to uphold, chimeric. No more needs to be said. Because of these exceptional circumstances it is in the interests of justice to grant direct access, and to do so on an urgent basis.

Is Mr Zuma in contempt of court?

[37] As set out by the Supreme Court of Appeal in Fakie, and approved by this Court in Pheko II, it is trite that an applicant who alleges contempt of court must establish that

  • (a) an order was granted against the alleged contemnor;
  • (b) the alleged contemnor was served with the order or had knowledge of it; and
  • (c) the alleged contemnor failed to comply with the order.

Once these elements are established, wilfulness and mala fides are presumed and the respondent bears an evidentiary burden to establish a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established.

[38] On the evidence placed before this Court, there can be no doubt that Mr Zuma is in contempt of court. It needs no repetition that this Court handed down a judgment and order in favour of the applicant in CCT 295/20. Mr Zuma was served with the order, which service was effected at both his properties in Forest Town and Nkandla.

Proof of service can be found in the record. Also to be found in the record are the public statements Mr Zuma made in respect of the order against him in CCT 295/20. Accordingly, it is impossible to conclude anything other than that he was unequivocally aware of the order and had knowledge of exactly what it required of him.

[39] The applicant submits that Mr Zuma failed to appear and give evidence before the Commission on the dates so ordered. He also failed to file any affidavit in accordance with the Chairperson’s directives under regulation 10(6). He is therefore in violation of this Court’s order in CCT 295/20, specifically paragraphs 4 and 5.

[40] This Court cannot have reason to doubt the veracity of the applicant’s assertions. And, in any event, the extent of the breach has not been challenged by Mr Zuma who, instead, has taken to multiple public platforms upon which he has affirmed the extent of his non-compliance. Those public utterances impliedly confirm not only that he is aware of the order and its contents, but also that he stridently elects to remain in defiance of it. Most importantly, Mr Zuma has not presented any evidence before this Court to establish a reasonable doubt as to whether his disobedience of this Court’s order was wilful and mala fide.

[41] As held in Pheko II

“the presumption rightly exists that when the first three elements of the test for contempt have been established, mala fides and wilfulness are presumed unless the contemnor is able to lead evidence sufficient to create a reasonable doubt as to their existence. Should the contemnor prove unsuccessful in discharging this evidential burden, contempt will be established.”

[42] As demonstrated, the three elements have been established. Notwithstanding that Mr Zuma has been afforded the opportunity to advance evidence before this Court to contest his wilfulness or mala fides, he has outright refused to do so. This Court cannot but find for the applicant on this because Mr Zuma bore an evidentiary burden to refute the allegation of contempt, which he elected not to discharge.

Accordingly, contempt of court has been established beyond any doubt. In fact, Mr Zuma’s contempt of this Court’s order is both extraordinary and unprecedented in respect of just how blatant it is.

[43] Before proceeding, I must firmly allay any doubts as to the judicial value of the purported defences raised by Mr Zuma in his public statements. Mr Zuma’s extra curial statements are of no relevance to the question whether he is guilty of contempt. So, his endeavour in those statements to provide reasons for his defiance of this Court’s order is of no moment. The fact is, he has defied this Court’s order. And the statements are a far cry from what is required of him as a respondent in contempt proceedings, as outlined above.

As I read Wickee, proof of bona fides raised in justification of the contempt by the respondent will serve as a defence to an application for committal in the case of direct contempt. However, the evidentiary burden to prove bona fides rests solely at the feet of the respondent. The point is that even if there were bona fide reasons for Mr Zuma’s non-compliance, it would be wholly inappropriate for this Court to search for them.

Nor would it be appropriate for this Court to treat Mr Zuma’s statements as any kind of attempt to participate in these proceedings or discharge the evidentiary burden he bore, given that these submissions were not properly placed before it. In sum, these “defences”, so to speak, are not formally pleaded and fall to be disregarded.

[44] The scurrilous and defamatory aspects of these statements, on the other hand, are bound to inform my reasoning on the appropriate sanction as they are inextricably linked to the public nature of the defiance of this Court’s order. However, the remaining aspects of these statements, namely the extent to which the statements attempt to justify his contempt, are utterly irrelevant for our purposes.

[45] It being perspicuous that Mr Zuma is in contempt of this Court’s order in CCT 295/20, the crisp question with which I am seized is the appropriate sanction. It is to this that I now turn.

What is the appropriate sanction?

[46] For I am not in the habit of playing my cards close to my chest, let me, at this earliest opportunity, state that Mr Zuma has earned himself a punitive sanction of direct and unsuspended committal.

The purposes of contempt orders

[47] I should start by explaining how the purposes of contempt of court proceedings should be understood. As helpfully set out by the minority in Fakie, there is a distinction between coercive and punitive orders, which differences are “marked and important”. A coercive order gives the respondent the opportunity to avoid imprisonment by complying with the original order and desisting from the offensive conduct. Such an order is made primarily to ensure the effectiveness of the original order by bringing about compliance. A final characteristic is that it only incidentally vindicates the authority of the court that has been disobeyed. Conversely, the following are the characteristics of a punitive order: a sentence of imprisonment cannot be avoided by any action on the part of the respondent to comply with the original order; the sentence is unsuspended; it is related both to the seriousness of the default and the contumacy of the respondent; and the order is influenced by the need to assert the authority and dignity of the court, to set an example for others.

The inappropriateness of a coercive order

[48] A coercive order would be both futile and inappropriate in these circumstances. Coercive committal, through a suspended sentence, uses the threat of imprisonment to compel compliance. Yet, it is incontrovertible that Mr Zuma has no intention of attending the Commission, having repeatedly reiterated that he would rather be committed to imprisonment than co-operate with the Commission or comply with the order of this Court. Accordingly, a suspended sentence, being a coercive order, would yield nothing.

In CCT 295/20, this Court was at pains to point out how Mr Zuma had been afforded, perhaps too generously at times, ample opportunities to submit to the authority of the Commission. Notwithstanding that I recognise the importance of the work of the Commission, being guided by what this Court said in CCT 295/20, I do not think this Court should be so naïve as to hope for his compliance with that order. Indeed, it defies logic to believe that a suspended sentence, which affords Mr Zuma the option to attend, would have any effect other than to prolong his defiance and to signal dangerously that impunity is to be enjoyed by those who defy court orders.

[49] Corruption, as is under investigation by the Commission, is a cancer that threatens our constitutional order and the human rights to which it seeks to give meaning. I am not abandoning what this Court said in CCT 295/20 when it held that the allegations investigated by the Commission are extremely serious. And I am not departing from the view that Mr Zuma’s testifying before the Commission is imperative, given that it was under his Presidency that the alleged corruption and malfeasance uncovered by the Public Protector, and now under investigation by the Commission, took place.

Nor am I disputing that society holds a vested interest in the truth concerning serious allegations of State Capture, corruption and fraud being uncovered, because, if found to be veracious, these allegations would indeed implicate the constitutional order of the Republic itself.

According to Theron J, all of this culminates in the need to prioritise compelling Mr Zuma’s compliance.

Notwithstanding all of what I have said above, I consider a purely punitive order to be the appropriate sanction because I am alive to the reality that there is simply no hope remaining that Mr Zuma will attend the Commission. At this stage, ordering and then expecting Mr Zuma’s compliance with this Court’s order is akin to flogging a dead horse. To the extent that the second judgment would have us persist in the flogging exercise, I cannot support such an approach, which I fear would render this judgment a brutum fulmen (an ineffectual legal judgment).

[50] Mr Zuma has demonstrated a marked disregard for the authority of this Court and is resolute in his refusal to participate in the Commission’s proceedings. Thus, it is impossible to see that a coercive order would achieve any of the purposes of contempt proceedings: neither this Court’s honour, nor the public’s interest in Mr Zuma’s testifying before the Commission, would be vindicated by the making of a coercive order.

If anything, I am alert to the fact that the public has an equally important, if not more acute, interest in a functioning Judiciary than in Mr Zuma’s testifying before the Commission. Given that any hope of Mr Zuma’s attendance was long ago dashed on the rocks, I would rather ensure that this society is one in which deference is shown to the rule of law, than continue to try, with what I know will be to no avail, to compel this most recalcitrant of individuals. Compulsion will inevitably result in further acts of defiance and contempt.

[51] For all of the reasons set out above, I am likewise not convinced by HSF’s proposal of a partially-suspended sentence. HSF argues that the public interest dictates an order in favour of compelling compliance with the order in CCT 295/20, and that a purely punitive order would compromise the public’s interest as it would afford no opportunity for Mr Zuma to cure his contempt.

I reiterate that, with or without a coercive order, Mr Zuma has made it clear that he will not purge his contempt. He has offered neither contrition nor apology, let alone any suggestion that he intends to obey an existing or future order of this Court. A partially suspended sentence equally muddies the waters in a matter where the appropriate sanction is glaringly obvious.

[52] I am further troubled by the fact that an order of committal that is conditional upon further non-compliance by Mr Zuma fails to address his already contemptuous conduct and wields no punitive power in respect of his conduct that is already, without more, worthy of rebuke. Were a coercive order to be made, the punitive effect of it would only operate upon future non-compliance, which is essentially to say that it would be that act of further non-compliance, as opposed to the already existing non compliance, that would become punishable. Mr Zuma has done more than enough already to deserve a punitive sanction.

A coercive order that employs the threat of imprisonment in the event of further non-compliance would be incapable of vindicating the extent to which this Court’s authority has already been violated. As expounded in Fakie, a coercive order only incidentally vindicates a court’s honour: mere incidental vindication is far from what is warranted in these circumstances, which demand direct and incisive vindication.

[53] Although I prefer the delineation by the minority [per Howie P, Cachalia AJA and Heher JA] in Fakie as to the purposes of coercive and punitive orders, I am alive to the fact that the majority rejected the idea that there is a bright line between the two, maintaining that the binary between seeking enforcement through a contempt order and vindicating the authority of the court may be a false one. It held that the enforcement of an order in contempt proceedings has a public dimension, and that it is almost impossible to disentangle the punitive from the coercive purposes of contempt orders.

The second judgment relies heavily on this point. It is pertinent then, that I express that I am not suggesting that a coercive order is always or inherently incapable of vindicating a court’s authority. There may very well be circumstances in which a coercive order is capable, at the same time as ensuring compliance, of vindicating a court’s honour and the integrity of the judicial process.

However, this is not one of those cases. In these truly peculiar circumstances, it is impossible to see how either the public’s interest in Mr Zuma’s testifying before the Commission, or this Court’s own interest in vindicating its integrity, would be satisfied by making a coercive order.

If anything, a coercive order, likely only to be further defied, would plunge the integrity of this Court into even deeper waters.

[54] Whilst it is trite that this Court enjoys wide remedial discretion to determine appropriate relief, it is also trite that, in determining appropriate relief in contempt proceedings, this Court should be guided by the approach adopted by other courts. On numerous occasions, it has been confirmed that

“the principal purpose of contempt of court proceedings when an order has been disobeyed has been the imposition of a penalty in order to vindicate the Court’s honour consequent upon the disregard of its order . . . and to compel the performance thereof”.

It is indeed the accepted practice in contempt matters to seek compliance, using punishment as a means of coercing same. In other words, committal is ordered for coercive purposes and made conditional upon non-compliance with a mandamus or interdict.

[55] In Protea Holdings, the [High] Court held that, despite giving anxious consideration as to whether or not to order direct imprisonment—

“I must, however, bear in mind that a Court is loath to restrict the personal liberty of the individual in matters of this kind . . . and that, if a period of imprisonment in this type of case is imposed, it is usually or often suspended.”

To the extent that the second judgment stresses this, it is not wrong. Moreover, I cannot ignore the fact that I have yet to come across a case in which a solely punitive order of immediate committal has been made, or where punishment is not calculated to coerce the recalcitrant to comply with the initial order.

[56] However, I am alive to the fact that the case before us is so markedly distinct from any matter that has preceded it, that it exceeds the expectations of legal precedent. The result is that, despite my efforts, I have found very little solace in our jurisprudence. The extent and gravity of the contempt in this matter is singularly unprecedented and absolutely inimitable.

All of the cases to which I have had regard are woefully inadequate in the face of these circumstances. For instance, coercive orders tend to be accompanied by a reasonable hope that the contemnor will desist from their contempt. The factual matrix of this matter has served to undermine the usefulness of precedent at almost every turn. Whereas in other cases there was reason to hope for compliance, as I have already said, there is no hope to be had that Mr Zuma will desist from his contempt. So, I cannot think of anything more inappropriate than ordering a fine or a suspended period of imprisonment.

[57] I acknowledge that the decision at which I arrive, namely an order of direct committal, may constitute an unprecedented step forward on the trajectory of contempt litigation. That being said, I am wholeheartedly of the view that this flows from legal precedent, as I will demonstrate. After all, it is not this judgment that is coming up for the first time with the idea that a purely punitive order is possible under our law.

This judgment may be unprecedented, then, only to the extent that it does actually impose a punitive sanction. In that regard, let me say that there can be no better time, and no case more unprecedented, than this with which I am seized. To the extent that the second judgment insinuates that I am creating precedent to punish Mr Zuma alone, my Sister is mistaken. I do no more than apply the law, cautiously, to these new and unusual circumstances.

[58] Although I acknowledge that, for the most part, our jurisprudence has left me up the creek without a paddle, I must say that it is perilous to rely on irrelevant precedent, and I find the second judgment’s reliance on Botha to be misplaced.

The second judgment suggests that Botha is analogous with the matter we are seized with. It suggests that, because in that case, Mr Botha, upon refusing to give evidence before the Truth and Reconciliation Commission (TRC) in breach of the Commissions Act, was subsequently referred to the prosecuting authority, we should do the same here.

Let me emphasise that this matter is unequivocally distinguishable: that was not a case of contempt of court.

Thus, a cause of action in contempt of court proceedings was never available to the TRC.

The present matter differs drastically in this regard, because the Commission obtained an order of this Court declaring that Mr Zuma must comply with its directives and summonses. It is this order of court that Mr Zuma is in breach of, not the Commissions Act. So, to imply that the applicant ought to have done what the TRC did is an illogical and indefensible proposition. It would be nonsensical for this Court to tell a litigant that she or he is not entitled to exercise a rightful cause of action on the basis that another litigant, who never bore that same right, took a different course of action.

The importance of ensuring that court orders are obeyed

[59] It cannot be gainsaid that orders of court bind all to whom they apply. In fact, all orders of court, whether correctly or incorrectly granted, have to be obeyed unless they are properly set aside. This, in addition to typifying common sense, the Constitution itself enjoins. Section 165(5) of the Constitution itself provides that an order or decision binds all persons to whom it applies. The reason being that ensuring the effectiveness of the Judiciary is an imperative. This has been confirmed in multiple cases, including Mjeni, in which the Court stated that

“there is no doubt, I venture to say, that [complying with court orders] constitutes the most important and fundamental duty imposed upon the State by the Constitution”.

On this, the then Chief Justice Mahomed, writing extra curially in 1998, said:

“The exact boundaries of judicial power have varied from time to time and from country to country, but the principle of an independent Judiciary goes to the very heart of sustainable democracy based on the rule of law. Subvert it and you subvert the very foundations of the civilisation which it protects . . . . What judicial independence means in principle is simply the right and the duty of Judges to perform the function of judicial adjudication through an application of their own integrity and the law, without any actual or perceived, direct or indirect interference from or dependence on any person or institution.”

[60] As this Court held in Tasima I,

“the obligation to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system . . . and is the stanchion around which a State founded on the supremacy of the Constitution and the rule of law is built”.

It is perspicuous that the constitutional right of access to courts will be rendered an illusion unless orders made by courts are capable of being enforced by those in whose favour the orders were made. In SALC, it was said that

“if the State, an organ of State or State official does not abide by court orders, the democratic edifice will crumble stone by stone until it collapses and chaos ensues”.

A complete denial of judicial mechanisms “would render meaningless the whole process of taking disputes to courts for adjudication and that is a recipe for chaos and disorder”. Accordingly, it is necessary for this Court to send, by virtue of a punitive sanction, an unequivocal message that its orders must be obeyed.

[61] Finally, I hasten to point out that “contempt of court is not an issue inter partes [(between the parties)]; it is an issue between the court and the party who has not complied with a mandatory order of court”. Notwithstanding that this order derives its life force from CCT 295/20, these proceedings are a different creature altogether. We are not required to pursue the same purpose as we did in CCT 295/20: to order Mr Zuma to attend the Commission.

Indeed, in Pheko II, this Court noted that

“[a]t its origin the crime being denounced is the crime of disrespecting the courts, and ultimately the rule of law”.

Although the harm caused to successful litigants, like the applicant, through contempt of court is by no means unimportant, the overall damage caused to society by conduct that poses the risk of rendering the Judiciary ineffective and eventually powerless is at the very heart of why our law forbids such conduct. Therefore, as I have already said, the mischief I am called upon to address is not that Mr Zuma failed to comply with the summons, but rather, that he failed to comply with the order of this Court.

[62] Notwithstanding this, I might have been persuaded to compel compliance had I been given a single reason to believe doing so would be a fruitful exercise. As it will not be fruitful, I defer to what was said in Victoria Park Ratepayers’ Association:

“Contempt of court is not merely a means by which a frustrated successful litigant is able to force his or her opponent to obey a court order. Whenever a litigant fails or refuses to obey a court order, he or she thereby undermines the Constitution. That, in turn, means that the 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.”

Indeed, at the core of these contempt proceedings lies not only the integrity of this Court and the Judiciary, but the vindication of the Constitution itself.

Mr Zuma’s constitutional rights in respect of sanction

[63] Since all of this led this Court in the direction of an unsuspended order of committal, this Court was alive to the need to consider, and indeed safeguard, Mr Zuma’s constitutional right to freedom. Accordingly, we issued directions on 9 April 2021, in which we invited Mr Zuma to file an affidavit on an appropriate sanction and sentence in the event that he is found to be in contempt of this Court’s order. The reason behind this was that this Court is acutely aware that contempt proceedings are hybrid in nature as, although brought by civil process, they have a criminal component. We issued the directions mindful of that criminal component.

[64] After conviction in a conventional criminal trial, it is a violation of an accused person’s right to a fair trial under section 35 of the Constitution to proceed to impose a sentence without affording her or him an opportunity to say something in mitigation of sentence. The right to be afforded an opportunity to say something in mitigation of sentence flows from the residual fair trial right contained in section 35(3) of the Constitution.

The right is residual because section 35(3) stipulates that it “includes” a number of itemised fair trial rights. And our jurisprudence has repeatedly affirmed that ordinarily the words “includes” or “including” mean that what is being itemised does not constitute an exhaustive list. So, the right to a fair trial entails more than the rights that are specifically itemised. Under the Constitution, being afforded an opportunity to say something on an appropriate sentence or in mitigation of sentence is a right, and not merely a privilege extended to an accused person upon request.

[65] However, this is not a conventional criminal trial. And, I emphasise that I am alive and deferential to the jurisprudence of this Court that affirms that “a respondent in contempt proceedings . . . is not an ‘accused person’ as envisioned by section 35 of the Constitution”.

[66] Notwithstanding this distinction, Mr Zuma does indeed face the prospect of imprisonment for unlawful conduct that our law defines as an offence. It is useful and instructive to consider the Supreme Court of Appeal’s characterisation of a contempt application, which it describes as “a peculiar amalgam, for it is a civil proceeding that invokes a criminal sanction or its threat”.

In dealing with this sui generis process, it further held:

“[I]n interpreting the ambit of the right’s procedural aspect, it seems to me entirely appropriate to regard the position of a respondent in punitive committal proceedings as closely analogous to that of an accused person; and therefore, in determining whether the relief can be granted without violating section 12 [of the Bill of Rights], to afford the respondent such substantially similar protections as are appropriate to motion proceedings . . . .

I follow this path because the civil process for a contempt committal is an oddity that is distinctive in its combination of civil and criminal elements, and it seems undesirable to straitjacket it into the protections expressly designed for a criminal accused under section 35. Certainly, not all of the rights under that provision will be appropriate to or could easily be grafted onto the hybrid process.”

[67] What is undoubtedly apparent from this is that, although a contemnor in contempt proceedings does not elegantly fit into the category of an accused person for the purposes of the protections afforded by section 35, he or she remains entitled to his or her rights in terms of section 12. And, to the extent that I acknowledge the importance of section 12, this judgment does not differ from that of my Sister, Theron J.

Importantly, section 12 includes the right not to be deprived of freedom arbitrarily or without just cause.

This Court has, on numerous occasions, confirmed that this right entails both substantive and procedural protections. On the procedural front, the right requires that no one be deprived of physical freedom unless a fair procedure has been followed.

In De Lange, O’Regan J went as far as interpreting the procedural protection afforded by the right not to be deprived of freedom arbitrarily as demanding “a high standard of procedural fairness”.

This principle was echoed in Fakie, where the [Supreme] Court [of Appeal]  held that—

“[t]here can be no reason why these protections should not apply also where a civil applicant seeks an alleged contemnor’s committal to prison as punishment for non compliance. This is not because the respondent in such an application must inevitably be regarded as an ‘accused person’ for the purposes of section 35 of the Bill of Rights. On the contrary . . . it does not seem correct to me to insist that such a respondent falls or fits within section 35. Section 12 of the Bill of Rights grants those who are not accused of any offence the right to freedom and security of the person, which includes the right not only ‘not to be detained without trial’, but ‘not to be deprived of freedom arbitrarily or without just cause’. This provision affords both substantive and procedural protection, and an application for committal for contempt must avoid infringing it.”

[68] Therefore, although a contemnor is not an accused person as envisaged by section 35, the fair procedure required by section 12 may, depending on the circumstances, necessitate a process that is akin to that afforded by section 35. I have already noted that section 35(3) affords an accused person a residual fair trial right to say something in mitigation of sentence.

Taking away the liberty of an individual is a drastic step. Affording her or him an opportunity to say something in mitigation of sentence, as is the case under the residual fair trial right, is the least that a court can do before taking that drastic step. Especially since the principle that a person ought to be afforded an opportunity to be heard in matters where their rights or interests are affected permeates our law regarding fair procedure. Indeed, it is even considered unfair to take administrative action against an individual without affording her or him an opportunity to make representations.

It must then follow that it is untenable to impose a criminal sentence on a person without affording her or him an opportunity to say something on an appropriate sanction. After all, a criminal sanction has the potential of so serious a consequence as depriving an individual of their constitutional right to freedom.

[69] It is unsurprising then that, in the context of conventional criminal proceedings, after pronouncing a conviction, courts always, and indeed must, invite an accused person to say something in mitigation of sentence. Even in pre constitutional times, a practice existed in terms of which courts afforded accused persons an opportunity to address them before sentence.

This was captured thus by Williamson JA in Bresler:

“[I]f a request is properly made by the defence to lead evidence or to address in mitigation a court should accede thereto. In order to avoid possible misunderstanding between the bench and the accused or his representative, the most desirable practice would be for a criminal court always to ask the defence after verdict whether it is desired to say anything in regard to sentence, even if there be no actual obligation on the court to make such an enquiry.”

This is a time-honoured and commonplace fair trial right practice. Time honoured because, even before the dawn of our constitutional democracy and the constitutionalisation of the fair trial right, our courts have followed the practice for many decades. I would add that the practice is salutary. This is because it recognises the truism that, on a matter like sentence that so intimately and adversely affects an accused person, a court cannot rightly think that nothing coming from the accused person can ever bear relevance to, and possibly influence, the determination of an appropriate sentence.

[70] By issuing the directions, this Court afforded Mr Zuma this unexceptional, commonplace entitlement to a fair process dictated by section 12 of the Constitution in a manner comparable to the section 35 residual fair trial right. This, because of the looming drastic step of depriving him of his freedom.

[71] The applicant notified Mr Zuma of its intention to seek a term of imprisonment of two years. Mr Zuma made it abundantly clear that he was not going to co operate in the conduct of these proceedings. Does that automatically mean that we should not have afforded him this constitutionally guaranteed opportunity? The answer is a resounding no.

A court is duty bound magnanimously to afford a litigant all the rights to which all litigants are entitled. That is so regardless of the attitude that a particular litigant may have displayed towards the court. It was only fair, therefore, to extend to Mr Zuma the same procedural protection that is enjoyed by all people whose section 12 right stands to be severely curtailed.

For pragmatic reasons, the main difference between the procedure followed in this matter and that which is ordinarily followed in a criminal trial is that, since contempt proceedings deal with guilt and sentence in one process, the invitation was sent out before we reached a decision on the question of guilt.

[72] In response to the directions, Mr Zuma addressed a 21-page, unsigned letter to this Court. He did not depose to and file an affidavit of no more than 15 pages, as he was directed to do. Accordingly, it can only be said that this response was patently, and defiantly, non-compliant with the directions. Unfortunately, but not entirely unexpectedly, Mr Zuma once again squandered an opportunity to follow and respect this country’s legal processes which guarantee all citizens fairness and equality before the law.

His conduct demonstrates a deliberate choice to, instead of furnishing this Court with mitigating factors, once again air his views through inflammatory statements intended to undermine this Court’s authority and portray himself as a victim of the law. All of this, besides being scandalous, is totally irrelevant to the question of sanction upon which he was directed to make submissions.

[73] It is unbecoming and irresponsible of a person in Mr Zuma’s position to wilfully undermine the law in this way. Mr Zuma had every right and opportunity to defend his rights, but he chose, time and time again, to publicly reject and vilify the Judiciary entirely. I have already detailed the lengths to which this Court has gone in this matter to safeguard Mr Zuma’s rights despite his insolence towards this Court.

Consequently, there is no sound or logical basis on which Mr Zuma can claim to have been treated unfairly or victimised by this Court. His attempts to evoke public sympathy through such allegations fly in the face of reason. They are an insult to the constitutional dispensation for which so many women and men fought and lost their lives.

[74] It is on this basis that I must address a fundamental point on which this judgment and the second judgment diverge. The second judgment concludes that the process followed in these proceedings constitutes a violation of Mr Zuma’s section 35 rights, and then proceeds to engage in a section 36 limitations analysis.

My Sister suggests that Mr Zuma is entitled to each of the fair trial rights included in section 35, which leads her to state that I fixate on only one of these rights and conclude, illogically, she suggests, that because one procedural right has been afforded there is no need to consider the others.

In short, my Sister concludes that I have “trammelled” over the constitutional rights of Mr Zuma as an alleged contemnor.

[75] Firstly, I am compelled to point out that I see no reasonable way of reconciling the second judgment’s reasoning on this particular point with the jurisprudence of this Court and the Supreme Court of Appeal which concludes, in no uncertain terms, that a contemnor in civil contempt proceedings does not fit the description of an accused person for the purposes of section 35.

I have already dealt with this extensively. It is uncontroversial that he was not afforded each and every single one of the protections of section 35, because he was not an accused person, and was never entitled to all of them.

[76] It can be inferred that my Sister is of the view that the sanction sought by the applicant in these proceedings has the consequence of transforming Mr Zuma into an accused person. But I cannot agree.

Ordinary criminal proceedings differ vastly from civil contempt proceedings, and it cannot be that something as simple as a party’s, in this case, the applicant’s, pleadings can have the effect of marrying these two markedly distinct concepts.

Secondly, and in any event, I am satisfied that this Court has taken cautious steps to ensure that Mr Zuma’s rights, enshrined in section 12 and buttressed by section 35, as canvassed above, have been protected during the course of these proceedings.

Indeed, I am satisfied that this Court took appropriate steps, mindful of what has been said by this Court in the past of the seriousness of implicating a person’s personal liberty,

“to afford [Mr Zuma] such substantially similar protections as are appropriate to motion proceedings”.

[77] I shall not belabour this point any further, other than to emphasise that it is perspicuous that contempt of court may be brought through civil proceedings, and that many of the specific rights listed in section 35(3) cannot fit comfortably, or at all, within these motion proceedings.

I agree with Cameron JA that

“not all of the rights under that provision will be appropriate to or could easily be grafted onto the hybrid process”.

This is because the section 35 rights were crafted with the specific criminal process in mind. Moreover, if one is prepared to accept that contempt of court may be litigated through civil proceedings, as our jurisprudence unequivocally does, it is simply unavoidable that a contemnor in civil proceedings will not be categorised as an accused person and enjoy each of the rights enshrined in section 35.

Thus, since the constitutional rights to which Mr Zuma was entitled have in no way been limited or disregarded by this Court in determining this matter, a justification analysis under section 36(1) simply does not arise.

[78] Because the constitutionality of my judgment is impugned so forcefully by the second judgment, it is necessary for me to address a specific point raised by my Sister.

Theron J expresses great discomfort with the fact that this matter was brought directly and on urgent basis to this Court, effectively compromising Mr Zuma’s right of appeal to, or review by, a higher court in terms of section 35(3)(o).

[79] Firstly, it is because of the efforts to which this Court has gone to encourage Mr Zuma’s participation and protect his constitutional rights, that I find it troubling that the second judgment remains adamant that this Court is causing prejudice to a contemnor, like Mr Zuma, where it sits as a court of first and final instance.

Whilst this judgment indeed cannot be appealed, this Court afforded Mr Zuma multiple opportunities to place relevant material before it. He has dismissed those opportunities with disdain.

[80] Secondly, as I have already explained, Mr Zuma simply does not enjoy an accused person’s right of appeal. Further, the Constitution categorically allows the denial of the right of appeal by empowering this Court to entertain matters by way of direct access.

So, the Constitution itself has, in its wisdom (or rather that of its framers), seen fit to take away the right of appeal in those instances where direct access is warranted. It is extraordinarily unlikely that direct access would be granted in the case of an ordinary criminal trial concerning an accused person. Indeed, if this were to happen, I would share my Sister’s concern that it would constitute an infringement on the accused person’s right of appeal in terms of section 35.

But that is not the kind of matter that is before this Court in these proceedings. The true debate on appealability in this matter, then, turns on whether direct access is warranted. If it is, cadit quaestio (that is the end of the matter). The right of appeal simply does not arise.

To suggest otherwise would contradict the very provision in the Constitution that permits direct access. I have already demonstrated that direct access is warranted.

[81] The administration of justice justifies my disposing of this matter on this urgent and direct basis. Theron J has, herself, referred to an important passage from [Constitutional Court judgment in] Mamabolo, that bears repetition here.

In that case Kriegler J notably held:

“It should also be noted that we are not concerned here with the kind of case where the orderly progress of judicial proceedings is disrupted, possibly requiring quick and effective judicial intervention in order to permit the administration of justice to continue unhindered. Here we are not looking at measures to nip disruptive conduct in the bud, but at occurrences that by definition occur only after the conclusion of a particular case or possibly unrelated to any particular case. Swift intervention is not necessary.
. . .
In such cases there is no pressing need for firm or swift measures to preserve the integrity of the judicial process. If punitive steps are indeed warranted by criticism so egregious as to demand them, there is no reason why the ordinary mechanisms of the criminal justice system cannot be employed.”

[82] I must acknowledge that, although the Court in that case was dealing with an entirely different form of contempt, the circumstances were sufficiently analogous for Kriegler J’s statement of the law to find application here.

Of course, my Sister and I rely on this passage for different reasons, but I hasten to point out that the matter we are currently seized with is precisely the kind of case that Kriegler J imagined would trigger a “pressing need for firm or swift measures”.

At its core, this matter is about an egregious threat posed to the authority of the Constitution, the integrity of the judicial process, and the dignity of this Court. If these circumstances do not warrant “swift and effective judicial intervention”, then I do not know what will.

And I am not disturbed by the fact that this intervention may not be appealable for it is the administration of justice that requires this intervention.

[83] I also hasten to highlight a contradiction in the second judgment’s conclusion on constitutionality.

The second judgment ultimately finds that this judgment, and the process followed by the applicant, is unconstitutional because it permits a punitive order of committal to be made without a justificatory coercive sanction. It makes this finding alongside two significant acknowledgements.

  • Firstly, it acknowledges that our jurisprudence has affirmatively held that contempt of court proceedings are consistent with the Constitution.
  • Secondly, it acknowledges that the ordinary sanction in contempt proceedings is a suspended order of committal, contingent on an order compelling compliance with the impugned court order.

My difficulty then, with the second judgment’s pronouncement on the constitutionality of these proceedings, is that I do not see how the act of suspending an order of committal can cure the constitutional defects so forcefully alleged by the second judgment.

[84] It has always been open to this Court to grant a suspended order of committal and direct Mr Zuma’s compliance with the order in CCT 295/20. Even the second judgment concludes that this would have been the correct and constitutionally compliant approach.

Herein lies the problem with the reasoning of the second judgment.

Were we to do so, and were Mr Zuma to defy this Court once again by electing not to purge his contempt, the result would be the same: Mr Zuma would be imprisoned without having gone through an ordinary criminal trial, and without being afforded the opportunity to exercise the rights of an accused person in terms of section 35.

This suggests that the constitutional concerns raised in the second judgment pertain to committal through civil contempt proceedings whether the order is suspended or unsuspended. Not only does this contradict the order the second judgement would arrive at, but it is at odds with our jurisprudence on contempt proceedings – both that which establishes suspended committal paired with a coercive order as the commonplace sanction, and this Court’s findings on the constitutionality of contempt proceedings.

[85] I must address one final concern raised by the second judgment, wherein it reminds us that the “rule of law is multi-dimensional” and that a court’s attempt at vindicating the authority of its orders in contempt proceedings is but “one piece of the puzzle”.

It suggests that, although I purport to be upholding the rule of law, I am at the same time compromising it by virtue of the implications that my judgment will have on Mr Zuma’s constitutional rights.

It suggests that I am not exercising my powers in upholding the rule of law “judiciously” or “even handedly”.

I, of course, agree that constitutional rights are to be respected at all costs, and that any attempt to uphold the administration of justice that throws caution to the wind in respect of fundamental human rights, like that of liberty, is patently at odds with the rule of law and thus, cannot be said to uphold it.

However, I am boldly convinced that this Court has done all it can to protect Mr Zuma’s constitutional rights.

Accordingly, I am unperturbed by the suggestion that I have not given appropriate deference to Mr Zuma’s constitutional rights.

It is on that basis that I march firmly on to justify an unsuspended order of committal.

The appropriateness of a punitive order

[86] By this point, it needs no repeating that the only rationale provided to this Court for the granting of a punitive sanction was that put forward by the applicant. However, it is trite that this Court enjoys wide discretionary powers, and that we are enjoined by the Constitution to grant appropriate remedies that are just and equitable. In these circumstances, and for the reasons that follow,

I am satisfied that an order of unsuspended committal is just and equitable.

[87] I have already set out the shortcomings and inadequacies of any sanction other than unsuspended committal. It would be nonsensical and counterproductive of this Court to grant an order with no teeth. Here, I repeat myself: court orders must be obeyed. If the impression were to be created that court orders are not binding, or can be flouted with impunity, the future of the Judiciary, and the rule of law, would indeed be bleak. I am simply unable to compel Mr Zuma’s compliance with this Court’s order in CCT 295/20, and am thus faced with little choice but to send a resounding message that such recalcitrance is unlawful and will be punished.

I am mindful that, “[h]aving no constituency, no purse and no sword, the Judiciary must rely on moral authority” to fulfil its functions. On this basis, an unsuspended order of committal is strongly supported by the need to affirm the binding nature of court orders.

Mindful of the novelty of this conclusion, I repeat that this case is exceptional. It is exceptional, not in the sense that Mr Zuma is being treated exceptionally, but because there are certain exceptional features of this factual matrix that justify the imposition of an exceptional sanction. I shall now address these.

Exceptional features of this matter

The intensity of Mr Zuma’s attacks on the Judiciary

[88] The applicant fervently argued that the intensity of Mr Zuma’s attacks on the Judiciary further justifies a punitive sanction in this matter. I agree. The importance of public confidence in the Judiciary cannot be overstated.

In Mamabolo, Kriegler J said:

“[I]t is the people who have to believe in the integrity of their Judges. Without such trust, the Judiciary cannot function properly; and where the Judiciary cannot function properly the rule of law must die. Because of the importance of preserving public trust in the Judiciary and because of the reticence required for it to perform its arbitral role, special safeguards have been in existence for many centuries to protect the Judiciary against vilification. One of the protective devices is to deter disparaging remarks calculated to bring the judicial process into disrepute.”

This is not to say that the Judiciary is a unique branch of State that must be sheltered from the public and all criticism. This Court has acknowledged and accepted the benefit of robust and informed public debate about judicial affairs and I am by no means implying that the Judiciary is exempt from the accountability it owes to the society that it serves. However, critically, this does not mean that scurrilous, unfounded attacks on the Judiciary and its members can be tolerated or met with impunity.

[89] I note that it may be difficult to distinguish between genuine and acceptable criticism of the Judiciary, and harmful attacks that undermine its legitimacy, but this Court has held that the guiding objective is as follows:

“[C]ourts must be able to attend to the proper administration of justice and – in South Africa possibly more importantly – they must be seen and accepted by the public to be doing so. Without the confidence of the people, courts cannot perform their adjudicative role, nor fulfil their therapeutic and prophylactic purpose.”

It follows that the legal imperative to protect courts from slanderous public statements has little to do with protecting the feelings and reputations of Judges, and everything to do with preserving their ability and power to perform their constitutional duties.

[90] When one considers Mr Zuma’s public statements against this backdrop, his conduct appears all the more egregious. It is unnecessary and inappropriate to entertain the specific details of these statements, save to note that they disclose no cogent, genuine, or factually supported critiques of this Court or any of the other institutions and individuals whose integrity and motives he so casually and emphatically denounces. These statements do not fall into the category of tolerable criticism alluded to by this Court in Mamabolo.

[91] Not only are the statements intolerable, but I have been enjoined to consider them. Indeed, it would be with naivety and a great deal of dissonance to view the material act of non compliance with this Court’s order in isolation of the statements, which themselves confirm and compound the contempt. The outlandish statements are part and parcel of the contemptuous conduct because they are the calico that clothe it.

On this, I am guided by what this Court said in Pheko II:

“[I]t needs to be stressed that contempt of court does not consist of mere disobedience of a court order, but of the contumacious disrespect for judicial authority.”

[92] Indeed, contempt is not the act of non-compliance with a court order alone, but encompasses the nature of that contempt, the extent of it and the surrounding circumstances. I must therefore take cognisance of the unique and scandalous features of this particular contempt. If I were to ignore those aspects, I believe I would be adjudicating the matter with one eye closed, and declining to decide it without fear, as I am constitutionally mandated to do.

[93] At this stage, I must dispel the concern my Sister raises in which she alleges that I, in taking stock of Mr Zuma’s scandalous remarks, am eliding the crime of civil contempt with that of scandalising the court, which are in fact, two separate offences.

I am not doing so and am alive to the difference between these forms of contempt. To the extent that Theron J suggests that I am conflating the two, she mischaracterises this judgment.

I take umbrage with the fact that she would have us disregard the egregiousness of the statements and adjudicate the matter in a vacuum.

[94] Without derogating from the stance that I do not propose to deal with the specifics of Mr Zuma’s unfounded accusations and insults, I want to touch on only one, which appears to be a leitmotif in his complaints against this Court.

He repeatedly says that, by hearing this application in the face of his High Court application for the review of the decision by the Chairperson of the Commission not to recuse himself, this Court has acted unconstitutionally and in violation of his rights. Of course, this view is totally misconceived and calculated to confuse the public.

If Mr Zuma did not want to participate in the Commission’s hearings whilst his review application was pending, it was open to him to seek an interim stay of proceedings insofar as they related to him. Without that, he could not reasonably expect, nor could he genuinely believe, that the Commission would not summon him to appear before it. Absent that interim relief, nothing stands in the way of this Court’s power to entertain this matter.

[95] Strangely, this misconceived view repeatedly stated by Mr Zuma is shared by his attorneys who articulated it in the letter that they sent to the Commission when Mr Zuma did not attend the Commission’s proceedings during the week of 15 to 19 February 2021. It purported to explain his failure to attend the proceedings. I say that this was strange because, generally, seeking interim interdicts or a stay of proceedings is elementary practice when a litigant wishes to prevent adverse decisions being taken pending the outcome of litigation. Surely Mr Zuma’s attorneys knew better.

[96] In sum, the position in which Mr Zuma finds himself is of his own making and has nothing to do with the violation of any of his rights. And his attempt to equate legitimate legal processes with a witch-hunt is dangerous, unfounded and intolerable.

The relevance of Mr Zuma’s position as former President

[97] The cause for concern regarding Mr Zuma’s statements does not stop there. Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters. This leads me to the final point and exceptional feature of this matter that justifies the punitive sanction that I impose: the unique and special political position that Mr Zuma enjoys as the former President.

He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo,

“[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”.

[98] Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws.

To borrow from this Court’s judgment in CCT 295/20:

“[i]n our system, no one is above the law. Even those who had the privilege of making laws are bound to respect and comply with those laws. For as long as they are in force, laws must be obeyed.”

It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

[99] In fact, this Court has espoused the existence of a heightened obligation on the President, by virtue of her or his position, to conduct her or himself in a manner that accords with the Constitution because there are few office-bearers of greater constitutional importance than that of the President.

As held in Nkandla

“an obligation is expressly imposed on the President to uphold, defend and respect the Constitution as the law that is above all other laws in the Republic. . . . This requires the President to do all he can to ensure that our constitutional democracy thrives. He must provide support to all institutions or measures designed to strengthen our constitutional democracy.”

[100] Mr Zuma’s conduct that led to and has persisted throughout these proceedings is all the more outrageous when regard is had to the position that he once occupied. Although Mr Zuma is no longer President, his conduct flies in the face of the obligation that he bore as President. It is disturbing that he, who twice swore allegiance to the Republic, its laws and the Constitution, has sought to ignore, undermine and, in many ways, destroy the rule of law altogether.

[101] Finally, it is not insignificant that Mr Zuma’s contemptuous conduct relates to his duty to account for the time that he was in Office and is accordingly inextricably linked to his constitutional obligations as a public office-bearer. For these reasons, Mr Zuma’s flagrant and disdainful breach of this Court’s order is intertwined with the oath that he took to uphold the Constitution. In Pheko II, this Court maintained that cases of contempt of court are particularly troubling where constitutional rights and obligations are at issue. This applies equally to the breach of constitutional obligations. This factor is pertinent to the determination of the appropriate sanction in this matter.

Concluding remarks on sanction

[102] The cumulative effect of these factors is that Mr Zuma has left this Court with no real choice.

The only appropriate sanction is a direct, unsuspended order of imprisonment. The alternative is to effectively sentence the legitimacy of the Judiciary to inevitable decay.

[103] In taking stock of these exceptional circumstances, it is clear that this Court must grant an order that will vindicate its honour, and protect and maintain public confidence in the legitimacy of the Judiciary. This Court cannot be seen to condone and indulge a litigant’s flagrant defiance of an order, paired with unmeritorious and scandalous public statements that are clearly aimed at undermining this Court’s authority and legitimacy. In fact, this Court is constitutionally mandated by section 165 to ensure that the processes and functions of the courts are not undermined or interfered with by anyone, including Mr Zuma.

Concluding remarks on the approach adopted in the second judgment

The applicant’s instituting of civil contempt proceedings in this Court

[104] Having arrived at the unprecedented, yet soundly justified conclusion that Mr Zuma is to be subjected to a punitive order of committal, I pause to briefly return to the second judgment’s assertion that the process instituted by the applicant in this matter is unconstitutional.

The thrust of the dissent voiced by the second judgment is that, what is essentially a purely criminal matter, is being brought in a civil court through motion proceedings.

Thus, the second judgment seems to be of the view that the fact that our law classifies civil contempt as a crime does not mean that it loses its civil character altogether, which speaks to the public interest in seeking and securing compliance with the initial civil order.

Accordingly, continues the second judgment, absent the civil component (the seeking of compliance), the contempt ought to be treated as any other crime that falls to be dealt with in criminal proceedings.

[105] Theron J takes issue with a litigant approaching a court for a purely criminal sanction in civil proceedings without seeking any civil relief, and stresses that the applicant should only have approached this Court on the basis of civil contempt proceedings where it intended to seek civil relief, namely an order that Mr Zuma comply with this Court’s order in CCT 295/20.

My Sister relies on Mamabolo, in which this Court found that it is unconstitutional for a civil court to summarily deal with the crime of scandalising the court because there is no urgency or pressing need to intervene in the administration of justice.

She interprets this case to mean that under no circumstances can it be appropriate to prosecute someone for a crime and punish them through civil proceedings.

[106] I must firmly state that I disagree with the second judgment’s characterisation of these proceedings, and the assertion that the process instituted by the applicant is unconstitutional. This assertion relies, in part, on earlier decisions of courts that have held that a litigant has standing in contempt proceedings only if it seeks the court’s assistance in vindicating or enforcing its rights pursuant to the impugned order, and that the pursuit of punishment alone is an insufficient basis on which a litigant may institute civil contempt proceedings.

[107] Firstly, our jurisprudence signals that purely punitive orders of committal in contempt proceedings are possible.

In Victoria Park Ratepayers’ Association, the [High] Court, upon establishing that the respondent was in contempt, notably said the following:

“I view the respondents’ contempt in a very serious light. It is brazen and disdainful of the rights of others. It seeks to bring the administration of justice into disrepute by undermining one of the most important foundations of an ordered and civilised society, respect for, and obedience to, the law. I would have considered sentencing Mr Melville to a term of imprisonment, without the option of a fine and without suspending it, but for the fact that the applicant did not seek such a sentence in their notice of motion.”

[108] This was in respect of a contemptuous respondent who ran a bar that caused a nuisance to the neighbouring residents, which nuisance persisted unabated contrary to an order requiring his desistance, resulting in contempt proceedings. I find myself confronted with a far more egregious factual matrix, coupled with the fact that Mr Zuma has failed to either contest his contempt or seek an opportunity to purge the contempt. This case cries out far louder for an unsuspended sentence than did Victoria Park Ratepayers’ Association, where the Court was on the verge of granting one. Accordingly, I can see no reason why I should sit on any verge.

[109] In addition, it was said by Cameron JA in Fakie, that—

“[civil contempt proceedings] permit a private litigant who has obtained a court order requiring an opponent to do or not do something (ad factum praestandum), to approach the court again, in the event of non-compliance, for a further order declaring the non compliant party in contempt of court, and imposing a sanction. The sanction usually, though not invariably, has the object of inducing the non-complier to fulfil the terms of the previous order.”

It follows that a litigant is obviously entitled, in law, to approach a court seeking committal, even if committal is not the ordinary sanction.

[110] In any event, whether or not a litigant is entitled to approach a court seeking punitive relief has absolutely nothing to do with a court’s competence to grant it. Indeed, Pheko II unequivocally held that a court can raise contempt mero motu (of its own accord).

In this context then, the process followed by the applicant says nothing about this Court’s competence to make a purely punitive order of committal. In other words, nothing, including the process instituted by the applicant, could prevent this Court from determining the matter by exercising our right to raise the proceedings of our own volition.

[111] It is further trite that courts must make orders that are just and equitable in the circumstances. This means that even if it is not appropriate for an applicant to seek certain relief, this Court cannot be bound by what is sought by the applicant if granting an order beyond those limitations is what justice demands.

[112] The second judgment avers that the proper approach to be taken, because the applicant seeks a purely punitive order, is to refer this matter to the Director of Public Prosecutions (DPP) so that Mr Zuma can be tried according to criminal standards and protections.

The difficulty with this assertion is that it develops the law of contempt proceedings by imposing a rule that litigants must choose between either pursuing only coercive relief in the court that granted the breached order or, if seeking punitive relief, refer the matter to the DPP.

This is a novel idea in the context of civil contempt and one that is markedly out of step with the jurisprudence outlined in this judgment, which firmly states that it is for courts to enforce their orders, maintain the rule of law, and defend their authority.

It is also flagrantly antithetical to section 165 of the Constitution, which vests the judicial authority of the Republic in the courts themselves, and section 173, which empowers the courts to regulate their own processes.

I have grave jurisprudential difficulty with the suggestion that the inherent and extensive powers of this Court to uphold its own orders are to be divested and reassigned to the DPP.

[113] The path that I have taken builds on our existing jurisprudence on civil contempt, and ultimately answers a question that our courts, thus far, have only had to contemplate, but not determine. I therefore do not support the suggestion made by my Sister that in the event that a private litigant approaches a civil court for a punitive order that is not allied with the remedial purpose of coercing compliance with the original court order, the proper approach is to refer the matter to the DPP.

[114] All of this is not to say that disgruntled litigants can simply run to court seeking to punish a contemnor. In fact, I have gone to great lengths to demonstrate just how rare and exceptional it is that a court might find it appropriate to grant a purely punitive order in civil contempt.

The fact remains, however, that contempt is between the court and the contemnor, and it is for the court to decide, taking all circumstances into account, how to deal with an alleged contempt.

[115] Even the jurisprudence that is cited by the second judgment as being authority for the impropriety of the process followed in this matter acknowledges that, in instances where contempt is paired with conduct that is disrespectful to a court and of such a nature that the administration of justice is threatened, a litigant may approach a court for a punitive sanction. This speaks to the important public dimension of all cases of contempt – a view that has been affirmed and strengthened by courts, and indeed this Court, since the advent of our constitutional dispensation. It is perspicuous that—

“[although] the successful litigant’s interest is in compelling compliance, the courts are able to grant the sanction of committal because there is a public interest being protected – that is, the obedience to court orders and the maintenance of the rule of law.”

It accordingly seems to me that a court in contempt proceedings is charged with the critical constitutional obligation of defending the rule of law, and that this imperative permeates contempt proceedings as a whole. On this basis, the second judgment’s approach to the process instituted by the applicant in this matter is overly formalistic, and fails to take cognisance of these important constitutional considerations.

[116] In any event, I cannot support the second judgment’s suggestions that the applicant has no interest in Mr Zuma’s punishment through committal; that it is before us merely seeking the satisfaction of punishing him; and that this Court, in granting a punitive order, is succumbing to entertaining a bitter and personal vendetta held by the Commission against Mr Zuma. That is simply not why we are here.

The applicant took extensive measures to secure Mr Zuma’s co-operation with the Commission’s work, both before approaching this Court in CCT 295/20 and after the order was handed down, to no avail. Of concern to the applicant is that Mr Zuma’s contempt has undermined the Commission’s authority and legitimacy severely, and is detrimental and destructive to its ability to carry out its mandate.

For these reasons, paired with the overall damage that his conduct has done to the integrity of this Court and the Judiciary, it seeks his committal. In other words, the applicant seeks to vindicate the Commission’s, and indeed the public’s, interest in preserving public faith in the work of the Commission, this Court and the Judiciary.

[117] To my mind, it would be nothing short of naïve to view the order in CCT 295/20 as a simple command to any ordinary witness. It was a confirmation by this Court that all South Africans are constitutionally obliged to co operate with the important work of the Commission. It logically follows from this that the applicant is entitled to guard and vindicate this confirmation, especially in the case of an influential contemnor who so brazenly seeks to make a mockery of it. To imply that the applicant seeks to merely punish Mr Zuma and, in the process, use this Court to leapfrog the criminal justice system, overlooks what is at stake here for the applicant.

[118] In sum, it is trite that our law permits an aggrieved litigant to approach a court for an order of contempt pursuant to an earlier court order being defied. Although, in our law, direct committal has yet to be ordered in proceedings of this kind, this Court’s own words in Pheko II signal to a litigant that he or she is entitled to approach a court for an order of contempt where a previous order has been breached, and that there will be times when a punitive order will be apposite.

These conclusions are supported further by the finding in Pheko II, that “courts shall not hesitate to enforce their orders”, and the fundamental principle that contempt proceedings exist as the only mechanism by which courts can assert their authority and preserve integrity in the judicial process and administration of justice.

I accordingly see no reason that the applicant can be said to have followed an improper, let alone an unconstitutional process, in this matter.

[119] A final word on the divergence between my approach and the one adopted in the second judgment. I am compelled to clarify that my analysis and conclusions on the procedure adopted by the applicant and this Court in this matter do not seek to undermine any of the principles espoused in Mamabolo.

In that matter, this Court concluded in the affirmative that

“the option allowed to a judge to summon a suspected scandaliser to appear before her or him to answer to a summary charge of contempt of court, constitutes a limitation of . . . the fundamental rights protected by the Bill of Rights”.

Those proceedings were fundamentally different to the matter at hand, because they dealt with the crime of scandalising the court – a category of contempt that affects only the public and not the opposing litigant. Indeed, in that matter the Court was at pains to illustrate the complexities of the considerations facing a court determining whether a litigant can be found guilty of scandalising the court.

[120] The summary process under scrutiny in Mamabolo cannot be characterised as being akin to ordinary civil contempt proceedings, like those in casu (in this case), for defiance of a court order. In that matter, this Court even described the alleged scandaliser as “an accused person as contemplated by section 35(3) of the Constitution”, because of the summary process involved on those specific facts.

Thus, to imply that these proceedings are akin to the summary process held to be unconstitutional in Mamabolo constitutes a mischaracterisation of these proceedings. That the applicant seeks a sanction, which this Court has said may be apposite under certain circumstances for defiance of court orders, that happens to be committal, does not have the effect of transforming Mr Zuma into an accused person in terms of section 35 of the Constitution.

As I have already stated, to say that it does would contradict the clear findings in Fakie that have been affirmed by this Court in Pheko II.

[121] This Court is at large to impose a sanction that is appropriate upon a consideration of all of the relevant facts and law. I am by no means beholden to the applicant’s desires and, as I have demonstrated, the sanction that this Court has chosen to impose on Mr Zuma has been informed and supported by numerous important legal, and indeed constitutional, considerations. Moreover, without in any way implying that accused persons may be tried for criminal charges summarily, I am confident that unsuspended committal may be ordered by a court in contempt proceedings in these extraordinary circumstances.

What is the appropriate sentence?

[122] I now turn to grapple with the vexed question of determining the length of committal in these contempt proceedings. Before I settle on the length of the sentence, I first address the aggravating and mitigating factors that have informed this determination.

Aggravating and mitigating factors

[123] I have dealt extensively with the aspects of this matter that render it exceptional, and justify taking our law on civil contempt further than it has gone in the past. These same factors, being the intensity of Mr Zuma’s attacks on the Judiciary as well as his former position as President, certainly constitute aggravating factors for the purpose of sentencing. I have dealt with these factors in detail above, albeit in the context of sanction. It is unnecessary to repeat this analysis here, save to note that it is self evident that these factors justify the imposition of a sentence that reflects the seriousness of the damage that Mr Zuma’s conduct has inflicted, and will continue to inflict, on the rule of law if not admonished in harsh terms.

[124] Since it is necessary and relevant to take account of these aggravating factors, I must acknowledge that a court’s consideration of aggravating factors is ordinarily paired with due regard to mitigating factors. It needs no repeating that Mr Zuma has left this Court in the lurch in this regard.

However, I am guided by the ordinary criminal justice process. Adopting this approach, I have carefully considered, for example, the fact that Mr Zuma is of an advanced age which is usually accompanied by the onset of frailties. However, I am ultimately unpersuaded that the cumulative effect of these factors does anything to counterbalance the profound and significant impact of the aggravating factors.

Length of sentence

[125] The applicant proposes that the sentence be two years of direct committal, the rationale for which is firmly rooted in the logic behind sentences prescribed for offences under the Commissions Act and its Regulations. Whilst the applicant’s approach certainly has an intuitive appeal, the crime for which punishment is being meted out is not a contravention of the Commissions Act, but rather, a contravention of this Court’s order and, in turn, the crime of contempt of court. As I have said, this matter is emphatically not about the enforcement of summonses, nor about the dispute between the parties. So, to have recourse to the Commissions Act as the guiding light on sentence is far from appropriate. Accordingly, the applicant’s approach which relies on the Commissions Act is misguided, and the metric offered cannot be of use to this Court.

[126] Having rejected this reasoning, however, I must admit that I am in unchartered waters. And unfortunately, or perhaps fortunately, there is little of precedential value to be found in our jurisprudence. In fact, looking to our jurisprudence for guidance has proven to be a tremendously unhelpful exercise. My difficulty is that the instances of contempt that I have come across come nowhere close to the contempt in this matter. I have already established above that, although the courts in these cases opted for coercive orders, a punitive order is warranted in the present matter.

[127] In determining a quantifiable length of sentence, I am enjoined to consider the circumstances; the nature of the breach; and the extent to which the breach is ongoing. The Court in Protea Holdings went so far as to state that because contempt cannot be tolerated,

“I would be failing in my duty if I did not impose a punishment which takes into account the serious nature of this type of offence”.

Not only has Mr Zuma failed to dispute the contempt of court, but he has failed to contest the degree of the contempt. Instead, he has aggravated it. Furthermore, as outlined above, I cannot ignore the materiality of the particular position that Mr Zuma holds. Furnished with only the applicant’s submissions and Mr Zuma’s public statements duly incorporated in the record, I am left with no choice but to exercise my discretion and issue a sentence that I deem to be just and equitable in the circumstances.

[128] Quantifying Mr Zuma’s egregious conduct is an impossible task. So, I am compelled to ask the question: what will it take for the punishment imposed on Mr Zuma to vindicate this Court’s authority and the rule of law?

In other words, the focus must be on what kind of sentence will demonstrate that orders made by a court must be obeyed and, to Mr Zuma, that his contempt and contumacy is rebukeable in the strongest sense. With this in mind then, I order an unsuspended sentence of imprisonment of 15 months. I do so in the knowledge that this cannot properly capture the damage that Mr Zuma has done to the dignity and integrity of the judicial system of a democratic and constitutional nation.

He owes this sentence in respect of violating not only this Court, nor even just the sanctity of the Judiciary, but to the nation he once promised to lead and to the Constitution he once vowed to uphold.

Costs

[129] The applicant seeks costs on an attorney and own client scale. I do not consider it necessary, in this matter, to enter the debate as to the distinctions between costs on an attorney and client scale as opposed to costs on an attorney and own client scale. If punitive costs are warranted, there is no reason why they should not be on an attorney and client scale.

[130] In CCT 295/20, this Court considered whether Mr Zuma ought to be mulcted with costs for an application that he did not oppose, and held that the principles laid down in Biowatch do not protect respondents “who raise frivolous defences or whose unlawful conduct has forced the State to litigate”.

Ultimately, the prejudice and harm caused to the applicant by Mr Zuma’s conduct outweighed his decision not to oppose the relief sought in that matter.

[131] The same principles traversed in CCT 295/20 in relation to costs are relevant in this matter as well, albeit that the applicant is now seeking punitive costs. In several instances, this Court has affirmed the principle that punitive costs are exceptional and are reserved for instances where a litigant has conducted themselves in a “clear and indubitably vexatious and reprehensible” manner.

Punitive costs orders are accordingly indicative of “extreme opprobrium”, and the question is whether Mr Zuma’s conduct is so extraordinary that it is worthy of rebuke.

[132] The applicant submits that punitive costs are warranted in this matter because,

  • firstly, Mr Zuma’s conduct smacks of malice and,
  • secondly, his public utterances and accusations are utterly bereft of supporting facts.

The combined effect of these factors renders an ordinary costs order insufficient in the circumstances. The applicant also submitted that Mr Zuma’s failure to oppose these proceedings and explain his conduct to this Court further justifies punitive costs, because it exhibits his total lack of respect for this Court and the judicial process. In support of this, the applicant referred us to the Supreme Court of Appeal’s decision in Compensation Solutions, where the respondent’s failure to oppose the proceedings and justify his conduct was considered to be “deserving of the strictest censure possible”.

[133] The applicant’s submissions in this regard are persuasive. This case does not merely concern an apathetic respondent. It concerns a respondent who breached this Court’s order, chose not to explain why, and then, in defiance of unambiguous directions issued by this Court, elected to file yet another provocative, unmeritorious and vituperative statement in the form of a letter.

Evidently, Mr Zuma had something to say, but he deliberately chose to say it unofficially and mostly on a public platform, thereby denying this Court and the applicant an opportunity to legitimately and officially engage with it and effectively escaping any accountability he might be brought to bear in respect of the statements. There is no explanation whatsoever for why Mr Zuma could not participate in these proceedings, and I wholeheartedly agree with the applicant’s submission that this tactic was part of a deliberate and calculated strategy to undermine this Court’s authority.

[134] While there is no doubt that punitive costs orders are exceptional, certain aspects of this case are reminiscent [in Constitutional Court case] of Tjiroze.

In that case, the applicant, who was a legal professional and was thus expected to have been aware of the import and consequences of impugning the integrity of the Judiciary, abused court processes and made defamatory remarks which targeted and were directed at a sitting Judge. In that matter, this Court held that such conduct was particularly reprehensible and deserving of a punitive costs order.

Although Mr Zuma is not a legal professional, as the former President bearing the heightened obligation discussed above, it is more than reasonable to expect that he must appreciate the gravity of his conduct and its impact on the integrity of the Judiciary. He has repeatedly defamed and vilified members of this Court, and although he has not actively abused court processes, he has passively done so by ventilating his “case” through a public smear campaign, instead of through legitimate legal processes.

Similar to the way in which this Court inverted the Biowatch principle in CCT 295/20 by imposing costs on the basis that Mr Zuma had forced the State to litigate, it is fitting that this Court should express its dissatisfaction and punish a respondent who, in the circumstances, ought to have, but failed to participate in proceedings.

[135] It follows that the issue of costs in this matter is relatively simple. This application should never have been before this Court because Mr Zuma had no justifiable basis to abandon his regard for the law and pursue the route that he did. The fact that Mr Zuma committed contempt of court is, on its own, worthy of this Court’s rebuke. But when this contempt is considered alongside the derisive statements and disdainful attitude that Mr Zuma has adopted towards this Court and the Judiciary in general, it is without question that the extraordinary award of punitive costs is warranted.

[136] Before I go on, I must acknowledge and lament the evident rise in a casual and reckless attitude being adopted by many litigants who see it fit to level unsubstantiated accusations against the Judiciary, both in the public domain and in their pleadings before the courts. This inexcusable state of affairs cannot be tolerated or encouraged. Let me be perfectly clear: it is not permissible for a disgruntled litigant to besmirch the reputation of the Judiciary or its members without fear of consequence.

This is not the status quo in our constitutional democracy, and it is patently undesirable that an influential figure, like Mr Zuma, should be allowed to exhibit such behaviour. This is not the first time that Mr Zuma’s malevolent attitude towards the Judiciary has attracted punitive costs, but I sincerely hope that it will be the last. Mr Zuma’s conduct has undoubtedly set an example to the public, so let this costs order follow suit.

Let it be known that she or he who abandons all ethical standards in pursuit of a cause must prepare to meet this Court’s reproach, and the award of punitive costs that naturally follows.

Conclusion

[137] The right, and privilege, of access to court, and to an effective judicial process, is foundational to the stability of an orderly society. Indeed, respect for the Judiciary and its processes alone ensures that peaceful, regulated and institutionalised mechanisms to resolve disputes prevail as the bulwark against vigilantism, chaos and anarchy. If, with impunity, litigants are allowed to decide which orders they wish to obey and those they wish to ignore, our Constitution is not worth the paper upon which it is written.

[138] So let me repeat what I have said before, for it is deserving of ingemination. Never before has the legitimacy of this Court, nor the authority vested in the rule of law, been subjected to the kind of sacrilegious attacks that Mr Zuma, no less in stature than a former President of this Republic, has elected to launch. Never before has the judicial process, nor the administration of justice, been so threatened. It is my earnest hope that they never again will.

[139] I, too, cherish the ideal of a democratic and free society in which all persons are both as equal in opportunity, as they are in accountability, before the law.

As eloquently stated by Mogoeng CJ in Nkandla:

“One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.
. . .
‘Certain values in the Constitution have been designated as foundational to our democracy. This in turn means that as pillar stones of this democracy, they must be observed scrupulously. If these values are not observed and their precepts not carried out conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a State predicated on a desire to maintain the rule of law, it is imperative that one and all should be driven by a moral obligation to ensure the continued survival of our democracy.’”

[140] Within their purview of functions, courts are pillars of democracy and the keepers of our Constitution. As Dicey once wrote, “no [person] is above the law” and “every [person], whatever be [her or] his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.

An act of defiance in respect of a direct judicial order has the potential to precipitate a constitutional crisis: when a public office-bearer or government official, or indeed any citizen of this Republic, announces that he or she will not play by the rules of the Constitution, then surely our Constitution, and the infrastructure built around it, has failed us all.

[141] My duty, as I pen this judgment, is cloaked in the duty and loyalty that I owe to our Constitution and the rule of law that undergirds it. I find myself left with no option but to commit Mr Zuma to imprisonment in the hope that doing so sends an unequivocal message: in this, our constitutional dispensation, the rule of law and the administration of justice prevails.

Order

[142] The following order is made:

1. The application for direct access is granted.
2. The Helen Suzman Foundation is admitted as amicus curiae.
3. It is declared that Mr Jacob Gedleyihlekisa Zuma is guilty of the crime of contempt of court for failure to comply with the order made by this Court in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2.
4. Mr Jacob Gedleyihlekisa Zuma is sentenced to undergo 15 months’ imprisonment.
5. Mr Jacob Gedleyihlekisa Zuma is ordered to submit himself to the South African Police Service, at Nkandla Police Station or Johannesburg Central Police Station, within five calendar days from the date of this order, for the Station Commander or other officer in charge of that police station to ensure that he is immediately delivered to a correctional centre to commence serving the sentence imposed in paragraph 4.
6. In the event that Mr Jacob Gedleyihlekisa Zuma does not submit himself to the South African Police Service as required by paragraph 5, the Minister of Police and the National Commissioner of the South African Police Service must, within three calendar days of the expiry of the period stipulated in paragraph 5, take all steps that are necessary and permissible in law to ensure that Mr Jacob Gedleyihlekisa Zuma is delivered to a correctional centre in order to commence serving the sentence imposed in paragraph 4.
7. Mr Jacob Gedleyihlekisa Zuma is ordered to pay the costs of the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, including the costs of two counsel, on an attorney and client scale.

Court summary

“Rule of law — judicial integrity — vindicating the honour of courts

Contempt of court — urgent application — direct access — duty to comply with court orders — first respondent is in contempt of court

Appropriate sanction for crime of civil contempt — punitive sanction — unsuspended committal — punitive costs”

Media summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

“On Tuesday, 29 June 2021 at 10h00, the Constitutional Court handed down judgment in an urgent application for direct access seeking an order declaring former President Jacob Gedleyihlekisa Zuma to be in contempt of court, and sentencing him to a period of two years’ direct imprisonment.

In December 2020, 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 Jacob Gedleyihlekisa Zuma [2021] ZACC 2 (CCT 295/20), the applicant, being the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, approached the Constitutional Court on an urgent basis for an order that would compel Mr Zuma’s co operation with the Commission’s investigations and objectives.

On 28 January 2021, the Constitutional Court handed down judgment in that matter, ordering Mr Zuma to file affidavits and attend the Commission to give evidence before it. Mr Zuma responded by releasing a public statement in which he alleged that the Commission and the Constitutional Court were victimising him.

From 15 to 19 February 2021, Mr Zuma did not attend the Commission as ordered.

Accordingly, the Chairperson of the Commission announced that it would launch contempt of court proceedings. On the same day, Mr Zuma published another statement in which he levelled serious criticisms against the Judiciary and confirmed that he would neither obey the Constitutional Court’s order nor co operate with the Commission.

The applicant proceeded to approach the Constitutional Court for direct access on an urgent basis, submitting that a court that grants an order retains jurisdiction to ensure its compliance. The applicant submitted that, considering Mr Zuma’s former and current political position, his conduct constituted a particularly reprehensible attack on the rule of law and posed a serious risk that it would inspire others to similarly undermine the administration of justice.

It was the applicant’s case that Mr Zuma was guilty of the crime of contempt of court as he had failed to comply with the order made in CCT 295/20. Furthermore, that in ostensibly defending his contempt, Mr Zuma conducted a politically motivated smear campaign against the Constitutional Court, the Commission and the Judiciary, which constituted an aggravating factor relevant to the determination of an appropriate sanction. The applicant submitted that, in such unprecedented circumstances, it was apposite for the Constitutional Court to respond on an urgent basis and that only a punitive sanction, in the form of an unsuspended order of imprisonment for a period of two years, would be appropriate.

Mr Zuma did not oppose this application, nor did he file any submissions.

The Helen Suzman Foundation applied to be admitted as amicus curiae. Its main submission was that an appropriate sanction in contempt proceedings must play the dual role of vindicating the dignity of the court as well as compelling compliance with the impugned order. And, to this end, it proposed several sanctions which contained both punitive and coercive elements. Its submissions were relevant to the question of sanction and were of assistance to the Court. Since it met the requirements to be admitted as amicus curiae in terms of the Rules of the Constitutional Court, the Helen Suzman Foundation was admitted.

The main judgment was penned by Khampepe ADCJ (Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Tlaletsi AJ and Tshiqi J concurring).

The second judgment was penned by Theron J (Jafta J concurring).

Both judgments agreed that this matter engaged the Constitutional Court’s jurisdiction and that the circumstances warranted granting direct access on an urgent basis. Contempt of court proceedings exist to protect the rule of law and the authority of the Judiciary, and any disregard of an order of the Constitutional Court requires its intervention. It was held that neither the public’s vested interests, nor the ends of justice, would be served if the matter had been required to traverse the ordinary, and lengthy, appeals process. It was accordingly held to be in the interests of justice to grant direct access, and to do so on an urgent basis.

The main judgment held that there could be no doubt that Mr Zuma was in contempt of court. The Constitutional Court had handed down an order in CCT 295/20. This had been served on Mr Zuma, who had subsequently failed to depose to affidavits or appear and give evidence before the Commission, as he had been ordered to do. And, he had failed to present evidence to establish a reasonable doubt as to whether his non compliance was wilful and mala fide.

In determining the appropriate sanction, the main judgment considered the differences between coercive orders, which use suspended imprisonment as a threat to compel compliance, and punitive orders of direct committal. The main judgment held that a coercive order would be both futile and inappropriate as Mr Zuma was resolute in his refusal to comply.

The main judgment held that affording Mr Zuma another opportunity to attend the Commission would have no effect other than to prolong his defiance and to signal that impunity is to be enjoyed by those who defy court orders. It was held that, notwithstanding the importance of the work of the Commission, neither the Court’s honour, nor the public’s interest in Mr Zuma’s testifying before the Commission, would be vindicated by a coercive order. In any event, the main judgment noted that the public has an equally important, if not more acute, interest in a functioning Judiciary than in Mr Zuma’s testifying before the Commission. An additional deficiency with a coercive order, so the main judgment found, was that the punitive effect of it would only operate upon future non compliance. In other words, it would wield no punitive power in respect of Mr Zuma’s contemptuous conduct, already so worthy of rebuke.

Finding that the appropriate sanction was likely to be a punitive order of unsuspended committal, the Court was alive to the need to safeguard Mr Zuma’s right not to be arbitrarily deprived of physical freedom, as enshrined in section 12 of the Constitution.

The main judgment acknowledged that after conviction in a conventional criminal trial, it is a violation of an accused person’s right to a fair trial under section 35 of the Constitution to proceed to impose a sentence without affording her or him an opportunity to say something in mitigation of sentence.

Whereas the second judgment concluded that Mr Zuma ought to have been afforded an accused person’s rights given that what the applicant sought was a punitive order, the main judgment found that this was not a conventional criminal trial and a contemnor in civil proceedings is not an accused person for the purposes of section 35. Notwithstanding this, the main judgment was acutely aware that contempt proceedings, although brought by civil process, have a criminal component. It found that section 12 imports the right to be afforded a fair procedure akin to that afforded by section 35.

Thus, affording a contemnor an opportunity to say something in mitigation of sentence is important given that removing a person’s freedom is a drastic step. Accordingly, directions were issued on 9 April 2021, in which Mr Zuma was invited to file an affidavit on an appropriate sanction and sentence in the event that he be found guilty of contempt. The main difference between the procedure followed in this matter and that which is ordinarily followed in a criminal trial was that, since contempt proceedings deal with guilt and sentence in one process, the invitation was sent before the Court reached a decision on guilt.

In response to the directions, Mr Zuma did not file an affidavit but addressed a 21 page letter to the Chief Justice, in which he made further inflammatory statements intended to undermine the Court, portray himself as a victim of the law and evoke public sympathy. He also attempted to justify his contempt by stating that, by hearing this application while the outcome of his application for the review of the decision by the Chairperson of the Commission not to recuse himself was outstanding, the Constitutional Court had acted unconstitutionally.

The main judgment held that this defence was unfounded since, had Mr Zuma not wanted to participate in the Commission hearings whilst his review application was pending, he should have sought an interim stay of proceedings, which he did not do. The main judgment emphasised that the Constitutional Court went to great lengths to safeguard Mr Zuma’s rights. Consequently, there was no sound basis on which he could claim to have been treated unfairly or victimised.

Having found that Mr Zuma could not be described as an accused person as envisaged in section 35 and that a fair procedure had been followed to safeguard his right to freedom, the main judgment held that no section 36 limitations analysis arose in the circumstances.

The main judgment held that an unsuspended order of committal was further justified by certain exceptional features of this matter. First, Mr Zuma’s scurrilous and unfounded attacks on the Judiciary and its members were intolerable and could not be met with impunity. Protecting courts from slanderous public statements, it was emphasised, has little to do with protecting the feelings and reputations of Judges, and everything to do with preserving their ability and power to perform their constitutional duties.

Furthermore, the main judgment found that contempt is not the act of non compliance with a court order alone, but encompasses the nature of the contempt, its extent and the surrounding circumstances. Thus, the Court was enjoined to take cognisance of the unique and scandalous features of the matter. It held that if these aspects were to be ignored, the Court would be adjudicating the matter with one eye closed, and declining to decide it without fear, as it is constitutionally mandated to do.

The main judgment further emphasised that Mr Zuma was no ordinary litigant, but was the former President of the Republic of South Africa, who continued to wield significant political influence and in whom lies a great deal of power to incite others to similarly defy court orders. Thus, if his conduct were to be met with impunity, he could do significant damage to the rule of law.

The main judgment held that no person enjoys exclusion or exemption from the sovereignty of the laws of the Republic. And it would be antithetical to the value of accountability if those who once held high office were not bound by the law.

The main judgment emphasised the existence of a heightened obligation on the President to conduct her or himself in a manner that accords with the Constitution. Although Mr Zuma was not President at the time of his contempt, his contumacy was all the more outrageous in light of the position he once occupied. The main judgment further noted that it was not insignificant that Mr Zuma’s contemptuous conduct related to his duty to account for his time in Office. Accordingly, it was disturbing that he who twice swore allegiance to the Republic, its laws and the Constitution, sought to ignore and undermine the rule of law altogether.

The main judgment concluded that the cumulative effect of these factors was that the only appropriate sanction was a direct, unsuspended order of imprisonment.

In determining the length of sentence, the main judgment held that the Court was enjoined to consider the circumstances; the nature of the breach; and the extent to which the breach was ongoing. In doing so, it held that quantifying the egregiousness of Mr Zuma’s conduct was an impossible task, but that the focus had to be on what kind of sentence would demonstrate, generally, that orders made by a court must be obeyed, and, to Mr Zuma specifically, that his contumacy stood to be rebuked in the strongest of terms.

The main judgment concluded that if, with impunity, litigants, especially those in positions like that of Mr Zuma, are allowed to decide which orders they wish to obey and those they wish to ignore, a constitutional crisis will be precipitated. The main judgment ordered an unsuspended sentence of imprisonment for a period of 15 months.

The applicant sought costs on a punitive scale. The Constitutional Court affirmed the principle that punitive costs are exceptional and are reserved for instances where a litigant has conducted themselves in an indubitably vexatious and reprehensible manner, deserving of extreme opprobrium. The Court held that it was without question that the extraordinary award of punitive costs was warranted. Costs were awarded on an attorney and client scale.

The second judgment, penned by Theron J (Jafta J concurring), agreed that Mr Zuma was in contempt of the order in CCT 295/20 but concluded that it would be unconstitutional to grant an order of unsuspended committal in the context of motion proceedings if the committal is not aimed at coercing compliance with a court order.

After surveying our jurisprudence on civil contempt, the second judgment concluded the following.

  • First, that civil contempt has dual remedial and punitive purposes, with the main purpose of civil contempt proceedings being the enforcement of a court order, and that it had found no case in which a punitive committal order (unconnected to coercing compliance) had been ordered.
  • Secondly, that the Constitutional Court had yet to consider the constitutionality of punitive committal orders in the context of civil contempt proceedings but had concluded, in respect of criminal contempt of scandalising the court, that a summary contempt procedure intended purely for penal purposes is inconsistent with the fundamental rights protected by sections 12 and 35(3) of the Constitution because there was no interference in the judicial process or the administration of justice, which called for swift remedial action.

The second judgment considered whether a common law rule allowing a civil court to order a punitive sanction of committal with no paired remedial purpose constituted a justifiable limitation of the right to freedom and security of the person (section 12) and an accused’s right to a fair trial (section 35(3)).

The second judgment emphasised, at the outset, that because constitutionality is determined objectively, it would be a mistake to fixate on Mr Zuma’s conduct in these proceedings and that regard should instead be had to the position of contemnors in Mr Zuma’s position.

The second judgment concluded that depriving a contemnor of liberty without a criminal trial limits section 12 of the Constitution and that there are a host of respects in which the civil contempt procedure falls short of the protections enshrined in section 35(3).

  • First, although civil contempt proceedings are a hybrid of civil and criminal elements, and therefore must be conducted in a manner that is grounded in sections 12 and 35(3) of the Constitution, the adaptation of motion proceedings to reflect their hybrid status depends on a judicial officer’s assessment of what seems fair in the circumstances. By contrast, the procedural rights in section 35(3) are peremptory.
  • Secondly, civil contempt proceedings, especially when brought on an urgent basis (as they were in this case), limit the right to have adequate time to prepare a defence as enshrined in section 35(3)(b).
  • Thirdly, the consequence of granting direct access in this matter was that the main judgment’s committal order would be unappealable, which limits section 35(3)(o).
  • Fourthly, the motion procedure limits the alleged contemnor’s fundamental right to remain silent and to be presumed innocent to the extent that it requires the alleged contemnor to present her or his defence before the initiating party has made out a prima facie case against her.

The second judgment concluded that these deficiencies amounted to a serious violation of constitutional rights when one has regard to the fact that sections 12 and 35(3) protect a profound and essential right to freedom, which is the bedrock of our constitutional order.

The second judgment concluded that in an open and democratic society based on human dignity, equality and freedom, litigants are not prosecuted criminally in civil court by their adversaries in circumstances where they are not afforded an opportunity to cure their contempt in order to avoid being deprived of their liberty. Although a contemnor faces a deprivation of liberty without a criminal trial when the committal order sought is coercive as well as when it is punitive and unsuspended, the second judgment explained that the limitation of rights inherent in the civil contempt procedure becomes unreasonable and unjustifiable when punitive committal is ordered, for two reasons.

  • The first is that while civil contempt proceedings serve the legitimate purpose of providing successful litigants with a speedy and effective means of enforcing court orders, when the relief sought is singularly punitive and not linked to enforcement, this justification for limiting rights falls away.
  • The second is that the limitation of rights is substantially tempered when the contemnor can avoid imprisonment by complying with the court order.

The second judgment agreed that the Constitutional Court must defend its orders and authority, but stressed that it can only do so within the bounds of the Constitution. It agreed that Mr Zuma’s contempt exposed him to an order of committal, but concluded that the constitutionally compliant approach would have been either to make an order of coercive committal aimed at inducing Mr Zuma to comply with the Court’s order (if the Commission’s term has not come to an end by the time judgment is handed down) or an order referring the matter to the Director of Public Prosecutions for a decision on whether to prosecute Mr Zuma for contempt of court.”