Zuma and jail

By Anton Katz SC

On 29 June 2021 the Constitutional Court sentenced former President Jacob Zuma to 15 months’ imprisonment, and shortly before midnight on Wednesday 7 July 2021 the police, as they had been ordered to, took him into custody to serve his sentence.

Most South Africans are either pleased that Zuma’s day of reckoning finally came or rather are outraged that their hero has been imprisoned. So the questions are, ‘why was Zuma jailed?’ and ‘was it done in a fair and just manner?’ It is interesting to understand why Jacob Zuma was imprisoned by the court for 15 months. His jail term was not because he committed any corrupt act; not because he was fraudulent, and not because he stole anything at all. Zuma was not sentenced because he did not appear and testify before the Zondo Commission into State Capture.

His 15-month sentence is as a direct result only of the Constitutional Court finding that he had been contemptuous of it. The Constitutional Court ordered him to do something — that is appear and give evidence at the State Capture Commission. The Court found that he willfully refused to comply with the Court’s order. The dissatisfied Commission applied to Court for an order declaring Zuma to be in contempt of order, and for him to be jailed for two years. The Court declared that he was guilty of the crime of contempt of court and imposed the 15-month sentence.

What is contempt of court? Contempt of court proceedings exists to protect the rule of law and the authority of the Judiciary. There are two broad ways in which contempt arises. The first is in the courtroom itself or where there is a direct insult to the judge. This is where a lawyer, advocate or attorney, or any person behaves very badly in or outside court. An easy example is where the advocate, dissatisfied with the conduct of the judge or magistrate, starts swearing at the judge in court. This type of contempt can also apply when a person, in criticising a judgment, crosses the line of free speech and fair comment. So when a disgruntled litigant calls a judge a mad racist bigot without any foundation or reason, the person could be found guilty of contempt. That is scandalising the court. The person is charged in a criminal court by the prosecuting authorities and the criminal trial court finds the accused guilty or not guilty, and if guilty, then passes an appropriate sentence.

But the Zuma contempt case is not one of that class of case. It concerns the crime of unlawfully and intentionally disobeying a court order. This second type of contempt of court case is part of the broader offence, which can take many forms, the essence of which lies in violating the dignity, repute or authority of the court. The existence of the offence protects the rule of law — a founding value of the Constitution. The rule of law requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained. The sanction for contempt in these cases usually, but not always, has the object of inducing the non-complier to fulfil the terms of the previous order. The (successful) litigant, in seeking enforcement, has an obvious personal interest in securing compliance with the original order. But importantly, the court grants enforcement through a contempt process also because of the broader public interest in obedience to its orders. The disregard of court orders sullies the authority of the courts and detracts from the rule of law.

The test for when disobedience of a civil order constitutes contempt is whether the breach of the order was committed deliberately and in bad faith. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him/herself entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids a guilty finding. Even a refusal to comply, that is objectively unreasonable, may be bona fide (though unreasonableness could evidence lack of good faith). These requirements — that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt, show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority.

When a court orders a person to do or not do something, that person must comply. The court order binds the person. So, if a court makes an order prohibiting the cutting down of a hedge between two neighbours and the one home owner in bad faith and in defiance of the prohibitory order cuts down and destroys the hedge between the neighbours, that act would constitute contempt of court. Or if a court orders a mother to allow a father to see the children every weekend and the mother knowingly refuses to comply, that is contempt. So, without the crime of contempt of court, courts would have no power of any kind to police and enforce its orders. Zuma was ordered to do something. He was ordered to appear and testify at the Zondo Commission. When he refused to do so, the Commission approached the Court for orders declaring Zuma in contempt; and to pass an appropriate sentence. Zuma ignored the Commission’s application and responded by writing a 21-page letter saying he did not recognise the legitimacy of the court. The Constitutional Court, after the oral hearing, gave Zuma a further opportunity to offer some mitigating factors for purposes of sentence were they to find him guilty. He again refused to cooperate. In a 7 – 2 majority decision, the Court declared him to be in violation of the Court’s order that he must testify at Zondo, and sentenced him to 15 months.

What is unusual about the case is the direct imprisonment sentence without the option to ‘cure’ his default. In the child case above, the mother’s sentence would often be suspended. So the mother would be sentenced to a period of imprisonment, which would only kick in if she refused to allow the father to see the kids. She would be given an opportunity to avoid actual jail time. In the Zuma case, some of the Justices questioned whether it would be preferable to try to get Zuma to testify at Zondo rather than go straight to jail. But the majority found that, bearing in mind Zuma’s past conduct, it would be futile to order Zuma once gain to appear at the Zondo Commission. There would have been no point in doing so. Zuma had had many chances to cure his delinquent conduct; and he had made his intentions clear. He said he disrespected the Court because it was acting politically just like an apartheid one, and believed the Zondo Commission was biased against him. He would not appear and testify about state capture and his possible role in it.

Thus far Jacob Zuma has not stood trial for corruption, fraud or any other regular criminal conduct. Yet he has been sentenced to 15 months’ jail and is in prison at the time of writing this piece. I suppose one can think of the Al Capone analogy. Although Al Capone was regarded as a serious gangster by many, it was the tax authorities who effectively had him jailed. Can it be said that the Constitutional Court was weary of Zuma’s apparent delaying Stalingrad tactics to avoid taking responsibility for his alleged conduct? If Zuma did not have the aura of corruption (deserved or not) around him, would he have been jailed for the crime of contempt of court? And will Zuma ever have his day in court? As he is now 79 years old, and with many possible appeals and other delays in the future, one wonders if he will ever be tried and — if found guilty of corruption — sentenced and actually spend any time in jail for serious criminality. These are just some of the questions that arise and may be debated in the future.

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.

• Published in the PDF edition of the September 2021 issue – Download here.

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