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But two minority judgments show the ConCourt was divided on the former president’s request for rescission of the judgment which jailed him. The decision is moot since Zuma is free on medical parole.
A majority of the Constitutional Court bench of nine judges have dismissed former president Jacob Zuma’s application for a rescission of the July 2021 judgment, which ordered his jailing for 15 months without the right to an appeal.
Zuma is out on medical parole and currently in a Pretoria hospital, which makes the judgment moot, but it is a legal smackdown for the former head of state. Judge Sisi Khampepe, who delivered the judgment, said the court had been “far from persuaded”. Zuma met the two grounds for rescission. These are that a litigant had been absent from court proceedings and judgment against them, and an error in the law had been made.
“(The law) protects litigants whose presence was precluded, not whose absence was elected,” said Khampepe in her oral judgment. Zuma ignored several summonses to appear before the Commission of Inquiry into State Capture before the Constitutional Court ordered that he appear before it. Zuma was jailed for contempt in July. He also failed to submit arguments in mitigation when the Constitutional Court asked him to do so. The court said he had been an architect of his misfortune. “Litigants can’t butcher (judicial proceedings) at their own will,” said Khampepe.
The majority judgment said Zuma had attempted to stage a belated defence in the rescission application, which the law did not allow. “Mr Zuma had multiple opportunities to bring these arguments to the attention of the court,” said Khampepe, adding: “He only hopes to justify his absence now that the shoe pinches.”
Zuma’s legal team had also argued that the grounds for rescission ought to be expanded, but the judges gave short shrift to his argument. “Far from inviting courts to develop grounds for rescission – we must do the opposite. The legislature had (deliberately) carved out narrow grounds for rescission. (If not), the administration of justice would be compromised by chaos,” said the judge.
The judges said that nothing in Zuma’s case was “truly exceptional” to require that the court depart from ordinary tenets of the law, and said Zuma would bring the administration of justice into dispute if the court were to reconsider it. “The principle of finality in litigation must be protected,” said Khampepe, adding that a relaxation of this provision would be to dismember the rule of law.
“The uncertainty of this application has done untold damage to the rule of law,” said Khampepe. The judgment added that Zuma was blowing “hot and cold” with legal processes. His decision to ignore the summons and a request to make an application to the Constitutional Court during the contempt of court judgment deliberations meant that he had resigned himself to any decision the court would make. “Litigious vacillation can’t be tolerated,” said Khampepe.
A divided ConCourt
The court heard the rescission application on 12 July 2021 and took more than two months to make a finding. It emerged that the court was split three ways, with a majority judgment and two minority judgments penned. This is what the two minority judgments say:
Minority judgment one by Judge Chris Jafta (with Judge Leona Theron concurring) made the following points:
- The contempt of court judgment was “unconstitutional and uncompliant with international law”;
- This international law is Article 9 of the International Bill of Rights and is the International Covenant on Civil and Political (ICCPR) Rights to which South Africa is a signatory; and
- That Zuma had been sentenced without the option of an appeal was in effect detention without trial.
The majority judgment said it accepted that Section 39 of the Constitution enjoined it to consider international law in its deliberations but noted that the status of international law should not be mischaracterised. It pointed out that the ICCPR had not been adopted into domestic law in South Africa and only bound the country at a global level, and that the focus on the Covenant was misguided. The court said the Zuma case was a straightforward rescission case and that Zuma had not met the two basic requirements for rescission and that a consideration of the Covenant would amount to reopening the defence. The court had asked for submissions from Zuma’s legal team and the team acting for the State Capture Commission on this point.
Minority judgment two by Judge Leona Theron made the following points:
- Any individual detained has a right to a fair trial;
- The limitation on Zuma’s rights was not justifiable;
- His detention on 7 July was therefore unconstitutional and invalid; and
- The ConCourt should declare the detention invalid and set it aside.
The ConCourt dismissed Zuma’s application for rescission with the costs of two counsel. The judgment is moot since Zuma is out on medical parole after Correctional Services Commissioner Arthur Fraser overrode the recommendation of his medical appeal parole board to free his mentor. Three organisations (the DA, the Afrikaner civil rights movement AfriForum and the Helen Suzman Foundation) have launched court proceedings to review Fraser’s decision which got a nod and wink from President Cyril Ramaphosa before Zuma was released. Fraser’s decision cannot be overturned except by a court, even if Zuma’s health improves.
The judgment starts with a flourish, reading: “Like all things in life, like the best of times and the worst of times, litigation must at some point, come to an end.” DM
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