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One of the most common phrases in South Africa’s courts is the imperative to “do purposive interpretation” of legal orders. In the case of former President Jacob Zuma’s “remission” at the hands of President Cyril Ramaphosa, this means recalling the specific “purpose” for which Zuma was sent to Estcourt Correctional Services Centre in the first place.
The State Capture Commission, established by Zuma himself, chaired by now-Chief Justice Raymond Zondo, summoned Zuma to appear before it from the 16th of November 2020 “to give evidence”. Zuma refused. The Commission appealed to the Constitutional Court which, in January 2021, unanimously ordered Zuma “to appear and give evidence before the Commission”.
As that opinion, authored by Justice Chris Jafta, observed, it “must have come as no surprise to him that the Commission required his attendance in the course of its investigation”. Zuma “drew up terms of reference which covered the allegations…that he was implicated as one of the culprits. Effectively [Zuma], in doing so, made himself the subject of the Commission’s investigation”.
His refusal to give evidence to the Commission he created painted a disturbing picture. A Commission without evidence is like an impi without spears. Pointless.
Displeased
The Constitutional Court was, to put it mildly, displeased. It ordered Zuma to give evidence while emphasizing his “statutory privilege against self-incrimination”. The point was for him to incriminate others, not himself. But again, Zuma refused “to give evidence”. So, the Constitutional Court ordered that he spend 15 months behind bars for contempt of court.
In a century’s time, I believe that if the rainbow republic still stands, this judgment will still stand out. It is extraordinary when the apex court acts as court of first and final instance in a case implicating a former president, basically in absentia, and concludes with an order that he must be imprisoned.
The purpose of this extraordinary order, the very purpose that must be remembered now that Ramaphosa has effectively overturned the court’s order, is noted in the majority opinion, authored by Justice Sisi Khampepe (emphasis added): “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.”
Compelling Zuma to give evidence on state capture and, short of that, vindicating the judiciary’s honour by punishing him for violating this order are purposes that cannot be forgotten. Both purposes, honour, and evidence are undermined by Ramaphosa directly.
First, however, Arthur Fraser, then National Commissioner of the prison system, having been appointed during Ramaphosa’s presidency to that post, unlawfully released Zuma on “medical parole”. This was flying in the face of an expert medical parole board’s finding that he was ineligible. The medical parole board decision was overturned in court.
Drawing the laager
But the “remission” finishes the job of drawing the laager, under Ramaphosa’s watch, around the “Zuptas”. That locks out the public’s interest in compelling Zuma and the Guptas “to give evidence”, especially on those still in office.
Part of this shield came to light when former Independent Directorate head Hermione Cronje quit at the end of 2021. Her allies effectively accused Ramaphosa’s administration of defanging her office, making the watchdog look ruthless but rendering it effectively pointless.
The last thing Cronje did was file paperwork to get some of the Gupta family extradited. Why did this matter? To crazed revanchists the Guptas are scapegoats whose flaying in the streets would somehow make the new South Africa new again. Others want to get back “the money”. Both miss the point.
The most serious public interest in extraditing the Guptas has always been to get them “to give evidence”. Their extradition was bungled. Anyone still in office that might have been incriminated by them could relax, partly.
The only person capable of giving more pertinent evidence on “State Capture” than the Guptas was Zuma himself. He should have had another 13 months behind bars to think about telling the truth.
Better idea
But Ramaphosa had a better idea, reversing the Constitutional Court’s order. The former President dishonoured the court by refusing to face questions, the current President amplified that insult. The public’s chance to benefit from the Zuptas’ giving evidence is in permanent lockdown.
In a final theatrical stroke Zuma was lumped in with thousands of ordinary prisoners, as if he was just coincidentally lucky enough to have his sentence lifted by Ramaphosa just in time. But Zuma was no ordinary prisoner.
As the Constitutional Court noted, he was never an “accused person” in the technical sense defined by the Constitution. As the Institute of Race Relations submitted to court, quoting a previous Constitutional Court judgment, Zuma “had” to a limited extent “the keys of the prison in his pocket”, because he was a “contemnor”. The key was “to give evidence”: the truth. Because of the insults, this would not necessarily purge him of contempt entirely, but it would have made the court think about an early release.
In response to these submissions, the Department of Correctional Services acted as if there was no way for Zuma to purge his contempt at all. True, the courts have shown no hope of Zuma using the keys, but they still twinkled in his pocket. All he had to do was “give evidence”, either through a reignited Commission at Ramaphosa’s behest, or directly to court.
Until today. Now Ramaphosa has taken the keys from Zuma, unlocked the gate, setting him free, with the compulsion to give evidence poof! somehow forgotten.
Ubuntu
Former Public Protector Thuli Madonsela tweeted what is bound to become the main line of defence, in the name of “Ubuntu”. “Nothing more could be gained through further incarceration”.
Madonsela must have forgotten the purpose of his “incarceration”. Get evidence and vindicate honour. That could have happened. Maybe Zuma would not have purged his contempt. Maybe upholding law’s order would not have made a difference to current operators of the “gangster state”. But “could not” and “would not” are different.
“Should” is different too, and if “Ubuntu” was meant to invoke a sense of what “should” happen, the answer is clear – Zuma should give evidence against state capture, not because he is compelled (Ramaphosa took care of that), but because it is in the public interest.
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