Jacob Zuma, the former President of South Africa, was imprisoned on 7 July 2021 following a finding by the Constitutional Court of South Africa that he was guilty of contempt of court. The charges originated in Zuma's refusal to provide testimony to Deputy Chief Justice Raymond Zondo's judicial commission of inquiry into alleged state capture. During 2021, the Constitutional Court handed down three related decisions.
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 (known as Zuma I), the Zondo Commission applied urgently for a court order compelling Zuma to comply with the commission's summons and provide evidence before it. Zuma declined to oppose the application, and the Constitutional Court granted the order on 28 January 2021. The unanimous judgment, a straightforward application of the Commissions Act, 1947, was written by Justice Chris Jafta.
However, Zuma violated the court's order the following month, when he openly refused to comply with a summons to appear before the commission. Thus, on 29 June 2021, 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 and Others (Zuma II), the Constitutional Court sentenced Zuma to 15 months' imprisonment for contempt of court. The majority judgment was written by Acting Deputy Chief Justice Sisi Khampepe, who held that it was justifiable for the court to impose a punitive, unsuspended prison sentence in order to vindicate its own integrity and uphold the rule of law. A two-member minority of the court, comprising Justices Chris Jafta and Leona Theron, argued that the majority's order trenched on Zuma's constitutional right to a fair trial.
Zuma, who had again declined to oppose the commission's application, submitted to arrest in Estcourt, KwaZulu-Natal on 7 July; observers linked his detention to an outbreak of civil unrest later the same week. At the same time, he applied to the Constitutional Court for the rescission of its order in Zuma II. On 17 September 2021, in Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (Zuma III), the Constitutional Court dismissed that application, holding that Zuma's case did not meet the standard set for rescission in the Uniform Rules of Court and did not justify a departure from the doctrines of res judicata and functus officio. Justice Khampepe again wrote on behalf of a seven-member majority, and Justices Jafta and Theron again dissented in deference to Zuma's constitutional rights.
Background
The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (State Capture Inquiry) was established in January 2018 to investigate allegations of state capture and political corruption under the administration of Jacob Zuma, who was President of South Africa from May 2009 to February 2018. Chaired by Deputy Chief Justice Raymond Zondo, it was best known as the Zondo Commission and opened its hearings in August 2018, after Zuma had been replaced as president by his former deputy, Cyril Ramaphosa.
Because much of the commission's evidence implicated him directly, Zuma himself was scheduled to testify before the commission for five days in mid-July 2019, beginning on 15 July 2019, but he proved an uncooperative witness. Zondo adjourned proceedings before the end of Zuma's third day of testimony, on 17 July, in order to meet with Zuma to discuss his grievances. On the morning of 19 July, Zuma's lawyer, Muzi Sikhakhane, announced that Zuma would "take no further part" in the commission's proceedings.
Over the next 18 months, Zuma did not cooperate with attempts to secure his testimony before the commission. After he declined to resume testifying in the week of 21 September 2020, Zondo issued a summons for his appearance in the week of 16 November. However, on 29 October, Zuma lodged an application for Zondo's recusal from the commission's proceedings. Zondo considered that application into the week of 16 November, dismissing it on 19 November and announcing his intention to resume Zuma's testimony after a tea break. During the tea break, however, Zuma left the commission's premises without notifying Zondo. He did not return on 20 November.
Zuma I: Court order
On 4 December 2020, the Secretary of the Zondo Commission, Itumeleng Mosala, announced that Zuma had been issued a second and third summons, compelling him to appear before the commission during the weeks of 18 January and 15 February 2021. At the same time, the Zondo Commission applied to the Constitutional Court of South Africa for a court order requiring Zuma to appear on those dates, as well as declaring that his departure on 19 November and non-appearance on 20 November had been unlawful. On 11 December, the court agreed to hear the urgent application later that month, though Zuma declined to oppose the application, with attorney Eric Mabuza filing a one-sentence submission stipulating that, "We are instructed by our client... that he will not be participating in these proceedings at all".
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 (Zuma I) was heard virtually on 29 December 2020, with Tembeka Ngcukaitobi arguing on behalf of the Zondo Commission, instructed by the State Attorney. The Council for the Advancement of the South African Constitution and the Helen Suzman Foundation were admitted as amici curiae. While judgment was reserved, and as the scheduled 18 January hearing of the Zondo Commission approached, Zuma's lawyers wrote to Zondo to inform him that Zuma would not appear until the Constitutional Court had handed down its judgment.
Judgment On 28 January 2021, the Constitutional Court handed down a unanimous judgment written by Justice Chris Jafta. The court granted the applicant direct access, accepting the commission's argument that it was important for the Constitutional Court to make an urgent and final determination on the issue, because an application brought in the High Court could lead to a prolonged process of appeals that might outlast the commission's own mandate. Although Jafta was critical of the commission for not having issued Zuma with summons earlier than the spring of 2020, he held that it was overwhelmingly in the public interest for the court to hear the application.
On the merits of the application, the court's judgment was primarily a straightforward application of the Commissions Act, 1947, section 3(2) of which empowered the commission's secretary to issue summons for the attendance of witnesses at hearings. The court confirmed that Zuma was obliged to comply with such summons, with Jafta commenting that:The respondent’s conduct in defying the process lawfully issued under the authority of the law is antithetical to our constitutional order. We must remember that this is a Republic of laws where the Constitution is supreme. Disobeying its laws amounts to a direct breach of the rule of law, one of the values underlying the Constitution and which forms part of the supreme law. In 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. The court therefore ordered that Zuma must obey all lawful summonses and directives issued by the Zondo Commission, and it directed him to appear and give evidence before the commission on dates determined by the commission. In addition, inspired by a threat made by one of Zuma's lawyers, the court issued a declaratory order stating that Zuma did not have a right to remain silent during the commission's proceedings – where he was a witness, not an arrested or accused person – but that he was entitled to all privileges granted to witnesses under section 3(4) of the Commissions Act, including the privilege to abstain from self-incrimination.
Reception Although the judgment did not deal with substantive constitutional questions, it received significant media attention. Zuma released a six-page statement in which he denounced the judgment at length, saying that the Constitutional Court was "politicised" and had "effectively decided that I as an individual citizen, could no longer expect to have my basic constitutional rights protected and upheld by the country's Constitution."
Zuma II: Contempt of court conviction
Background Following the Zuma I decision, Zuma was summoned to appear before the Zondo Commission on 15 February 2021. However, on the morning of his scheduled appearance, his lawyers released a statement alerting the public that he had decided not to attend, in violation of the Constitutional Court's order in Zuma I. By then, the commission had laid criminal charges against Zuma in terms of the Commissions Act for breaching his summons in November and January. However, after Zuma's absence in February, Zondo announced that the commission would additionally seek to bring a contempt of court charge against Zuma in the Constitutional Court.
The Commission applied for direct access to the apex court on an urgent basis, giving rise to a second application, 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 and Others (Zuma II). In court papers, the Commission requested that a two-year prison sentence be imposed as sanction for Zuma's contempt. The matter was heard on 25 March 2021, with Tembeka Ngcukaitobi again arguing on behalf of the Zondo Commission. The Helen Suzman Foundation was admitted as amicus curiae.
Zuma again declined to oppose the application, though he released a public statement hours after the hearing in which he complained about "the emergence of a judicial dictatorship in South Africa". Zuma wrote: We have in South Africa today the gradual entrenchment of the counter-majoritarian problem. Unfortunately, when people rise up against this judicial corruption, our young democracy will unravel and many democratic gains will be lost in the ashes that will be left of what used to be our democratic state... My experience is that many South African judges, including those of the Constitutional Court, can no longer bring an open mind to cases involving me. It is a travesty of justice to observe how the Constitutional Court has allowed itself to be abused in this manner, and the repeated warnings I have made in this regard continue to go unheard simply because they emanate from me.
Majority judgment The court agreed unanimously to grant the applicant direct access; it was also unanimous in holding that Zuma was in contempt of court insofar as he had failed to comply with the court's order in Zuma I. However, the court split nine to two on the question of the appropriate remedy.