Litigation: Majority saw Zuma threat, minority missed the point

‘Should a court ever be entitled in civil contempt proceedings to sentence an individual to a mandatory jail sentence if that individual resolutely refuses to obey a court order as part of the individual’s deliberate and coordinated all-out assault on the legitimacy and authority of that court, the legal system, and the rule of law?’ Constitutional law expert Professor Pierre de Vos notes Acting Chief Justice Sisi Khampepe held that it was entitled to do so in the case of Jacob Zuma – because it was the only way to protect the court, the legal system, and the rule of law, from the existential threat posed by Zuma’s fact-free war on the judiciary.

The majority emphasized in several passages in its judgment that it had no choice but to act, as such an order was necessary to assert the courts’ authority and the rule of law. Writing on his Constitutionally Speaking blog, De Vos says ‘somewhat surprisingly, Justice Leona Theron (for the minority) held that it was not permissible for the court to do so, arguing that the judicial system could effectively be defended by offering Zuma yet another opportunity to obey the court order, or by referring the matter to the prosecuting authority for possible prosecution of a constitutional delinquent Zuma. In doing so, the minority indulged in magical thinking by ignoring the gravity of the threat posed to the authority of the court and the rule of law by the all-out assault on the judiciary spearheaded by Zuma and his lawyers.’

De Vos says the heart of the disagreement between the majority and the minority, in this case, was the different views they took of the threat posed by Zuma’s contemptuous behavior, the nature of the court’s duty to counter that threat, and the effectiveness of other measures available to counter the threat. ‘The majority took this threat very seriously, while the minority – focusing narrowly on the specific act of contempt by Zuma and thus ignoring the surrounding circumstances of the case – played down the threat.’ De Vos believes the correct majority judgment depicted Zuma’s contempt of the Constitutional Court, the judiciary, and the rule of law as posing an existential threat to the authority of the Constitution itself. ‘The minority viewed Zuma’s contempt in a less serious light because it insisted that his contempt of the Constitutional Court order should be judged in the abstract, without having regard to the actual impact, obviously heightened by Zuma’s other statements and actions.’

De Vos adds: ‘In my view the minority, relying on formalistic arguments and a contextual analysis, wrongly averted its eyes from the potential harm caused by Zuma’s scandalous full-frontal attack on the Constitutional Court and the judiciary, to allow it to conclude that Zuma’s interests, in this case, trumped the interest of the court and the public to protect the judiciary and the rule of law.’ He says if the minority had accepted the majority view on the seriousness of the threat posed by Zuma, it would have made it very difficult for it to conclude that the imposition of an unsuspended jail sentence was not constitutionally justified in this case.

De Vos says the court had a constitutional duty to protect its own authority, the legitimacy of the entire judiciary, and the rule of law against a full-frontal attack by Zuma. This view is ‘a logical result’ of the failure of the minority to recognize the severity of the threat and the urgency of the action required, ‘and of its seeming lackadaisical approach to the obligation of judges to upholding the Constitution’.

However, he cautions: ‘The majority judgment was weakened by the absence of a list of factors or criteria clearly spelling out the exceptional situations in which a court in civil contempt proceedings would be permitted to impose an unsuspended prison sentence on the contemnor. This is necessary to ensure that the court restricts the use of this mechanism to the most exceptional situations in which there is no other effective way for the court to protect itself, the judicial system, and the rule of law, other than to send the contemnor to jail.’