By: Paul Ngobeni
If Zondo had wisdom and the gift of leadership he could simply allow Zuma to give his testimony before a different judge to obviate the need to litigate the matter of Zondo’s bias in the Concourt. Nothing would be lost there -the evidence leaders would still be the same folks and nothing would prevent Zondo from using the transcripts of Zuma’s testimony in writing his report. Unfortunately, it appears Zondo’s own stubbornness and lack of foresight will plunge the country into an unnecessary political crisis that may soon have catastrophic results for the ruling party, the ANC and particularly the leadership of President Ramaphosa. The deepening divisions within the ANC and Ramaphosa’s shenanigans and failure in managing ever widening rift within the party may soon see him ignominiously and prematurely recalled.
It was totally unnecessary to push President Zuma to a corner where he would be claiming a prisoner of conscience status. By all appearances Zuma has been, and continues to be, prepared to suffer for his convictions, and would rather undergo imprisonment and even death rather than forgo his principles. This demonstrates both the depth of Zuma’s conviction and its principled rather than expedient nature. As the JG Zuma foundation puts it: “We also commend Mr. Zuma for risking it all, in order not to legitimise an irregular process disguised as a legitimate Commission. President Zuma assures us that he would rather face jail than allow himself to be bullied by an irregular, manipulated, and unlawful process. They can spin what happened all they like – but their evil intentions were thwarted.”
The simple irony is that in the titanic the stand-off between the Zondo commission and former president Zuma it is Zuma who is correct on the law. There has been a flurry of accusations that the commission’s chairperson, deputy chief Justice Raymond Zondo is biased, has exploited collegiality with his Concourt colleagues and is bending the laws to pursue his personal agenda. These are matters that are pending before the High Court but which Zondo has urged the Concourt to ignore. Moreover, Zuma’s supporters have asserted that asking the Constitutional Court to jail the former president for two years instead of the statutorily stipulated six months is meant to come up with punishments only reserved for Zuma. Of all the accusations made, the singling out of Zuma or what I call “Zuma exceptionalism” is supported by empirical facts and makes Zuma’s hardened position all the more understandable. There are undeniable empirical facts and the law to support all the allegations of nefarious moves by Zondo and even the Concourt justices.
Before dealing with the issue of alleged contempt we must pose a pivotal question of what constitutional adjudication principles did the Concourt violate in accepting the Zondo Commission case in the first place? According to legal scholar A J van der Walt, “Normative Pluralism and Anarchy: Reflections on the 2007 Term” (2008) 1 Constitutional Court Review 77-99, the subsidiarity principle allows courts to adopt a coherent approach to solving complex questions about which source of law to apply in constitutional adjudication. It has several provisos. The first principle state that a litigant who avers that a right protected by the Constitution has been infringed must rely on the legislation enacted to protect the right and may not rely on the Constitution directly. The proviso to the principle is that the litigant may rely on the Constitution directly when the enacted legislation is being challenged for being inconsistent with the Constitution. The second principle is that litigant who avers that a right protected by the Constitution has been infringed must rely on the legislation enacted to protect that right and may not rely on Common law to protect that right. The proviso to this principle is that Common law can be invoked when the enacted legislation does not cover a particular aspect of Common law. Why has the Zondo Commission which claims Zuma violated the Commission’s Act not relied on that legislation which contains express provisions regulating these matters? Why have the Concourt judges who are very familiar with these principles ditched the subsidiarity principle in order to assist the Zondo Commission instead of doing justice as commanded by the Constitution.
This subsidiarity principle was stated eloquently in the My Vote Counts case, where the Concourt noted that the principle of subsidiarity was “a well-established doctrine within this court’s jurisprudence.” My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) (“My Vote Counts”) at para 161. The Concourt stated:
“ Parliament’s argument brings to the fore the principle of subsidiarity in our constitutional law. Subsidiarity denotes a hierarchical ordering of institutions, of norms, of principles, or of remedies, and signifies that the central institution, or higher norm, should be invoked only where the more local institution, or concrete norm, or detailed principle or remedy, does not avail. The word has been given a range of meanings in our constitutional law. It is useful in considering the scope of subsidiarity, and Parliament’s reliance on it – to have them all in mind.
 But it does not follow that resort to constitutional rights and values may be freewheeling or haphazard. The Constitution is primary, but its influence is mostly indirect. It is perceived through its effects on the legislation and the common Jaw – to which one must look first.
 These considerations yield the norm that a litigant cannot directly invoke the Constitution to extract a right he or she seeks to enforce without first relying on, or attacking the constitutionality of legislation enacted to give effect to that right. This is the form of constitutional subsidiarity Parliament invokes here. Once legislation to fulfil a constitutional right exists, the Constitution’s embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.
 Over the past 10 years this court has often affirmed this. It has done so in a range of cases. First, in cases involving social and economic rights, which the Bill of Rights obliges the state to take reasonable legislative and other measures, within its available resources, to progressively realise, the court has emphasised the need for litigants to premise their claims on, or challenge, legislation Parliament has enacted. In Mazibuko the right to have access to sufficient water guaranteed by s 27(1)(b) was in issue. The applicant sought a declaration that a local authority’s water policy was unreasonable. But it did so without challenging a regulation, issued in terms of the Water Services Act, that specified a minimum standard for basic water supply services. This, the court said, raised ‘the difficult question of the principle of constitutional subsidiarity’. O’Regan 1, on behalf of the court, pointed out that the court had repeatedly held ‘that where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution’. The litigant could not invoke the constitutional entitlement to access to water without attacking the regulation and, if necessary, the statute.”
In the Zondo-Zuma saga, Parliament has enacted legislation, the Commissions Act 8 of 1947. Commissions of inquiry are established by presidential proclamation and are vested with authority under the Commissions Act. Section 84(2)(f) of the Constitution grants the president the authority to appoint commissions of inquiry concerning any issue. Section 6(1) of this act made refusal to testify before a commission a criminal offence. Penalties include a R100 fine “or imprisonment for a period not exceeding six months.” When a recalcitrant witness refuses to appear as summoned the Commission files a criminal complaint with the NPA and the matter is typically tried in a Magistrate’s Court. There are no complex constitutional issues involved there. So, on what principled legal basis did the Concourt intervene in this petty offence matter?
One wonders whether it was Zuma “exceptionalism” that actuated the Zondo to completely disregard the subsidiarity principle and motivated Zondo’s Constitutional Court colleagues to intervene directly in a “pis in die straat case.” Did Zondo as Deputy chief justice exploit judicial collegiality and did the Concourt judges bend over backwards to accommodate him even where the law stood firmly against their decision? A case in point for purposes of unpacking this violation is South African Motor Acceptance Corporation (EDMS) BPK vs Oberholzer 1974 (4) S.A. There the Appellant sued the Respondent, the Assistant Magistrate of the District in which the action was being tried, for payment of certain sums of money. At the commencement of the hearing the Appellant raised the exceptio suspecti judicio that the Magistrate of the District hearing the matter should recuse himself, as the defendant was a member of the staff of his office. The Magistrate in the court a quo refused the application for recusal. In an Appeal against the recusal of the trial Magistrate to recuse himself it was held:
“a) Where two judicial officers are attached to the same bench as colleagues and one of them is a litigant or an accused, then there is a reasonable ground for the other legal official to be recused from trying the action;
- b) The recusation judicis suspecti applied of all judicial officials irrespective of what their order of rank in the hierarchy of their administration of justice might be;
- c) It made no difference whether the action concerned was of a civil or criminal nature;
- d) The appellant had completely bona fide and quite correctly invoke an acknowledged, reasonable ground for recusal when he requested the Magistrate to recuse himself;
- e) The trial Magistrate should have recused himself.
I do not for a nanosecond believe that apartheid judges had a better understanding of the law than our current esteemed Concourt judges but we must ask the pertinent question of why these judges did not perceive any potential conflict in adjudicating a case involving their very senior colleague. Is this egregious stance based on Zuma exceptionalism or any discernible legal principle? Zuma’s complaints that legal principles are being changed when judges adjudicate his cases appear to be well-founded.
It is true that a failure to obey a Commission’s subpoena during the agreed-upon dates is classed as a criminal offence, with a six-month prison term identified as the toughest possible punishment (“imprisonment for a period not exceeding six months.”) But Zondo seeks a two years sentence and imprisonment for Zuma. On what legal basis does a Commission established by the executive seek to bypass the legislation under which it operates and request judicial colleagues to fashion their own penalties for violation of a Commission’s subpoena laws? That the commission feels emboldened to request to the Constitutional Court to jail Zuma for a period exceeding the statutory maximum speaks volumes about the manipulation and twisting of legal processes only when dealing with Zuma’s cases. Above all it lends credence to President Zuma’s claim that Zondo harbours deep-seated bias against him that makes it constitutionally unacceptable for him to preside over a matter involving him. The JG Zuma foundation described this conduct thus: “This desperation of the deputy chief Justice Zondo, abusing his position as the second in charge in the Constitutional Court, instructing his subordinates to bend the laws of the country is unprecedented. He ignores process and jurisdictions as prescribed in law, just to ensure that The Zuma state capture commission of inquiry finds (former) President Zuma guilty by hook or crook to deliver him to some hidden masters.”
The foundation has also pointed out that Zondo is treating the former president in the way the apartheid government treated former PAC leader, Robert Sobukwe. The 1963 General Laws Amendment Act No 37 also included certain provisions for an indefinite detention. The clause was also known as the “Sobukwe Clause” since it was specifically aimed at keeping the PAC leader Robert Sobukwe in evenb after the completion of his sentence. Thus after a three-year sentence, he was actually detained for a further six years on the annual decision of the Parliament. Viewed against the background of the violation of the subsidiarity principles and the circumvention of the Commissions Act one cannot find fault with the Zuma foundation’s statement that: “…it is clear that laws are being changed to deal with (former) president Zuma, like how the apartheid government created Sobukwe laws to deal with Sobukwe. Indeed, it sounds like an old apartheid regime in the hands of the black leaders in the democratic South Africa.”
Another related legal principle standing firmly against the Zondo Commission’s jeremiad and the Concourt’s adjudication of the Zuma contempt case is the potential violation of Section 166 of the Constitution which establishes the hierarchy of our courts. Currently, Zuma has a review application pending before the High Court and at the heart of that application is Zondo’s bias and alleged unfitness to preside over a matter involving Zuma. No judge of the Constitutional Court has any right to suspend the constitution. An orderly adjudication of the case would inevitably involve allowing the High Court the space required to adjudicate Zuma’s application and to allow any ensuing appeal process to follow. The Concourt is skating on thin ice by insisting that it can issue a broad and prejudicial order vitiating President Zuma’s right to be heard. In Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (WC) 2007 (5) SA 540 (SCA), Judge Nugent stated the following in regard to the scope of the sub judice rule in post-constitutional times:
 It is an established rule of the common law that the proper administration of justice may not be prejudiced or interfered with and that to do so constitutes the offence of contempt of court. That is now reinforced by the constitutional right of every person to have disputes resolved by a court in a fair hearing and by the constitutional protection that is afforded to a fair criminal trial. It is not contentious in all open and democratic societies – and it was not contentious before us – that the purpose that is served by those principles of law provides a proper basis for limiting the protection of press freedom, and the reason for that is self-evident. The integrity of the judicial process is an essential component of the rule of law. If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms −including the freedom of the press − are also compromised.
Given that Zondo has also filed a criminal complaint against Zuma with the NPA the Concourt cannot pronounce on whether Zuma is guilty or innocent of the violation of Section 6 of the Commissions Act without prejudicing or interfering with the envisaged criminal prosecution. Likewise the Concourt cannot rule on whether Zuma must be compelled to appear before Zondo when issues of the latter’s impartiality and fitness to preside are pending a decision of the High Court.
Another principle thrown overboard because of Zuma exceptionalism is the simple notion that no one may be a judge in his own case. In the matter of the Constitutional Court judges against Judge President Hlophe it was alleged that seven of the eleven Judges of this Court were complainants in the Hlophe complaint that underlies the matter. A further Judge namely Justice Mogoeng was allegedly involved in efforts to mediate the dispute. Accordingly they could not adjudicate the matter when it came to the Concourt. Zuma has a pending review application in which Zondo is a respondent. In addition, Zondo has filed a criminal case against Zuma but insists in sitting in the same matter where he would be required to pronounce on Zuma’s credibility. There are two circumstances in which a judge must recuse himself or herself. The first is where the judge is actually biased or has a clear conflict of interest and the second is where a reasonable person, in possession of the facts, would harbour a reasonable apprehension that the judge is biased. The protection of the constitutional principle of judicial impartiality imposes on the judge the duty to recuse if a reasonable person would have a reasonable apprehension that the judge is biased. In Zondo’s case, due process requires that he refrains from participating in any matter involving Zuma. He was responsible for initially bringing the criminal charges against Zuma, or in contempt cases where the judge has a strong personal interest in the outcome of the matter it is absurd to argue that Zuma must be forced to appear before the same judge.
In limited circumstances the constitutional right to due process may require a judge to recuse. “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). The circumstances in which the due process clause has been applied to require disqualification are:
- Cases in which the judge has a direct, personal, substantial pecuniary interest in the outcome, such as in Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986), where a state supreme court justice had a pending lawsuit which turned on the same legal issue as the case before him on appeal.
- Cases in which the judge who is trying a criminal case is responsible for bringing the charges in the first place or, when contempt is involved, otherwise has a strong personal interest in the outcome. In re Murchison, 349 U.S. 133, 137-38 (1955) (judge should not have presided at trial for perjury and contempt when charges were initiated by the judge in a previous proceeding); Mayberry v. Pennsylvania, 400 U.S. 455, 465-66 (1971) (judge should have recused self on contempt charges based on defendant’s repeated curses and insults toward judge during a three-week trial; judge’s personal feelings demonstrated by severity of 11-to 22-year sentence for contempt).
- It is improper for a judge to sit where one of the parties has a pending lawsuit against the judge. See In re Braswell, 358 N.C. 721 (2004).
And finally, President Zuma faces a particular species of contempt of Court in the matter before the Concourt. This is contempt ad factum praestandum – non-compliance with the Concourt’s order requiring him to attend a hearing and to remain in attendance until released by the Chairperson. The SCA has stated that the test for when disobedience of a civil order constitutes contempt is whether the breach was committed “deliberately and mala fide”. See Frankel Max Pollak Vinderine Inc. v Menell Jack Hyman Rosenberg & Co Inc 1996 (3) SA 355 (A) at 367 H-I; Jayiya v Member of the Executive Council for Welfare, Eastern Cape 2004 (2) SA 602 (SCA) paras 18 and 19. I refer further to Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA). The latter case is truly a leading case on the correct characterisation of Contempt of Court in the form of disobedience of a civil Court Order. Cameron JA (as he then was) writing for the full bench of the Supreme Court of Appeal stated the following elucidating formulation:
“Deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him-or herself entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. 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 – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They 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 that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent.”
Once again if the legal principles are applied even-handedly and not on the basis of Zuma exceptionalism Zuma’s position that the Concourt’s order may not lawfully issue an order which violates Section 166 of the Constitution and due process may be sufficient to avoid the finding that his refusal was committed “deliberately and mala fide”.