Making sense of the Constitutional Court’s latest directive of seeking an affidavit from President Zuma in mitigation of sentence


By: Clyde Ramalaine

– Yes, there is a constitutional crisis, less initiated by Zuma, but a lusty judiciary that has perhaps severely compromised the Apex Court –

The Constitutional Court in its most recent directive pertaining to the matter as brought by the State of Capture Commission in its attempt to find against Former President Jacob Zuma for his defiance of the Commission on April 9, directed that Zuma presents an affidavit of no more than 15 pages on what penalty should be imposed in the event of the Court finding against him. In such, it also suggests he outlines the mitigating reasons for such a sentence. Naturally, this latest directive of the Constitutional Court confirms a solstice moment in the ongoing series of episodes that details the case.

I’m on record to have said the Constitutional Court erred to in the first instance have entertained this case. The second of the errors of the Constitutional Court which is directly connected to the first and a natural outflow of the original error was its findings against Zuma to have been in breach. As such the CC directed that Zuma must appear and such appearance denies his rights to be silent.

It’s the latest directive to Zuma, therefore, flows out of the fact that Zuma was adamant he is willing to appear but not before the Chairperson of the Commission, DCJ Raymond Zondo. Subsequent to this ongoing stance the Commission filed heads of arguments to the CC in which it abandons its original intention to have Zuma appear instead it now was seeking a sentence of two-year jail term as a direct punishment for his non-compliance with the CC’s December ruling. In response to the Commission’s request for sentencing, the CC now rules and direct on the Commission’s case. The CC’s directive to Zuma is perhaps the third in a trilogy of errors it continues to web itself in while it hopes to wriggle itself of this inflicted hole.

When we say the Constitutional Court erred it is not a casual and blind statement when we appreciate who the Constitutional Court is and what it represents in our constitutional democracy. The CC is and remains the court of last resort since it defines the apex court from beyond which no appeal is judicially possible. It engages the constitutionality of the law in its execution of cases. It imbibes the confirmed trust of a custodian of justice. Since these constitute the essence of its existence it also becomes important to appreciate that has to all times strive to resist all forms of temptations to be seen as straying into the political arena or choice dominant narratives. When we say this about the CC it is not to deny the context of a political space that constitutes a South Africa. In this regard, its members warrant to be above reproach, less influenced by the factional party political interests of groups or even civil society or pseudo formations.

I have in a previous musing lamented who gets attracted in quality to our Judiciary benches. In such I asked that we be honest as to who sit to preside since they often represent people who had failed in the business law practice therefore becoming careerist judges. I equally argued that one cannot naturally assume their choice for the bench was necessarily a choice against capitalism and for human cause convictions. In fact, for many the choice came informed by job tenure and security in which the prospects are of a guaranteed lifelong salary. That by itself constitute a choice for an economy rooted in capitalism.

So how does one interpret the directive of the Constitutional Court? Let us first deal with the issue that the directive was issued in the Chief Justice’s name when we all know he recused himself from this case and effectively is not part of the case in hearing, deliberations or rulings and or findings. It is a given that any communication from the CC comes as sent by the Chief Justice’s designated office. It is therefore not unique that the communication details the CJ as the sender. One is not sure what to read into the CJ’s recusal in this instance since recusals are permissible in this setting.

It is important to ask is Zuma receiving special privilege treatment from the Constitutional Court as some advance? The logic for those who hold such an opinion comes informed by their understanding that this is a foregone conclusion, the CC ruled and Zuma defied it should not take rocket science for the CC to respond to the Commission’s quest for a sentence measurable in prison sentence as petitioned. Thinking about this case in this simplistic way is an easy temptation depending where you locate the axis of an argument for justice and fairness. Most we cry foul that Zuma is receiving special treatment have long concluded that Zuma wants special treatment as he is seeking to escape due sanction. The facts are Zuma is on record to have said he will not subject himself to any sanction the CC determines.

The challenge with this thinking of special privilege is its own nakedness to see the behaviour of both the Commission and the Constitutional Court in its now conspired search to treat make special laws and sanction for Zuma. Why is this not flagged by those who remonstrate Zuma gets special treatment as a plus for him? The more sensible question to ask is, is the Constitutional Court not seeking to do damage control for the errors I have earlier alluded to?

It appears a more salient contention may be interpreted as a directive that attempts at legitimising the Constitutional Court’s original appetite for this case. It thus may be that this is an intervention at fixing their administrative and legal errors for showing a choice interest for this case. In my non-jurist assessment, the Constitutional Court is trying to fix both legal and administrative errors it allowed itself to make when it showed an appetite for this case. It is seeking to bring Zuma into a process he did not participate in. While we accept that the CC may argue it needs not to consult both parties in having their versions, it only must be seen to have extended an opportunity to both parties, it still is cause for concern that the Court is asking Zuma to volunteer his mitigating reasons in the event that it finds against him. Logic and daily application would dictate that mitigation is an outflow of a guilty verdict handed down. In this instance, the court directs mitigation where it has not yet pronounced its verdict.

The obligation the Court cannot escape is its fiduciary responsibility to be seen and to work for the interest of justice and fairness, which demands it at all time to deal in wisdom and prove circumspect. This case, therefore, naturally brings the integrity of the Court into the centre position of any analysis.

It is my submission that contrary to the notion of Zuma receiving special treatment, this directive on the part of the Constitutional Court details more an attempt to drag Zuma in through the back door is less in the interest of justice but to legitimise their flawed process. It furthermore is not just seeking to drag Zuma into its compromised process but it is what one in a political sense may consider a honey-trap for if it succeeds to get Zuma to respond as directed, he would obliterate his claim that he didn’t participate in a process he consciously chose against. I would also obliterate his claim that he has apprehensions of the chair Zondo for which he lodged a legal case, and for which findings are still not yet concluded. Since Zuma’s stance hitherto was consistent with a sober mind, I would be surprised if he honours this directive from both a principles stance and from a tactical position. This directive then inadvertently confirms Zuma’s principled stance from the beginning to not respond to this confused CC legal and administrative mess. This looks like major damage control because the CC as apex court allowed itself to be used in political games. It’s a pity that we have reached this place in our judiciary measurable in the apex court.

On another score, it appears the campaign to have Zuma brought to the Commission on the terms of a questionable claim of a constitutional crisis entangled by desperate attempts to blackmail him to appear coupled with the list of people and delegations President Ramaphosa send and had attempted to Zuma is now culminating in this Constitutional Court directive to Zuma. It is as if someone determined there is sufficient drummed up support for the sophism of a constitutional crisis with Zuma as the one responsible for such.

The case before the CC evidence its own sets of precedents in that it is the first time it is asked to send someone straight to jail as a court of the first instance from which there can be no appeal. It is also the first time it is asked to do so where the other side has not been argued and indeed where the person was not in attendance. It is also the first time that the number two of the apex court is directly involved in a matter and that it appears refuge was taken or positional power was used to force the Constitutional Court to show an appetite for the case. I have said before we cannot leave out of the equation the person of the DCJ Zondo for his current and possible future role of becoming the next CJ and how this dynamic impacted the choice of the Constitutional Court to show an appetite for this case and in the absence of the CJ Mogoeng defines all those in the CC as juniors to Zondo.

Perhaps the real constitutional crisis laid bare in what we now have as precedent points to a lack of collective wisdom on the part of the judges in this apex court. When judges at this level lack the collective wisdom to know that including Justice Dhaya Pillay was wholly improper, then the case is stands that we have a crisis in the judiciary.

It is common knowledge that Justice Pillay made unsavoury and judgmental comments about President Zuma in the past. Yet, the court found comfort to have Pillay participate in its flawed process. Does this not point to the arrogance of a plausible political agenda ?

Perhaps more troublesome is the fact that these judges know that there will be no consequences for their utter lack of judgment in this regard. Them knowing there will be no consequence must constitute a constitutional crisis in itself Even more disparaging is the expression or consequences for judges as equally inescapable and measurable judgment in Instead, even the consequences for judges depend on the factional divide in our political landscape. That is what will lead us to a constitutional crisis

We must also not miss the point that the CC in this instance is giving effect to the principle that even after being found guilty the accused is entitled to be heard in the penalty phase. He can also offer evidence in mitigation.

However, this is a step in a legal sense that appears bizarre. Normally the determination of guilt phase is completed first, and sentencing follows as a second step. The current directive asks Zuma to speculate that the CC has already found him guilty since it expects him to make his case for the form of sanction measurable in a two-year sentence.

The nagging problem with the directive of the CC is that in this instance it has not made any decision or doesn’t want to let the accused person know what the decision is, while it expects the accused to respond with an appeal for mitigation. This has to raise eyebrows even from the most ardent Zuma haters.

Clyde N. S. Ramalaine
A Lifelong Social Justice Activist Political Commentator & Writer is a SARChi D. Phil candidate in Political Science with the University of Johannesburg. Chairperson of TMoSA Foundation – The Thinking Masses of SA