Court reaffirms the supremacy of SA’s Constitution

In their ruling that Jacob Zuma is guilty of contempt of the Constitutional Court, the justices have honoured the letter and spirit of both the country’s founding document and their institution.

Acting Deputy Chief Justice Sisi Khampepe’s Constitutional Court majority judgment that sentenced former president Jacob Zuma to 15 months’ imprisonment for acting in contempt of the court drips, on every page, with its own kind of contempt.

It is a contempt for what she describes as Zuma’s “malevolent attitude” towards the Constitution, the Constitutional Court and the judiciary in general. It is also a contempt for the kind of immoral, lawless, unequal and iniquitous kleptocracy that our post-apartheid Constitution seeks to deter – but to which Zuma, with his baseless statements, would have us return. A time in our history when Big Men operated with oppressive and self-aggrandising impunity, and rights only existed for the rich and powerful (and white). 

This contemptuous and contumacious behaviour Khampepe locates in Zuma’s refusal to abide by the Constitutional Court’s order that he appear before the commission of inquiry into state capture chaired by Deputy Chief Justice Raymond Zondo, as well as a series of “relentless” and “malevolent” attacks on those entrusted with protecting the Constitution and articulating its vision.      

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In his ill-tempered public rants, Zuma has accused the justices of the court of lacking independence and impartiality. Of acting, with regard to him, much like apartheid-era torturers did. Of colluding with Zondo to suppress his constitutional rights as part of a grander “political narrative”. Of conspiring against him. Of targeting him in the manner that the apartheid government did Pan Africanist Congress leader Robert Sobukwe. 

These are grave accusations that carry profound implications for the legitimacy of the judiciary and the rule of law. None of them has been backed up with a shred of evidence. Instead, Zuma has embraced the dangerous anti-factual posturing of Big Men around the world — from former US president Donald Trump to Indian Prime Minister Narendra Modi —  in their pursuit of fascist “idiocracies”.

In these missives from Nkandla, he has confirmed a basic misunderstanding of democracy. Likewise, a delusional belief that he is, somehow, exceptional to the law and its procedures. That, essentially, all South Africans are not equal.

This is extremely dangerous and Khampepe recognises it. 

Recognising the urgency

On almost every page of her judgment, Zuma’s accusations are described as “reckless”, “egregious”, “unsubstantiated”, “scurrilous” and “reprehensible” – extraordinary adjectival use from a justice who gives the impression of a circumspect school teacher and whose demeanour is as austere as her judgment writing.

Khampepe and the six justices who concurred with her understand how urgent it is to censure Zuma and prevent him from further denigrating and undermining the courts, our laws and the very nature of our constitutional democracy. 

For as much as this is about Zuma, it is also not. Others have acted in contempt of orders of the Constitutional Court before. Both the eThekwini and City of Johannesburg municipalities have done so in relation to, respectively, evictions of land occupiers and the removal of informal traders from the streets. The Johannesburg metro police went so far as arresting the lawyer representing the street traders in 2013 when she sought to bring to their attention the court’s order earlier that day, which reinstated traders to their stalls.

Ordinary citizens, more of whom join the precariat daily as unemployment soars and the government goes AWOL, are directly under threat of the impunity, authoritarianism and lawlessness that Zuma’s behaviour and proclamations seek to engender.  

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Zuma is the first former president of a democratic South Africa to act with such disregard for the Constitutional Court. And he has a following that may seek to mimic his behaviour – especially when the ordinary South African is, on a daily basis, faced with a political sphere in which a lack of accountability is being normalised by those in the executive, Parliament and among the various political parties. 

“I am enjoined to take stock of the relentlessness of the alleged contempt at issue,” Khampepe notes. “It cannot be gainsaid that the longer that Mr Zuma’s recalcitrance is allowed to sit in the light, and heat, of day, so the threat faced by the rule of law and the administration of justice curdles. The ongoing defiance of this court’s order, by its very nature, renders this matter urgent. In fact, rarely do matters arrive at the door of this court so deserving of decisive and urgent intervention.”

Likewise, in granting direct access to Zondo’s lawyers to approach the court, the majority finds it is “perspicuous that it is in the broad public interest that this court sends an unequivocal message that its orders cannot simply be ignored with impunity. If this court does not exercise its jurisdiction to do so and thereupon grants direct access, its authority becomes phantasmic, and the Constitution this court exists to uphold, chimeric. No more needs to be said. Because of these exceptional circumstances it is in the interests of justice to grant direct access, and to do so on an urgent basis.”  

Beyond the Zondo commission

As Khampepe argues, the urgency of the Zondo commission’s application goes beyond its work. It goes to the very foundation of our democracy. This judgment defends the only thing that unites fractious South Africans: the Constitution, its values and its vision for an equal society.

In a judgment that begins with an excerpt from former president Nelson Mandela’s speech at the inauguration of the Constitutional Court on 14 February 1995, Khampepe endorses the vital importance of protecting the judiciary and the Constitution into perpetuity.

As Mandela said that day: “People come and people go. Customs, fashions and preferences change. Yet the web of fundamental rights and justice which a nation proclaims must not be broken. It is the task of this court to ensure that the values of freedom and equality which underlie our interim constitution – and which will surely be embodied in our final constitution – are nurtured and protected so that they may endure.”

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As Khampepe points out, this is not the first time Zuma has been reprimanded by the courts for making unsubstantiated and reckless attacks on the judiciary. In April this year, the Supreme Court of Appeal handed down judgment in Zuma v Democratic Alliance and Another and ordered the former president to pay back some state money used to cover his myriad legal cases based on the “Stalingrad” approach to keeping him out of jail. 

In confirming costs against Zuma – as the Constitutional Court has similarly done – the appeal court noted the allegations that the former president had made against judges of the high court, where he had lost the first round. In papers and arguments at the appeal court, Zuma’s counsel had, among various other allegations, claimed that a full bench of the high court had been unfair, biased and “hell-bent” on finding against him “on any possible point”.

The appeal court found that these “most serious” allegations were “absent any factual foundation” and “scandalised” the court. “Imputing bias to a judicial officer should not lightly be made. Nor should the imputation of a political motive. This is not to suggest that courts are immune from criticism, even robust criticism for that matter. But the criticism encountered here falls outside acceptable bounds.”

Powerful men peddling lies

Since being fired as deputy president of South Africa in 2005, Zuma has consistently used rabid and vapid sophistry in his public rants proclaiming his victimhood and a grand conspiracy against him. His more recent outbursts have sought to undermine the only bulwark against state capture: the judiciary. 

It is a practice that has been echoed by other powerful men in the public sphere. The EFF and its leader, Julius Malema, have also publicly peddled the cynical narrative of citizens being unable to trust “captured judges”. Again, without any evidence. Again, with the seeming intention of pushing South Africa away from the rule of law and towards a brutal playground for the powerful. 

These attacks against the judiciary are, in Malema’s case, especially worrisome because he sits on the Judicial Service Commission, the body that interviews and recommends judges for appointment. He has used the platform to badger and bully judges in attacks that are often political, sometimes seemingly racist, and always reprehensible.

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Khampepe also found it necessary to “acknowledge and lament the evident rise in a casual and reckless attitude being adopted by many litigants who see it fit to level unsubstantiated accusations against the judiciary, both in the public domain and in their pleadings before the courts”.

This she found an “inexcusable state of affairs” that “cannot be tolerated or encouraged. Let me be perfectly clear: it is not permissible for a disgruntled litigant to besmirch the reputation of the judiciary or its members without fear of consequence.”

The majority of the Constitutional Court recognised that if the baseless notion that our judges are corrupt takes root – despite the lack of evidence – then the tree of democracy under which South Africans gather will wither and die.

Mandela noted in his 1995 address at the court that “[o]ne of the things one discovers when coming into office is that there is no shortage of rubber stamps. South Africans did not establish this court to be another rubber stamp. We expect you to be creative and independent. We expect you to be true to the oath you have just sworn.”

No return

In their reckless attacks on the judiciary, Zuma, Malema and others of their ilk would also have us embrace an authoritarian, fascist state without rights, justice and equality. South Africa has been there before. 

As Mandela pointed out in 1995, South Africa must always refuse to return there. 

And we must always assert the supremacy of the Constitution, as the court did this week. For, as Mandela said: “Constitutionalism means that no office and no institution can be higher than the law. The highest and the most humble in the land all, without exception, owe allegiance to the same document, the same principles. It does not matter whether you are black or white, male or female, young or old; whether you speak Tswana or Afrikaans; whether you are rich or poor or ride in a smart new car or walk barefoot; whether you wear a uniform or are locked up in a cell. We all have certain basic rights, and those fundamental rights are set out in the Constitution.”

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In 1995, Mandela reminded the justices of a new Constitutional Court that “[t]he authority of government comes from the people through the Constitution. Your tasks and responsibilities [as judges], as well as your power, come to you from the people through the Constitution. The people speak through the Constitution. The Constitution enables the multiple voices of the people to be heard in an organised, articulate, meaningful and principled manner. We trust that you will find the means through your judgments to speak directly to the people.”

This week seven justices of the Constitutional Court heeded those words.

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