1 July 2021
When acting chief justice Sisi Khampepe took her place on the judicial dais in the Constitutional Court on Tuesday to deliver judgment in the matter of the Zondo state capture commission versus Jacob Gedleyihlekisa Zuma, she seemed to encounter a problem with sound. A judicial clerk hovered before the dais, waiting for Khampepe to look up from the judgment so she could be alerted to the need to switch on her microphone. If one were looking for signs and metaphors — and we were all looking on this much-anticipated judgment day — it seemed not the most propitious signal.
And yet there can be no question that when this ringing and forceful judgment was delivered, finding the former president guilty of the crime of contempt of court and ordering him to an unsuspended sentence of 15 months’ imprisonment, it was in every sense as if Khampepe had breathed out judicial fire.
This wasn’t done by reference to the majesty of law, to legal tenets and principles distilled over centuries, to any ostensible invincibility or indestructible essence of our legal systems. Rather, at every turn Khampepe seemed to underline the precariousness and vulnerability of the judicial system. There she sat, alone at the judicial dais, constructed to accommodate the full 11 Constitutional Court judges and positioned so they do not loom over proceedings but meet eye to eye with those they are addressing.
Right at the introduction of her address she spoke of the “lonely work of the judiciary”, of how it must work “impervious to public commentary and political rhetoric”. She repeated that the judiciary has no constituency, no purse and no sword, and that instead it must rely on moral authority for its legitimacy and to do its work; that it is the trust and confidence of the people in this authority on which it solely depends.
Again and again she underlined the exceptional and extraordinary nature of the case, not shying from the fact that there was little applicable case precedent to guide her. So markedly distinct and unprecedented was the matter, said Khampepe, that she had “found very little solace in our jurisprudence.”
As the apex court, the ultimate guardians of the constitution, she explained that allegiance is owed to the “constitution alone, and accordingly [we] have no choice but to respond as firmly as circumstances warrant when we find our ability to uphold it besieged”. This north star of our constitutional order ensures that however unprecedented the matter, “I do no more than apply the law, cautiously, to these new and unusual circumstances”.
Against this solitary, daunting work of the courts, Khampepe set out the attack authored by Zuma that imperilled the judicial system: “Never before has this court’s authority and legitimacy been subject to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.”
Her judgment makes clear that it isn’t just that Zuma has singularly failed to heed the authority of the commission of inquiry into state capture, submit the affidavits and attend its proceedings as he is required to do. It isn’t only that he has failed to comply with the Constitutional Court’s own ruling that he observe the commission’s summonses and directives, although this is the nub of the contempt offence. His conduct is aggravated, made more egregious still, in that he scorned the ample opportunities afforded him by the court to come to explain his actions, instead using these opportunities for further inflammatory, insidious attack, casually but calculatingly publicly denigrating the court’s authority.
The nature of the harm caused by the offence of contempt of court, says Khampepe, is most particularly “the overall damage caused to society by conduct that poses the risk of rendering the judiciary ineffective and eventually powerless [and] is at the heart of why our law forbids such conduct.”
That comes with an important caveat — that scurrilous, entirely unsubstantiated smears directed at the judiciary are to be protected against not to protect “the feelings and reputations of judges” but to preserve “their ability and power to perform their constitutional duties”. Robust and informed public debate about judicial affairs is an entirely different matter, and the courts are certainly not to be shielded from either the public or all criticism.
Khampepe writes for a clear majority of the court: seven to two. It is her judgment that is the law. Already though, supporters of Zuma point to the minority judgment written by judge Leona Theron, in which judge Chris Jafta concurs, to maintain — as is the leitmotif in all of Zuma’s attacks on the judiciary — that he has been unfairly victimised. They would do well to heed the third paragraph of Theron’s judgment: “Mindful of the intense public interest in this case, let me be absolutely clear: both this judgment and the main judgment would impose a period of imprisonment on Mr Zuma because he is in contempt of this court’s order.”
The judges are unanimous that Zuma is guilty of contempt of court owing to his scandalous disrespect for the court. The minority would, however, have imposed a suspended sentence, conditional on compliance with the commission’s orders, or have referred the matter to the director of public prosecutions for prosecution.
This is not to minimise the nature of the disagreement between the majority and the minority and the robustness with which it is engaged. But in a land where a previous occupant of the highest office the constitution can bestow, who has sworn twice over to uphold and protect the constitution, can also be the author of the gravest threat ever faced by the judicial process, it is essential that opportunity for fabrication, mistruth and misrepresentation is limited.
Khampepe sought none to accompany her as she headed down her constitutionally emblazoned judicial path, yet she was not remiss in acknowledging all those who have made that constitutional path possible, writing that Zuma’s scurrilous claims to unfair treatment from the court “are an insult to the constitutional dispensation for which so many women and men fought and lost their lives”.
And if she opened her judgment with an explicit reference to the words of Nelson Mandela, she closed with a far more oblique tribute: “I, too, cherish the ideal of a democratic and free society in which all persons are both as equal in opportunity as they are in accountability, before the law.”
Tracing a line from Madiba’s speech, alone in the dock during the Rivonia trial, facing the prospect of the death penalty at the instance of a cruel, unjust, racist regime, to Khampepe — alone on the judicial dais, facing down grave, unprecedented attack on the legitimacy of our democratic constitutional order — can’t but leave you humbled … at the greatness and the gravity, and the grubbiness that has come between.
Nicole Fritz is CEO of Freedom Under Law
This piece was first published in Business Day, on 30 June 2021, available here.