Nicole Fritz: Zuma’s Contempt is Not Just for The Court, But For Democracy

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.

Civil Society Supports Zondo Commission – Tells Zuma to Respect the Constitution

9 March 2021

Some of South Africa’s foremost civil society organisations have come out strongly in support of the State Capture Commission and have insisted that former president Jacob Zuma abide by the law. The 13 civil society organisations released a joint statement overnight stating that the politicising of the Zondo Commission needs to stop, while condemning Zuma’s continued defiance of the commission.

The statement reads:

We, representatives of civil society, jointly issue this statement condemning former president Jacob Zuma’s insistence on defying the State Capture Commission and the dangerous attacks he and other political actors have levelled at the judiciary without offering evidence in support of such charges.  

This kind of behaviour and blatant disregard of the law shows that those who are implicated in looting the state will place their own selves before the law, and before others whose lives their crimes have impacted.

South Africans have been waiting patiently, for nearly a decade, to hear the truth about State Capture. The Zondo Commission, which is funded by the public, must be allowed to do its job on behalf of the country. 

Activists, whistle-blowers and community leaders have shown their support of and submitted evidence to the commission.  

We wish also to indicate our support for the commission and the importance of its mandate at a time when it faces such baseless attacks. It is time to stop politicising the Zondo Commission and follow the laws that apply to us all. 

We know all too well that we come from a past of unconscionable inhumanity and inequality, where immunity for those who oversaw and implemented apartheid was the order of the day.

Our Constitution was always intended to represent a break from that past. It rests on the predicate that all of us are equal before this law

There can be no more harmful assault on this bedrock than that a former president, who has enjoyed every power and privilege under this law – and continues to enjoy the privileges of his former office – should insist that he be immune from the reach of the commission and of the Constitutional Court, and that this impunity stand unchecked. 

That he would insist on immunity while also seeking to sully the reputation of our judiciary, but making no credible case for these damaging charges, is but a further affront. 

Every citizen, including the state itself, is beholden to the Constitution, including Mr Zuma, and we trust that the Constitutional Court will find accordingly when it considers this matter on 25 March 2021. 

We have all come too far to allow underhanded politics to poison the well of truth and justice.

Signed by: 

  • Ahmed Kathrada Foundation (AKF) 
  • Alternative Information & Development Centre (AIDC)  
  • Council for the Advancement of the South African Constitution (CASAC) 
  • Corruption Watch (CW) 
  • Dullah Omar Institute (DOI) 
  • Freedom Under Law (FUL) 
  • Legal Resources Centre (LRC) 
  • MyVoteCounts (MVC)  
  • Open Secrets (OS) 
  • Organisation Undoing Tax Abuse (OUTA) 
  • Public Affairs Research Institute (PARI) 
  • Right2Know (R2K) 
  • South African Faith Communities’ Environment Institute (SAFCEI)

First published in Daily Maverick by Civil Society Group on State Capture.

Zuma’s Conduct is a Calculated Defiance of the Rule of Law, says FUL

2 February 2021


Mr Zuma has now gone too far. When he took office as president of our country he promised to be faithful to the Republic and to obey, observe, uphold and maintain the Constitution and all other law. Many witnesses have told the Zondo Commission that he and his associates have breached each of those promises. 

The country has watched Mr Zuma play clever tricks, desperately trying to avoid his having to respond to these accusations. The Constitutional Court has now made plain that the time for this ducking and diving is past. Instead of complying with its simple instruction, Mr Zuma has now resorted to his well-worn defence of victimhood wrapped in populism. 

This time, though, it is breathtaking in its presumption. Mr Zuma not only blames the dismissal of each of his lawyers’ evasive tactics on dishonest judges but seriously equates his fear of the witness stand with the heroic battle for freedom and justice of the late Robert Sobukwe. This is bare-faced effrontery, even for Mr Zuma’s spin-doctors.

Of course Mr Zuma’s conduct – ably aided and abetted throughout by his lawyers – has been in calculated defiance of the rule of law. If he persists in his refusal to respond to the mass of allegations, we look forward to the law taking its course.

No One is Above the Law, says FUL, Not Even the Former President

20 November 2020


No one is above the law, not even a former president.

Mr Zuma’s walk-out of the State Capture Inquiry on Thursday was a calculated act of defiance of the Commission and a wilful display of contempt for the rule of law. The former president was given every courtesy by Judge Zondo, who afforded him the fullest opportunity to present his argument and by his conduct Mr Zuma made plain that the whole recusal application was a sham. Mr Zuma never intended giving evidence and the argument presented on his behalf was without merit.

The former president was lawfully summonsed to give evidence, he blatantly refused to do so. The law allows a witness who has good cause not to give evidence before a commission to advance such cause and to be excused. Instead Mr Zuma preferred to put up a political show. Freedom Under Law respectfully suggests that such disgraceful conduct by a former head of state must compel the strongest action from the Commission in response. If a former president can get away with such a blatant challenge to the rule of law, how can the rest of us be expected to obey the law.

FUL Concerned at Reports of Mass Surveillance of Law-Abiding Persons, Including its CEO

12 March 2019

According to a news report yesterday, the State Security Agency under the command of former President Zuma subjected numbers of private individuals to unlawful surveillance. These included Nicole Fritz, the Executive Officer of Freedom Under Law.

The suggestion that either Ms Fritz or FUL warranted surveillance is not only preposterous but profoundly disturbing. The pursuit of a perfectly law-abiding person and an equally respectable Rule of Law agency reflects an alarming level of paranoia among our securocrats. 

It also reveals a frightening lack of judgment and common-sense on the part of those entrusted with our national security if they cannot recognise the lawful activities of public-interest agencies such as Freedom Under Law. Beside all else, it represents an unforgivable wastage of resources.
Much more ominously, it reveals a deep-seated contempt for the Constitution and the human rights it guarantees.