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South Africa is ‘on a slippery road to judicial tyranny’

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Advocate TembekaNgcukaitobi’s response to Justice Bronwen Theron is technically correct but falls short of satisfying the precepts of fairness and justice, the writer says. – Picture: Remko De Waal / ANP MAG / ANP via AFP

By Sipho Seepe

Whichever way you look at it, the Constitutional Court has ceased to be a neutral arbiter in a case involving the Electoral Commission of South Africa (IEC), former president Jacob Zuma and the uMkhonto weSizwe Party (MKP).

Advocate Dali Mpofu SC could not have been more graphically blunt in his application for the recusal of some of the members of the apex court.

In determining a reasonable apprehension of bias, Mpofu argued that the question confronting the justices is how someone else, who would have been in the position of Zuma, would feel about having to appear “before the people that they regard as their jailors now having to decide whether that jailing was indeed a conviction for the purposes of Section 47 (1) … surely all of us should know this, anybody really in their right mind will have jitters about this”. “And that is the test.”

Indeed, it is for this very reason that Justice Dhaya Pillay decided to recuse herself.

It is reassuring that scholars have begun to critique the Constitutional Court’s decisions. The Helen Suzman Foundation researchers, Christopher Fisher and Divashnee Naidoo, join a growing number of concerned academics.

In their 52-page article in Constitutional Court Review 2023, Volume 13, 363–413, (https://doi.org/10.2989/CCR.2023.0014) the two researchers argue that a majority of the Constitutional Court “erred in its reasoning and outcome when it sentenced former South African president Jacob Gedleyihlekisa Zuma to 15 months’ imprisonment for contempt of court, without affording him the Constitution’s Section 35(3) fair trial rights”.

There is little doubt that the integrity of the Constitutional Court is at stake. Respect and integrity are earned. They are not assumed. They cannot be forcefully imposed, not even by the Constitutional Court. Abraham Lincoln, the 16th president of the United States, could not have framed it better. “Nearly all men can stand adversity, but if you want to test a man’s character, give him power,” he said.

Power is both seductive and addictive. Often individuals have abused it for no reason other than the fact that they can. There is a growing impression that the apex court is guilty of displaying an arrogance of power when handling anything that has to do with Zuma.

No one, no grouping, including the Constitutional Court, should be allowed to introduce tyranny by stealth. The dictum that “the price of freedom is eternal vigilance” could not have been more apposite. Silence would be a betrayal of the promise of freedom. We should be aware that the courts, Parliament and government are sites of struggle for liberation and meaning.

What makes the Constitutional Court’s refusal to recuse some of its listed members bizarre is the fact that Deputy Chief Justice Mandisa Maya had subsequently asked litigating

parties to make submissions on whether “having not refrained from expressing herself, ought she (Janet Love) have recused herself from participating in the Electoral Commission’s determination of (Zuma’s) eligibility”? The idiom that “what is good for the goose is good for the gander” seems to have escaped the honourable court. To quote Isaac Hayes, “Like in quicksand, the more the Constitutional Court wiggles, the deeper it sinks.”

It suffices to mention that in its ruling, the Electoral Court had found no bias against Zuma. It concluded that “what is clear to this court is that the statement made by Commissioner Love, in a context in which she was speaking for the Commission, is ambiguous and without specificity”.

Interestingly, the justices of the Constitutional Court are alive to the directions that Chief Justice Raymond Zondo has issued in which he asked them to determine whether they are faced with sufficient grounds for recusal in a matter involving former Judge President John Mandlakayise Hlophe.

The grounds on which they have been asked to consider pale in significance compared to the case before them. The grounds include allegations of enmity between one justice and the applicant; membership of the Judicial Service Commission (JSC), having previously adjudicated cases relating to the applicant; and having appeared as counsel for two justices of this court in the disciplinary process that the JSC conducted against the applicant.

If these are grounds they are asked to reflect on, then surely the jailing of Zuma should be considered as most deserving of serious attention.

This lack of judicial discernment serves to vindicate Dr Ziyad Motala, a professor at Howard Law School in Washington DC, in his damning assessment of the Constitutional Court (What has gone wrong with our Constitutional Court? Sunday Times, August 19, 2021).

Motala argued that some of the Constitutional Court judgments “smack of personal predilections and politicking … Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects as a junior moot court bench”.

As this saga unfolds, it is disturbing that society has not been up in arms in expressing its outrage at the re-introduction of “detention without trial” by the Constitutional Court. Detention without trial ranks as one of the most barbaric and diabolical repressive measures that the apartheid government unleashed on our people.

The acquiescence of the application of this measure by the foundations masquerading as guardians of our democracy is shocking but not surprising. Their hatred for Zuma supersedes their commitment to our constitutional values.

Advocate Mpofu could not have been more dramatic in reminding us of the obscenity of detention without trial. “Mr Zuma is the only human being in this country who was imprisoned without having pleaded guilty or not guilty since 1994, or since 1652.”

There is little doubt incarceration of Zuma, without the benefit of a trial, would continue to haunt the Constitutional Court. Justice Theron’s disquiet about the Constitutional Court’s decision resurfaced in her questions.

Justice Theron asked, “The Magistrate’s Court gets its penal jurisdiction from the Magistrate’s Court Act; the High Court gets its penal jurisdiction from the Superior Courts Act, as I understand, the Supreme Court of Appeal does not have penal jurisdiction, where does the Constitutional Court get penal jurisdiction from to impose a sentence as a court of first instance?”

Advocate Ngcukaitobi SC’s response is technically correct but falls short of satisfying the precepts of fairness and justice.

Arguably, the unconstitutional decision by the Constitutional Court to sentence Zuma has come to haunt the apex court. It is inescapable that in deciding whether the IEC is correct in barring Zuma from being a member of Parliament, the apex court may be forced to reinterpret its own decision.

In doing so, it becomes both a referee and a player. However, it is unlikely that the justices would reconsider their position. Judges are not known to acknowledge that they may have erred.

We should disabuse ourselves of the notion that judges are inherently objective in determining matters before them. Contrary to popular belief, judges bring to the bench their personal, racial, historical and ideological predispositions and experiences in determining matters before them.

A case in point is a matter involving the removal of street names associated with the system of apartheid. In 2016, a majority judgment comprising Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J supported the removal of old street names by the Tshwane Municipality to pave the way for street names that recognised the heroes and heroines of previously disadvantaged people.

Froneman J and Cameron J, both white, disagreed with the judgments written by Mogoeng CJ (first judgment) and Jafta J (third judgment). Top of mind for AfriForum was the “need to protect the constitutional right of the Afrikaner people to enjoy their culture and to avert the irreparable harm that could flow from the removal of the old street names”.

In determining the eligibility of Zuma to stand for membership of the national assembly, the Electoral Court paid attention to the proviso in S47 (1) (e) that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired”.

The Electoral Court contended that “a fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity”.

It concluded that “courts should not unduly strain the reasonable meaning of words when doing so”. It needs to be emphasised that Zuma was effectively denied the right to appeal both his convictions and sentence. The remark by Professor Brian Williams is worth repeating. In his words, the unappealable sentencing of Zuma cuts into the arteries of democracy (Cape Argus, July 9, 2021). Williams is understandably outraged.

“How can Zuma, an accused person found guilty of a ‘contempt of court offence’ have [fewer] rights than murderers and child molesters? How can there be such raucous public celebration of this antagonistic contradiction, which lacks a crucial justice and peace balance? This ruling cuts into the arteries of our constitutional democracy,” he said.

Whichever way the Constitutional Court rules, we are in deep trouble for as long as there is no correction to the detention without trial precedent-setting judgment. If it can happen to Zuma, it will certainly happen to you. Nothing prevents the Constitutional Court from invoking this ruling against any one of us. Be very afraid. We are on a slippery road to judicial tyranny.

Professor Sipho Seepe is an independent political analyst.