The Constitutional Court has sentenced former president, Jacob Zuma, to 15 months imprisonment for contempt of court.
Acting Chief Justice Sisi Khampepe, rendered the majority judgment on Tuesday, 29 June 2021, which found that Zuma was fully aware of the consequences of his actions and willfully defied the court order to appear before the Zondo Commission and subsequently issued politically motivated statements criticising the judiciary and the Constitutional Court. Never before has the authority and legitimacy of the Constitutional Court and the judiciary found itself under such attacks. Should Mr Zuma be allowed to continue defying court orders, this may inspire others to also do so hoping that no action will be taken.
“The majority holds that a coercive order which uses the threat of imprisonment to ensure compliance will be both futile and inappropriate,” Acting Chief Justice Sisi Khampepe said.
She said there was “no sound basis” for Zuma to claim that he was being unfairly treated by the courts.
“The majority finds itself with no choice but to find that this kind of incalcitrance cannot be tolerated,” Khampepe read.
She pointed out that Zuma’s case was exceptional because of his position as a former president as well as his criticism of the judiciary.
The Hellen Suzman Foundation applied to be admitted as an amicus curiae (a friend of the court) and the court was satisfied that the Hellen Suzman Foundation had satisfied the requirements for admission as an amicus curiae and that its submissions with regards to sentencing were very helpful.
The Court rejected Mr Zuma’s out of court public statements and found that the only appropriate sentence was an unsuspended punitive sentence of 15 months imprisonment. A coercive order compelling Mr Zuma to appear before the commission would be futile as Mr Zuma has continuously declared that he would rather be imprisoned than appear before the commission. Such an order would further plunge the constitutional court into deeper waters. Mr Zuma was given an opportunity to address the court in mitigation before a sentence can be imposed, but he declined to use that opportunity. Instead, he addressed a 21 page letter to the Chief Justice, in which he attacked the judiciary. The Court went to great length to protect Mr Zuma’s constitutional rights.
The Court ordered that Mr Zuma must hand himself over to the police at either Nkandla or Johannesburg Central police station within 5 calendar days to commence serving his sentence failing which the Minister of Police and the Commissioner of Police are ordered to ensure that he is handed over to a Correctional Center to commence serving his sentence.
Zuma supporters remained at his Nkandla residence in anticipation of the judgment. The MKMVA (Umkhonto we Sizwe Military Veterans Association) members who have been stationed outside his home since late March 2021 were excited that at last the judgment would be handed down. They sang ANC songs from their tent base outside the compound and were seen parading outside.
Zuma’s son, Edward Zuma, said that the 15 months term of imprisonment imposed on his father was unfair and that Zuma will not go to prison and that instead, he, Edward, would rather die defending his father.
Zuma’s troubles with the constitutional court commenced in December 2020 when the Zondo Commission, which is probing allegations of corruption during his nine-year rule, approached the court to ask it to compel him to appear and answer all questions addressed to him.
The court then granted the order, but Zuma decided to defy it, alleging that the commission and the court were victimising him through exceptional and harsh treatment and that both institutions were politicising the law to his detriment.
The secretary of the commission, Professor Itumeleng Mosala, requested the court to punish Mr Zuma for contempt of court. On the same day, Mr Zuma issued another public statement and said that he had taken a political position not to take part in the matter because the judiciary was engaged in political battles against him.
“It is no longer my attendance that they seek, but they have joined the political campaign to destroy me. It also reveals that this was always the commission’s mandate,” Mr Zuma declared at the time.
He accused Deputy Chief Justice, Raymond Zondo, who chairs the commission as “exploiting his proximity to the Constitutional Court to protect and advance his interests as chairperson of the commission”.
When the matter was heard on March 25 this year, advocate Tembeka Ngcukayitobi, acting on behalf of the commission, requested the constitutional court to hand down a two-year sentence, saying that Mr Zuma had made serious allegations against the judiciary and the Constitutional Court without any evidence to back them up.
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” Basically he’s using the language of daring the court, ‘I’m not afraid to go to prison. Even prior to coming to the court in December 2020, the commission had tried to use its coercive powers. I know that there is criticism in the judgement, but he was given leeway that would not ordinarily be given to witnesses. But the fact is the coercive powers were tried, they didn’t work. There is no scope for coercive powers, the only scope that remains now is imprisonment. Utterances that Mr Zuma has made are malicious utterances. He is also acting without any facts – Mr Zuma completely disregards the evidence,” Ngcukayitobi told the court in March when arguing why Zuma should be given a direct term of imprisonment.
The minority judgment, written by Jafta J and Theron J concurring, concluded that a punitive term of imprisonment would be unconstitutional as it denies Mr Zuma an opportunity to rectify his contempt and that an appropriate sentence would be a coercive term of imprisonment which will enable Mr Zuma to either attend the commission or go to prison if he fails to do so.
In summary, the court gave the following orders:
With the deadline looming for Zuma to hand himself over, masses and masses of Zuma supporters have converged at his Nkandla home vowing to prevent the police from arresting Mr Zuma.
Addressing his supporters outside his Nkandla home in KwaZulu-Natal, Zuma said that he has been sentenced to 15 months without any trial being held against him and that he has instructed his lawyers to bring an application to return the matter to court for a proper hearing and that he awaits the outcome of that application. He further said that sending him to prison would amount to imposing the death penalty on him as he would not survive the covid-19 pandemic in prison.