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[2021] ZAKZPHC 40
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Zuma v Minister of Police and Others (4686/2021P) [2021] ZAKZPHC 40; [2021] 3 All SA 967 (KZP) (9 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: 4686/2021P
In
the matter between:
JACOB
GEDLEYIHLEKISA
ZUMA
APPLICANT
and
THE MINISTER OF
POLICE
FIRST RESPONDENT
NATIONAL COMMISSIONER
FOR THE SOUTH
AFRICAN POLICE
SERVICE
SECOND RESPONDENT
MINISTER OF JUSTICE
AND CORRECTIONAL
SERVICES
THIRD RESPONDENT
THE SECRETARY OF THE
JUDICIAL
COMMISSION OF INQUIRY
INTO STATE
CAPTURE, FRAUD AND
CORRUPTION IN THE PUBLIC SECTOR, INCLUDING
ORGANS OF
STATE
FOURTH RESPONDENT
RAYMOND MNYAMEZELI
ZONDO N.O.
FIFTH RESPONDENT
THE PRESIDENT OF THE
REPUBLIC
OF
SOUTH
AFRICA
SIXTH RESPONDENT
THE
HELEN SUZMAN FOUNDATION SEVENTH
RESPONDENT
ORDER
The following order shall
issue:
The application is
dismissed with costs, such costs to include those occasioned by the
employment of senior counsel.
JUDGMENT
Mnguni
J:
Introduction
[1]
This is an urgent application in which the
applicant, Mr Jacob Gedleyihlekisa
Zuma
(Mr Zuma) seeks an order in two-fold:
(a)
First (Part A):
‘
.
. .
2.
That, pending the outcome of the rescission
application, which is before the Constitutional Court, in respect of
the matter of
Secretary of the Judicial
Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector
including Organs of Sate v Zuma and
Others
(Case No CCT52/21), and the due
determination of orders in Part B of this Notice of Motion, an order
is hereby granted:
2.1
Staying and/or suspending the execution of
the relevant orders in the aforementioned orders pending the outcome
of the application
for an order of reconsideration and rescission of
orders and judgment in
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the
Public Sector including Organs of
Sate v Zuma and Others
referred
to in paragraphs 2 above; and/or
2.2
Interdicting the first and second
respondents from executing the orders
in
paragraphs 4, 5 and 6 of the aforementioned judgment.
. . .’
(b)
Second (Part B):
‘
5.
Declaring
that in circumstances such as the present, the crime of civil
contempt
of court
must be conducted in accordance with the provisions of the
Criminal
Procedure Act, 1977
;
6.
Declaring the
Criminal Procedure Act 51 of 1977
to be
unconstitutional insofar as it fails or omits to make any provision
for the conduct of a criminal trial in respect of proceedings
in
which contempt of court proceedings are conducted for the sole and
exclusive purpose of securing the imprisonment of any person.
.
. .’
Parties
[2]
The main role players in these proceedings
are: Mr Zuma, the former President
of
the Republic of South Africa; the first respondent, the Minister of
Police; the second
respondent,
the National Commissioner for the South African Police Service, the
third
respondent,
the Minister of Justice and Correctional Services, and the sixth
respondent, the President of the Republic of South
Africa. The first,
second, third, and
sixth
respondents have filed notices to abide the decision of the court.
[3]
The fourth respondent is the Secretary of
the Judicial Commission of Inquiry into State Capture, Fraud and
Corruption in the Public
Sector, Including Organs of State (‘the
Secretary’). The fifth respondent is the current Honourable
Acting Chief Justice,
Mr Raymond Mnyamezeli Zondo N.O., the
Chairperson of the Commission (‘the Chairperson’).
Collectively the Secretary
and the Chairperson will be referred to
as the Commission.
[4]
The
seventh respondent is the Helen Suzman Foundation, who was joined as
amicus
curiae
in
the
First
[1]
and
Second
Judgments
[2]
of
the Constitutional Court. The seventh respondent will be referred to
as the Foundation.
[5]
The Commission and the Foundation are
opposing this application.
Background
[6]
The background facts are very important to
this application, and will be set out
in
some detail.
The initial summons
issued by the Commission
[7]
In
the
course
of
its
inquiry into allegations of state capture,
corruption and fraud,
the
Commission issued a summons for Mr Zuma to appear before it for
examination from 16 to 20 November 2020. The purpose of this
summons
was for Mr Zuma to give
evidence
and to be questioned on various matters that are the subject matter
of the Commission's investigation. He was also required
to respond to
the evidence of certain
witnesses,
which evidence implicates or may implicate him of certain acts of
wrongdoing. The alleged corruption, and acts which
might constitute
state capture, are
alleged
to have occurred during Mr Zuma’s term of office as the
President of the Republic of South Africa.
[8]
Mr Zuma attended the proceedings on 16
November 2020. On that day, his legal representatives moved an
application for the Chairperson's
recusal.
The recusal
application was fully argued on 16 November
2020, and on 19 November 2020, the Chairperson dismissed the recusal
application. At
that stage, the head of the Commission's Legal Team,
Mr Paul Pretorius, was prepared to commence questioning Mr Zuma.
However,
Mr Zuma’s then legal representative,
Mr
Sikhakhane
SC
, informed the Chairperson of Mr
Zuma’s decision to ‘excuse himself’ from the
proceedings. Mr
Sikhakhane
also
informed the Chairperson of Mr Zuma’s decision to take the
recusal ruling on review, and to report the Chairperson to
the
Judicial Service Commission on the basis that, by deciding Mr Zuma’s
recusal
application,
he had adjudicated a matter to which he was a party.
[9]
Despite being advised that he was not
entitled to leave the proceedings and that his absence would
constitute a criminal offence,
Mr Zuma left the proceedings during
the tea adjournment, without the Chairperson’s permission. He
further did not appear
on 20 November 2020 as required by the
summons.
[10]
Given
Mr Zuma’s refusal to comply with the summons issued, the
Commission
approached
the Constitutional Court for an order, inter alia, declaring that Mr
Zuma was required to appear before the Commission
whenever served
with a summons to do so, declaring his failure to remain in
attendance at the Commission on 19 November
2020
to be unlawful, directing Mr Zuma to give evidence and answer any
question, subject to his right against self-incrimination,
and to
comply with any directions issued
by
the Chairperson.
[3]
Mr
Zuma, despite having been served with the application papers, did not
oppose the application. Instead, he caused his then attorneys
of
record
to
address a letter to the Commission indicating that he would not be
participating in those proceedings ‘at all’. The
application was argued unopposed before the Constitutional Court on
29 December 2020.
Mr Zuma’s refusal
to appear in January 2021
[11]
By
11
January
2021,
the
Constitutional Court had not yet delivered its
judgment.
A fresh
summons was served on Mr Zuma requiring him to appear before the
Commission a week later, on 18 January 2021. The Commission
accordingly wrote to
Mr
Zuma’s attorneys, advising them that Mr Zuma was required to
comply with the summons and to appear before the Commission
from 18
to 22 January 2021,
notwithstanding
the fact that the Constitutional Court had not yet delivered its
judgment. The letter also expressly stated that
the summons requiring
him to appear on those dates remained valid and binding, as it had
not been withdrawn, set aside or
suspended.
[12]
In response, on 15 January 2021, Mr Zuma’s
attorneys addressed a letter to the Commission, recording that Mr
Zuma would not
be appearing between 18 and 22
January 2021. Two reasons were given for
this:
(a)
that ‘President Zuma can only be
legally obliged to appear after his review application has been
determined’; and
(b)
that ‘the Commission must await the
decision of the Constitutional Court which
has a bearing on President Zuma's
appearance’.
Mr
Zuma did not appear at the Commission between 18 and 22 January 2021
as directed.
The Constitutional
Court's First Judgment
[13]
The Constitutional Court delivered its
First Judgment
in
respect of this matter on 28 January 2021, the relevant paragraphs of
the order reading:
‘
.
. .
4.
Mr Jacob Gedleyihlekisa Zuma is ordered to
obey all summonses and directives lawfully
issued by the Judicial Commission of
Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector, including
Organs of State (Commission).
5.
Mr Jacob Gedleyihlekisa Zuma is directed to
appear and give evidence before the Commission on dates determined by
it.
6.
It is declared that Mr Jacob Gedleyihlekisa
Zuma does not have a right to remain silent
in proceedings before the Commission.
7.
It
is declared that Mr Jacob Gedleyihlekisa Zuma is entitled to all
privileges under section
3(4)
of the Commissions Act, including the privilege against
self-incrimination. . .’
[4]
After
delivery of that judgment, and on 15 February 2021, Mr Zuma caused
his then attorneys of record, Mabuza Attorneys, to address
a letter
to the Commission stating that he would not be presenting himself at
the Commission.
[14]
The Constitutional Court granted its order,
notwithstanding the fact that the review application was pending
before the high court.
The Constitutional Court
emphasised the public importance of Mr
Zuma’s evidence before the Commission. Both the Constitutional
Court's judgment and
order were served on Mr Zuma by the sheriff on 5
February 2021, at his residences in Forest Town (Gauteng) and Nkandla
(KwaZulu-Natal).
Mr Zuma’s continued
refusal to appear before the Commission
[15]
On 1 February 2021, Mr Zuma issued a public
statement in his own name, entitled ‘Statement on
Constitutional Court Decision
Compelling Me to Appear before
the Commission of Inquiry into Allegations
of State Capture.’ This letter is in the public
domain, and its contents will not be
reproduced herein.
[16]
On 15 February 2021, and despite being
summoned to do so, Mr Zuma failed to attend the Commission. Instead,
his lawyers addressed
a letter to the Commission 4
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector Including
Organs
of State v Zuma (Council for the Advancement of the South
African Constitution and others as
amici curiae)
[2021] ZACC 2
;
2021 (5)
BCLR 542
(CC).
to inform it ‘as a
matter of courtesy’ that he would not be appearing between 15
and 19 February 2021. Again, the letter
cited two reasons:
(a)
First,
that
the
Constitutional
Court did not consider, determine and/or
adjudicate
the
application to review the Chairperson's decision not to recuse
himself, and
that
appearing before the Commission ‘would undermine and invalidate
the review application’.
(b)
Second, it was contended that the summons
issued to Mr Zuma to appear on 15 to 19 February 2021 was ‘irregular
and not in
line with the Fourth order of the Constitutional Court’.
[17]
Accordingly, on 15 February 2021 and after
being informed of Mr Zuma’s refusal to comply with the summons
and to appear before
the Commission, the Chairperson announced that
the Commission would institute contempt of court proceedings for a
punitive order
holding Mr Zuma in contempt of court. On the same day,
Mr Zuma issued a further public statement, entitled ‘Final
Statement
on Constitutional Court Decision Compelling Me to Appear
before the Commission of Inquiry into Allegations of State Capture
and
my Refusal to Appear before the Zondo Commission’. As in
the case with the previous statement, this statement is also in the
public domain, and its contents will not be
reproduced herein.
[18]
These statements confirm Mr Zuma’s
defiant attitude to the order issued by the
Constitutional Court on 28 January 2021.
They also go on further to scandalise not only the Constitutional
Court, but also all other
courts that have issued orders against
him. They are evidently calculated to
undermine public confidence in the integrity of the Constitutional
Court and the judiciary
more broadly.
The Constitutional
Court's Second Judgment
[19]
Due to Mr Zuma’s failure to appear
before the Commission in accordance with
the court order, and the new summons issued
by the Commission, the Secretary instituted urgent contempt of court
proceedings in
the Constitutional Court against Mr
Zuma. Mr Zuma was directed by the Chief
Justice to file an answering affidavit, and written submissions,
which he did not do. Mr
Zuma was afforded a further opportunity
to make submissions to the Constitutional
Court with regard to an appropriate sanction.
Instead
of
filing
an
affidavit
as
requested,
he
addressed
a
letter
to
the Constitutional Court. On 29 June 2021,
the Constitutional Court found Mr Zuma guilty
of contempt of court, and sentenced him to
15 months’ imprisonment. The relevant paragraphs of the
Constitutional Court’s
order are as follows:
‘
.
. .
3.
It
is declared that Mr Jacob Gedleyihlekisa Zuma is guilty of the crime
of contempt of court for failure to comply with the order
made by
this Court in
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Jacob Gedleyihlekisa Zuma
[2021]
ZACC 2.
4.
Mr Jacob Gedleyihlekisa Zuma is sentenced
to undergo 15 months’ imprisonment.
5.
Mr Jacob Gedleyihlekisa Zuma is ordered to
submit himself to the South African Police
Service, at Nkandla Police Station or
Johannesburg Central Police Station, within five calendar
days from the date of this order, for the
Station Commander or other officer in charge of that police station
to ensure that he
is immediately delivered to a correctional centre
to commence
serving
the sentence imposed in paragraph 4.
6.
In
the event that Mr Jacob Gedleyihlekisa Zuma does not submit himself
to the South
African
Police Service as required by paragraph 5, the Minister of Police and
the National Commissioner of the South African Police
Service must,
within three calendar days of the expiry of the period stipulated in
paragraph 5, take all steps that are necessary
and permissible
in
law to ensure that Mr Jacob Gedleyihlekisa Zuma is delivered to a
correctional centre in order to commence serving the sentence
imposed
in paragraph 4. . .’
[5]
[20]
It is against this background that Mr Zuma
has launched this application seeking the relief as foreshadowed in
paragraph 1 above.
Locus standi
[21]
I have consciously recorded in some detail
the history of this matter especially
as
it engages itself between Mr Zuma and the Commission. I have been
driven to do so because Mr Zuma is challenging the locus standi
of
the Commission and the Foundation for their stance in opposition of
this application. The contentions advanced
on Mr Zuma’s behalf in this regard in
relation to the Commission are that:
(a)
The Commission is a statutory body created
by the executive, namely the President.
As
the
executive
branch,
for
whose
benefit
the
Commission
had been established, does not oppose the
application, nor the application in the Constitutional Court, Mr Zuma
questions what constitutional
and legal interest the Commission has
in opposing the application.
(b)
The thesis advanced in this regard is that
the Commission’s legal interest in the
matter ended when it successfully obtained
an order of committal against Mr Zuma, and that its legal interest
does not extend beyond
what has already been
achieved in the Constitutional Court.
[22]
As to the Foundation, the contention is
that it is a ‘busy body’. This contention was advanced
despite the fact that
the Foundation applied to be and was admitted
as
amicus
curiae
by the Constitutional Court in
the
First
and
Second Judgments
of
the Constitutional Court.
[23]
Having
carefully considered Mr Zuma’s contentions on this issue, I
have no doubt that they are grounded on an unsound rationale.
In its
Second
Judgment
,
the Constitutional Court, in admitting the Foundation, said the
following:
[6]
‘
I
am satisfied that HSF’s [the Foundation’s] application to
be admitted as amicus curiae did indeed meet these requirements,
because its submissions are relevant and of assistance to this Court,
particularly in relation to the question
of sanction
.
In this regard, it has provided for
an alternative sanction to that proposed by
the applicant. Given that this matter is unopposed,
and there is little guidance available to
this Court in terms of the appropriate sanction, these submissions
are useful to this
Court. HSF is therefore admitted as amicus
curiae.’ (My emphasis.)
Notwithstanding
the vigour of the argument of Mr
Mpofu
SC on behalf of Mr Zuma
on
this point, the
First
and
Second
Judgments
of the Constitutional Court
say otherwise.
It
follows, therefore, that Mr Zuma’s contention is misplaced, and
falls to be rejected.
Jurisdiction
[24]
As I see it, the fundamental tenet that
lies at the heart of this application is whether this court (as a
high court) has jurisdiction
to suspend the execution of a specific
order
of
the
Constitutional
Court.
Mr
Mpofu
,
contends
for
an
answer
in
the
affirmative, whereas Mr
Ngcukaitobi SC
,
for the Commission, and Mr
du Plessis
SC,
for the Foundation, contend
otherwise. The starting point in resolving this impasse is the
Constitution of the Republic of South
Africa, 1996. This is so
because the Constitution, with its Bill of Rights, heralded in a new
era. The new order is no longer determined
by parliamentary
sovereignty. All laws now have to be interpreted in consonance with
the Constitution, and those that are contrary
to the provisions of
the
Constitution
and the Bill of Rights are to be declared invalid and of no force and
effect.
[25]
The Constitution provides for the hierarchy
of courts in Chapter 8. Section 167
sets
out the Constitutional Court’s jurisdiction. This was amended
by the Constitution
Seventeenth
Amendment Act of 2012, with effect from 23 August 2013. The relevant
provisions of s 167 now read:
‘
(3)
The Constitutional Court—
(a)
is the highest court of the Republic; and
. . .
(6)
National legislation or the rules of the
Constitutional Court must allow a person, when it is
in the interests of justice and with leave
of the Constitutional Court—
(a)
to bring a matter directly to the
Constitutional Court. . .’
[26]
Further
sections
having
an
impact
on
the
jurisdiction
of
the
courts
are,
as
follows:
(a)
Section 169(1) which provides that:
‘
(1)
The High Court of South Africa may decide—
(a)
any constitutional matter except a matter
that—
(i)
the Constitutional Court has agreed to hear
directly in terms of section 167 (6) (
a
);
or
(ii)
is assigned by an Act of Parliament to
another court of a status similar
to
the High Court of South Africa; and
(b)
any other matter not assigned to another
court by an Act of Parliament.’
(b)
Section 172(2)
(b)
reads as follows:
‘
A
court which makes an order of constitutional invalidity may grant a
temporary interdict or other temporary relief to a party,
or may
adjourn the proceedings, pending
a
decision of the Constitutional Court on the validity of that Act or
conduct.’
(c)
Further s 172(2)
(d)
provides as follows:
‘
Any
person or organ of state with a sufficient interest may appeal, or
apply, directly to
the
Constitutional Court to confirm or vary an order of constitutional
invalidity by a court
in
terms of this subsection.’
(d)
And s 173 states that:
‘
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interests of justice.’
[27]
Mr
Mpofu
submitted
that the circumstances of the current matter are, as described by the
Constitutional Court in the
Second
Judgment
,
extraordinary and exceptional in many aspects, including that the
conviction of Mr Zuma for the crime of
civil
contempt of court, and the sentence for a period of 15 months,
followed without resort to the provisions of the
Criminal Procedure
Act
[7]
(CPA).
He further submitted that had the conviction occurred following a
trial in the High court, the High court or Constitutional
Court would
have had the power to suspend the committal order, pending the
outcome of the appeal. Mr Zuma would then have been
entitled to bail
pending the outcome of his appeal, but as there is no appeal against
an order of the Constitutional Court, Mr
Zuma’s only recourse
is to challenge his conviction and sentence by way of a rescission
application. He argued that it was
for this reason that
he
sought a suspension of the committal order.
[28]
He
expressed the view that s 14(2) of the Superior Courts Act,
[8]
dealing
with how a high court is to be constituted for the hearing of a
criminal matter, requires such
court
to ‘be constituted in the manner prescribed in the applicable
law relating to procedure in criminal matters’.
In his
submission, a person cannot be convicted of civil
contempt
by a court not constituted in the manner prescribed by the CPA,
especially because the Constitutional Court was not constituted
as a
criminal court. Consequently, so the submission went, the
Constitutional Court did not have the jurisdiction to conduct a
criminal trial as the lower courts have, as the Constitutional Court
was the ‘ultimate appeal court’.
[29]
He
contended
that a high court does have the necessary
jurisdiction to suspend
the
Constitutional Court’s committal order in terms of the
provisions of s 172(2)
(b)
of
the Constitution. The main thrust of his argument was that the object
of bringing this application was to suspend the committal
order,
pending the determination of the proceedings in the Constitutional
Court. He submitted that this court has jurisdiction
because the
committal order is to be executed within the jurisdiction of this
court. According to him, this is the only sensible
approach in the
matter, due regard being had to the extraordinary nature of the
Constitutional Court exercising its jurisdiction
as
a court of first and last instance in
matters involving criminal proceedings. Hence, he submitted that this
is the reason why the
relief sought in Part B of this application is
critical for the equal application and protection of criminal
procedure to all criminal
matters, as required in s 14(2) of the
Superior Courts Act, and that the Constitutional Court itself made it
plain why there is
a higher threshold for approaching it as a court
of first and last instance on any matter, including constitutional
matters.
[30]
He contended that even where the
Constitutional Court has exclusive jurisdiction in matters referred
to in s 167(4) of the Constitution,
the Constitutional Court has
repeatedly emphasised the benefits of having the views of other
courts in hearing those matters, before
it deals with them as a court
of final appeal. Furthermore,
that
the rules for direct access to the Constitutional Court make it clear
that such access must be exercised only in the clearest
of cases and
not in all cases which involve the adjudication of constitutional
issues.
[31]
Mr
Ngcukaitobi
and Mr
du
Plessis
disagreed. They contended that
s 173 of the
Constitution
grants the Constitutional Court, the Supreme Court of Appeal and the
high
courts of
South Africa, ‘the inherent power to protect and regulate their
own process, and to develop the common law, taking
into account the
interests of justice’. They submitted that this section did not
grant a high court any powers to suspend
the execution of a judgment
or decision of the Constitutional Court, but that that power is
limited in a high court to ‘suspend
its own decisions’.
[32]
They pointed out a fundamental difference
between a high court issuing an interdict pending the hearing of a
matter by the Constitutional
Court, and a high court
issuing an interdict suspending an order
already made by the Constitutional Court. In their submission, what
Mr Zuma was asking
this court to do is the latter, and it is
incompetent, because a high court is being asked to assume ‘an
over-ride’
power which it does not possess. They contended that
unless the Constitutional Court suspends or rescinds the order in
Second Judgment
,
then Mr Zuma and this court are
bound
by the provisions of s 165(5) of the Constitution, which provides
that ‘[a]n order
or
decision issued by a court binds all persons to whom and organs of
state to which it applies’.
[33]
Three
further contentions were advanced by Mr
Mpofu
under
this head. First was that on the matter before me, this court has
concurrent jurisdiction with the Constitutional Court because
of
territorial jurisdiction over Mr Zuma. Reliance in this regard was
placed on
Makhanya
[9]
and
Gcaba.
[10]
The
submission in this regard was that the act which is sought to be
prohibited by the interdict, namely the arrest and/or
incarceration
of Mr Zuma, will take place within this court’s territorial
jurisdiction. I find
this
argument to be fundamentally flawed. The flaw seems to lie in the
failure to appreciate the principal issue in this application,
which
is: is it permissible for a high court to suspend the execution of an
order by the Constitutional Court? As I see it, any
attempt
by Mr Zuma to call in the aid of the territorial jurisdiction to
answer this principal
issue
is misguided.
[34]
The second contention was that because
paragraph 6 of the order in the
Second
Judgment
directs the Minister of Police
and the National Commissioner of the
South
African Police Service to effect the arrest of Mr Zuma should he fail
to submit himself to the police, that this amounted
to a delegation,
enabling this court to find jurisdiction in this matter. After giving
this contention careful thought, I was driven
to conclude that this
was a diversion without merit.
[35]
The third contention was the reliance on
rule 45A of the Uniform Rules of Court
which provides:
‘
45A
Suspension of orders by the court
10
Gcaba v Minister for Safety and Security
and others
[2009] ZACC 26
;
2010 (1) SA
238
(CC);
2010
(1)
BCLR 35
(CC).
The court may, on
application, suspend the operation and execution of any order for
such period as it may deem fit: Provided that
in the case of an
appeal, such suspension is in compliance with section 18 of the Act.’
This
argument is ill-conceived for the reason that ‘. . . a court
must be competent to make whatever orders it issues. If
a court lacks
authority to make an order it grants, that order constitutes a
nullity’.
[11]
[36]
The
Constitutional Court in
Turnbull-Jackson
has
already said the following on
the
doctrine of judicial precedent:
[12]
‘
[54]
. . . the important doctrine of precedent, [is] a core component of
the rule of law, without
which
deciding legal issues would be directionless and hazardous. Deviation
from it is to invite
legal
chaos. The doctrine is a means to an end. This court has previously
endorsed the important purpose it serves:
“
[The
doctrine of precedent] is widely recognised in developed legal
systems. Hahlo and Kahn describe this deference of the law for
precedent as a manifestation of the general human tendency to have
respect for experience. They explain why the doctrine of
stare
decisis
is so important, saying:
"In the legal system
the calls of justice are paramount. The maintenance of the certainty
of the law and of equality before
it, the satisfaction of legitimate
expectations, entail a general duty of Judges to follow the legal
rulings in previous judicial
decisions. The individual litigant would
feel himself unjustly treated if a past ruling applicable to his case
were not followed
where the material facts were the same. This
authority given to past judgments is called the doctrine of
precedent.
. . .
It
enables the citizen, if necessary with the aid of practising
lawyers, to plan his private
and professional activities with some
degree of assurance as to their legal effects; it prevents the
dislocation of rights, particularly
contractual and proprietary ones,
created
in the
belief of an existing rule of law; it cuts down the prospect of
litigation; it keeps the weaker Judge along right and rational
paths,
drastically limiting the play allowed to
partiality, caprice or prejudice, thereby
not only securing justice in the instance but also
retaining public confidence in the judicial
machine through like being dealt with alike. . . . Certainty,
predictability, reliability,
equality, uniformity, convenience: these
are the principal advantages to be gained by a legal system from the
principle of s
tare decisis
.'
[Footnotes omitted.]
[55] I cannot but also
borrow from the eloquence of Cameron JA:
“
The
doctrine of precedent, which requires courts to follow the decisions
of coordinate
and
higher courts in the judicial hierarchy, is an intrinsic feature of
the rule of law, which
is
in turn foundational to our Constitution. Without precedent there
would be no certainty, no predictability and no coherence.
The courts
would operate in a tangle of unknowable considerations, which all too
soon would become vulnerable to whim and
fancy. Law would not rule. The operation of
precedent, and its proper implementation,
are therefore vital constitutional
questions.”’
[37]
It
is common cause that in this country there is no higher authority
than the Constitutional Court, and that its decisions cannot
be
undermined by a lower court. Should this court accede to the
contentions advanced on behalf of Mr Zuma, then the
hierarchy
will be disturbed and there will be no finality to legal
decisions.
[13]
[38]
What, in my view, this application seeks to
achieve is to entangle this court in judicial adventurism (which has
been strongly deprecated
in constitutional democracies), and to make
whimsical orders which have the effect of granting unlawful
and unwarranted relief.
Constitutional challenge
to the CPA
[39]
It remains to consider Part B of the notice
of motion. The linchpin of Mr Zuma’s
attack under this point is that the
provisions of the CPA are unconstitutional in that there is no
requirement that the crime of
civil contempt, as in the present
circumstances, should be dealt with in accordance with the CPA, and
the Constitution.
Mr
Mpofu
submitted
that Mr Zuma cannot challenge the constitutionality of the CPA on a
direct and urgent basis to the Constitutional Court,
on the grounds
that it allows for civil contempt proceedings to be conducted outside
of its provisions without a trial.
[40]
This is so, as goes the submission, because
the Constitutional Court does not
have
primary
jurisdiction
in terms of s 167(4) of the Constitution, and that this challenge
must first be brought in the high court. It
was further argued that the suspension of the
execution of the committal order is in the
interests of justice, and that the high court can grant such order in
terms of s 173
of the Constitution, as the court has the power
to develop the law of the crime of civil
contempt, taking into account the interests of justice.
[41]
I
pause to record that there is a penetrating analysis of case law on
this issue which tends to diminish the force of this contention.
[14]
For
instance, in
Fakie
[15]
the
majority affirmed that the civil contempt procedure is a valuable and
important
mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the form of motion court applications,
adapted to constitutional requirements. In my view, this conclusion
has the effect of removing all the wind from
the
sails of the boat upon which Mr Zuma’s contention is
journeying.
Interim relief
[42]
In view of this court’s findings in
Part A and B, it is strictly not necessary to deal
with the interim relief. Under the
circumstances, a few observations may not be inappropriate. It is
settled that a party that seeks
interdictory relief on an interim
basis
must show
that it has at the very least a prima facie right, that such right
will be unlawfully infringed, that the balance of convenience
is in
its favour, and that irreparable harm will result if an interim order
is not granted in the meantime which would protect
that right.
[43]
I have carefully considered the case
advanced on Mr Zuma’s behalf in relation
to the requirements for an interim
interdict. What, in my view stands squarely against
his assertions in this regard, are the
following:
(a)
Mr Zuma does have an alternative remedy
available to him, namely that of approaching the Constitutional Court
in terms of rule 12
of the Rules of the Constitutional Court, which
provides for urgent applications.
(b)
The
balance of convenience does not favour the granting of the interim
interdict
as
it would be harmful to the rule of law and our Constitution, as this
court will permit Mr Zuma to disregard the courts and their
authority. As aptly stated in
Hotz:
[16]
‘
In
granting an interdict the court is enforcing the principle of
legality that obliges courts
to
give effect to legally recognised rights. In the same way the
principle of legality precludes a court from granting legal
recognition
and enforcement to unlawful conduct.
To do so is “the very antithesis of
the rule of law”.’
(c)
Finally, as of now, Mr Zuma’s
concerns about his health are not supported by any evidence. This
court is thus not in a position
to determine the nature of the
harm, and to what extent it might be
irreparable.
[44]
I pause to record that in terms of s 173 of
the Constitution, read together with rule 12 of the Rules of the
Constitutional Court,
the Constitutional Court has the power
to suspend its own orders. The Secretary
benevolently extended an invitation to Mr Zuma to approach the
Constitutional Court, accompanied
by the
following undertaking:
‘in the event that the applicant
takes that route, the Commission might adopt a different
approach’. But that invitation was
ignored. In the circumstances, I am not persuaded that Mr Zuma has
made out a case for
this court to grant the relief sought.
Rescission application
[45]
In their papers, the parties dealt
extensively with the prospects of success of the rescission
application pending at the Constitutional
Court. In the course of
argument, counsel attempted to address me on this issue. For the
reason that I appreciated that I was called
upon to adjudicate only
on Parts A and B of the order sought in the notice of motion and that
the merits of the rescission application
are issue for determination
by the Constitutional Court, I requested counsel to refrain from
doing so. Consequently, I express no view
one way or the other on the prospects of success of the application
for rescission.
Conclusion
[46]
Unsurprisingly, faced with this seemingly
insuperable difficulty in relation to the
invocation of the incorrect and
unprecedented procedure, the rest of Mr Zuma’s case
then collapses like a deck of cards.
Costs
[47]
What remains to be considered is the
question of costs. The general rule is that
in the ordinary course, costs follow the
result. I am unable to find any circumstances which persuade me to
depart from this rule.
Order
[48]
In the result, the following order shall
issue:
The
application is dismissed with costs, such costs to include those
occasioned
by the
employment of senior counsel.
Mnguni
J
APPEARANCES
:
Heard:
06 July 2021
Delivered:
09 July 2021
For the Applicant: Mr
D.C. Mpofu SC, Mr T. Masuku SC, Mr N.B.
Buthelezi and Mr N. Xulu
INSTRUCTED BY: Ntanga
Nkuhlu Inc.
REF.: Mr M Ntanga
TEL: 010-595 10 55
For
the 1st
to 6th
Respondent: Mr T. Ngcukaitobi SC and Ms N.
Muvangua
INSTRUCTED
BY: State Attorney-Johannesburg
REF.: Mr J. Van Schalkwyk
TEL:
011-330 76 00
For
the 7th
Respondent:
Mr M. Du Plessis SC, Mr A. Coutsoudis and Ms J.
Thobela-Mkhulisi
INSTRUCTED BY: Webber
Wentzel Inc.
REF.:
V.Movshovich/P.Dela/D.Cron/D.Rafferty/D.Qolohle
TEL: 011-530 58 67
[1]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector Including
Organs
of State v Zuma (Council for the Advancement of the South African
Constitution and others as amici curiae)
[2021]
ZACC 2
;
2021 (5) BCLR 542
(CC) (
First
Judgment
).
[2]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and others (the Helen Suzman Foundation amicus
curiae)
[2021]
ZACC 18
(
Second
Judgment
).
[3]
A
copy of the complete notice of motion is attached as Annexure ‘AA5’
to the fourth and fifth respondents’ answering
affidavit.
[4]
[5]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and others (the Helen Suzman Foundation amicus
curiae)
[2021]
ZACC 18.
[6]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and others (the Helen Suzman Foundation amicus
curiae)
[2021]
ZACC 18
para 18.
[7]
51
of 1977
[8]
10
of 2013.
[9]
Makhanya
v University of Zululand
[2009]
ZASCA 69; 2010 (1) SA 62 (SCA); [2009] 4 All SA 146 (SCA).
[10]
Gcaba
v Minister for Safety and Security and others
[2009]
ZACC 26; 2010 (1) SA 238 (CC); 2010
(1) BCLR 35 (CC).
[11]
Competition
Commission of South Africa v Standard Bank of South Africa Limited
and related matters
[2020] ZACC 2
;
2020 (4)
BCLR 429
(CC) para 201.
[12]
Turnbull-Jackson
v Hibiscus Coast Municipality and others
[2014]
ZACC 24; 2014 (6) SA 592 (CC).
[13]
The
doctrine of judicial precedence and hierarchy of courts is equally
applicable in foreign jurisdictions, see for example
Union
of India v Raghubir Singh
AIR
1989 SC 1933
at 8;
Scheuneman
v Canada
(Attorney
General)
2003 FCA 194
(CanLII) paras 10-11;
Leahy
v Canada (Justice)
2021
FC 302
(CanLII) para 11;
Carter
v Canada (Attorney General)
2015
SCC 5; [2015] 1 SCR 331.
[14]
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others; Mkhonto and
others v Compensation Solutions (Pty) Ltd
[2017]
ZACC 35
;
2018 (1) SA 1
(CC);
2017 (11) BCLR 1408
(CC
);
Pheko and others v Ekurhuleni Metropolitan Municipality (No 2)
[2015]
ZACC 10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC);
Fakie
NO v CCII Systems (Pty) Ltd
[2006]
ZASCA 52; 2006 (4) SA 326 (SCA).
[15]
Fakie
NO v CCII Systems (Pty) Ltd above para 41.
[16]
Hotz
and others v University of Cape Town
[2016]
ZASCA 159
;
2017 (2) SA 485
(SCA);
[2016] 4 All
SA 723
(SCA) para 39.