John Locke, an English philosopher and physician, who is widely regarded as one of the most influential of Enlightenment thinkers and is commonly known as the Father of Liberalism, famously stated, "where there is no law, there can be no freedom. For to be free means to be free from the persecution and the violence of others: something which will be impossible if there were no law."
We as South Africans hold this to be a self-evident truth; it upholds the maxim of the rule of law. For the law is not there for some to regard and others to treat with indifference – it is the cornerstone of our constitutional democracy, founded on the principle that all of us, no matter our standing or role in life, be it individual or institutional, are subject to the principle whereby all members of society (including governments) are considered equal before the law. Differently put, the rule of law is the principle that no person is above the law.
Unfortunately for him, former President Jacob Zuma did not spend his forced retirement from politics grappling and fencing with the vexed metaphysical meaning of what precisely this entails, nor did he bother to express his thoughts on the subject in the manner he was called upon to do so by the Constitutional Court. On 29 June 2021, this caught up with him. On this day, he was schooled by the Constitutional Court about the relevance of law in our society, and he was admonished for his haphazard notions of abusing his freedom to act as he pleases in a Constitutional Democracy that has little time for someone portraying himself as being a martyr for the unjustly fingered.
But this judgment does not just concern itself with the question of whether it should incarcerate an individual. It speaks to the very fabric of our Constitutional Democracy. This is evident by the opening lines: "It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs."
It continues to remind all of us that this is not simply a question of deciding the narrow point of law as to whether a recalcitrant litigant should be held accountable for his misdemeanours. It talks to the very essence of what our democratic system, fought for over decades of both conflict and negotiation, was eventually built on: "[t]his matter also concerns the protection of the authority of the Judiciary to carry out its constitutional functions vested in it by section 165 of the Constitution, and the safeguarding of the rule of law, the supremacy of the Constitution, and the values that lie at the heart of our constitutional order."
It is indeed a sad day when the authority of our constitutional dispensation and the authority of the highest court in the land is challenged by someone that not once, but twice, swore allegiance to the Constitution, and promised to uphold it. Sadder even is the day that this very person places himself in the position where he goes to extreme lengths to disregard compliance with an order of the Constitutional Court to testify at a commission that he himself convened. I can do no better than echo these sentiments as contained in the judgment: "Never before has this Court's authority and legitimacy been subjected 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."
So, what to do? What to do with a former Head of State, or anyone else for that matter, who appears to be impervious to any order of court, let alone the highest court of the land? And what to do if any one individual or corporation or state entity successfully approaches a court, just to be met with arrogant indifference? Now we know for sure: "It is perspicuous that the constitutional right of access to courts will be rendered an illusion unless orders made by courts are capable of being enforced by those in whose favour the orders were made."
And herein lies the rub. South Africans – all of us, no matter our standing – must be able to turn to the courts to have our disputes resolved in a Constitutional Democracy. And once resolved, we must have the belief that it will, no matter the cost to the losing party, be enforceable. Because, "[a]lthough the harm caused to successful litigants, like the applicant, through contempt of court is by no means unimportant, the overall damage caused to society by conduct that poses the risk of rendering the Judiciary ineffective and eventually powerless is at the very heart of why our law forbids such conduct."
The judgment thus reaffirms that everyone has the right to approach the courts to have his, her or its disputes resolved. But with this right comes consequences. If you ignore this right, or choose not to use it, it does not go unrecognised, nor is it free from consequences, especially in this case: "Mr Zuma had every right and opportunity to defend his rights, but he chose, time and time again, to publicly reject and vilify the Judiciary entirely."
So, what happens then? If you choose not to participate in legal proceedings, chances are that you will receive a judgment that is not in your favour. This is how it works. This is why people and organisations litigate. They litigate in order to come to a resolution. And they do so to achieve legal clarity and certainty. In practice, this is achieved by obtaining a court order. Why? Because they believe that a court order is enforceable: "If the impression were to be created that court orders are not binding, or can be flouted with impunity, the future of the Judiciary, and the rule of law, would indeed be bleak."
And so the rule of law is upheld. It disregards the identity of the participants to the legal processes. In considering sanctions, the identity of the participants and their actions leading up to deciding on appropriate sanctions may play a role, but the epochal consideration remains the dignity and authority of the court and the binding nature of its orders. For without this, it will be a toothless bite to be undermined by those who choose to undermine it. This is eloquently stated by Khampepe ADJC in her closing remarks: "My duty, as I pen this judgment, is cloaked in the duty and loyalty that I owe to our Constitution and the rule of law that undergirds it."
This is a timely reminder for all those who chose to act with impunity to plunder our limited resources, and who consider themselves above the realms of repercussions. Let them be reminded that the rule of law, and the implementation thereof, does not seek favour or discriminate, but acts only on the dutiful loyalty to the Constitution and everything it deems dear.
Van Niekerk is a Director at Smit Sewgoolam Inc.