“My Sister is mistaken” and other responses to unreasonable dissent Quarter 3 2021

By DAN MAFORA, Published in The Law/Opinion

On the Zuma minority judgement

In what may be a first in our legal history, on 12 July 2021, the Constitutional Court heard an application for the rescission of the judgment delivered on 29 June 2021. In that judgment, the Court found former President Jacob Zuma guilty of contempt of court for his refusal to comply with an earlier order compelling him to appear and give testimony before the State Capture Commission, which sentenced him to imprisonment for 15 months. Mr. Zuma has been imprisoned at Estcourt Correctional Centre since 7 July 2021.

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There were two judgments in the contempt of court application: the majority judgment, penned by Khampepe ADCJ, and the minority judgment, penned by Theron J. I am particularly troubled by the minority's reasoning, which I found to have created an unfortunate conflict which it is unable to resolve within itself. Before I lay out my critique of the minority judgment, a few preliminary thoughts.

I was opposed to the Commission's initial application to the court for direct access, as well as the subsequent contempt proceedings. I remain unconvinced by the majority's finding that the court had constitutional jurisdiction to hear the case under s173 of the Constitution, which grants the court the power to regulate its own processes. The majority found that s173 power was implicated by Mr Zuma's contempt and, for that reason, the matter raised a constitutional issue which engaged its jurisdiction. I disagree. Nor am I convinced by the implicit finding that only the Constitutional Court is empowered to adjudicate contempt proceedings in respect of its own orders. In my view, this is a conceptually and legally unsustainable proposition. This article is not, therefore, an unqualified endorsement of the majority's reasoning. However, on balance, the majority provides a coherent answer to the questions raised by its reasoning. Not so for the minority.

Dissenting and minority judgments are an important aspect of the common law tradition. Often, they lay the foundation for future development of the law and sometimes they help clarify legal issues which arise in a dispute; they also require of majority judgments precision and rigour – the hallmarks of good legal reasoning. What is the value of a dissenting judgment whose sole purpose appears to be to chastise a majority judgment for its perceived shortcomings?

In the aftermath of this judgment, Zuma's supporters adopted the idea that he has been imprisoned without a trial and that the Court acted unconstitutionally in sentencing him to imprisonment. This unfortunate development flows directly from the minority judgment which, as I will show, cannot be legally or logically sustained on its own terms.

The minority judgment's divergence from the majority is on the question of punishment. In the minority's view, the Court could not order direct imprisonment without an order affording Mr Zuma a chance to comply with the court's earlier order. According to the minority, to sentence him to unsuspended committal without having first gone through a criminal trial would violate his rights to a fair trial, guaranteed under s35. The minority's reasoning rests primarily on s12 of the Constitution, which guarantees the right not to be detained without trial, and s35 which sets out the rights of an accused person in a criminal trial.

Contempt of court, as an offence, has two elements: criminal contempt, otherwise known as "scandalising the court", involves attacking, insulting, defaming, or otherwise undermining a court or the judicial process; and civil contempt, which involves the wilful and mala fide defiance of a court order. Both are offences against the administration of justice. Civil contempt is a unique offence in that a party who has been granted an order in its favour can approach a court for an order finding the other party in contempt for not complying with or obeying that earlier order.

If a court finds the other party guilty of contempt, it may impose a sanction, usually a fresh order requiring the errant party to comply or face imprisonment. This process is purely "civil", in that the state – or prosecution service – is not involved. But the outcome is always criminal (in that a party is convicted of the crime of contempt). Civil contempt proceedings have thus come to be known as "hybrid" proceedings, since they are brought as ordinary applications but have criminal consequences. This background is vital to understanding the tension at the heart of the minority and majority judgments.

Criminal contempt has two further aspects: contempt in facie curiae (contempt that takes place in/before court) and contempt ex facie curiae (contempt that takes places outside of court). During the rescission hearing, counsel for Mr Zuma argued that a recent judgment of the Supreme Court of Appeal (SCA) showed why the court's approach to contempt was indeed unconstitutional, and why the SCA's approach is to be preferred. In De Beer, the SCA referred certain conduct by De Beer to the National Director of Public Prosecutions (NDPP) to consider whether or not a charge of criminal contempt should be proffered against him. Counsel for Mr Zuma argued that the same approach should have been adopted by the court. This is also the view of the minority judgment.

There are two problems with this proposition. The first relates to the offence itself, and the second to the SCA as a court. Undoubtedly, criminal contempt is a distinct offence from civil contempt, and the minority judgment says as much. The locus classicus on criminal contempt is S v Mamabolo, where the court held that a court cannot convict and sentence a contemnor for criminal contempt of court without a criminal trial. That case concerned the publication, outside of court, of certain commentary about ongoing legal proceedings. The judge in that case merely summoned the contemnor to appear before him, found him guilty of contempt, and sentenced him without a trial. That, the court said, was unconstitutional. And plainly, Mamabolo and De Beer are closer to each other than Zuma is to either of them. In both cases, the contempt was directed at the court itself; the attack was on the court and not, as here, from a defiance of a court order.

In effect, what both Mamabolo and De Beer show is that when judges, as the human embodiment of judicial authority, are attacked, in or out of court, any accusation or allegation of contempt made against the contemnor must be proven in the ordinary criminal process. There is nothing novel or controversial about this proposition. It follows as a matter of logic: the court alleges that X, through certain speech or conduct, was in criminal contempt of court, and Y, prosecutor, must prove that X's conduct satisfies the elements of the crime of contempt à la scandalising the court. Civil contempt is different and I will return to this. Neither De Beer nor Mamabolo are applicable to Zuma's case.

On the second point, Majiedt J pointed out that if Zuma and De Beer were indeed the same, the SCA would have been bound by the court's approach to contempt since the court's judgments are binding on the SCA. Quite right. But there is a second reason why the SCA, as a court, would not be able to decide contempt in the way the Constitutional Court was able to in Zuma. The SCA is a court of appeal, it can only hear and decide appeals from lower courts and cannot hear matters as a court of first instance. Where it deals with civil contempt, this will inevitably be in respect of an order of a lower court. But what if a litigant disobeys an order of the SCA? Well, the SCA does not issue fresh orders. It can only, on appeal, set aside, vary, or substitute the order of a lower court and, once such an order is set aside, varied, or substituted, the order of the SCA becomes the order of the lower court. In the case of scandalising the court, as in De Beer – contempt in facie curiae – it will also always have to refer those cases to the NDPP to consider prosecution. This alone should put paid to any comparison between De Beer and Zuma which suggests that the SCA's approach is preferable to the Constitutional Court's approach when, in fact, it is dictated by law.

The more crucial dispute relates to whether or not Mr Zuma was imprisoned without trial. This is a serious charge, one made with reliance on the minority judgment, which suggested that the majority had acted unconstitutionally in granting a wholly punitive order in motion proceedings. For the minority, "it is unconstitutional […] to order punitive committal for civil contempt in motion proceedings, where no remedial or coercive relief is granted." After surveying the jurisprudence on the constitutionality of civil contempt proceedings, the minority concludes that civil contempt serves two purposes: coercive – compelling compliance with an order; and punitive – punishing an errant litigant for contempt.

Theron J points out that the Commission approached the Court for a purely punitive order and that no court before Zuma had ordered the unsuspended committal of a contemnor in civil proceedings. After analysing the reasoning Mamabolo, the minority further concludes that "[Mamabolo] endorsed the general principle that a summary contempt procedure intended purely for penal purposes is inconsistent with the fundamental right to a fair trial as protected by sections 12 and 35(3) of the Constitution. Where a summary procedure is employed for purely punitive purposes, with no countervailing need to enforce compliance with a court order, these limitations cannot be justified."

Having so concluded, the minority states that it accepts "that a common law rule allowing a civil court to order a punitive sanction of committal with no paired remedial purpose qualifies as a law of general application for the purposes of section 36 of the Constitution", but questions whether "such a rule, and the approach taken in the main judgment, [is] constitutional". There is some conceptual difficulty here, which I do not think the majority addresses adequately. For background, rights in the Bill of Rights may only be limited by "a law of general application" to the extent that such a limitation is "reasonable and justifiable". Laws of general application (Acts, regulations, the common law) are laws applicable generally to everyone.

Here, the minority identifies the law of general application as "a common law rule allowing a civil court to order a punitive sanction of committal with no paired remedial purpose", and concludes that such a rule unreasonably and unjustifiably limits Mr Zuma's rights under sections 12 and 35 of the Constitution. One problem: such a rule does not exist. The minority accepts that based on a long line of cases, both preand post-Constitution, it is competent for a court to find a litigant guilty of the crime of contempt and to impose a sanction following this conviction in civil, and not criminal, proceedings. In so doing, the courts have held that to the extent that civil contempt proceedings limit a party's s12 and s35 rights – subject to procedural protections 'as are appropriate [in] motion proceedings' – such a limitation is reasonable and justifiable.

In other words, the law of general application, which limits Mr Zuma's rights, is the common law rule that contempt proceedings may be conducted by way of motion proceedings, as opposed to a criminal trial. So understood, the minority's acceptance that Fakie "concluded that civil contempt proceedings, as a general proposition, are constitutional" should dispose of its argument on this point. In order to avoid this, the minority singles out the imposition of a punitive sanction in motion proceedings as the unconstitutional rule upon which the majority's reasoning lies. Not so.

The power of a court to grant a particular order flows from the power of a court to hear the matter in the first place. Put differently, that a court has the power to order committal in contempt proceedings conducted by way of notice of motion is a direct consequence of the court's ability to hear contempt proceedings by notice of motion. If one accepts that it is constitutional for civil contempt proceedings to be conducted in motion proceedings, which the minority does, then one must accept that the exercise of a court's power to impose a criminal sanction – such as committal – once the elements of the crime of civil contempt have been proven in motion proceedings, is equally constitutional.

Interestingly, in Fakie, the question was whether, because the party seeking an order of contempt only sought committal for coercive and not punitive purposes, the civil standard of proof (balance of probabilities) should be applicable. In other words, whether an applicant who only seeks compliance and not punishment shouldn't have to prove the elements of the crime of civil contempt beyond a reasonable doubt. The SCA rejected this argument saying that it did not matter whether the applicant sought only a coercive order; the crime of civil contempt remained a crime and had to be proven beyond a reasonable doubt. This nuance seems to have been lost on the minority.

The minority's s12 analysis is equally perplexing. In three paragraphs, the minority concludes that "these proceedings limit Mr Zuma's right not to be deprived of his liberty without a criminal trial". Section 12 provides in relevant part that "everyone has the right to freedom and security of the person, which includes the right:

"(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial".

In the rescission hearing, Jafta J made much of the distinction between a trial and motion proceedings. Quite rightly, counsel for the Commission was driven to concede that a "trial" is not "motion proceedings". (Important differences between the two include the ability to lead evidence and cross-examine witnesses in a trial, and the inability to do so in motion proceedings.) The question then arises: does the Constitution require a criminal trial, the phrase used by the minority, before any deprivation of liberty can take place? It seems unlikely. The fact that s12 exists independently of s35 points to the possibility that the Constitution contemplates the detention of persons who are not "accused persons" in terms of s35 (people may be detained for non-criminal reasons). So a "trial" may include a civil trial. If that is true, what then is the value of a trial over motion proceedings in civil contempt proceedings?

Firstly, the court in Fakie established the criminal standard of proof – beyond a reasonable doubt – as the applicable standard in contempt proceedings. This means that where an applicant brings a contempt application, it must prove that: (1) the order exists; (2) the respondent was served with that order; (3) the respondent has not complied with that order; (4) the respondent's noncompliance is intentional; and (5) the non-compliance is mala fide. The respondent need only present evidence that shows that his non-compliance was neither wilful nor in bad faith in order to establish reasonable doubt. Before Fakie, the applicant was only required to prove the first three elements and the court would infer wilfulness and mala fides from their existence. The position after Fakie is that an applicant in civil contempt proceedings must prove all the elements of the offence and the respondent is not required to even disprove wilfulness or mala fides in order to establish reasonable doubt. The respondent in motion proceedings is then not on a lesser footing than a defendant in a trial.

Secondly, there is an obvious advantage in motion proceedings, which, as far as I'm aware, does not exist in trial proceedings – the Plascon-Evans rule. In terms of the rule, where there is a dispute of fact in motion proceedings, the court accepts the respondent's version of the facts, unless that version is far-fetched, manifestly false or absurd, along with any factual allegations made by the applicant which the respondent accepts as true. In this case, if Mr. Zuma had put facts in affidavit before the court showing that he was indeed not in contempt, the court would have been bound to accept his version of the facts as true and decide the case on that basis. My sense is, therefore, that the complaint about the lack of a trial procedure in civil contempt proceedings, quite apart from the misguided critique about its impact on s12, is a complaint about form over substance.

Having identified the imposition of an unsuspended direct order of imprisonment in civil contempt proceedings as an unconstitutional exercise of the court's penal jurisdiction, how does the minority propose that it be remedied? In two ways: the first is to impose a suspended sentence of imprisonment conditional on Mr Zuma complying with a new order compelling his presence before the Commission, and the second is to refer the matter to the Director of Public Prosecutions (DPP) to consider prosecution. These options raise more questions than they answer.

As the majority said the first way, "would only operate upon future non-compliance, which is essentially to say that it would be that act of further non-compliance, as opposed to the already existing non-compliance, that would become punishable". This is not insignificant. The minority suggests that granting an order of suspended committal subject to the condition that Mr Zuma is not convicted of contempt within a certain period of time would cure the unconstitutionality of which it complains. I am not convinced. Properly construed, the minority's complaint is not that the Court is able to grant purely punitive orders in civil contempt proceedings – this is a power it has always had. The complaint is rather that civil contempt proceedings are able to be conducted in motion proceedings in the first place, hence the argument that a punitive order cannot be granted in the absence of a criminal trial. In that case, a suspended order of committal is as unconstitutional as an unsuspended one because if a party against whom a suspended committal order is granted fails to comply with the conditions attached, they would be liable to imprisonment without trial. The position does not change just because of the interposition of a coercive sentence between the initial conviction and the subsequent noncompliance. On the minority's own reasoning, a future punitive order, which would proceed from further disobedience of an order of court, can never be granted without a criminal trial. Therefore, an order of committal that follows the disobedience of an order compelling a party's compliance would still be unconstitutional.

What about the second option? At face value, it makes sense. The court merely refers the matter to the DPP for further action. However, the minority makes findings that are simply incompatible with this position. It accepts, for instance, that "it is this Court's order that is at stake and it would be inappropriate for the matter to be brought in the High Court" (this finding is also implicit in the majority judgment). What this means is that only the Constitutional Court has jurisdiction over contempt proceedings related to its own orders. A referral to the DPP for prosecution is, therefore, manifestly inappropriate because if the DPP decides to prosecute, this would have to be brought in the high court, or even a magistrate's court. On the minority's own reasoning, that cannot happen.

Also, as the majority pointed out, a referral to the DPP divests the court of its power to punish errant litigants and vests it in the DPP, which exercises a discretion as to the prosecution of matters. The Court does not have the power to direct the DPP to initiate prosecution. The NDPP and her subordinates are vested with the power to decide, free from interference – judicial or otherwise – whether to prosecute cases. An instruction from the Court would, in effect, do away with that discretionary power, which would itself be unconstitutional. It would also leave a successful civil party without recourse if the DPP decides not to prosecute and the minority offers only cold comfort in response – private prosecutions.

This situation would be further complicated by this: at the point that the court would be referring the matter to the DPP, it would have already made a prima facie finding of contempt in respect of the party in question. In effect, it would only stop short of convicting the party for contempt. Couple this with the fact that a prosecutor would not need to prove, for example, the contemnor's guilty state of mind or even motive, the picture becomes even bleaker: armed with a judgment from the Constitutional Court which traverses facts and law in relation to the "alleged" contempt, the prosecutor would sail through the prosecution. The state would prove its case beyond a reasonable doubt without even breaking a sweat, and the s35 fair trial protections would be rendered meaningless. Such a trial would, for all intents and purposes, be a box-ticking exercise. It would not only pay lip service to prosecutorial independence, but also hamstring a trial court whose power cannot upend the factual findings of the apex court. In sum, it is an impossibility.

Far from clarifying the issues and sharpening the majority's reasoning, the minority judgment in Zuma does no more than to muddy the waters and make far-reaching and damaging pronouncements of unconstitutionality and mala fides on the majority's part. When read closely, it does not, and cannot, cohere as a statement of law, or one upon which future courts may further develop the law; it is riddled with internal contradictions and is unsustainable both in law and logic.

So what is the value of such a dissenting judgment? Perhaps the rescission judgment will reveal that to us; jurisprudence by revelation. As the Good Book tells us, a good tree cannot bear bad fruit, and a bad tree cannot bear good fruit.

'Wherefore by their fruits ye shall know them.'

Mafora writes in his own capacity. He is the Research Officer at the Council for the Advancement of the South African Constitution. This article was adapted from the original which appeared in Dan Mafora's newsletter.