The towering theologian, G.K Chesterton, lamenting the secularists’ passionate and seemingly illogical assault of the Church, remarked that “Men who begin to fight the Church for the sake of freedom and humanity, end by flinging away freedom and humanity if only they may fight the Church. The secularists have not wrecked divine things; but the secularists have wrecked secular things, if that is any comfort to them.” This quote it is apt to the Constitutional Court’s landmark ruling, that condemned the former President Jacob Zuma to an effective 15-months in jail for his contempt of the same court’s order to appear before the Zondo Commission.
Jacob Zuma is an enigmatic figure and the last 16 years have proven just polarising he is. Different people feel different about him. It is why anything involving him creates so much fanfare, especially his legal faceoffs. Observers are always keen to find out just how the legal questions around JZ in particular, will be addressed. The recent judgment is no different. In fact, as anticipated, it has created a buzz, especially that it has two judgments (majority and minority), whom both agree on the principle of him being guilty of contempt but differ on how to make him pay for this.
According to the minority judgement penned by Justice Theron with Justice Jafta concurring, quoting the SCOTUS Justice Holmes aphorism, “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their importance . . . but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”; the majority judgment suffers from the above quote, particularly because it has allowed the peculiarities of this specific case, lead it to the creation of not just a bad law, but also an unconstitutional one. The singularity of the punitive approach undertaken by the majority flies in the face constitutionality and the litigant’s constitutional rights. As far as they are concerned JZ does not lose his rights simply because he has acted contemptuously. The law is the law and must be consistent with Constitution.
The minority judgement further rebukes the “invidious position” the Concourt has been placed in by the Commission. The commision’s own failure to do what is right has relegated the Concourt to a position where it needed to engage in a street brawl and defend itself against a hostile contemnor in JZ. Notwithstanding the need to vindicate the honour of the courts, there exists the correct, lawful and constitutional means to do so without creating a bad and unconstitutional law.
The reasoning of the minority judgment is steeped in law and not sentiments or the persona of the contemnor like Jacob Zuma. It did not allow itself to be swayed by the crime of scandalising the Court in which JZ is possibly guilty of through his scandalous remarks about the Court and the judiciary as a whole. It focused itself on the case at hand and the law. It refused to “fling away freedom and humanity if only it can fight the Jacob Zuma”.
The question of what is the significance of the minority judgment given that, the horse has bolted and out of the barn? Legally speaking, it is a feast for legal scholars and academics in general. However, politically, it reignites the question of the “expanding empire of Law versus the decline of politics. It calls for us to revisit the wisdom of adopting a codified Constitution as the Supreme Law of the Country, with a handful of appointed and not elected judicial officers, holding the authority to determine what is constitutional or not; instead of placing power in the hands of elected officials in the National Assembly. It also leaves us wondering if the judiciary is really independent or is insidiously swayed by sentiments. The above case, is a haunting reminder that contestation of power and influence is always at the heart of our lives.
My only hope is that South Africans look beyond the noise and reflect deeply on the confronting questions this case has posed to us. Like one commentator said, “The applicant (Zondo Commision) has been a disappointment, the defendant (Jacob Zuma) was a disgrace and the Justices (Concourt bench) left their seats of respect and as Plato said “went down to the Piraues”.”
Lerato Lephatsa is an essayist and political commentator with published pieces in the Culture Review, the Daily Maverick, Mail & Guardian and the Red Pen. He blogs at leratolephatsa.wordpress.com. He writes in his personal capacity.
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