Zuma's rescission application dismissed as 'litigious skulduggery' by apex court

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  • Former president Jacob Zuma has failed in his bid to have his 15-month jail sentence overturned.
  • In a majority decision on Friday, the Constitutional Court rejected his arguments.
  • The application was dismissed with costs.

The Constitutional Court described former president Jacob Zuma's application for the rescission of a contempt of order against him as "litigious skulduggery".

On Friday, the apex court handed down a majority judgment in which it found Zuma had not met the requirements for a rescission and dismissed the application with costs. 

Earlier this year, a majority decision by the same court found that Zuma was in contempt for disregarding its order to appear before the Zondo Commission. 

The court sentenced Zuma to 15 months in prison.

Zuma launched the rescission application in a bid to have the order reversed. 

The thrust of Zuma's main arguments was the following:

- The order was erroneously granted in his absence as an affected party.

- The apex court ought to have given him a reasonable opportunity to present evidence on the question of whether it should sentence him to direct imprisonment.

- He was sentenced without a trial, and the Constitutional Court failed to refer the matter to the National Director of Public Prosecutions. 

- The order infringed his constitutional rights, including the right to freedom and security.

Zuma also argued that these "constitutional irregularities" had the effect of bringing the meaning of a rescindable "error" within the constitutional framework and should be interpreted to include situations in which a court grants an unconstitutional order. 

The majority judgment findings hinged on the fact that Zuma was never precluded from participating in the contempt proceedings but rather that he elected to do so. 

"Mr Zuma intentionally declined to participate in the contempt proceedings and disdainfully dismissed a further opportunity when invited to do so. Mr Zuma only now attempts to justify his absence from this court," the majority judgment, penned by Justice Sisi Khampepe, read. 

The judgment noted that it would fly in the face of the interests of justice for a litigant, Zuma in this case, to be allowed to "wilfully refuse to participate in litigation and then expect the opportunity to reopen the case when it suits them".

"It is simply not in the interests of justice to tolerate this manner of litigious vacillation."

READ HERE | Zuma imprisonment a sad moment, we must be sensitive to people's pain - Cyril Ramaphosa tells NEC

Khampepe further said the court would not accept that litigants could "be allowed to butcher, of their own will, judicial process which, in all other respects, has been carried out with the utmost degree of regularity, only to then plead the "absent victim".

"If everything turned on actual presence, it would be entirely too easy for litigants to render void every judgment and order ever to be granted, by merely electing absentia (absence)."

Resolve not to participate

The apex court further rubbished Zuma's reasons as to why he failed to appear before the commission.

"He goes to great lengths to point out that his failure to appear before the commission was bona fide because, so he contends, the chairperson was biased against him; the commission is unconstitutional; he had received poor legal advice; and he lacked financial means to participate."

"Yet, he seems to overlook the fact that none of these reasons justify his refusal to participate in the proceedings before this court."

"His plea of poverty is totally irreconcilable with his extra-curial statements that not only unequivocally evinced his resolve not to participate in the proceedings but also displayed his attitude of utter derision towards this court."

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The judgment found that this was nothing more than an afterthought, if not subterfuge.

The judgment noted that Zuma had, in any event, failed to provide a plausible or acceptable explanation for his default of the court order to appear before the commission. 

"It falls to be rejected out of hand."

"By now, it is quite clear that the only possible inference that can be drawn from Mr Zuma's conduct in these proceedings is that this application constitutes an effort to backtrack on a failed, but deliberate, litigious strategy."

READ | 'Ludicrous', 'feeble' and 'dishonest': Why commission says Zuma's case for contempt rescission must fail

If the court did not accept Zuma's argument on being absent, he also attempted to argue a broadening of the grounds for rescission.

The apex court found that extending the grounds of rescission in terms of the Constitution cannot escape the underlying principle which guides the law on rescission; a failure to adequately explain one's default is fatal.

In addition, the court was also of the belief that there was nothing about Zuma's case that could be construed as "truly exceptional" to the extent that Constitutional Court should depart from the underlying principles and ordinary tenets of the rule of law. 

Dissenting judgments 

In the first dissenting judgment, Justice Chris Jafta found that Zuma's constitutional right to a fair trial was incompatible with the procedures followed by the apex court in the contempt of court proceedings. 

"The problem in this matter is not whether Mr Zuma may be convicted and be punished for contempt of court. Instead, it is whether the motion procedure followed in convicting and sentencing him to imprisonment is consistent with the Constitution," Jafta said. 

He added:

There can be no doubt that Mr Zuma's disobedience of this court's order deserves to be dealt with firmly and that it calls for an appropriate punishment that may include imprisonment. But the egregiousness of his conduct cannot, as the majority held, justify a departure from "ordinary procedures" and be an endorsement of a procedure that is inconsistent with Section 12(1)(b) of the Constitution.

His judgment also took into account the right to a fair trial and appeal processes to have judgments reviewed. 

In the second dissenting judgment, penned by Justice Leona Theron, she agrees with Jafta that where it is established that the impugned order is inconsistent with the Constitution, the court has no choice but to declare it invalid and set it aside.

ALSO READ | 'Cruel and degrading punishment' for Zuma to remain behind bars pending ConCourt decision - Mpofu

In agreeing with the first dissenting judgment, Theron makes a qualification that the procedures followed by the apex court in the contempt of court proceedings result in Zuma's incarceration without affording him a right of appeal. 

"This is an unprecedented state of affairs, and to uphold the order, which is fruit of the poisoned tree, would result in substantial hardship and injustice to Mr Zuma."

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