A ConCourt cock-up

Llewelyn Curlewis and Koos Malan write on the Zuma rescission judgment that never should have been

There was quite an exuberant response when the Constitutional Court (CC) on 17 September dismissed former president Jacob Zuma's so-called application for rescission (that is, to set aside) of his conviction for contempt of court and accompanying fifteen months’ imprisonment. In the eyes of two former judges of the Constitutional Court, Johan Froneman and Edwin Cameron, the court's ruling was splendid. The court was praised for this judgment, since its ruling would somehow have restored its own integrity and also that of the rule of law.

Alas, the Court deserves no particular praise. On the contrary, the court's violated integrity and the punctured rule of law over Zuma's antics in this contempt saga are largely the making of the court itself.

Zuma wanted at all costs to dodge the Zondo Commission, especially of course, also to avoid the penetrating questions of witness leaders such as those to be posed by Adv. Paul Pretorius SC and others. When absolutely no other way out was left available to him, Zuma simply acted in contempt of court by blatantly refusing to appear in front of the Commission.

The Commission then approached the CC to obtain clarify on whether or not Zuma indeed had to comply with the Commission's orders. This application was odd indeed since as the Commissions Act expressly confers upon commissions of inquiry power to punish contemptuous witnesses, in the same way that courts may do. We have previously commented on the Commission's strange behaviour.

Nevertheless, the CC then indeed ordered Zuma to obey the Commission. When the Zuma still obnoxiously refused, the Commission applied to the CC to convict and punish Zuma for contempt of court.

However, Zuma also refused to take part in the court's proceedings. He rather directed furious letters, which were also made available to the media, to the chief justice. The Court was nevertheless patient and invited Zuma ad nauseam to make written submissions. However, Zuma once again refused.

Finally, the court had no choice but to dispose of the case in Zuma's absence on an unopposed basis. Clearly, Zuma’s absence was exclusively of his own doing. He knew that the Zondo Commission was asking for imprisonment for his contempt, that he had neglected to raise any defence and that he was therefore facing imprisonment.

As generally expected the court unanimously convicted Zuma of contempt of court and ʼn majority of seven out of nine justices sentenced him to fifteen months imprisonment. (We do not deal here with the subsequent controversial parole issue, nor the violent uprising in mid-July this year in KZN and parts of Gauteng following Zuma's imprisonment).

Quite justifiably, one would think that the ruling on Zuma's contempt had brought this issue to a final conclusion. The CC is after all the highest court in consequence of which further appeals (or reviews) of the court's rulings are simply out of the question.

This is clearly unheard of. The court has already finalized its obligations regarding the case. It is therefore functus officio: the case was decided on the merits. Courts certainly do not and in fact may not repeatedly hear the same case.

Yet, it did not end there, because to the astonishment of everyone Zuma’s legal team, all of a sudden came up with an “application for rescission”. Seemingly resourceful, but technically devoid of all substance. Applications for rescission are quite common in the magistrates' courts and in the High Court it also features from time to time. Although the Court Rules (Rule 42 of the Uniform Court Rules read with Rule 29 of the CC's Rules) make this possible, it is something that is practically unknown in the Supreme Court of Appeal and more specifically in the CC.

To the best of our knowledge anyway, a very first for the CC. The law of civil procedure (not the law of criminal procedure) does indeed provide for a procedure according to which a court may set aside its own ruling and orders. However, this may only happen in circumstances in which the judgment was incorrectly requested or granted (in other words in the case of a serious error of law); ambiguous or apparently erroneous; or was obtained in consequence of common error of the parties; or where the defendant was unaware of the case against him and therefore could not state his case.

Rescission is neither an appeal, nor a review because it is not dealt with by a court higher in the court hierarchy, but by the same court that granted the initial judgment - in this case the CC.

The beleaguered former president's application masquerades as an application for rescission. That is a pure sham though, because upon reading Zuma's affidavit in support of his application, it is clear that none of the Rule 42 scenarios mentioned above is present. Hence, we were finally not dealing with a rescission matter at all. What this was pure and simple was a manipulative ploy by Zuma to move for a re-trial of his case that had already been disposed and on which judgment and an ensuing prison sentence was delivered – all this under the deceptive smokescreen of an application for rescission.

In these circumstances, of course, it was clearly the duty of the CC right from the outset to safeguard its own integrity and the integrity of the rule of law by firmly declining to hear this application. From the outset the court should have refused to entertain Zuma’s baseless stratagems. It is squarely within the power the court. Alas, the court did precisely the opposite thereby jeopardising both its own reputation and the integrity of the rule of law.

In its very unnecessary long and somewhat boring judgment the court "decided" the obvious and in fact something that did not call for a ruling, because Zuma's affidavit did not necessitate it, namely: that Zuma was essentially trying to have the case re-tried; that Zuma was now actually trying to appeal and finally that none of this is possible because the court was functus officio - its duties in adjudicating the case had been finally settled - when the CC delivered the contempt judgment.

By hearing the case, the court allowed Zuma to take it for a ride and in fact violated the already fragile integrity of the rule of law and the integrity and prestige of the court itself.

Finally, at the end of paragraph 99 of the judgment in the so-called rescission application, the court declares that it fears that significant damage has already been done to the principles of finality and legal certainty lie at the heart of this case. In paragraph 130 of the judgment, the court states that Zuma's actions caused a monumental waste of resources and that there is a serious need to uphold the administration of justice and to send a message to all litigants that rescission as an avenue of legal recourse is only open to those who advance meritorious and bona fide applications, and who have not, at every turn of the page, sought to abuse judicial process.

That is abundantly true. A lot of time and money was wasted. There were five respondents in this case. Three of them were represented by a total of four counsel. There were two friends of the court each with two counsel. Several of them were senior counsel... and we all know that these learned colleagues definitely do not come cheap. On top of that, several days of court time were wasted.

Worst of all though is that everything was avoidable. Significant damage has been inflicted to the integrity and prestige of the court. This, however, was owing mainly to of the court's own reluctance and inability to stand firm against Zuma’s groundless ruses to abuse court process. It is patently not enough for the Constitutional Court to react with great indignation afterwards - after the damage has long been done and the resources have already been squandered.

Dr. Llewelyn Curlewis and Prof. Koos Malan are both affiliated with the University of Pretoria's Faculty of Law.