Jacob Zuma is attempting an appeal via the back door

As far as desperate attempts go, former president Jacob Zuma’s application to rescind the Constitutional Court’s order finding him guilty of contempt and sentencing him to 15 months’ imprisonment is a classic. The application was filed on July 2 after the former president had refused to participate in the two court applications brought against him by the Zondo commission.

The apex court moved swiftly to set the matter down for hearing on Monday, issuing directions last Saturday. The court is clearly eager to finalise the matter with some urgency, mindful of the disastrous impact that prolonging it may have on the rule of law. Also encouraging are the steps taken by the police and correctional services to carry out the committal order. Arresting and incarcerating Zuma on Wednesday night signalled a commitment by the executive to obeying court orders.

The contempt of court judgment was a strong rebuke against Zuma’s disregard and general disdain for the rule of law, and his continued attacks on the courts. While a legitimate legal process, Zuma’s latest attempt to evade accountability for his actions has a particularly cynical flavour to it. It is trite that judgments of the Constitutional Court are final, and no appeal is possible. The rescission application is an attempt at an appeal through the back door. The law governing the rescission of court orders has until now been settled and uniformly applied, in the interest of maintaining certainty of court decisions and advancing the rule of law. Zuma now seeks to upend that legal certainty for his own benefit, and it is for that reason that we as Council for the Advancement of the SA Constitution (Casac) seek to intervene in the rescission application as a friend of the court.

Our intervention will place particular emphasis on the important principle of finality in litigation. It is a cornerstone of our legal order that legal proceedings cannot continue forever, that matters have to be finally adjudicated and litigants must accept the outcome. This principle inevitably requires the acceptance and obedience of all final judgments by all litigants, including the losing parties and despite their views on the correctness or otherwise of those judgments. This is important for legal certainty and the orderly administration of justice.

It is for this reason that judgments are only ever rescinded in the rarest of circumstances and on very narrow technical grounds. What Zuma is attempting here is radically different. It amounts  to an attempt to get the court to reconsider its finding of guilt and the imposition of direct imprisonment as a sanction. Plainly, that is not the purpose of a rescission application. Zuma wants to have his cake and eat it. The principle of finality therefore enjoins the court from considering his application, and in fact demands that it be dismissed as an abuse of process, an appeal by other means.

A court may grant rescission only in circumstances where the order was sought and granted in error, in the absence of the party seeking rescission; there is an obvious mistake or omission in the order or judgment and the rescission is aimed at remedying such mistake; or the order was granted as a result of a mistake that was common between the parties. None of these bases avail themselves to Zuma. His absence was a deliberate choice, even in the face of an additional opportunity to participate in the proceedings.

Zuma has also failed to show any error or procedural irregularity that taints the judgment. Instead, he claims he was acting on the basis of bad legal advice, but even so that does not rise to the level of an error justifying an order for rescission to be granted. It does not disclose a good faith explanation for his actions, nor does it show that his defiance of the court order of Jan. 2021 compelling him to respect a summons from the Zondo commission was for good cause. The allegations and legal arguments in his papers before the court indicate that Zuma seeks no more than to offer a defence against a charge of contempt, when he has already been found guilty of such a charge. 

Our stance is further supported by Zuma’s brazen contempt, which includes his failure to meet the five-day deadline set by the court for him to present himself to a police station and begin serving his sentence, as well as the public statements he has made out of court, which materially differ from the assertions he makes in his papers before the court. In his public statements and conduct Zuma continues his malicious attacks on the courts without proferring any evidence, alleging a grand conspiracy involving the justices of our highest court. The court itself took his previous malevolent public statements as aggravating to the nature of his contempt. He approaches the court with unclean hands to seek its assistance in circumstances where he continues to undermine and disrespect its authority. He is belatedly seeking judicial sympathy.

These factors, among others, do not entitle Zuma to an effective reconsideration of a court judgment against him, especially in circumstances where he was afforded multiple opportunities to fully participate in the proceedings. His choice not to do so must stand, and the court must act purely based on the facts that existed at the time the contempt application was brought.

Our arguments will highlight the crucial role the principle of finality plays in upholding the rule of law and ensuring the orderly administration of justice. The settled principles of law that govern the rescission and variation of court orders cannot be upended for one man, and the court must make that clear. Zuma must face the consequences for his transgressions.

• Naidoo is the executive secretary at Casac and Mafora its research officer