Constitutional Court should not let Zuma treat it as a casino
Failure by a high-profile litigant to comply with an order can have a devastating effect on the rule of law
Like Humpty Dumpty, once broken by a general perception that court orders do not have to be obeyed, the rule of law — the legal system of the country — cannot be put back together in precisely the same way.
A decision by a litigant, especially one as prominent as former president Jacob Zuma, not to comply with a court order, can have a devastating effect on the decorum of the court and the rule of law.
The Constitutional Court made an order in terms of which Zuma was sentenced to prison for 15 months for failing to subject himself to the authority of the Zondo state-capture commission. The former president made no attempt to justify his decision not to testify, alleging only belatedly that deputy chief justice Raymond Zondo was biased against him, without justifying this allegation.
But the commission is not a court. It conducts an investigation into a specific subject in accordance with its mandate. Justice Zondo does not have jurisdiction to make “orders” or give a “judgment”, as one expects from a court. Rather, he must regulate the process before him in his capacity as chair of the commission. Bias can therefore play no role in a witness’s decision whether to appear before the commission — or to “excuse yourself” without the chair’s consent.
Zuma is in the process of challenging the decorum of the Constitutional Court — he clearly has no bona fide intention to subject himself to the rule of law. Every person is duty bound to comply with an order of the court, and a court order is valid and enforceable regardless of the manner in which it was obtained.
No court has jurisdiction to set its own order aside, unless the order was obtained fraudulently or in the absence of the party concerned. The commission provided ample opportunity to Zuma to reconsider his decision not to adduce evidence, but he wilfully and intentionally decided not to participate in the proceedings.
The commission quite rightly applied to the Constitutional Court for appropriate relief, filing a substantive application that was also served on Zuma to afford him sufficient opportunity to respond, and to place his version before the court. Again Zuma decided not to make use of this opportunity, but rather to remain silent.
The Constitutional Court provided Zuma with yet another opportunity to place evidence before it under oath, specifically by inviting him to make submissions and representations to afford the court an opportunity to consider the appropriate sentence it should impose as a result of him not complying with the order it had made.
Once again, Zuma intentionally and wilfully decided not to take the court into his confidence, and did not make representations concerning his personal circumstances, including his age and health. He decided to play hide-and-seek with the highest court in the land — until it sentenced him to 15 months in prison, when he immediately cried foul.
No legal principle exists in terms of which a lower court has jurisdiction to suspend or stay an order or judgment of a higher court. Zuma’s decision to approach the high court in Pietermaritzburg on an urgent basis to apply for an order staying or suspending the warrant of arrest pending the hearing of his urgent rescision application in the Constitutional Court on Monday is fundamentally misconceived, bad in law and ill-founded.
The former president is, once again, playing for time and attempting to avoid the unavoidable. The order that was made by the Constitutional Court is final. It is not appealable, and the court cannot entertain an appeal against its own judgment and order. Once again, this is simply evidence of Zuma’s Stalingrad strategy.
The Constitutional Court cannot review, set aside or reconsider its own order and judgment under the prevailing circumstances. It is SA’s apex court, and it should send a strong message to everyone in the country so as to uphold the rule of law. No-one, including Zuma, should be allowed to treat the court as a casino.
He should not be allowed to play his hand as and when it suits him. He knew exactly what was expected from him, and producing a “joker” after your hand has been played is against the rules of the game. Zuma is the author of his own misfortune. The Constitutional Court should therefore send a clear message to the world: no one is above the law in SA.
As a former president, Zuma should lead by example, especially as he appears to have supporters countrywide. In the event that he is allowed to escape the consequences of a court order our legal system will collapse within weeks, if not days. No-one will have any reason to obey any court order as they will rely on the precedent that would be set.
SA has a proud history of excellent jurisprudence, and Zuma has no justification in making a mockery of this proud heritage. His conduct has been deplorable. Reasonable, honest and sober people expect him to set an example and conduct himself in such a manner that people do not lose confidence in the integrity of the legal system.
Our democracy cannot be hijacked by an individual who has been found to be in contempt of an order of the Constitutional Court. The apex court has spoken, and Zuma must adhere to its ruling.
• Botes is a senior advocate at the Pretoria Bar.
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