Former president Jacob Zuma. File photo: REUTERS/MIKE HUTCHINGS
Former president Jacob Zuma. File photo: REUTERS/MIKE HUTCHINGS

What a great day and momentous occasion Tuesday’s Constitutional Court judgment was for SA.

Having sailed so close to the brink of disaster, when the looting of state resources by members of the government itself had become common and the constitution and rule of law were trampled upon by the highest office in the land, we have been calmly and resolutely set back on course by the women and men of the Constitutional Court.

Former president Jacob Zuma will go to jail not because he has been singled out, as he claims, but because he is the same as everyone else and as for anyone else who holds the courts in contempt, a fair and law-abiding society requires a penalty to be paid. Beyond the particulars of Zuma’s contempt and the punishment to follow, a much bigger principle has been confirmed: in SA everyone is equal before the law.

The court considered, with utmost caution, the implications of depriving Zuma of his freedom when he had not been heard — albeit through his own choice. Its majority decision was that despite these unprecedented circumstances, it was not only correct to act against him, but the court was compelled to do so, in an urgent and unequivocal manner.

The reasoning for the compulsion to act, stated several times throughout the judgment delivered by acting chief justice Sisi Khampepe, is that the damage caused by Zuma’s utterances was intolerable. Not only did he hold the court in contempt and fail to comply with its orders, but went on at every opportunity to slander and hurl abuse at the judiciary. The damage, the judgment reads, “must be stopped now”, and if he is not immediately rebuked in the strongest terms the risk is that “a mockery will be made of the court and the judicial process in the eyes of the public”.

And, as the saga wore on, and Zuma proved “recalcitrant” and refused to “purge his contempt”, there emerged no other alternative but incarceration.

The minority judgment was equally emphatic that Zuma was in contempt of court, just differing on how to arrive at and impose the sanction. As judge Leona Theron takes care to emphasise, “let me be absolutely clear: both this judgment and the main judgment would impose a period of imprisonment on Mr Zuma because he is guilty of contempt of this court’s order”. The issue, she goes on to say, was whether the Constitutional Court is permitted to impose punishment in a civil matter, or whether this can only be done through the proceedings of a criminal court.

But with seven judges in the majority and two in the minority that argument has now been settled. The line has been drawn and the mockery has been stopped. It is time to rebuild and to reassert the country’s constitutional values, which as Khampepe reminded us, so many women and men had died for.

While the judiciary has again served and protected SA well, the next question top of mind is whether the ANC — the party of liberation that still holds the hopes of so many for a better life — will do the same.

The governing party’s response has been cautious and muted. The political fallout threatens to be immense if the party is unable to hold the centre. Zuma has used his victimhood to good effect in the past to rally support; he can be expected to do so again. Though his support in the ANC has diminished, all sorts of networks still exist in the shadows.

Notwithstanding these concerns, it is vital that the ANC — as the ruling party and the party of Zuma — speak out in support of the judgment and the court.

In her judgment, Khampepe found the opportunity to echo the words of Nelson Mandela at the Rivonia Trial, saying, “I too cherish the idea of a democratic and free society in which all people are as equal in opportunity, as they are in accountability, before the law.”

The ANC must show us that it too cherishes such a society.


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