Zuma Medical Parole Judgment – A Recipe for More Deadly Riots?
By: Paul Ngobeni
Once again, a grossly erroneous ruling from a court of this
country has placed this country on the precipice of a disaster and calamitous
riots. Our judiciary seems incapable of separating political preferences from
legal principles when it comes to adjudicating cases involving former president
Zuma. In addition, I have
uncovered evidence that casts the role of Judge President Mlambo and Judge
Elias Matojane in a very bad light when it comes to adjudicating politically
sensistive cases with implications for the political fortunes of President
Ramaphosa. This was apparent from the CR17 funding cases.
At first Judge President Dunstan Mlambo and judges Elias Matojane and Raylene Keightley found Advocate Mkhwebane did not have the requisite jurisdiction to investigate donations to a private person's political campaign. They also found that Ramaphosa had no obligation to declare the donations, even if he was deputy president at the time, as he had derived no personal benefit from the donations.
Miraculously, around the time the Zuma parole judgment was issued, the same panel of judges issued another CR17 judgment, AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa (55578/19) [2021] ZAGPPHC 813 (2 December 2021) in which they held that:
1. It is declared that the Executive Ethics Code, published under Proclamation No. R. 41 of 2000, is unconstitutional, unlawful and invalid insofar as it does not require the disclosure by Members who are subject to the Code of donations made to campaigns for their election to positions within political parties.
2. The declaration of invalidity shall have no retrospective effect and shall be suspended for a period of 12 months to allow for the defect to be remedied.
They added a coda. “In this case, it would not be in accordance with the doctrine of the separation of powers for us to prescribe to the President what amendments must be made to the Code to render it constitutionally compliant. It lies within his constitutional purview to determine how best to ensure that the obligation on Members to disclose funding related to their candidacy for election to party positions respects, protects, promotes and fulfils the constitutional rights and obligations implicated in this judgment.”
Ironically, that same healthy respect for the separation of powers was not considered when the same Matojane adjudicated the matter involving President Zuma’s medical parole. Based on the taxonomy of the Correctional Services Act, I shall highlight only a few of the gross errors made by Judge Matojane in his judgment and then pose questions about whether the said errors were due to political considerations or sheer incompetence.
Matojane’s Failure to Understand Basis Issues About the Jurisdiction of the Parole Board
The Correctional Services Act has created a procedure whereby offenders serving a sentence longer than 24 months are regularly seen by the Case Management Committee (CMC) and that such offenders are assessed in due course by the Correctional Supervision and Parole Board (CSPB) to be considered for release on parole. See, Section 42 of the CSA. President Zuma does not fall under that category as he was sentenced to only 15 months. Most importantly, Section 75 which defines the “Powers, functions and duties of Correctional Supervision and Parole Boards” unambiguously states the following:
(1) A Correctional Supervision and Parole Board, having considered the report on any sentenced offender serving a determinate sentence of more than 24 months submitted to it by the Case Management Committee in terms of section 42 and in the light of any other information or argument, may—
(a) subject to the provisions of paragraphs (b) and (c) and subsection (1A) place a sentenced offender under correctional supervision or day parole or grant parole or medical parole and, subject to the provisions of section 52, set the conditions of community corrections imposed on the sentenced offender;
Given the taxonomy of the statute, did the Correctional Supervision and Parole Boards have any jurisdiction to consider reports and make decisions on a prisoner serving a determinate sentence of NOT more than 24 months? The answer is an unequivocal NO. The legislature made a deliberate choice to make a distinction between prisoners serving a determinate sentence of more than 24 months and those serving a lesser sentence.
Offenders serving sentences of less than 24 months are handled administratively and it is the Head of Centre (HOC) than makes the decision to release on parole or not. These are generally referred to as ‘non-board cases’. A relatively large proportion of releases, probably the majority, are non-board cases. They are not subject to the exacting or more stringent requirements applicable to CSPB cases. Viewed with this prism, Arthur Fraser was correct in his approach to the Zuma medical parole issue –the statute gives the Parole Board jurisdiction and leeway to deal with reports of prisoners serving a determinate sentence of more than 24 months and not those like President Zuma who was serving a 15 months sentence. Accordingly, where the Parole Board purports to be acting on reports concerning a prisoner whose case does not meet the minimum statutory threshold, it was acting in excess of its mandate and had usurped the power of the Head of Center to handle the matter administratively. Fraser was not obligated to be deferential to the Parole Board and was justified in rejecting its ruling in excess of its clear statutory mandate. The mere existence of the parole Board does not prevent the national Commissioner and the courts from investigating whether the necessary jurisdictional facts objectively existed for the Parole Board’s exercise of its power. This simple concept should not be difficult to understand in any country where a sane and sober judiciary faithful to the rule of law exists. But there is more.
Matojane focused exclusively on the Parole Board and ignored
one very important higher structure with relevant authority in matters
involving parole. Ordinarily, a
decision of a parole board can be taken on review within the Correctional
Services Department. Section 76 of the Correctional Services Act makes
provision for a Correctional Supervision and Parole Review Board (CSPRB). This
board has the power to either confirm the decision of the parole board or to
substitute it with any decision which the parole board should have made. The CSPRB
must give reasons for its decision. Even more important, the members of the
CSPRB must comprise – A judge (as
chairperson); A director or deputy director of Public Prosecutions; A
member of the Department of Correctional Services; A person with special
knowledge of the correctional system; and two representatives of the public. But here the applicants bypassed that route because they knew that the neither the Parole Board nor the CSPRB had jurisdiction over prisoners serving a sentence of less than 24 months.
The racist applicants from Afriforum and Democratic Alliance knew that the Parole Board did not have jurisdiction over Zuma’s case given the length of his determinate sentence. That is why they opted to go to Matojane who was just overly eager to deal with a matter involving Zuma. Having improvidently accepted a case under these circumstances Matojane failed to examine whether the Parole Board had jurisdiction over a case involving a determinate sentence of less than two years. He ignored the statute and then went on to rule that the decision of the National Commissioner (Mr Arthur Fraser at the time) to place Presideny Zuma on medical parole, taken on 5 September 2021, is reviewed, declared unlawful, and set aside. He further ruled that:
3. The medical parole decision is substituted with a decision rejecting [Zuma’s] application for medical parole;
4. It is hereby directed that [Zuma] be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment;
5. It is declared that the time [Zuma] was out of jail on medical Parole should not be counted for the fulfilment of the Third Respondent's sentence of 15 months imposed by the Constitutional Court.
Why would Matojane ignore the clear language of the statute about the Board’s lack of jurisdiction if Matojane was not acting out of political motives? Why would he take it upon himself to reject Zuma’s medical parole on the basis of an opinion from the Parole Board which lacked jurisdiction over the matter in the first place? Given the existence of the CSPRB which is headed by a Judge as a chairperson why did Matojane act with such unseemly haste to decide the matter himself when he could have allowed the statutory review body to either affirm or review and set aside the decision of the Parole Board? These questions will be answered when this country descends into chaos and deadly riots provoked by an incompetent and politically partisan judiciary.
Matojane further declared “…that in terms of section 71(1) (a) of the Correctional Services Act 111 of 1998 (CSA) read with regulations 29A, and 29B promulgated in terms of CSA, the Medical Parole Advisory Board (MPAB) is the statutory body to recommend in respect of the appropriateness of medical parole to be granted or not in accordance with section 79(1)(a) (the terminal condition and incapacity requirements).” That too is grossly incompetent for two reasons – Matojane refers to Section 75 which deals with the powers, functions, and duties of Correctional Supervision and Parole Boards, whose responsibility is to consider offenders for Parole or medical Parole. Instead of seeing the statute as establishing a jurisdictional threshold, Matojane concludes: “Section 75(7)(a) merely excuses them from their responsibilities if the offender is serving a sentence of incarceration of less than 24 months.” Further, Matojane states without any support in the legislation that “the Medical Parole Advisory Board (MPAB) is the statutory body to recommend in respect of the appropriateness of medical parole to be granted or not.”
Matojane’s Failure to Understand the Medical Parole Criteria In Section 79
Matojane blithely ignores the clear and unambiguous statutory language that states:
79. Medical parole.—(1) Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if—
(a) such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care;
(b) the risk of re-offending is low; and
(c) there are appropriate arrangements for the inmate’s supervision, care and treatment within the community to which the inmate is to be released.
The question of simple interpretation comes in here. The medical parole can be granted if “such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care.” Matojane concluded that “the Board has to impartially and independently make a medical determination whether the Third Respondent does suffer from a terminal illness and that he is physically incapacitated.” But the statute does not require that the prisoner must be in a coma or a vegetative stage to qualify as physically incapacitated. In this context, physically incapacitated means that a person has a bodily impairment or handicap that substantially or severely limits the person’s daily activity. The medical reports clearly confirm that the 79 year old Zuma suffers from a variety of illnesses and a physical impairment which substantially limits his ability to engage in major life activities such as caring for himself, performing manual tasks, and working. In context, Physically incapacitated is not much different from "physically disabled" which refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness. In this regard, Fraser was correct in adopting a clearer view of the medical reports – a 79 year old man with the illness described in the reports qualified for parole.
Matojane was determined to find against Zuma at all costs and appears to have ignored the admonition of the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others where O’Regan J stated:
“In treating the decisions of administrative agencies with the appropriate respect, a Court is recognising the proper role of the Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision-maker. This does not mean, however, that where the decision is one which will not reasonably result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable in the light of the reasons given for it, a Court may not review that decision. A Court should not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision-maker.”
Matojane’s Flagrant Disregard of the Separation of Powers Principle
Assuming the National Commissioner for Correctional Services, Fraser, erroneously granted President Zuma a medical parole, does it automatically follow that the legal solution is to order the re-incarceration of Zuma? Is the court acting within the encincture of its discretion when it issues orders that “the medical parole decision is substituted with a decision rejecting [Zuma’s] application for medical parole; directing that [Zuma] be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment; and that the time [Zuma] was out of jail on medical Parole should not be counted for the fulfilment of his sentence of 15 months imposed by the Constitutional Court.?
As a corollary question, is Zuma entitled to any due process hearing in the court-ordered parole revocation and, is the judicial order arbitrary, or conscience shocking, in a constitutional sense? After all, Zuma did not grant himself the medical parole – it was the executive branch of our government which took the impugned action and Zuma remained subject to very stringent conditions while on parole. He was never free from the control and dominion of the Department of Correctional Services. It is obvious that Zuma who is on parole is still serving his sentence - parole is an integral part of a sentence as it is a continuation of a sentence outside of the correctional facility. Are ordinary legal principles of due process and estoppel applicable in a court-ordered parole revocation? Is Matojane fermenting a riot or violent uprising by deliberately ignoring these principles?
An answer to these questions require an understanding that Matojane’s interpretation of the statute, the Correctional Services Act and Regulations is so grossly wrong based on the following facts. He asserts that the “kind of challenge presented in this matter is that the Constitutional Court has already determined that 15-month direct imprisonment was the only 'just and equitable' order to make under the circumstances and has rejected other lesser forms of punishment.” Id. at para.91. Clearly he labors under the imprecision that a parole means a person is no longer serving his sentence.
Assuming Zuma was erroneously placed on parole, does the Court violate the substantive due process right of an erroneously released parolee to remain on release when it reviews and sets aside the parole decision and substitutes it with its order “rejecting the [Mr. Zuma’s] application for medical parole;” and directing that Mr. Zuma “ be returned to the custody of the Department of Correctional Services to serve out the remainder of his sentence of imprisonment;” and that “ the time [Mr. Zuma was out of jail on medical Parole should not be counted for the fulfilment of the [his] sentence of 15 months imposed by the Constitutional Court.” Matojane, through judicial cherry-picking has attempted to do exactly what the higher appellate courts have admonished lower courts not to do.
Contrary to Matojane’s erroneous thinking, the granting of parole does not constitute an unfair intrusion into the sentencing powers of the judiciary even though the National Commissioner and the parole boards can alter at will the actual period of imprisonment that a prisoner serves. From time immemorial there has always been recognition of the power of executive authorities to alter judicially imposed sentences. That power is now firmly anchored in our constitution and attempts by lower courts to influence prisoner’s eligibility for parole through various stratagems at sentencing have been firmly rejected by the SCA. Typically, a high court judge would, at the time of imposing sentence, attempt to gerrymander the parole and prevent the early release of an offender on parole. When the same issue served before the Supreme Court of Appeal in S v Botha (318 of 2003) [2004] ZASCA 51 (28 May 2004), the higher appellate court made it pellucid that courts are duty-bound to exercise judicial restraint on matters of sentencing and parole. The SCA stated:
The function of a sentencing court is to determine the term of imprisonment that a person, who has been convicted of an offence, should serve. A court has no control over the minimum period of the sentence that ought to be served by such a person. A recommendation of the kind encountered here is an undesirable incursion into the domain of another arm of the State, which is bound to cause tension between the judiciary and the executive. Courts are not entitled to prescribe to the executive branch of government how long a convicted person should be detained, thereby usurping the function of the executive.
In Sv Smith 1996(1) SACR 250(E),where the accused was convicted of multiple murders, it was held that it would be inappropriate for a court to impose lengthy prison terms “in an attempt to eliminate any possibility of parole”, and that “[t]he granting of parole ...[falls]within the powers of the executive authority and the Court ought not to attempt to circumvent the exercise of this power”. Id. at 251. In In S v Matlala 2003(1) SACR 80(SCA), the appellant was sentenced to 40 years’ imprisonment for several serious offences including armed robbery. The High Court Judge ordered that he should be considered for parole only after serving 30 years. The Supreme Court of Appeal, in reducing the sentence to 30 years’ imprisonment, held inter alia that the court should not “grade the duration of its sentences by reference to ...[the] conceivable pre-parole components but by reference to the fixed and finite maximum terms it considers appropriate, without any regard to possible parole”. Para 7. In S v Leballo 1991(1)SACR 398(B),where the trial Judge found the accused guilty of assault and sentenced him to eight years’ imprisonment because, inter alia, he wanted him to be incarcerated for a long time before being considered for parole, on appeal it was held that “[t]he fact of possible pardon or parole should not have been taken into account”as justification for a lengthy prison term”. Id at 401.The appellant Court reduced the sentence to a fine of R2000 or, in default of payment, imprisonment for three years. [1]
The pivotal question is whether Judge Matojane ignored binding precedent from the SCA by arrogating to himself the power to “control over the minimum period of the sentence that ought to be served” by Zuma before he was eligible for parole? Is Matojane’s order an attempt to “to prescribe to the executive branch of government how long a convicted person should be detained, thereby usurping the function of the executive”? Matojane did not treat the decisions of administrative agencies with the appropriate respect, and did not recognize the proper role of the Executive within the Constitution. Instead, the judge attributed to himself superior wisdom in relation to matters entrusted to other branches of government.
A related question is whether Matojane’s approach on the “no fault parole revocation” can be sustained under our constitution. It goes without saying that although the release on parole is not a right, the offender has a legitimate expectation that he will be considered for parole and will be placed on parole should he fulfill all of the requirements, for example, that he has served the non-parole period and has been rehabilitated. The right crystallizes further when the Correctional Services Department, rightly or erroneously, grants the prisoner parole.
Other Courts have confronted exactly such scenarios where a prisoner was allegedly released on parole on erroneous grounds. See also, Kerr v. State, 345 S.C. 183 (S.C. 2001); 547 S.E.2d 494 https://casetext.com/case/kerr-v-state-48. Kerr was released on parole in September 1993. It was undisputed that Kerr successfully resumed his place in the community, returned to work, and fully complied with the conditions of his parole. Nonetheless, on July 13, 1995, Kerr was arrested and re-incarcerated after reporting to his parole officer. He was given no reason for his arrest and was not appointed legal counsel. On July 19, 1995, Kerr was brought before a single member of the Parole Board who informed him the Board had made a mistake paroling him in 1993 because the Board decided Kerr was parole ineligible under the trafficking statute. Kerr's parole was thereby terminated, without any written explanation. The Court agreed that Kerr was correct in his allegations that his parole was unlawfully rescinded and he should not have been returned to prison.
Ironically, in the Zuma case it is a judge who intentionally acts to violate the rights of Zuma. Matojane makes the nonsensical and incoherent statement that the consequential relief sought, “sending the Third Respondent back to prison to do his time and order that the time spent on medical parole should not count towards fulfilling his sentence, will not impact him unfairly as there is no suggestion that he is an innocent party. The Third respondent defied the Zondo Commission, the judiciary and the rule of law and is resolute in his refusal to participate in the Commission’s proceedings. He continues to attack the Constitutional Court while unlawfully benefitting from a lesser punishment than what the Constitutional Court has imposed. He states in his answering affidavit that he considers himself "a prisoner of the Constitutional Court" and claim that he was "incarcerated without trial".” Matojane’s warped view that where there is no suggestion that a prisoner is “an innocent party” his due process rights may be trampled upon will-nilly finds no support in our jurisprudence. Furthermore, he appears to hold the view that Zuma's belief in his innocence and expression of views which are shared by other judges of the Constitutional Court must be used against him to deny him parole. In fact, Zuma did not place himself on parole and if there was any error made it was on the part of the Commissioner of Correctional Services. By ordering that the time served on parole must not be counted, Matojane appears ignorant of the fact that parole is an integral part of a sentence because it is a continuation of a sentence outside of the correctional facility. In other words, an individual who is on parole is still serving his/her sentence. The judicial attempt to impose a bank page in Zuma’s sentence while on parole is untenable. And when that parole is revoked the state's untoward conduct in granting parole, the parolee's lack of complicity in the underlying administrative error, and the reasonable expectations of continued freedom that had resulted must all be carefully considered.
Matojane is simply incompetent as a judge. In National Director of Public Prosecutions and Others v Freedom Under Law 2014 (4) SA 298 (SCA) the court dealt with a High Court’s mandatory interdict where “the court a quo did not limit itself to the setting aside of the impugned decisions. In addition, it (a) ordered the NDPP to reinstate all the charges against Mdluli and to ensure that the prosecution of these charges are enrolled and pursued without delay; and (b) directed the Commissioner of Police to reinstate the disciplinary proceedings and to take all steps necessary for the prosecution and finalisation of these proceedings (para 241(e) and (f)).” Both the NDPP and the Commissioner contended that these mandatory interdicts were inappropriate transgressions of the separation of powers doctrine. Judge Brand rules as follows:
“I agree with these contentions. That doctrine precludes the courts from impermissibly assuming the functions that fall within the domain of the executive. In terms of the Constitution the NDPP is the authority mandated to prosecute crime, while the Commissioner of Police is the authority mandated to manage and control the SAPS. As I see it, the court will only be allowed to interfere with this constitutional scheme on rare occasions and for compelling reasons. Suffice it to say that in my view this is not one of those rare occasions and I can find no compelling reason why the executive authorities should not be given the opportunity to perform their constitutional mandates in a proper way. The setting aside of the withdrawal of the criminal charges and the disciplinary proceedings have the effect that the charges and the proceedings are automatically reinstated and it is for the executive authorities to deal with them. The court below went too far.”
Clearly the Matojane Court order directing that Zuma return to prison and that time spent on parole be disregarded not only constitute inappropriate transgressions of the separation of powers doctrine but is also a direct assault on Zuma’s human rights.
Matojane’s Obsession with the Constitutional Court’s Contempt Judgment and His Failure to Understand Pardon and Parole
Contrary to Matojane, it is well-established principle of law that the executive may issue a pardon or parole to a person convicted of contempt of court. Did Matojane commit a serious misdirection and allow himself to be unduly influenced by his obsessive preoccupation with the crime for which Zuma was convicted, contempt of court instead of dispassionately analyzing the parole decision under PAJA?
The pertinent legal issue to be confronted head-on is whether a pardon by the President or a parole granted by the National Commissioner for a crime involving contempt of court is constitutional given the separation of powers principle. For instance, the President’s constitutional power to pardon allows him to free people convicted of crimes from any and all legal penalties imposed as a result of their convictions, guided only by his social conscience and political instincts. The “benign prerogative of pardoning” is an awesome responsibility, and the Constitution deems it as having very specific public purposes. Pardon is not constrained by principles of fairness in the same way that justice is, because it is entirely voluntary and because, as an expression of the will of the community, it has a political dimension. The President can be held accountable for his use of the power only in the court of public opinion. Parole is available as discussed above and there is ample precedent for granting parole even in criminal contempt of court cases.
In Ex parte Grossman, 267 U.S. 87 (1925), the United States Supreme Court held that the President of the United States can pardon criminal contempt of court.[2] Grossman had been convicted of criminal contempt, but was pardoned by the President; the district court had subsequently sent him back to prison. During the time of Prohibition, Philip Grossman owned a business in Chicago that sold alcoholic drinks. Charged under the Volstead Act, the enforcement mechanism for Prohibition, a judge placed an injunction on him, forbidding him from selling alcohol. Grossman violated that order, and was found guilty of criminal contempt of court in district court. Sentenced to one year in prison and a fine of $1,000, he was pardoned by the President, Calvin Coolidge, in December 1923, on the condition that the fine be paid. Grossman's prison sentence was removed after he paid the fine, and he was released. The district court, claiming the pardon would subvert the independence of the judiciary, ordered Grossman back to prison on May 15, 1924, to serve out the rest of his sentence.
Grossman’s appeal ultimately reached the US Supreme Court where Chief Justice William Howard Taft wrote for a unanimous Court, rejecting the arguments of the district court, and ordering Grossman to be freed. First, examining the history of the pardon power, he looked to the common law and the monarchy of England, where, as he noted, monarchs "had always exercised the power to pardon contempts of court", just like ordinary crimes; and, just as in the United States, civil and criminal contempt existed. Here, a distinction between civil and criminal contempt was made: civil contempt was remedial for the contemnor, and pardons cannot stop it; while criminal contempt is punitive, serving a deterring effect against transgression of court orders. The Supreme Court has observed that it is “not the fact of punishment, but rather its character and purpose, that makes the difference between the two kinds of contempts.” For civil contempt, “the punishment is remedial and for the benefit of the complainant. . . .” For criminal contempt, on the other hand, “the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions.”
Referring to United States v. Hudson, the Chief Justice then rejected the idea that the offenses covered by the pardon clause extended only to those for which the Congress had defined as crimes, and instead looked at the plain meaning of the words "offenses against the United States": “Nothing in the ordinary meaning of the words 'offenses against the United States' excludes criminal contempts.” Taft further determined that the pardon power had been exercised many times with regard to criminal contempt (over 85 years, the pardoning power had been used 27 times), citing opinions by Attorneys General Henry D. Gilpin, John Nelson, John Y. Mason, and William H. H. Miller; along with statements by Attorneys General Philander C. Knox and Harry M. Daugherty. The weight of long-standing practice could not be ignored, stated the Chief Justice, and served to bolster the argument that the usage of the pardon power was not incorrect.
Finally, Taft turned to the argument about judicial independence, and that the usage of the power of pardon here would undermine a functioning judiciary. Cognizant that the Constitution allowed for separation of powers, he determined that the system of checks and balances allowed for the discretion of the President in determining the use of the pardon power, insofar as it pertained to criminal contempt. After all, criminal contempt does not require the restraint of a jury, and, as such, it is possible that a mistake could creep in; and while a president could pardon all criminal contempt, such a thing would be an improbable absurdity. Nevertheless, limits still existed: the pardon could only be issued for contempt that had already occurred, and a capricious President could face impeachment. Nevertheless, in light of the weight of history, precedent, Constitutional function, and justice, the Chief Justice concluded:
The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to prevent it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.
[...]
It goes without saying that nowhere is there a more earnest will to maintain the independence of federal courts and the preservation of every legitimate safeguard of their effectiveness afforded by the Constitution than in this court. But the qualified independence which they fortunately enjoy is not likely to be permanently strengthened by ignoring precedent and practice and minimizing the importance of the co-ordinating checks and balances of the Constitution. The rule is made absolute and the petitioner is discharged.
The power to impose sanctions for contempt of court is an inherent power that is essential to the independence of the judiciary. Courts of justice “are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates....” Anderson v. Dunn, 19 U.S. 204 (1821) at 227. However, a President’s pardon of such contempt of court is not an intentional usurpation of the Court’s authority by the President. Rather, his pardon of the Defendant is based upon the considerations of grace that usually justify the exercise of the pardon power. In short, just like the pardon in Grossman, the pardon here is based upon “circumstances which may properly mitigate guilt,” and is not intended to defeat the Court’s authority to punish disobedience to the Court’s orders. The Court was seriously divided on the use of direct imprisonment without trial for the alleged contempt.
There is the specter that courts may wield the despotic powers in criminal contempt proceedings that would justify the pardon as a necessary check against abuses by the judiciary. The Court in Grossman agreed that “[t]he power of a court to protect itself and its usefulness in punishing contemnors is of course necessary.” 267 U.S. at 122. Contempt of court powers, however, were then “without many of the guaranties which the bill of rights offers to protect the individual against unjust conviction,” most notably a disinterested judge. Id. The Court asked: “Is it unreasonable to provide for the possibility that the personal element may sometimes enter into a summary judgment pronounced by a judge who thinks his authority is flouted or denied?” Id. The procedure described by the Court in Grossman—a bench trial for criminal contempt before the judge whose order the defendant defied—needed reform, and the judiciary made that reform. See In re Murchison, 349 U.S. 133, 137 (1955) (“It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations.”).
Matojane clearly misdirected himself by stating in the following paragraphs of the judgment as follows:
[91] The kind of challenge presented in this matter is that the Constitutional Court has already determined that 15-month direct imprisonment was the only 'just and equitable' order to make under the circumstances and has rejected other lesser forms of punishment.”
[92] In determining the length of sentence to be imposed on the Third Respondent, the Constitutional Court held that it was enjoined to consider the circumstances, the nature of the breach; and the extent to which the breach was ongoing. In doing so, it held that quantifying the egregiousness of Mr Zuma's conduct was an impossible task, but “that the focus had to be on what kind of sentence would demonstrate, generally, that orders made by a court must be obeyed”, and, to the Third Respondent specifically, “that his contumacy stood to be rebuked in the strongest of terms”. The Constitutional Court concluded that “if with impunity, litigants, especially those in positions like that of Mr Zuma, are allowed to decide which orders they wish to obey and those they wish to ignore, a constitutional crisis will be precipitated”. The Court ordered an unsuspended sentence of imprisonment for a period of 15 months.
Matojane continued his nonsensical analysis by stating that the “Commissioner's unlawful intervention has resulted in the Third Respondent enjoying nearly three months of his sentence sitting at home in Nkandla, not serving his sentence in any meaningful sense.” But a person on parole is serving a sentence! Matojane then refers to newspaper articles and rules that Zuma “is not terminally ill or severely incapacitated and seems to be living a normal life.” He then goes on to state that the “Commissioner has unlawfully mitigated the punishment imposed by the Constitutional Court, thereby rendering the Constitutional order ineffective, which undermines the respect for the courts, for the rule of law and for the Constitution itself.” What utter rubbish? All parole or pardon decisions do mitigate the punishment imposed by courts but that is exactly their functions under the Constitution and Correctional Services Act.
Right-thinking members of society have the right to revolt against palpably unjust orders of courts which are calculated to suit partisan political agendas and to subvert the rule of law. It remains to be seen whether judicially-inspired riots will become the order of the day in this beloved country of ours. One hopes that the appeal court will arrest the trend of judges acting as complete stooges acting at the whims of white-dominated parties and NGOs.
