Shameful Contempt Verdict Against Zuma-Why the Public Was Robbed of Justice?

 

A Shameful Contempt Verdict Against Zuma -Why the Public Was Robbed of Justice?

                  By Paul M. Ngobeni

 

What a bitter irony that a clear case of judicial malpractice and unconstitutional conduct by the majority judges is eloquently set out by the Concourt’s own dissenting minority opinion of Justices Theron and Jafta, not by Zuma.  When faced with a difficult legal case, the majority justices opted for the politically expedient way out – they claimed President Zuma’s case was unique because of his political following and popularity, they failed to recuse themselves even in circumstances where they admitted their own bias and then proceeded to sentence Zuma to a determinate period of incarceration without the benefit of a fair trial or even the pretence thereof.  I dissect herein the gross errors of law in the majority judgment and argue this verdict comes very close to judicial abuse of the enormous contempt powers vested in our courts.

 

To be clear, the State Capture Commission (Zondo Commission) was established to perform a very important and invaluable task for our country. It remains, however, a statutory body clothed only with the powers that the Legislature has given it. Our courts (including the Constitutional Court) are duty-bound to uphold and protect the Constitution and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. Indeed, the same law, the same Constitution which obliges Zuma as a citizens to obey the law of the land like every other citizen, also affords Zuma the same protections that it affords every other citizen. He cannot be subjected to invidious discrimination and cannot be singled out for a unique punishment because of his political status.

 

Contrary to the propagandists, Zuma has never claimed that he is above the law or the Constitution, the Supreme law of the land.  Instead of seeking a special, hallowed or elevated place for himself, he has only insisted that he must be treated like every other citizen and that his rights to equal protection of the laws must be respected and protected. This point is made emphatically by the dissenting minority judgment of Justices Theron and Jafta.

 

Tragically, the Concourt majority judgment missed the boat completely and disregarded the wise admonition of former Indian Chief Justice Gajendragadkar, who said:

 

"Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the Courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, "Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out-spoken comments of ordinary men." We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely. "Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct."

 

It is lamentable that, instead of a legally sound and scholarly judgment, the majority judgment displays all the hallmarks of a political tract verdant with emotion-laden heated rhetoric long on denunciation of President Zuma but woefully short on legal principles and consideration of justice. Not surprisingly, and giving credence to the adage that “a guilty conscience needs no accuser,” the majority starts off with a defensive jeremiad that: “To the extent that the second judgment insinuates that I am creating precedent to punish Mr Zuma alone,57 my Sister is mistaken. I do no more than apply the law, cautiously, to these new and unusual circumstances.” Truth be told, they did exactly that selective persecution and worse – they created a precedent to punish Zuma alone by claiming “unusual circumstances” and then proceeded to find him guilty of a crime and imposed upon him a 15 month jail sentence without a trial.  Lest we forget, under Apartheid, Zuma had the benefit of a trial before he was convicted and sentenced to ten years on Robben Island.  And yet under the new democratic constitution he sacrificed so much for, he has been sentenced to a determinate jail sentence without the benefit of a trial!

 

As the dissenting justices point out, the majority has imposed punitive incarceration on Zuma, departed from the established principle that a court must not adjudicate a matter in which a member of the same court is a litigant and has violated Section 165 of the Constitution by presiding over a case in which the majority judges complain that Zuma has vilified, attacked, insulted and slandered them. That the majority euphemistically characterizes this flagrant violation of established  constitutional principles as mere application of the law, cautiously, to these new and unusual circumstances” is truly astounding and tragic. A case of selective persecution clearly exists. members of the public have the right to protest vehemently and vociferously against such actions by any branch of our government.

 

The Concourt Has Confirmed Zuma’s Status as A Prisoner of Conscience to be Imprisoned Without a Trial

 

It is even more unsettling that the Concourt failed to coherently define what constitutes contempt of court.  Contempt of court is any act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen the authority or dignity of a court.  Out of court political speeches and declarations by an accused or complaints about perceived unfairness in his court case do not amount to contempt.  A Commission of Inquiry established by the executive is not a Court and cannot be equated with a Court.  It is for this reason that proceedings before the Zondo Commission are governed by a statute, the Commissions Act which is complete and governs subpoena of witnesses and prosecution of recalcitrant witnesses in a magistrate’s court.  The Zondo Commission administers no justice as it is a mere creature of the executive under the Commissions Act.

 

Our Concourt is oblivious to the fact that the US Supreme Court has clarified the distinction between civil and criminal contempt as early as 1911. See, Gompers v. Buck’s Stove & Range Co. 221 U.S. 418 (1911). In an attempt to draw a distinction between the two types of contempt, the US court focused on the “character and purpose” of the sanction imposed. Gompers, 221 U.S. at 441. The court reasoned that a contempt sanction should be considered to be civil in nature it if is remedial and intended to benefit the complainant. Id. The court, for instance, explained that a contempt sanction is civil if it is “intended to be remedial by coercing the defendant to do what he had refused to do.” Id. at 442. In the Zuma case, the Zondo Commission expressly disavowed any intent to obtain a coercive order. As Justice Theron puts it: “The point of divergence between the two judgments is whether it is constitutionally permissible to impose punishment (in this instance unsuspended committal) in the context of civil proceedings, where the initiating party disavows its interest in obtaining compliance with the original court order (remedial objective). Judgment at. Para.145.

 

The Gompers court clarified that if the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order. Hicks v. Feiock, 485 U.S. at 632. In contrast with the purpose of a civil contempt sanction, the purpose of a criminal contempt sanction (e.g., an unconditional and determinate period of imprisonment or a fixed monetary fine) is to punish the contemnor and vindicate the authority of the court.[1] Consequently, criminal contempt is punitive in character. Gompers, 221 U.S. at 441.

In Zuma’s case, the Court perversely rejected the coercive sanction simply necause it concluded the other party (Commission) had no appetite for it and because it speculated that Zuma was not likely to comply. It did so without a hearing of course

 

In Gompers, the court also articulated a mandatory-prohibitory test to assist in determining whether a civil or criminal contempt sanction is appropriate. Basically, the court opined that civil contempt is appropriate for coercing future compliance with a previously violated mandatory court order (e.g., one that said “Do X”), while criminal contempt is appropriate for punishing a past violation of a prohibitory court order (e.g., one that said “Don’t do X”).

 

Because of the fine line between coercion and punishment, there is always the possibility that a civil/coercive contempt sanction might evolve into a criminal sanction. Therein lies the temptation for judges to abuse their powers to hold citizens in contempt. This possibility exists in cases where a civil contemnor is subjected to continued “coercive” confinement despite the fact that there is “no realistic possibility or no substantial likelihood that additional confinement will coerce.”[2] In such cases, the sanction should lose its civil status essentially because a coercive purpose no longer justifies continued confinement. This scenario is especially problematic because the incarcerated and uncoercible contemnor finds him or herself the victim of criminal confinement without having received the benefits of the required criminal procedural Protections. See generally; Hicks v. Feiock, 485 U.S. at 621 (explaining that “criminal penalties may not be imposed on someone who has not been afforded the Protections that the Constitution requires of such criminal proceedings”). As a result, the presiding judge is required to make a “conscientious effort” to ensure that the contemnor is not subjected to further civil confinement in the absence of an ongoing and realistic possibility of coercing compliance. Simkin v. United States, 715 F.2d 34, 37 (2d Cir. 1983). 

 

It is illogical and downright unconstitutional for the court to rule that Zuma must be incarcerated as a punitive sanction simply because there is no realistic possibility of coercing compliance – it is the Commission which states it is no longer interested in his testimony and does not seek an order compelling it. Indeed, this has disturbing implications and raises questions why the Commission rushed to the apex court to secure Zuma’s testimony if, in the end, there is no compelling need for it? Should the waiver of its right by the Commission not counsel against sending Zuma to jail or, at a minimum, suggest that the NPA must deal with the matter as suggested by the minority judgment?

 

It is familiar ground that a civil contempt sanction is a coercive device, imposed to secure compliance with a court order, Shillitani v. United States,384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Maggio v. Zeitz,333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948), and that "[w]hen it becomes obvious that sanctions are not going to compel compliance, they lose their remedial characteristics and take on more of the nature of punishment." Soobzokov v. CBS, Inc.,642 F.2d 28, 31 (2d Cir. 1981). When a recalcitrant witness is jailed for refusing to furnish unprivileged information in state court proceedings, it has been held that at some point in what otherwise would be an indefinite period of confinement due process considerations oblige a court to release a contemnor from civil contempt if the contemnor has then shown that there is no substantial likelihood that continued confinement will accomplish its coercive purpose. See, e.g., Lambert v. Montana,545 F.2d 87 (9th Cir. 1976); In re Farr,36 Cal.App.3d 577, 111 Cal.Rptr. 649 (1974); Catena v. Seidl,65 N.J. 257, 321 A.2d 225 (1974).

 

In recognition of the ever-growing confusion surrounding the characteristics of criminal and civil contempt, the US Supreme Court further refined the analysis used to determine whether a contemnor is entitled to the heightened Protections of a criminal contempt proceeding or the less stringent Protections of a civil contempt proceeding. The revised analysis adheres to the following premise: if the contemnor is given the opportunity to purge him or herself of the contempt by complying with the violated court order, then only the Protections of a civil proceeding are required; Hicks v. Feiock, 485 U.S. 624, 640 (1988); Shillitani v. United States, 384 U.S. 364, 370-71 (1966) or, in other words, if the contemnor “carries the keys to the jail in his own pocket,” then a civil contempt proceeding is appropriate.” Hicks v. Feiock, U.S. at 633; see also In re Nevitt, 117 F.2d 448, 461 (8th Cir. 1902)(explaining that civil contemnors “carry the keys of their prison in their own pockets”). Even before the above-mentioned refinement, the court already had ruled that “[w]here a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge.” International Union, United Mine Workers of America v. Bagwell, 114 S.Ct. 2552, 2558 (1994)(citing Penfield Co. of California v. SEC, 330 U.S. 585, 590 (1947).  It follows that in Zuma’s case, it is unconstitutional for the Concourt to deny him a coercive sanction with an opportunity to purge and then resort to criminal sanctions without a trial.  Motion proceedings are woefully inadequate for the purpose of protecting citizens’ rights under Section 12 and 35 of the RSA Constitution.

 

The “no opportunity to purge” issue was revisited in later cases such as International Union, United Mine Workers v. Bagwell, 114 S.Ct. 2552, where the Supreme Court once again considered the distinction between civil and criminal contempt. The court’s review of this case potentially was linked to the growing tendency of the lower federal courts to liberally use civil contempt proceedings to impose determinative fines.[3] Not too surprising in light of this trend, Bagwell involved the review of a trial court’s decision to levy a total of $64 million in contempt fines against the United Mineworkers for 400 separate violations of an injunction prohibiting unlawful strike activity. Bagwell, 114 S.Ct. at 2555-56.  During its review, the court focused on the lower court’s decision to classify the fines as civil, which thereby seemingly enabled the court to avoid the jury trial requirement that otherwise would have been required if the fines had been labeled as criminal contempt sanctions. Disapproving of the lower court’s decision, the court ruled that “out-of-court violations of complex injunctions” require criminal procedural Protections. Bagwell, Id. at 2560-61. Even more significantly, the court “decline[d] to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law.” Id. at 2562. The Court made this decision after noting that the contemnors had been given no opportunity to purge the prospectively-established “determinate fines of $20,000 or $100,000 per violation.” Id.

 

Zuma was unlawfully subjected to summary contempt process without any due process considerations. The use of the summary contempt power should only be exercised after considering the following words of the Supreme Court: “Summary punishment always, and rightfully, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes.” Sacher v. United States, 343 U.S. 1, 8 (1952).  Ironically, it is not Zuma’s words or alleged conduct that will bring the court into disrepute but the Court’s own angry judgment which was “imposed in passion or pettiness.”

 

Because the Concourt invoked criminal sanctions (after rejecting the coercive sanctions) it was incumbent upon the Concourt to afford Zuma the full panoply of rights enshrined in our Constitution for criminal accused. In summary, the US Supreme Court has recognized that a criminal contemnor deserves all of the following: the right to be advised of the charges; Young v. United States ex rel. Vuitton et. Fils S.A. et al, 481 U.S. 787, 794 (1987)(citing Cook v. United States, 267 U.S. 517, 537 (1925)) and is also entitled to the right to the assistance of counsel. Cooke v. United States, 267 U.S. 517, 537 (1925). The Fifth Circuit has even extended the right to the assistance of counsel by recognizing a right to appointed counsel if the accused is indigent. Ridgway v. Baker, 720 F.2d 1409, 1414-15 (5th Cir. 1983). There is also the presumption of innocence; Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444 (1911); the requirement that guilt be proved beyond a reasonable doubt; Bloom v. Illinois, 391 U.S. 194, 205 (1968)(citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444 (1911). Most importantly, the right to be tried by an unbiased judge in a public trial in those cases deserving a trial; In re Oliver, 333 U.S. 257 (1948); and the right to a “disinterested prosecutor.” Notice that in Zuma’s case there was no disinterested prosecutor – the Court relied on the submissions of the Commission in the Motion proceedings.

 

In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), the Supreme Court recognized a criminal contemnor’s right to a “disinterested prosecutor.” In doing so, the Court pointed out that a private attorney appointed to prosecute a criminal contempt represents the United States, not the party who is the beneficiary of the court order that has been allegedly violated. Id. at 804. The Court next stated that criminal contempt proceedings arising out of civil litigation are between the public and the defendant and are not part of the original civil action. It is also important to realize that the prosecutor is appointed solely for the purpose of vindicating the court’s authority. Id. A civil litigant who has been adversely affected by a party opponent’s unwillingness to comply with a judgment or injunction would be incapable of acting in a disinterested manner. As a result, the civil litigant cannot serve as the prosecutor as he or she must rely on the appointment of a “disinterested prosecutor” to prosecute the matter.  It was perverse for the Concourt to act as its own prosecutor or without any prosecutor in this regard.Clearly rthe Commission's lawyer could not serve as a "disinterested prosecutor."

 

Zuma should also have been accorded the privilege against self-incrimination. See Bloom v. Illinois, 391 U.S. 194, 205 (1968); Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 444 (1911). He should also have been allowed the right to cross-examine government witnesses; and the opportunity to present a defense and call witnesses. The right to present one’s case applies to all aspects of court proceedings where the court makes a factual finding. This right is an expression of the audi alteram partem principle and part and parcel of the right to a fair trial. The notion of a fair and adversarial hearing requires that the accused be given an adequate opportunity not only to challenge and question witnesses against him, but also to present his own witnesses in order to establish an effective defence. The right to present one’s case is also subject to the principle of “equality of arms”. The principle of “equality of arms” is the guarantee that both sides will be given the same procedural opportunities to prove their cases.[4] Therefore, the court cannot act in away which gives the prosecution an advantage over the defence. Not only did the Concourt dispense with the need for a prosecutor but it simply used evidence from the civil motion proceedings (where no cross-eaximantion took place) but it failed to provide Zuma an opportunity to present his defence in the new criminal case.

 

Our own case law makes it clear that zuma should have been given  the opportunity to deal with the matter as a criminal case. In this regard, see also, S v Phomadi 1996 (1) SACR 162 (E), where the court held that the audi alteram partem principle still applied to a person who is accused of contempt of court. Such an accused should be given the right both in respect of his conviction and sentence to give evidence, to call witnesses in his defence and to address the court.  Zuma was denied all these rights before the Concourt pronounced its sentence.

 

The civil and criminal distinction not only determines the applicable procedural Protections, it also affects the type of sanctions that can be imposed. If the proceeding is civil, the sanction must serve either a remedial or coercive function. Furthermore, the civil coercive sanction must be immediately lifted upon the contemnor’s compliance with the relevant court order. If the proceeding is criminal, the sanction must be determinate (e.g., a fixed jail sentence or monetary fine). As the dissenting judgment notes, the Concourt conducted a criminal contempt proceeding which did not meet all the procedural requirements, it was therefore incompetent for the Court to impose a punitive jail time.

 

Whatever civil disorder or bloodshed emanates from the people’s righteous anger at this type of procedural morass must be laid squarely at the feet of the Constitutional Court. When faced with an assault on the core constitutional rights of a citizen and former freedom fighter, members of society have the moral right to engage in non-violent acts of civil disobedience which is a singular hallmark of a free country.  As a dissenting judgment stated in United States v. Kabat, 797 F.2d 580, 601 (8th Cir. 1986) (Bright, J., dissenting):

 

 We  must  recognize  that  civil  disobedience  in  various  forms,  used  without violent acts against others, is engrained in our society and the moral correctness of political protestors’ views has on occasion served  to  change  and  better  our  society.    Civil  disobedience  has  been prevalent throughout this nation’s history extending from the Boston  Tea  Party  and  the  signing  of  the  Declaration  of  Independence, to the freeing of the slaves by operation of the Underground Railroad  in  the  mid-1880’s.

 

Regarding Zuma’s status as a prisoner of conscience, it is appropriate to quote what Dr. Martin Luther King, Jr. said about the topic of direct civil disobedience, from his Birmingham jail cell:

 

One who breaks an unjust law must do so . . . with a willingness to accept  the  penalty. I submit that an individual who breaks a law  that  conscience  tells  him  is  unjust, and who willingly accepts the penalty of imprisonment  in  order  to  arouse  the  conscience  of  the  community  over  its  injustice,  is  in  reality  expressing  the  highest  respect for law.  

Martin L. King, Jr., Letter from Birmingham Jail, in THE AUTOBIOGRAPHY OF MARTIN LUTHER KING,JR. 187, 194 (Clayborne Carson ed., 1998).

 

The idea is that accepting legal consequences shows that the civil disobedient seeks to  better  society  within  the  parameters  of  the  social  contract, to be persuasive, and to behave ethically.  In the event the protestor is convicted, serving time in jail will, according to Dr. King, “arouse the conscience of the community” over an unjust state of affairs. Id.  As the Court stated in State v. Diener, 706 S.W.2d 582, 586 (Mo. Ct. App. 1986):

 

One  characteristic  of  civil  disobedience  is  the  recognition  by  its  practitioner  that  he  must  face  the  legal  consequences  of  his  offense.    Indeed,  it  is  the  appearance  of  martyrdom  for  a  just  cause  which  focuses  public  attention  upon  the  disobedient  crusader  thereby hastening the achievement of his goal.

 

To sum up, the Constitutional Court has violated the constitution in its judgment and there are looming threats to incarcerate an individual citizen without the benefit of a trial. As the US Supreme Court stated in Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting):

 

In  a  government  of  laws,  existence  of  the  government  would  be  imperiled  if  it  fails  to  observe  the  law  scrupulously.  .  .  .  Crime  is  contagious.    If  the  government  becomes  a  law-breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites  anarchy.    To  declare  that  in  the  administration  of  the  criminal  law  the  end  justifies  the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.  Against that pernicious doc-trine this court should resolutely set its face.

 

No branch of government including, the judiciary, is above the law and the Constitution. The existence  of this  government  is  imperiled  because our apex court  failed  to  "observe  the  law  scrupulously" – the government became the "law-breaker" and became a law unto itself.  It has now invited anarchy - we must all hope and pray that no South African life is lost because of the attitude by some that Zuma must be denied all constitutional rights and be humiliated for partisan political purposes.

 

          Other Egregious Unconstitutional Acts by the Court

 

A wiser panel of justices would have considered that recusal is mandated by the constitutional fair trial requirement, the common law and case law.  In Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996(3) SA  1 (SCA), an application was brought for the recusal of an acting judge where the applicant had an apprehension that she might not get a fair and impartial hearing because of “the strained relationship between the presiding acting judge and her attorney”. The appeal court indicated that there were two options open to the judge hearing the recusal application: one was to consider the legal sufficiency of the grounds advanced in support thereof; the other was to consider the sufficiency of the evidence and, in conjunction therewith, the respondents claim in the affidavit that the application was male fide. Once the presiding judge entered into the arena in a manner where his “aim was plainly to expose what he regarded as the petitioners utter untruthfulness and attorney A and attorney B scandalous complicity therein” and then concluded that the applicant herself had behaved in a “sinister” manner and could not be believed, then said the appeal court that applicant probably had “every reason to despair of her evidence being accepted in the main proceedings”. The appeal court took the view that the way in which the recusal application was handled “disqualified” the acting judge, irrespective of its merits or demerits, from proceeding with the substantive matter: the acting judge was criticized for making findings on disputed facts in his own favour in motion court proceedings, for failing to have regard to his own emotional response that this recusal application was “highly offending” and “an assailment of his personal integrity” resulting in “clouded judgment”, the nature and regularity of the acting judge’s interventions in the course of the recusal proceedings was to do little more than expose what he regarded as the applicant’s “utter untruthfulness”.  A reading of the majority’s angry and emotional outburst reveals the same judgment was “clouded” and appears to be assuaging their hurt feelings above all.

 

Additionally, wiser justices would also have considered the Dube & Others v The State (523/07) [2009] ZSCA 28; 2009 case where the court stated the following:

 

‘The rule is clear: generally speaking a judicial officer must not sit in a case where he or she is aware of the existence of a factor which might reasonably give rise to an apprehension of bias. The rationale for the rule is that one cannot be judge in one’s own cause. Any doubt must be resolved in favour of recusal. It is imperative that judicial officers be sensitive at all time. They must of their own accord consider if there is anything that could influence them in executing their duties or that could be perceived as bias on their part. It is not possible to define or list factors that may give rise of apprehension of bias – the question of what is proper will depend on the circumstances of each case.”

 

Instead of resolving doubts in favour of recusal the majority justices shifted the blame on to Zuma’s shoulders and then used their anger against Zuma to  justify their failure to recuse themselves. They should have been alive to the reality that DCJ Zondo is the second most senior member of the Concourt and exercises supervisory responsibility over his colleagues. They know this from the South African Motor Acceptance Corporation (EDMS) BPK v Oberholzer - 1974 (4) SA 808 judgment which clearly states:

 

"Where two judicial officers are attached to the same Bench as colleagues and one of them is a litigant or an accused, then there is a reasonable ground for the other legal official to be recused from trying the action …That recusatio judicis suspecti applied in respect of all judicial officials irrespective what their order of rank in the hierarchy of the administration of justice might be. It also made no difference whether the action concerned was a civil or a criminal nature."

 

Here Zondo’s status as a litigant was used as a basis to attack Zuma for unspecified “insults” “attacks” and defamation of the judiciary.  What is disconcerting is the fact that the Concourt appeared not to draw a distnction between Zondo’s work as a Commissioner and his work as a jurist at the Concourt. Even under Apartheid Zondo’s Concourt colleagues would not have been permitted to hear the Commission’s case especially where his status as a Deputy Chief Justice is being flagged to add weight to a case against Zuma. But here the focus was on punishing Zuma for his political activities and not justice.

 

Can the public be forgiven for suspecting that the judges’ unbridled and vituperative denunciation of Zuma is informed by partisanship and their desire to avenge Zondo for alleged attacks emanating from Zuma? If so, is it not a violation of the separation of powers principles to have regard to and invoke Zondo’s judicial status even where he is serving as a Commissioner appointed by the executive? By what logic can criticism of and non-cooperation with the Chairperson of a Commission appointed by the executive be regarded as an assault on the judiciary?  After all, Zondo exercises no judicial power when he is presiding over that State Capture Commission – that is why he is addressed as “Chair” and not judge.  He assumes judicial “status” only when it is time to punish Zuma for attacking the “judiciary”?

 

Furthermore, either out of collegial solidarity with Zondo or common purpose desire to avenge Zondo for Zuma’s alleged attacks upon him, the Concourt played the victim and unleashed factually unsubstantiated accusations against Zuma. It asserted that Zuma “instead opted to malign this Court” that he has “effectively conducted a politically-motivated smear campaign of this Court, the Commission and the Judiciary,” that he has uttered “specific serious insults that … directed at this Court, the Commission and the Judiciary.” It alleged that “the crux of these insults is that these institutions are politicised and prejudiced. And that, instead of pursuing their legitimate and constitutional mandates, they seek to further their own political agenda and target Mr Zuma personally.” It further asserted that Zuma “ventilated his defiance by making scurrilous statements about this Court and the Judiciary at large, and has repeatedly demonstrated disdain for the judicial process.” The Court stated further that: “Never before has this Court’s authority and legitimacy been subjected to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.” The Court further stated: “Not only is Mr Zuma’s behaviour so outlandish as to warrant a disposal of ordinary procedure, but it is becoming increasingly evident that the damage being caused by his ongoing assaults on the integrity of the judicial process cannot be cured by an order down the line. It must be stopped now. Indeed, if we do not intervene immediately to send a clear message to the public that this conduct stands to be rebuked in the strongest of terms, there is a real and imminent risk that a mockery will be made of this Court and the judicial process in the eyes of the public. The vigour with which Mr Zuma is peddling his disdain of this Court and the judicial process carries the further risk that he will inspire or incite others to similarly defy this Court, the judicial process and the rule of law.” It is further alleged that “his assaults and his alleged contempt are ongoing and relentless,”.  The Court asserted that the “scurrilous and defamatory aspects of these statements, on the other hand, are bound to inform my reasoning on the appropriate sanction.” It now becomes clear that the Concourt commingled and confused its own judicial authority with the authhority of the Zondo Commission established by the executive. But there is no evidence in the record of any of these allegations!

 

The Court further alleged: “When one considers Mr Zuma’s public statements against this backdrop, his conduct appears all the more egregious. It is unnecessary and inappropriate to entertain the specific details of these statements, save to note that they disclose no cogent, genuine, or factually supported critiques of this Court or any of the other institutions and individuals whose integrity and motives he so casually and emphatically denounces.” Why would Zuma’s critique of ‘other institutions” be the subject matter of the court’s inquiry when it is dealing solely with “contempt of court”?  Realizing that the Court simply has no cogent or articulable evidence of Zuma’s alleged attacks the majority concludes as follows: “I do not propose to deal with the specifics of Mr Zuma’s unfounded accusations and insults, I want to touch on only one, which appears to be a leitmotif in his complaints against this Court. He repeatedly says that, by hearing this application in the face of his High Court application for the review of the decision by the Chairperson of the Commission not to recuse himself, this Court has acted unconstitutionally and in violation of his rights. Of course, this view is totally misconceived and calculated to confuse the public.”  But it is not a crime to allege that a Court acted unconstitutionally as evidenced by the minority judgment which says exactly that about the Court judgment.  It thus appears that the majority unconstitutionally used Zuma’s pleadings in his pending High Court judicial application to impose a criminal sanction against him.  The Concourt concluded without a scintilla of evidence that: It speaks of “..the intensity of Mr Zuma’s attacks on the Judiciary”. The Court concludes that it “must appreciate the gravity of his conduct and its impact on the integrity of the Judiciary. He has repeatedly defamed and vilified members of this Court, and although he has not actively abused court processes, he has passively done so by ventilating his “case” through a public smear campaign, instead of through legitimate legal processes.”  Here the Councourt makes clear that it regards itself as a target and a of the alleged villification campaign by Zuma.  But where is the evidence in the record of the Court?

 

It is ironic that the Concourt which denies any  politically motivated treatment of Zuma is simultaneously admitting that its angry denunciation and punishment of Zuma is based on his exercise of free speech and constitutionally protected claim that “this Court has acted unconstitutionally and in violation of his rights.” This gives the impression that the  Concourt has admitted its own political motive for punishing Zuma. That aside, since when has it been a crime for a person to allege that a "Court has acted unconstitutionally and in violation of his rights."?

 

The US Supreme Court has stated in regard to contempt cases, “[W]here conditions do not make it impracticable, or where the delay may not injure public or private right, a judge, called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.” Cooke v. United States, 267 U.S. 517, 539 (1925). Whenever a judge becomes “personally embroiled” in a conflict with an accused contemnor (e.g., by repeatedly yelling and bickering with a lawyer), the judge must recuse himself from presiding over the post-trial contempt hearing. Offutt v. United States, 348 U.S. 11 (1954). Moreover, constitutional due process considerations likely will require the judge to recuse himself from the post-trial contempt proceeding in instances where the judge has been personally insulted by an act of direct contempt. See, Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971); In re Dellinger, 461 F.2d 389, 395 (7th Cir. 1972). The appropriate inquiry is whether there is “such a likelihood of bias or an appearance of bias” that the presiding judge is “unable to hold the balance between vindicating the interests of the court and the interests of the accused.” Taylor v. Hayes, 418 U.S. 488, 501 (1974) (quoting Ungar v. Sarafite, 376 U.S. 575, 588 (1964)).

 

It is also intuitively obvious that a Court which portrays itself as a victim of scurrilous attacks, defamation and insults by Zuma cannot exercise its judgment over him impartially and fairly. The language used by the majority judges clearly suggests they should have recused theselves. The objective inquiry is “not whether the judge is actually, subjectively biased, but  whether  the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias. Under similar circumstances the US Supreme Court in Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) ruled that the Due  Process  Clause  requires  that a defendant receive a trial before a judge “other than the one reviled by the contemnor”. 

 

It is unacceptable that DCJ Zondo who is a complainant in the criminal case against Zuma (the contemnor), was expected to preside over proceedings where Zuma is a witness and where DCJ Zondo has to make credibility determinations. The common law maxim that “a man may not be a judge in his own cause” unequivocally negates the power of DCJ Zondo to hear and decide a case in which he is interested. 

 

Likewise, it is unconstitutional and a violation of Section 165 of the Constitution for the Concourt judges to preside over a matter where they claim to be victims of villification, attacks, insults, slander and defamation by Zuma. The US Supreme Court has described a similar scenario as intolerble bias and ruled:

 

"Every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law." . . . Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice." (Id. at 136.)

 

Further, in Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971), the court dealt with which  followed In  a defendant who, in the course of trial, verbally attacked the presiding judge.  Defendant  referred  to  the  judge  as  a  “hatchet  man  for  the  State,”  a  “dirty sonofabitch,” and a “dirty, tyrannical old dog.” Id. at 456–57.  He continuously interrupted court, to the point  where  Mayberry  had  to  be  removed  from  the  courtroom. Id. at 462. The Supreme  Court  held  that  when  the  defendant  faces  criminal  contempt charges  he  “should  be  given a  public  trial  before  a  judge other  than  the one  reviled  by  the  contemnor.” Id. at 466. In  such  circumstances,  a  different judge should conduct the contempt trial in place of the judge who initiated the contempt.  Again, disqualification  was  necessary because  of  the  interaction  between  the  judge  and  the  defendant  prior  to the  contempt  hearing. Mayberry, 400 U.S. at 465.  The  Court  explained  that  a  “vilified”  judge “necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.” If the Concourt majority truly believed in the accusations they leveled against Zuma they would obviously have recused themselves and allowed uncontaminated judges to preside in the case.  The fact that they failed to recuse and instead opted to issue an angry judgment reflecting hurt feelings and angry denunciations of the accused speaks volumes in terms of denial of due process.

 

Suffice it to say that for the reasons eloquently articulated in the minority judgment, the Commission’s application sought to unlawfully bypass proper legal channels and to augment Zondo’s powers in a procedurally unfair and inappropriate manner. The Concourt would be hard-pressed to identify the circumstances justifying the Commission’s urgent Constitutional Court case compelling Zuma to abide by summons to appear before the commission when the Commission has adequate statutory remedies under the Commissions Act.  Sadly the Concourt endorsed an abuse of process unheard of in our jurisprudence.  The Concourt ignored the obvious principle that a Commission cannot inquire into a matter if its inquiry would interfere with the administration of justice. McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 84. It has been held, for example, that a Royal Commission could not inquire into allegations that a person has been guilty of criminal conduct if a criminal prosecution has been commenced against the person in respect of the alleged conduct. Hammond v Commonwealth (1982) 152 CLR 188, 198.  Zondo had filed a criminal complaint of contempt and the Concourt ignored that pending complaint and assumed the additional duty to be the complainants, prosecutor, jury, judge and executioner at the same time.  Certainly, public confidence cannot be maintained by such constitutionally unsound antics by our judiciary.

 

The judiciary would gain greater respect of the public only if they are mindful that judges are not "anointed priests" entitled to special protection from the public clamor of democratic society.” See, Bridges v. California, 314 U.S. 252, 292 (1941) (Frankfurter, J., dissenting). In Justice Frankfurter's words: "Certainly courts are not, and cannot be immune from criticism, and lawyers, of course, may indulge in criticism. Indeed, they are under a special responsibility to exercise fearlessness in doing so." In re Sawyer, 360 U.S. at 669 (Frankfurter, J. dissenting).  The law gives judges and the institutional reputation of courts "no greater immunity from criticism than other persons or institutions." Judges, after all, are not "flabby creatures." United States v. Morgan, 313 U.S. 409, 421 (1941). Rather, they are expected to be "[people] of fortitude, able to thrive in a hardy climate.', Craig v. Hamey, 331 U.S. 367, 376 (1947).  It is a crying shame that our judges take refuge in their judicial power to incarcerate persons like Zuma for contempt merely because they dislike his complaints that they have acted in an “unconstitutional manner.”

 

The judiciary is a branch of government and can be criticized freely like all other branches in a democratic state. Judges who believe that litigants appearing before them must be censored, intimidated and punished for criticizing their judgments or orders are taking our judicial system back to the dark apartheid era.   A complaint of perceived judicial bias is a constitutional matter and “courts must act not only independently but also without bias, with unremitting fidelity to the law, and must be seen to be doing so” it follows that our courts can only do so if the litigants and lawyers appearing before the judges also play a concomitant meaningful watchdog function and remind judges of the constitution’s command that they must act without bias. As former DCJ Moseneke put it: When “a litigant complains that a judicial officer has acted with bias or perceived bias he is in effect saying that the judicial officer has breached the Constitution and her oath of office.” De Lacey judgment. It cannot be a crime or an “aggravating factor” to point out such unconstitutional or injudicious behavior.  Therefore it would be incongruous and unconstitutional to assume that a litigant such as Zuma can be punished for urging an errant judge to abide by the Constitution and to act in an unbiased manner.  Nor can a mere expression of opinion by a litigant that judges have acted oppressively or unconstitutionally be punished as contempt. This majority judgment is fatally flawed, has no redeeming features and will forever live in infamy!

 

 

 

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[1] Shillitani, 384 U.S. at 370; Gompers, 221 U.S. at 441. See generally, Gino F. Ercolino, Comment, United Mine Workers v. Bagwell; Further Clarification of Civil and Criminal Contempt, 22 New Eng. J. on Crim. & Civil. Confinement 291, 295 (1996) (“A determinative jail sentence is regarded as criminal because it serves no coercive effect.”).

 

[2] Doug Rendleman, Disobedience and Coercive Contempt Confinement: The Terminally Stubborn Contemnor, 48 Wash. & Lee L. Rev. 185, 200 (1991); see generally Linda S. Beres, Civil Contempt and the Rational Contemnor, 69 Ind. L. J. 723, 724 (1994) (describing the “no realistic possibility of compliance” standard).

[3] Philip A. Hostak, Note, International Union, United Mine Workers v. Bagwell: A Parodigm Shift in The Distinction Between Civil and Criminal Contempt, 81 Cornell L. Rev. 181, 201 (1995).

[4] See art 14(1) of the ICCPR, which provides that all persons shall be equal before the courts and tribunals. Also see sect. 9(1) of the 1996 Constitution which provides that: “Everyone is equal beforethe law and has the right to equal protection and benefit of the law”. The right of all persons tobe equal before the courts, requires that the prosecution and defence be treated equally in acriminal trial.