Abstract
The contextual background of this article is the judgment of the Constitutional Court in which the former President of South Africa was ordered to direct imprisonment following the court’s previous order that found Mr. Zuma in contempt of court for not heeding the Zondo Commission’s requests for his cooperation with it. (Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma 2021 5 BCLR 542 (KH) (“first application”); Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma 2021 9 BCLR 992 (KH) (“second application”).) The order for direct committal of Mr. Zuma by the Constitutional Court was delivered in a split decision of 4–2.
South African law has always recognised that contempt of court orders may be obtained in the course of civil proceedings, in particular with motion procedure, where it was necessary. It has furthermore also always recognised that contempt of court was a crime and that therefore obtaining such an order by process of civil motion is a hybrid process which contains both civil and criminal procedural elements. It was, however, expected that the South African common law process of contempt of court through the civil process, after adoption of the country’s first democratic Constitution, would have to be adapted to constitutional standards. This was necessitated particularly by the constitutional emphasis on the freedom and security of a person (Bill of Rights sec. 12) and the rights of arrested, detained and accused persons (Bill of Rights sec. 35). The finding of contempt of court in civil proceedings is, however, not as problematic as the accompanying order against a contemnor. In particular, South African courts have differentiated between so-called coercive and punitive orders following upon a contempt order by the court. A coercive order directs the contemnor to comply with the previous court order failing which the court may order the contemnor’s imprisonment. If the order for imprisonment is suspended, it is on condition that the contemnor complies with the court’s order. A purely punitive order coupled with a finding of contempt of court occurs, however, where a court orders direct (unsuspended) imprisonment upon finding the contemnor in contempt of court. The crisp question for decision in the litigation addressed in this article therefore relates to the appropriateness or the instances in which a court may order direct imprisonment of a contemnor. To address this question, this contribution primarily examines two aspects: The first is the general legal position in so-called “civil” contempt but in particular it includes the legal precedent that was available to the Constitutional Court in delivering its judgment. The question of direct imprisonment for contempt of court by civil proceedings had never before presented itself in our courts prior to the Constitutional Court’s judgment in this saga. The only significant, but not directly to the point, precedent was the Supreme Court of Appeal’s judgment in Fakie v CCII Systems (Pty) Ltd 2006 4 SA 326 (SCA). As far as the Fakie judgment is concerned, it too was a split decision of 4–2. The question for decision in Fakie, however, related to the standard of proof required of an applicant in contempt of court proceedings. It established that an applicant is to be held to the criminal standard of proof for contempt, namely beyond a reasonable doubt. This judgment may be seen as the beginning of a process to develop the civil contempt of court process in line with the Constitution.
The second aspect which this article addresses throughout is the settled purposes of contempt orders particularly in the extraordinary context within which it arose in the Zondo/Zuma litigation. When addressing the appropriateness of a direct committal of the contemnor, it is argued that the pre-litigation conduct of both the applicant and the alleged contemnor is of particular importance. When the Zondo Commission brought its first application – that is the application to order compliance by Mr. Zuma – it provided a detailed account of the extraordinary measures it had taken in the pre-litigation phase to accommodate him. These measures were so lenient that justice Khampepe, who wrote the majority judgment, commented that it may arguably be regarded as a violation of the equality clause in section 9 of the Constitution requiring equality of everyone before the law. The only reaction by Mr. Zuma to the Commission’s generous requests to cooperate, was a continuous and well-publicised series of statements making his intention of non-compliance and continued contempt for the Commission publicly known. Therefore, even in the pre-litigation phase Mr. Zuma was making himself guilty of a violation of section 6 of the Commission’s Act, which is punishable with imprisonment. His intentions were clear. When the Commission launched the first application for the order to compel his cooperation with the Commission, he did not use the opportunity to appear. The Constitutional Court then, by letter from the registrar of the court, invited Mr. Zuma to, by sworn affidavit, inform the court of what he would consider an appropriate sentence should he be found in contempt of court in the then pending second application by the Commission. By issuing this directive to Mr. Zuma, the court explained in the majority judgment that it wanted to ensure a fair process in which he would not be deprived of his right to freedom (sec. 12 Constitution) in a manner that was comparable to the fair trial rights afforded to a detained or accused person in terms of section 35 of the Constitution. Again, with full knowledge of the possibility of incarceration, Mr. Zuma ignored the court’s offer.
This history of many opportunities to the contemnor and his blatant rejection of it all raises the purposes of the civil contempt process. First, it is a mechanism to assist any litigant to exercise his/her/its fair trial rights to ensure that civil litigation is finalised. The right to a speedy resolution of the dispute accrues to both litigants and is part of the so-called fair trial rights. Second, the civil contempt process aims to ensure that the integrity and respect for the law, its courts, processes and its orders are maintained. If that respect and trust in the rule of law does not exist, the legal sovereignty of a state is nullified. By the time the Commission launched the second application against Mr. Zuma in which it asked for a contempt order coupled with his direct incarceration, its term had almost expired and there was clearly no hope or expectation that Mr. Zuma would ever cooperate. An order for a suspended sentence would have been a waste of time; the order would be a brutum fulmen order of no consequence. The minority judgment preferred that the matter at that stage was to be referred to the National Prosecuting Authority. It argued that a direct committal order was unconstitutional given the rights guaranteed in the Bill of Rights. It did not indicate what particular additional protection Mr. Zuma would have enjoyed had the matter been dealt with in criminal proceedings. It further gave no indication of whether the criminal court would be expected to make a renewed finding of contempt. In the light of the huge public interest in this case as well as the extensive protections afforded to Mr. Zuma by the Commission in the pre-litigation phase, as well as the court’s invitation to him to propose a suitable sanction, the authors argue that the majority judgment is preferable.
The Constitutional Court developed the law of civil contempt in line with the Constitution with this judgment and in regard to the question of the appropriateness of a direct order of committal. This it did in extraordinary circumstances. The position of civil contempt may therefore be summarised as follows after the judgment:
- Civil contempt proceedings have survived constitutional scrutiny starting with the Supreme Court of Appeal’s judgment in Fakie.
- The standard of proof in civil contempt proceedings remains the civil standard that includes the settled requirements for establishing the contempt.
- When, however, an applicant wishes to obtain an order for direct committal following a contempt order, the standard for proving it is the criminal standard of beyond a reasonable doubt. If the alleged contemnor can create doubts regarding his/her mala fides, he/she must enjoy the benefit of that doubt. It needs stressing that this scenario will only arise in exceptional circumstances where, for example, the public interest weighs heavier than the applicant’s right to obtain compliance or when a suspended sentence will constitute a brutum fulmen order. Secondly, in a case like this, that the respondent receives all the possible opportunities and protections comparable to criminal proceedings. An option here is to bring an application for the respondent to advance reasons why direct imprisonment should not be imposed.
- Whether an applicant desires a coercive or punitive order, it is proposed that as early as the application to compel die applicant, the respondent is notified that continued failure to comply may lead to imprisonment.
Keywords: civil contempt of court; coercive order; committal; motion procedure; punitive order; Zondo Commission; Zuma
- This article’s featured image was created by Mohamed Hassan and obtained from Pixabay.
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