The article considers the role of dissenting judgments in the South African jurisprudence. The consideration takes place against the background of the so-called civil contempt of court orders obtained by litigants by civil motion procedure. It uses the recent Constitutional Court litigation between the Zondo Commission of Inquiry and the former president of South Africa, Jacob Zuma as a contextual background. The litigation included two applications by the commission against Zuma. The first was a successful application to compel his co-operation with the commission, and the second was to declare him in contempt of court and to order him to a period of unsuspended (direct) imprisonment. This order was therefore imposing a purely punitive as opposed to a coercive sanction for his contempt of court. Zuma did not join issue in the first two applications. After the first application the Constitutional Court issued a directive to Zuma inviting him to file papers in which he advanced reasons why an order for his committal should not be made in the event that the court found him in contempt. Again, he did not avail himself of this opportunity. In the majority judgment in the second application Khampepe J explained that the purpose of the directive was to afford the respondent the opportunity to put his case before the court ensuring for him the fairest possible chance to ensure his fair treatment on par with the fair trial rights in criminal cases as set out in section 35 of the Constitution. In effect, this measure constituted a development of the common law procedure relating to civil contempt orders and in particular as to the appropriateness of imposing direct orders of committal. In a third application Zuma unsuccessfully applied for the rescission of the court order made in the second application and advanced that the order had violated his various constitutional rights, constituting “errors” which in terms of the Constitutional Court rules entitled him to a rescission of the judgment and the order. Except in the judgment in the first application the Constitutional Court delivered six to two split opinions in the second and third applications. The litigation with reference to imposing an unsuspended imprisonment sentence brought on motion was unprecedented in South African jurisprudence and the majority and minority judgments strongly differed on the appropriateness of a direct committal sanction. The majority held that the nature of Zuma’s extra-curial contempt of court was so vehement and persistent that it had no choice but to impose a sentence that would immediately vindicate the Constitution, the administration of justice and the rule of law. Imposing a suspended imprisonment sentence according to the majority, would be tantamount to imposing an ineffective (a brutum fulmen) judgment that would serve no purpose in these peculiar circumstances. Opposed hereto, the minority held that a coercive sanction by way of imposing a suspended committal order would be more constitutionally compliant. The minority judgment (in the second application) reasoned that the civil contempt process, being a hybrid process of civil and criminal law, ought to ensure the full range of fair trial rights stipulated in section 35 of the Constitution in criminal cases. The minority stressed that the uniqueness of the facts of the matter did not justify any possibility of violation of Zuma’s rights, particular that of his right to freedom guaranteed in section 12 of the Constitution. The minority, however, failed to contemplate the constitutionality of a process which may have followed if Zuma again failed to heed the order to comply with the Commission following upon a coercive order of suspended committal. While the fact that the court delivered split judgments is nothing remarkable in South African jurisprudence, the wording of, and the reasoning employed by, the minority judgments are criticised. This criticism inevitably leads to a revisitation of the place and the role of minority/dissenting judgments in South African courts. With reference to local and international sources it is submitted that while there are definite advantages to dissenting judgments in our constitutional dispensation, caution needs to be exercised in delivering dissenting judgments, particularly in matters of great public interest and political sensitivity. This is so that particularly our apex court conveys a uniform message on matters foundational to our democratic order and achieved through judges deliberating more extensively before judgments are delivered. It is proposed that a set of four principles ought to be considered particularly in matters of the degree of public importance and political sensitivity as was the case in casu: (a) that courts of last instance, mindful that the litigant has no further recourse to appeal or review processes, must exercise restraint in their different opinions. Judges ought to be mindful of the political sensitivities involved in matters of high public interest and be sensitive to the fact that the wording in their judgments should not contribute to public unrest; (b) that all judgments, particularly dissenting judgments, ought to be written in a spirit of humility as exemplified by the late Langa CJ, and not in a spirit of self-importance or an attitude of asserting an individual opinion at all costs; (c) that all of the aforementioned can be achieved only if judges deliberate extensively in cases of differing opinions among them. It is proposed that the office of the chief justice publish the manner in which particularly the Constitutional Court deliberates in cases of dissenting judgments; (d) that judges honour the Constitutional Court’s own decision to follow its own precedent. The article illustrates how the judge who delivered the third judgment flagrantly violated this rule of court practice. On the substantive and procedural aspects of civil contempt of court it is argued that the second judgment of the Constitutional Court serves as continued recognition of the civil contempt process in South African law as constitutionally compliant. Further, that the court has developed the common law to find that a purely punitive sanction in exceptional cases may be appropriate in contempt of court proceedings brought by motion procedure. A purely punitive sanction will, however, be justified only on condition that the contemnor is afforded all possible opportunity to advance reasons why he should not be subjected to any other sanction.
Keywords: civil contempt motions; coercive orders; contempt of court; dissenting judgments; punitive orders