Jurisdiction of the constitutional court in contempt of court matters: critical evaluation of the state capture case

Abstract

The judgment of the Constitutional Court in 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 and Others (Zuma II),1informs this research paper. However, it is imperative to foreshadow two other judgments that have a factual bearing on Zuma II. These judgments are: 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 (Zuma I),2 and Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and Others (Zuma III).3 In Zuma I, the Constitutional Court granted an order in favour of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State (Commission). The order compelled the erstwhile President Jacob Gedleyihlekisa Zuma (Mr Zuma), to comply with the summons and directives of the Commission after his deliberate refusal and resistance to do so.4 In Zuma II, the Constitutional Court, sitting as a court of first and last instance, convicted and sentenced Mr Zuma to 15 months’ direct imprisonment for contempt of court as he failed to act in accordance with its order in Zuma I. This was an unprecedented event for a South African court, especially the highest court, to impose a sentence of direct imprisonment (criminal sanction) for a civil contempt of court without any room for appeal as envisaged in section 35(3)(o) of the Constitution.5 Zuma II is of significant importance because it invites an examination of the impact of the Constitution on the principles of civil contempt of court, either substantively and/or procedurally.