The South African Constitutional Court Orders Zuma to Prison

James Fowkes

University of Münster

An immoveable object has finally collided with an unappealable force. On Tuesday 29 June, the South African Constitutional Court sentenced former President Zuma to 15 months in jail, for contempt of court. It also imposed a punitive costs order.

Perhaps it was always going to come to this. 

Zuma’s strategy, for many years, has been one of delay: he has long sought to avoid rather than confront the various charges against him. To this end, he has exploited all the space he could within the law, and he has simply defied the law when that space ran out. It was a strategy always headed towards a contempt conviction.

But if there is a certain inevitability in the result, the Court’s order is striking in its bluntness, and its 127-page judgment includes a serious internal disagreement about the constitutional validity of the punishment that a 7-2 majority has imposed.

The specific reason for the contempt finding was that Zuma had repeatedly failed to comply with the directives of the Commission of Inquiry into State Capture, set up to investigate irregularities during his presidency. The dispute between Zuma and the Commission ended up, after many skirmishes, in the Constitutional Court. In a judgment in January, the Court declared that Mr Zuma had to obey lawful directives from the Commission. His continued intransigence thereafter thus became contempt of a Constitutional Court order. 

The Court’s response is blunt, in its finality, and because it is unprecedentedly punitive.

Mr Zuma is ordered to report to the police within five days, to immediately commence his sentence. Failing that, the Minister of Police is ordered to take all legal steps to achieve this result within three further days. Since it is the Constitutional Court making the order, there is no higher court to which an appeal would be possible.

And – this is where we come to the unprecedented part – there is no option, within the order, for Mr Zuma to avoid a custodial sentence. The Court’s order contemplates no outcome other than that, by the following week, Mr Zuma is a serving prisoner.

Prison sentences in contempt cases are usually suspended, giving the person in contempt the option to avoid imprisonment by complying. But the Commission’s statutory mandate was, under the facts before the Court, due to expire on 30 June 2021 – the day after the judgment was handed down. In that situation, it would be impossible for Zuma to appear before the Commission and impossible, therefore, for him to comply at last with the Court’s order in January. Both the Commission and the Court majority had also clearly (and not unreasonably) given up on the possibility that Mr Zuma was ever going to co-operate adequately with the Commission. He has indicated his refusal to do so, long and loudly.

As a result, the sentence is not about compelling Mr Zuma’s compliance with the Constitutional Court’s January order or the directives of the Commission. It is purely about punishing his non-compliance, aggravated by its repeated, loud, vituperative, and highly public nature, coming from a former president who swore to uphold the constitution. Though the situation is doubtless an extraordinary one, a purely punitive sentence of imprisonment for civil contempt has never before been handed down in South African law.

This is where the Court’s internal disagreement starts. Sparing international readers the local technical details, prison sentences in civil contempt cases are invariably tricky because they involve criminal sanctions in civil cases conducted under civil procedures. The procedural allowances the Court afforded Zuma, though meaningful, were certainly less than those in ordinary criminal procedure. The problem is sharpened by the fact that the Court was sitting as a court of first and last instance.

To be sure, Zuma spurned all opportunities to make representations, either by refusing to participate or by using them only to make allegations against the Court and others. 

But the result is that he has been sentenced to incarceration by something rather less than the usual procedures the Constitution expects when liberty is at stake. The dissent, accordingly, finds the majority’s order unconstitutional, and would instead have referred the matter to the prosecution services for investigation and charging in the normal way.

South African lawyers will debate the details. They will criticize the Commission’s choices, including how much time and latitude it afforded Zuma and his tactics. This is ultimately what has placed the Court in this position, the difficulties of which its internal disagreement reflects. That disagreement (which is sometimes expressed in strident terms), and the unique nature of the sanction, will not assist in the political defense of the line the Court has now drawn in the sand – though the dissenting judges, alive to the situation, are careful to state explicitly that they, too, consider a prison sentence appropriate.

First, however, South Africans await Zuma’s reaction – given that he must surely expect the administration of President Ramaphosa to back the Court’s order (Ramaphosa defeated Zuma as ANC president in 2018, succeeded him as South African President soon afterwards, and positions himself as a restorative force. Minister of Police Bheki Cele has confirmed that he will carry out the Court’s order if necessary). On Friday 2 July, Zuma filed an application for the recission (undoing) of the judgment, but it is highly unlikely that the Court will reverse itself at this point. On Sunday 4 July, it was reported that Zuma had announced in a speech to supporters that he would not turn himself in to police. Watch this space.

However matters unfold, Zuma’s strategy has given the story a fundamental simplicity that his wrongdoings as President alone did not. Corruption cases are intricate, and hard to prove. State capture, the Commission of Inquiry’s focus, is no less complex. But if your only strategy in response is to avoid the law, and you stick with it long enough, you will make your own case about the credibility of the legal system. You will make it a matter of the utter basics of the rule of law. This, Zuma has now finally succeeded in doing.

James Fowkes is Professor of Foreign and International Law at the University of Münster, Germany.

Suggested Citation: James Fowkes, ‘The South African Constitutional Court orders Zuma to prison’ IACL-AIDC Blog (6 July 2021) https://blog-iacl-aidc.org/2021-posts/6-7-21-the-south-african-constitutional-court-orders-zuma-to-prison.