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Contempt of Court is divided into two categories namely, civil contempt and criminal contempt. Criminal contempt concerns a disgrace which is brought upon the Court’s moral authority, whereas in civil contempt, an action of disobedience is displayed. Importantly, not all instances of disobedience of a court order will automatically justify the remedy of contempt of court, and especially in civil proceedings there are a variety of alternative remedies that can be relied upon and it is strongly recommended that these remedies be exhausted first. For example, the failure to pay money in terms of a court order is not considered an action of contempt, and will only be considered such once all other remedies have been exhausted. The case of 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] ZACC 2 (CCT 295/20), which will be discussed below, has become a steadfast precedent set by the Constitutional Court, when considering contempt of Court proceedings.

Constitutional Court Judgment against Jacob Zuma

On 29 June 2021, the Constitutional Court handed down one of the most groundbreaking judgments ever delivered by the court in its 18 year existence. The majority judgment handed down by Acting Chief Justice Khampepe (“Khampepe J”) ordered former President of the Republic, Jacob Gedleyihlekisa Zuma (“Zuma”) to 15 months imprisonment for contempt of court (“Majority Judgment”).

To provide some brief background on the roots of this case, the Commission of inquiry into allegations of state capture (“Commission”) approached the Constitutional Court in December 2020 on an urgent basis for an order that would compel Zuma to co-operate with the Commission’s investigations and objectives. The Constitutional Court found in favour of the applicants and ordered Zuma on 28 January 2021 to attend the Commission and to give evidence before it, compelling him to attend the Commission from 15 February 2021 to 19 February 2021. In response to the aforementioned order, Zuma released a public statement in which he directed considerable criticism towards both the Commission and the Constitutional Court, stating that they were victimising him through exceptional and harsh treatment, and were politicising the law to his detriment. Further, Zuma’s legal representatives informed the Commission that he would not be appearing before the Commission on the dates as set out above. It is this statement that formed an important part of the judgment handed down by Khampepe J.

It is common knowledge that a person guilty of contempt of court is very rarely given a punitive order of direct committal, but is rather given a coercive order instructing them to comply with whatever order they failed to comply with initially. It is this very concept that caused the divide between the judgment handed down by Khampepe J, and the minority judgment by Theron J (“Minority Judgment”).

In the Majority Judgment Khampepe J held that a coercive order would not be appropriate in this case, and would likely be a “brutum fulmen” or an empty threat. Khampepe J took into account several aggravating circumstances such as the public statements made by Zuma in which he made several inflammatory statements intended to undermine the judicial system, the continuous disobeying of court orders, the unfounded attacks on the judiciary and its members, and the fact that he was not an ordinary litigant but the former President of the Republic, to name a few. It is for these cumulative reasons that Khampepe J ultimately made the punitive unsuspended order of imprisonment against Zuma.

The Minority Judgment by Theron J focused mainly on the constitutional permissibility of imposing a purely punitive order of unsuspended committal in the context of civil proceedings, without any remedial objective, or as put forward by Theron J: “can the civil, remedial element of civil contempt proceedings be abandoned in favour of a wholly punitive approach?”. Although Theron J agreed that Zuma was in contempt of court, she was of the opinion that it would be unconstitutional to grant an order of unsuspended committal if the committal is not aimed at coercing the accused to comply with a court order, highlighting that such an order (of unsuspended committal) had never before been handed down by the court in respect of contempt.

This is a very important point made by Theron J, as it raises the question of whether this judgment will become precedent law for all future civil contempt of court cases, think failure to appear in court for traffic-related fines, or failure to pay maintenance in terms of a maintenance order. Theron J explained that the ordinary remedy in civil contempt cases where a litigant is found guilty of civil contempt is always a period of suspended committal, which then provides the contemnor with a final opportunity to comply with the court order and to avoid imprisonment. However, it seems as if the Majority Judgment has now undeniably changed the “normal” course of contempt proceedings for the foreseeable future.

1.     Potential effect of the Majority Judgment on future contempt of court cases

As emphasised by Theron J in the Minority Judgment, the position in South African law has always been an unsuspended committal order with a purely punitive objective should be the very last resort in any contempt case. Simply stated, the failure to pay a traffic fine after receiving one order to do so, will not result in an automatic contempt of court order against you, there are several other elements that must first be met before such an order may be given.

The common law test for when disobedience of a civil order constitutes contempt is that an order must exist, the order must have been duly served on the contemnor, there must have been non-compliance, and the non-compliance must have been deliberate and mala fide. The onus lies on the applicant to prove beyond reasonable doubt that all the elements mentioned above were present, whereafter the respondent has a chance to defend his/her case. The important elements here are that the non-compliance must have been deliberate (intentional) and mala fide. Subsequent to the Majority Judgment, it seems there is now an additional “element” to the common law elements mentioned above, in that aggravating external circumstances will also be taken into account in a contempt of court order, such as Zuma’s consistent unfounded attacks on the judiciary and its members.

Although the Majority Judgment definitely creates a new precedent for future contempt of court cases, it should be noted that in Zuma’s case, a lot of unique aggravating circumstances were present which most likely influenced Khampepe J’s decision. A failure to pay a traffic fine after having been ordered to appear in court can, for example, not be equated with the multiple ignored orders that were given to Zuma to appear in front of the Commission. However, the important aspects to take from this case is that, be it the failure to pay in terms of a maintenance order or the non-payment of a traffic fine, no one is above the law, and in our constitutional dispensation, the rule of law and the administration of justice will prevail. In Khampepe J’s words: “the obligation to obey court orders has at its hear the very effectiveness and legitimacy of the judicial system”.

“An act of defiance in respect of a direct judicial order has the potential to precipitate a constitutional crisis: when a public office-bearer or government official, or indeed any citizen of this Republic, announces that he or she will not play by the rules of the Constitution, then surely our Constitution, and the infrastructure built around it, has failed us all.” – Acting Justice Sisi Khampepe.

Mignon du Plessis
Candidate Attorney

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