Jacob Zuma’s contempt of court appeal is an elaborate exercise in gaslighting masquerading as a rescission application

1. 
   

   A rescission application does not automatically suspend a court order

   
   

Before 2013, there was some disagreement in our courts on whether a rescission application automatically suspended a court order which is the subject of an application for rescission. That has now changed. Section 18 of the Superior Courts Act (which came into effect in 2013) specifically excludes rescission applications from the general rule that an appeal automatically suspends a court order. Moreover, in 2015 the Rules Board repealed the subrule that provided for automatic suspension of an order when a rescission application is launched.

Given these developments, our courts now accept that a rescission application does not automatically suspend the order that is the subject of the application (see Erstwhile Tenants of Williston Court and Another v Lewray Investments (Pty) Ltd and Another). This means that unless Zuma’s application to the high court to stay the order is successful, the minister of police and the national commissioner of the South African Police Service would be in contempt of the Constitutional Court order if they did not take all necessary steps to have Zuma arrested by Wednesday.

2. 
   

   A court will only rescind an order in the most exceptional circumstances

   
   

It is a guiding principle of the common law that once a judgment is given in a matter it is final. It may not thereafter be altered by the judge who delivered it. The reasons for this rule are twofold. First, once a court has pronounced a final judgment, it becomes functus officio and no longer has authority to deal with the matter. The second reason is the principle of finality of litigation as it is in the public interest that litigation be brought to finality.

However, as the Supreme Court of Appeal (SCA) explained in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape), there are exceptions to this rule.

“After evidence is led and the merits of the dispute have been determined, rescission is permissible only in the limited case of a judgment obtained by fraud or, exceptionally, justus error [mistake of law]. Secondly, rescission of a judgment taken by default may be ordered where the party in default can show sufficient cause. There are also, thirdly, exceptions which do not relate to rescission but to the correction, alteration and supplementation of a judgment or order.”

This common law position is augmented by uniform rule 42 (read with the Constitutional Court rules) which provides for rescission or variation of an order in very limited circumstances: an order erroneously sought or erroneously granted in the absence of a party affected thereby (rule 42(1)(a); the rescission or variation of an ambiguous order or an order containing a patent error or omission (rule 42(1)(b)); or an order resulting from a mistake common to the parties (rule 42(1)(c).

A rescission order will not be granted on the basis that the court misinterpreted or misapplied the law, or failed to consider the possible impact of the order on the affected party’s rights. Rescission is for the correction of a mistake, not to substitute the court’s original view about the law with one preferred by the affected party. To the extent that Zuma’s application argues that the majority judgment was wrong and that the minority judgment should have prevailed, it aims to sneak an appeal into its rescission application and will not fly.

3. 
   

   An order is not ‘erroneously granted’ when the affected party declines to participate in proceedings

   
   

Zuma argues that the order should be rescinded because it was erroneously granted (as provided for by rule 42(1)(a)) because Zuma was badly advised by his lawyers and material facts were not before the court because he did not participate in the proceedings. However, the case law appears to be against Zuma on this point.

First, late in 2020 the SCA held in Van Heerden v Bronkhorst that not every procedural violation of the rules results in an order “erroneously sought and erroneously granted”. Specifically, the court held that an error by the party’s attorneys which led to the party not appearing at the hearing does not constitute a mistake in the proceedings nor an error in respect of the issue of the order. This merely restates the position enunciated by that court in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape).

Second, rule 42(1)(a) does not apply to a situation where all affected parties were adequately notified of the relief that may be granted in their absence, and the notified party declined to participate in the proceedings. In Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd the SCA thus held that:

“In a case where a plaintiff is procedurally entitled to judgment in the absence of the defendant, the judgment, if granted, cannot be said to have been granted erroneously in the light of a subsequently disclosed defence. A court which grants a judgment by default like the judgments we are presently concerned with, does not grant the judgment on the basis that the defendant does not have a defence: it grants the judgment on the basis that the defendant has been notified of the plaintiff’s claim as required by the rules, that the defendant, not having given notice of an intention to defend, is not defending the matter and that the plaintiff is, in terms of the rules, entitled to the order sought. The existence or non-existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a validly obtained judgment into an erroneous judgment.”

The SCA confirmed this view in Freedom Stationery (Pty) Limited and Others v Hassam and Others when it stated that where an affected party “took the considered decision not to participate” in an application, “they reconciled themselves with the reasonable prospect that the court could” make an adverse order against them. Such an order cannot be rescinded because it was “erroneously” made in their absence.

In the case of Zuma, those parts of his rescission application arguing that a rescission is warranted because the Constitutional Court failed to take into account certain facts which might have provided a valid defence to the finding of contempt, are not going to fly.

Zuma himself decided not to put these alleged facts before the court. The fact that Zuma now claims (without providing any evidence) that he suffers from bad health, and that he walked out of the Zondo Commission because he had to take his medication (not a claim that anyone wedded to the facts would have made), can therefore not be used in support of the rescission application as it would amount to an attempt to use the rescission application to sneak an appeal in via the backdoor.

4. 
   

   The majority of the Constitutional Court followed the existing precedent on contempt

   
   

Zuma’s rescission application (which is not a model of legal clarity) seems to be based on the assumption that the majority of the Constitutional Court “acted unconstitutionally” by sending Zuma to prison for contempt without the benefit of a criminal trial. This view seems to be based on the assumption that imprisonment for contempt in civil proceedings is never permitted in our law, but this assumption is wrong. Our courts have previously considered the constitutionality of committing a contemnor for contempt in civil proceedings, and held that it is not unconstitutional to do so in specific circumstances.

Thus, in S v Mamabolo the Constitutional Court considered whether it would ever be permissible for a court to find someone guilty of contempt (for scandalising the court) in civil contempt proceedings, and then to punish that person by imposing a fine or sending the contemnor to prison. The court held that while this procedure “constitutes a major inroad into” the rights of the affected party, it would be permissible in exceptional circumstances where there is a “pressing need for firm or swift measures to preserve the integrity of the judicial process”.

The court pointed to the Zimbabwean judgment of In re: Chinamasa as a case where such “exceptional circumstances” would warrant imprisonment for contempt in civil proceedings. That case shows remarkable similarities with the Zuma case. It arose after the then Zimbabwean minister of justice criticised a lenient sentence imposed by a Zimbabwean court on three US citizens, stating that the trial judge had “trivialised the crimes” by passing lenient sentences, that “the Attorney-General’s Office is left bemused by the meaninglessness of it all”, “that the leniency of the sentences constituted a betrayal of all civilised and acceptable notions of justice and of Zimbabwe’s sovereign interests”.

As the majority of the Constitutional Court held in its recent judgment, Zuma’s contempt constituted a full-frontal attack on the integrity of the judiciary (much like Minister Chinamase’s attack on the Zimbabwean court did) and thus required swift measures to preserve the integrity of the judicial process. In short, it constituted “exceptional circumstances” which Mamabolo held would justify imprisonment in civil contempt proceedings.

In Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) the Constitutional Court again confirmed that while civil contempt can be prosecuted in criminal proceedings, which characteristically lead to committal, committal for civil contempt can also be ordered in civil proceedings for punitive or coercive reasons. This may be appropriate where “a court finds a recalcitrant litigant to be possessed of malice”. (In short, this malice would constitute the “exceptional circumstances” that would justify imprisonment of a contemnor in civil proceedings.)

In Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Shadrack Shivumba Homu Mkhonto and Others v Compensation Solutions (Pty) Limited  the Constitutional Court again confirmed that “all contempt of court, even civil contempt, may be punishable as a crime”. The court also made it clear that as long as procedural safeguards are in place to protect the section 12 rights of the contemnor, a court can impose a prison sentence on that person as punishment for his or her contempt. A criminal trial is not required. The court explained this as follows:

“Not every court order warrants committal for contempt of court in civil proceedings. The relief in civil contempt proceedings can take a variety of forms other than criminal sanctions, such as declaratory orders, mandamus, and structural interdicts… Their objective is to compel parties to comply with a court order. In some instances, the disregard of a court order may justify committal, as a sanction for past non-compliance. This is necessary because breaching a court order, wilfully and with mala fides, undermines the authority of the courts and thereby adversely affects the broader public interest.”

It is therefore wrong to claim – as some critics of the majority judgment do – that our law does not permit a court in civil proceedings to sentence an individual to imprisonment for contempt of court. The minority judgment of the Constitutional Court also accepted this, and made it clear that it would also have imposed a prison sentence on Zuma via the civil procedure, only adding the caveat that it would have suspended the sentence on condition that Zuma complied with the court order.

The claim that our law does not allow a court to punish a contemnor with a prison sentence in civil proceedings is therefore wrong in law. As shown above, the Constitutional Court considered its constitutionality and found that it was permitted in exceptional circumstances. It is therefore not clear on what basis Zuma now claims the majority of the Constitutional Court “acted unconstitutionally” when it held (in line with its own jurisprudence) that Zuma’s was an exceptional case in which the imposition of a prison sentence was warranted. DM