In a judgment noting that 'litigation must at some point, come to an end,’ a majority of the Constitutional Court Bench of nine judges on Friday dismissed with costs of two counsel former President Jacob Zuma’s application for a rescission of its July judgment, which ordered his jailing for 15 months. 

And in what was a carbon copy of the ruling that found him guilty of contempt and liable for jail time, Justice Chris Jafta and Justice Leona Theron were again at odds with the majority.

As a Daily Maverick report points out, Zuma is out on medical parole and currently in a Pretoria hospital, which makes the judgment moot, but, says the DM, it amounts to a legal smackdown for the former head of state.

Judge Sisi Khampepe, who delivered the judgment, said the court had been ‘far from persuaded’.

Zuma met the two grounds for rescission – that a litigant had been absent from court proceedings and judgment against them, and an error in the law had been made.

‘(The law) protects litigants whose presence was precluded, not whose absence was elected,’ said Khampepe in her oral judgment.

Zuma ignored several summonses to appear before the Commission of Inquiry into State Capture before the Constitutional Court ordered that he appear before it.

Zuma was jailed for contempt in July. He also failed to submit arguments in mitigation when the Constitutional Court asked him to do so.

The court said he had been an architect of his misfortune.

‘Litigants can’t butcher (judicial proceedings) at their own will,’ said Khampepe.

The majority judgment said Zuma had attempted to stage a belated defence in the rescission application, which the law did not allow.

‘Mr Zuma had multiple opportunities to bring these arguments to the attention of the court,’ said Khampepe, adding: ‘He only hopes to justify his absence now that the shoe pinches.’

The judges said that nothing in Zuma’s case was ‘truly exceptional’ to require that the court depart from ordinary tenets of the law, and said Zuma would bring the administration of justice into dispute if the court were to reconsider it.

‘The principle of finality in litigation must be protected,’ said Khampepe, adding that a relaxation of this provision would be to dismember the rule of law.

‘The uncertainty of this application has done untold damage to the rule of law,’ said Khampepe.

The judgment added that Zuma was blowing ‘hot and cold’ with legal processes. His decision to ignore the summons and a request to make an application to the Constitutional Court during the contempt of court judgment deliberations meant that he had resigned himself to any decision the court would make.

‘Litigious vacillation can’t be tolerated,’ said Khampepe.

The court heard the rescission application on 12 July 2021 and took more than two months to make a finding. It emerged that the court was split three ways, with a majority judgment and two minority judgments penned. This is what the two minority judgments say, notes the DM report.

Minority judgment one by Chris Jafta (with Theron concurring) made the following points:

* The contempt of court judgment was ‘unconstitutional and uncompliant with international law’.

* This international law is article nine of the International Bill of Rights and is the International Covenant on Civil and Political (ICCPR) Rights to which SA is a signatory.

* That Zuma had been sentenced without the option of an appeal was in effect detention without trial.

The majority judgment said it accepted that section 39 of the Constitution enjoined it to consider international law in its deliberations but noted that the status of international law should not be mischaracterised.

It pointed out that the ICCPR had not been adopted into domestic law and only bound the country at a global level, and that the focus on the covenant was misguided.

The court said the Zuma case was a straightforward rescission case and that Zuma had not met the two basic requirements for rescission and that a consideration of the covenant would amount to reopening the defence. 
Minority judgment two by Judge Leona Theron made the following points:

* Any individual detained has a right to a fair trial.

* The limitation on Zuma’s rights was not justifiable.

* His detention on 7 July was therefore unconstitutional and invalid.

* The court should declare the detention invalid and set it aside. 

Full Daily Maverick report