The Constitutional Court to hear argument in the State Capture Commission’s contempt application against MrZuma

24 March 2021

Tomorrow – 25 March 2021 – the Constitutional Court will hear argument in the State Capture Commission’s contempt application concerning Mr. Zuma’s failure to appear and give evidence before the Commission in defiance of an order of the Constitutional Court.

Mr. Zuma, the former President who is at the centre of the State Capture Commission’s investigations into state capture, corruption and fraud, has persistently refused, in defiance of the lawful summonses of the Commission, to appear and give evidence before the Commission.

The unlawful conduct of Mr. Zuma forced the Commission to approach the Constitutional Court for relief in Secretary of the State Capture Commission v Zuma I. In that case, the Constitutional Court ordered Mr. Zuma to obey all summonses and directives lawfully issued by the Commission, and to appear and give evidence before the Commission on the dates determined by it. The HSF was admitted as amicus curiae in those proceedings and made written submissions before the Constitutional Court.

However, Mr. Zuma has defied the order of the Constitutional Court and persisted in his refusal to appear and give evidence before the Commission. In addition to this, Mr. Zuma has embarked on a campaign to attack the integrity of the judges of the Constitutional Court, the Constitutional Court as an institution, the Commission and the judiciary as a whole.

The Commission has now made application to the Constitutional Court for an order declaring that Mr. Zuma is guilty of contempt of court in that he intentionally and unlawfully disobeyed the Constitutional Court’s order. The Commission seeks an order sentencing Mr. Zuma to imprisonment for a term of two years for his contempt. 

The HSF also applied for admission as amicus curiae in these proceedings in order to make submissions before the Constitutional Court concerning the appropriate sanction for Mr. Zuma’s contempt. The HSF contends that, in determining an appropriate sanction, it must be taken into account that Mr. Zuma’s contempt of this Court’s order seriously impedes the functioning of the Commission and undermines its ability to fulfil its crucial truth-seeking mandate. 

The HSF highlights the underlying importance of the Commission’s truth-seeking work, and the public interest in and right to the uncovering of the truth through a complete and effective investigation by the Commission. The obligation to comply with the summonses and directives of the Commission, which the Constitutional Court sought to enforce in its order, is intimately connected to the truth-seeking purpose of the Commission, and ultimately to the constitutional values of accountability and openness. Mr. Zuma’s conduct threatens to undermine this most important work.

The HSF contends that a sanction for contempt of court must serve dual and interlinking punitive and coercive purposes. The extreme conduct by Mr. Zuma justifies a punitive sanction for his failure to cooperate with the Commission and to obey the Constitutional Court’s order. But the public interest in and right to the uncovering of the truth dictates in favour of the imposition of a sanction that seeks also to coerce Mr. Zuma to comply with the Constitutional Court’s order, and to appear and give evidence before the Commission. A sanction should be crafted that not only vindicates the dignity of this Court, but also assists the Commission in uncovering the truth. 

The Judgment and Order of the Constitutional Court in Secretary of the State Capture Commission v Zuma I can be found here.

The HSF’s application for admission as amicus curiae can be found here.

The HSF’s written submissions can be found here.

Issued byChristopher Fisher, HSF, 24 March 2021