A former Acting High Court Judge and Law Professor at New York Law School, Professor Penelope Andrews, says it’s unclear what impacts the latest decision by the Constitutional Court will have on the final outcome of the rescission application of former President Jacob Zuma, but questions the harm their decision will have on the integrity of the court itself.
The country’s highest court on Saturday asked the legal teams of the former President, the State Capture Commission and other interested parties to make submissions by August 18th on whether its decision to hold Zuma in contempt of court and imprison him should be considered in terms of the UN International Covenant on Civil and Political Rights – a treaty to which South Africa is a party to.
“The court has been very comfortable in balancing international law, SA Constitutional Law, the values of the Constitution, etc … The appellant can make all kinds of claims and these claims are justifiable, but this is not to suggest that the court has not considered it and that the court has not been comfortable with balancing the application of international law in the SA Constitution and constitutional law. As I said it has done it before, but the second question is really when one looks at the International Covenant on Civil and Political Rights, with respect to this question, I am not persuaded. Looking at it, that it will change anything, it won’t change the outcome,” says Prof Andrews.
Credibility of SA’s highest court
She raises concerns about the credibility of South Africa’s highest court in taking up the rescission application in the manner it has now done.
“Political and legal implication – I think that the court deciding immediately after its decision to reconsider its decision is both a legal question and a political question, But the political question is the authority of the court. It is almost unheard of for a court of last resort to immediately revisit a decision it has made. So for example, in the United States, Roe vs Wade has been argued – you know the abortion case has been argued up and down the federal courts to the supreme court since the 70s and an issue can be litigated continuously. But an issue cannot be litigated when the defendant who loses says I am not happy; I want you to revisit your decision and this is essentially what Jacob Zuma is asking the Court. And from my perspective, I don’t believe that it serves the Court’s authority and credibility to have decided to hear the case.“
Impacts of ConCourt’s latest decision on Zuma rescission application unclear: Prof Penelope Andrews
Guilty of contempt of court
Zuma was found guilty of contempt of court and sentenced to 15 months imprisonment in the Constitutional Court in June. This after the Chairperson of the State Capture Commission, Deputy Chief Justice Raymond Zondo, had requested that the apex court declare Zuma in contempt of court.
Zondo also wanted Zuma sentenced to two years in prison for defying summonses to testify before the Commission.
In handing down judgment, Acting Chief Justice Sisi Khampepe said: “To Mr Zuma specifically, his contempt is rebukable in the strongest sense. In determining the length of the sentence, the majority has considered the unique circumstances of this matter, the nature of the breach and the extent to which the breach is ongoing.”
“Not only has Zuma failed to dispute the contempt of court, but he has also failed to contest the degree of the contempt. Instead, he has aggravated it. The majority judgment orders an unsuspended sentence of imprisonment for a period of 15 months.”
Former President Jacob Zuma ConCourt sentence review
