Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17 September 2021)

The case involves former South African President Jacob Gedleyihlekisa Zuma and his interactions with the Judicial Commission of Inquiry into Allegations of State Capture, Corruption, and Fraud in the Public Sector, including Organs of State (the Commission). Here are the key background facts:

1. Establishment of the Commission: The Commission was established to investigate allegations of state capture, corruption, and fraud within the public sector, including organs of state.

2. Initial Court Order (28 January 2021): On 28 January 2021, the Constitutional Court issued an order directing Mr. Zuma to obey all summonses and directives lawfully issued by the Commission. He was specifically ordered to appear and give evidence before the Commission on dates determined by it.

3. Service of Summons: Following the court order, the Commission issued a summons requiring Mr. Zuma to appear before it from 15 to 19 February 2021. This summons was duly served on Mr. Zuma.

4. Non-Compliance by Mr. Zuma: Despite the summons and the court order, Mr. Zuma informed the Commission through his lawyers that he would not honour the summons. Consequently, he failed to appear before the Commission on the specified dates in February 2021.

5. Commission's Contempt Application: In response to Mr. Zuma's non-compliance, the Commission filed an urgent application with the Constitutional Court seeking an order declaring Mr. Zuma in contempt of court and requesting a sentence of two years' imprisonment.

6. Mr. Zuma's Non-Participation: Mr. Zuma did not oppose the Commission's application for contempt of court, despite being served with the application papers.

7. Constitutional Court's Contempt Judgment (29 June 2021): The Constitutional Court rendered two judgments following the hearing of the matter. The majority judgment found Mr. Zuma guilty of contempt of court for failing to comply with the court's order of 28 January 2021. The court sentenced him to 15 months' imprisonment. The order required Mr. Zuma to submit himself to the South African Police Service (SAPS) within five calendar days, failing which the police were authorised to ensure his committal to a correctional center.

8. Majority and Minority Judgments: The majority judgment underlined the need to uphold the authority and legitimacy of the judiciary, given Mr. Zuma's public attacks on the court and the judicial process. The minority judgment, however, held that the motion proceedings violated Mr. Zuma's constitutional rights under sections 12 and 35(3) of the Constitution. The minority would have referred the matter to the National Director of Public Prosecutions (NDPP) for prosecution.

9. Mr. Zuma's Application for Rescission (2 July 2021): Unhappy with the outcome, Mr. Zuma filed an application for rescission of the Constitutional Court's order. He argued that the order violated his constitutional rights, including the right to a fair trial, the right to be heard in mitigation, and the right not to be detained without trial. He also contended that the court exceeded its judicial authority in granting the order.

10. Commission's Response: The Commission opposed Mr. Zuma's application, arguing that his grounds for rescission were vexatious and that he had been given ample opportunity to participate in the proceedings but chose not to. The Commission maintained that the order was constitutionally compliant and that Mr. Zuma's incarceration was part of South Africa's common law, which had been held to be consistent with the Constitution.

11. Further Developments: Mr. Zuma's legal team filed a supplementary affidavit seeking his release from prison pending the outcome of the rescission application. The Constitutional Court issued directions for the conduct and disposal of the matter, including the filing of written submissions on the implications of international law, specifically the United Nations International Covenant on Civil and Political Rights (ICCPR), on Mr. Zuma's detention.

12. International Law Considerations: The court considered the relevance of international law, particularly articles 9 and 14(5) of the ICCPR, which relate to the right to liberty and security of person and the right to have a conviction and sentence reviewed by a higher tribunal. The court noted that while international law must be considered when interpreting the Bill of Rights, it does not automatically create enforceable rights and obligations within South Africa's domestic legal system unless incorporated by national legislation.

13. Finality and Legal Certainty: The court highlighted the importance of finality and legal certainty in litigation, noting that the principles of res judicata (a matter already decided) and functus officio (a court having no further authority after issuing a final judgment) are crucial to maintaining the rule of law and public confidence in the judiciary.

14. Outcome: The Constitutional Court ultimately dismissed Mr. Zuma's application for rescission, finding that he had not met the requirements for rescission under rule 42 of the Uniform Rules of Court or the common law. The court also held that it was not in the interests of justice to expand the grounds for rescission or reconsider the application. Mr. Zuma was ordered to pay the costs of the Commission, including the costs of two counsel.

The ratio decidendi, or the core legal principle underlying the decision in this case, can be summarized as follows:

1. Finality and Legal Certainty in Litigation: The Constitutional Court emphasised the importance of finality and legal certainty in litigation. Once a court, especially the apex court, has issued a final judgment or order, it becomes functus officio (of no further official authority) and cannot alter, correct, or set aside that judgment or order except in very narrow and exceptional circumstances. This principle is crucial to maintaining the rule of law and public confidence in the judiciary.

2. Requirements for Rescission: The court reiterated that rescission of a court order is permissible only under specific and limited circumstances as outlined in rule 42 of the Uniform Rules of Court and the common law. These circumstances include:
The order was erroneously sought or granted in the absence of any party affected thereby.
There is an ambiguity, patent error, or omission in the order.
The order was granted as a result of a mistake common to the parties.

3. Absence and Error: The court found that Mr. Zuma's absence from the contempt proceedings was a result of his own deliberate choice not to participate, despite having been given ample opportunity to do so. Therefore, his absence did not meet the requirement of an order being granted "in the absence of any party affected thereby" as envisaged by rule 42(1)(a). Additionally, the court found no error in the order that would warrant rescission.

4. Constitutional Compliance: The court held that the motion procedure followed in the contempt proceedings was consistent with the Constitution. The court rejected Mr. Zuma's arguments that his constitutional rights, including the right to a fair trial, the right to be heard in mitigation, and the right not to be detained without trial, were violated. The court emphasized that the procedure used was part of South Africa's common law, which had been held to be consistent with the Constitution.

5. Interests of Justice: The court concluded that it was not in the interests of justice to expand the grounds for rescission or to reconsider the application. The principles of finality and legal certainty, coupled with Mr. Zuma's conduct throughout the proceedings, weighed heavily against granting the relief sought.

In summary, the ratio decidendi of the case is that the Constitutional Court's final judgments and orders are subject to rescission only under narrow and exceptional circumstances, and the principles of finality and legal certainty in litigation must be upheld to maintain the rule of law and public confidence in the judiciary. Mr. Zuma's application for rescission did not meet the stringent requirements for such relief, and his deliberate choice not to participate in the contempt proceedings precluded him from claiming that the order was granted in his absence.

The Constitutional Court relied on several key cases in its reasoning process. Here are the cases with their neutral citations:

1. Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd [2007] ZASCA 85; 2007 (6) SA 87 (SCA):
This case was cited to emphasize that a judgment granted in the absence of a party who had notice of the proceedings and chose not to participate is not considered to be erroneously granted.

2. Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) [2003] ZASCA 36; 2003 (6) SA 1 (SCA):
This case was referenced to highlight that rule 42 is confined by its wording and context and should not be given an extended application to include all kinds of mistakes or irregularities.

3. De Wet v Western Bank Ltd 1979 (2) SA 1031 (A):
This case was used to illustrate that rule 42 is an empowering section and does not compel the court to set aside or rescind an order automatically upon proof of a mistake.

4. Chetty v Law Society, Transvaal 1985 (2) SA 756 (A):
This case was cited to explain the common law requirements for rescission, which include providing a reasonable and satisfactory explanation for the default and showing that there is a bona fide defense with some prospects of success.

5. Daniel v President of the Republic of South Africa [2013] ZACC 24; 2013 JDR 1439 (CC); 2013 (11) BCLR 1241 (CC):
This case was referenced to affirm that an applicant for rescission must show that, but for the error relied on, the court could not have granted the impugned order.

6. Pheko v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (Pheko II):
This case was cited to support the principle that civil contempt proceedings must avoid infringing the right to freedom and security of the person as protected by section 12 of the Constitution.

7. Matjhabeng Local Municipality v Eskom Holdings Limited; Mkhonto v Compensation Solutions (Pty) Limited [2017] ZACC 35; 2018 (1) SA 1 (CC); 2017 (11) BCLR 1408 (CC):
This case was used to emphasize the need for a coherent approach to contempt of court proceedings to ensure that the rights enshrined in section 12 of the Constitution are not violated.

8. S v Mamabolo (E TV Intervening) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC):
This case was referenced to highlight the importance of maintaining the dignity and authority of the courts as a fundamental aspect of the rule of law.

9. S v Molaudzi [2015] ZACC 20; 2015 (2) SACR 341 (CC); 2015 (8) BCLR 904 (CC):
This case was cited to illustrate that the Constitutional Court has the power to reconsider its final orders in exceptional circumstances where the interests of justice demand it.

10. Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL):
This case from the House of Lords was referenced to support the principle that an apex court has the inherent jurisdiction to correct any injustice caused by its earlier order.