IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 52/ 21

In the matter between:

SECRETARY OF THE JUDICIAL COMMISSION OF

INQUIRY INTO ALLEGATIONS OF STATE CAPTURE,
CORRUPTION AND FRAUD IN THE PUBLIC SECTOR
INCLUDING ORGANS OF STATE Applicant

and

JACOB GEDLEYIHLEKISA ZUMA First Respondent

MINISTER OF POLICE Second Respondent

NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE Third Respondent

APPLICANT’S WRITTEN SUBMISSIONS

INTRODUCTION

1. The rule of law is foundational to South Africa’s constitutional democracy.1 The

Constitution affirms the supremacy of the Constitution2 and the judicial authority

of the courts.3 To maintain these three attributes of our constitutional order,

1
Section 1(c) of the Constitution.
2
Section 2 of the Constitution.
3
Section 165 of the Constitution.

1
 judicial decisions must be implemented. Judicial authority should not be

impugned, and courts should protect their institutional authority and judgments.

2. This Court has explained why it is important to protect the authority of the courts

and ensure the effectiveness of court orders in Pheko II. It held:

“The rule of law, a foundational value of the Constitution, requires that

the dignity and authority of the courts be upheld. This is crucial, as the

capacity of the courts to carry out their functions depends upon it. As the

Constitution commands, orders and decisions issued by a court bind all

persons to whom and organs of state to which they apply, and no person

or organ of state may interfere, in any manner, with the functioning of the

courts. It follows from this that disobedience towards court orders or

decisions risks rendering our courts impotent and judicial authority a

mere mockery. The effectiveness of court orders or decisions is

substantially determined by the assurance that they will be enforced.” 4

3. The respondent and former president, Mr Jacob Gedleyihlekisa Zuma, (‘Mr

Zuma’), has intentionally disobeyed this Court’s order of 28 January 2021, and

publicly attacked this Court in seeking to justify his disobedience. He has no

legally valid reason for the disobedience, nor are his tirades against this Court

and the judiciary fair or justified.

4
Pheko v Ekurhuleni City 2015 (5) SA 600 (CC) (‘Pheko II’) para 1.

2
4. This 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 dates determined by it”.5

5. Mr Zuma defied this order when he failed to comply with the Commission’s

summonses and directives. He failed to appear and give evidence at the

Commission on 15 to 19 February 2021, despite being summoned by the

Commission to do so. Mr Zuma also failed to file any affidavits with the

Commission, despite being directed to do so.

6. Mr Zuma also launched unjustified public attacks on this Court, the Commission

and the judiciary. Shortly after this Court gave judgment, on 1 February 2021,

Mr Zuma issued a public statement, expressing his intention to defy the Court’s

order.

7. Mr Zuma acted according to his stated intention and failed to appear before the

Commission on 15 February 2021. On the same day, Mr Zuma issued a second

public statement. This statement, like the statement of 1 February 2021, was

replete with insults and vituperative attacks against this Court, the Commission

and the judiciary.

8. By his conduct, Mr Zuma has wilfully disobeyed this Court’s order, in scathing

terms. Mr Zuma has not merely frustrated the Commission’s right to an

effective court order. Mr Zuma’s conduct directly challenges the authority of

5
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v Zuma (CCT 295/20) [2021] ZACC 2 (‘Secretary
of the Judicial Commission of Inquiry v Zuma’), attached as annexure IM6 to the Founding Affidavit.
See paras 4 and 5 of the order at p 53.

3
 this Court and the administration of justice as a whole. Mr Zuma’s conduct

poses a grave threat to the rule of law and the very legitimacy and effectiveness

of the judicial system that underpins South Africa’s constitutional order.

9. The applicant accordingly approaches this Court for orders declaring Mr Zuma

to be in contempt of this Court’s order and for his committal to prison for two

years.

10. Mr Zuma has not filed any notice to oppose or answering affidavit in these

proceedings. Nor has he stated whether or not he abides the decision of the

Court. Bearing in mind what he has stated publicly about this Court, it would

have been expected that he would defend or explain his utterances on oath,

before this Court. The legal effect of his failure to file an opposing affidavit,

however, is that all the facts alleged by the Commission must be taken to be

established.

STRUCTURE OF THESE SUBMISSIONS

11. We structure these submissions as follows:

11.1. First, we address jurisdiction and urgency;

11.2. Second, we summarise the facts and the conduct that has prompted

this application;

11.3. Third, we address the crime of contempt of court – its purpose and how

the elements of the offence are met in this case;

4
 11.4. Fourth, we address the appropriate sentence; and

11.5. Fifth, we deal with costs.

JURISDICTION

12. A court that grants an order retains jurisdiction to ensure compliance with its

order and to vindicate its authority.6 This Court has heard applications for

contempt of court where its own orders have been disobeyed. It has also

initiated hearings at its own instance for contempt of court in respect of its

orders.7

13. A contempt application engages a superior court’s inherent jurisdiction under

section 173 of the Constitution, to protect its own process and ensure that its

orders are obeyed.8 The court’s jurisdiction is also engaged because contempt

of its order undermines the successful party’s entitlement to effective relief. In

cases of ongoing contempt, the court may also be concerned to regulate how

the matter is to proceed.9

6
Pheko II para 28: “The object of contempt proceedings is to impose a penalty that will vindicate the
court’s honour, consequent upon the disregard of its previous order, as well as to compel performance
in accordance with the previous order.” See also Els v Weideman and Others 2011 (2) SA 126 (SCA)
para 37.
7
Pheko II para 13.
8
Bannatyne v Bannatyne 2003 (2) SA 359 (SCA) para 8.
9
Pheko II para 2.

5
14. There is no authority of this Court on whether the High Court has jurisdiction to

hear applications for contempt to enforce this Court’s orders. 10 We submit that

this is not an issue that need be decided: it is the authority of this Court that has

been directly placed under threat by Mr Zuma in his words and deeds. The

interests of justice require that this Court exercise its own, undoubted

jurisdiction to hear the matter.

15. The threat that Mr Zuma’s conduct poses to the rule of law and the

administration of justice requires urgent intervention by this Court. The gravity

of the threat cannot be understated. The very foundation of South Africa’s

constitutional order depends on public trust and respect for the courts, and for

so long as Mr Zuma’s contempt is not finally and decisively addressed, the

threat to that foundation persists.

16. The authority of the courts is not protected for its own sake. It is fundamental

to a constitutional system based on the rule of law, which provides for the

peaceful resolution of disputes and the equal protection and enforcement of

substantive and procedural rights through the right of access to courts.

17. This Court has recognised the importance of protecting the authority of the

courts for the maintenance of the rule of law. In Mamabolo11 it held:

10
The Supreme Court of Appeal has, however, held in Els v Weideman and Others 2011 (2) SA 126
(SCA) paras 34-38, that there is concurrent jurisdiction among the divisions of the High Court to enforce
each other’s orders. The judgment, however, appears to be limited to instances of court orders that
have been issued by the High Court, unlike the present instance.
11
S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (‘Mamabolo’).

6
 “Having no constituency, no purse and no sword, the judiciary must rely

on moral authority. Without such authority it cannot perform its vital

function as the interpreter of the Constitution, the arbiter in disputes

between organs of state and, ultimately, as the watchdog over the

Constitution and its Bill of Rights — even against the state …”12

“In the final analysis it is the people who have to believe in the integrity

of their judges. Without such trust, the judiciary cannot function properly;

and where the judiciary cannot function properly the rule of law must

die.”13

18. In Chief Lesapo,14 this Court also described the importance of the rule of law

and the right of access to courts in our constitutional order. Mokgoro J held:

“No one is entitled to take the law into her or his own hands. Self-help,

…, is inimical to a society in which the rule of law prevails, as envisioned

by s 1(c) of our Constitution. …Taking the law into one's own hands is

… inconsistent with the fundamental principles of our law.”15

19. Mokgoro J further held that the right of access to courts –

12
Mamabolo para 16.
13
Mamabolo para 19.
14
Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC); 1999 (12) BCLR
1420 (CC) (‘Chief Lesapo’).
15
Chief Lesapo para 11.

7
 “is a bulwark against vigilantism, and the chaos and anarchy which it

causes. Construed in this context of the rule of law and the principle

against self-help in particular, access to court is indeed of cardinal

importance”.16

20. The rule of law and the right of access to courts would be rendered meaningless

if court orders could be ignored with impunity. If litigants could decide which

orders they wished to obey and which they wished to ignore, a state of chaos

and anarchy would ensue.

21. The Constitution recognises this in section 165, which establishes judicial

authority. Section 165(3) provides that ‘no person or organ of state may

interfere with the functioning of the courts’, and section 165(5) provides that any

order issued by a court ‘binds all persons to whom and organs of state to which

it applies’.

22. As the ultimate guardian of the Constitution, it is in the interests of justice and

the public interest for this Court to assert its authority and bring finality to this

matter without delay.17 The interests of justice would not be served if this matter

were to be protracted through an appeals process. Notably, Mr Zuma is not

asking for this matter to be heard by a different court.

16
Chief Lesapo para 22.
17
As this Court recognised in Pheko II, in contempt proceedings, the court is not only concerned with
giving effect to the rights of the successful litigant, but “also and more importantly”, is “acting as
guardians of the Constitution, asserting their authority in the public interest” (para 2).

8
23. It is also appropriate and, we submit, necessary for this Court to assert its

authority to defend the judiciary and administration of justice against Mr Zuma’s

improper attacks. In defying this Court’s order and publicly attacking this Court,

Mr Zuma has sought to exploit his political status as the former President. An

attack of such a nature requires a response from this Court.

24. Mr Zuma has also directed a very serious affront and pointed attack at this

particular Court’s authority and integrity. It is well recognised that contempt of

court proceedings are not concerned with protecting the dignity or reputation of

individual judges or courts, but rather with protecting the authority of the courts

and the administration of justice as a whole.18 However, Mr Zuma’s public

defiance of this Court appears calculated to undermine public trust in the

judiciary and the administration of justice as a whole.

25. The seriousness of this public injury requires this Court to assert its special

authority as the highest court in constitutional matters and the ultimate guardian

of the Constitution and its values, by holding Mr Zuma in contempt of court and

issuing an appropriate sentence.19

18
Mamabolo para 24: “…it is important to keep in mind that it is not the self-esteem, feelings or dignity
of any judicial officer, or even the reputation, status or standing of a particular court that is sought to be
protected, but the moral authority of the judicial process as such.” See also Argus Printing and
Publishing Co Ltd and Others v Esselen’s Estate [1993] ZASCA 205; 1994 (2) SA 1 (A) at 29E-F; and
In re: Chinamasa 2001 (2) SA 902 (ZS) at 920D.
19
President of the Republic of South Africa and Others v South African Rugby Football Union and
Others [1999] ZACC 9; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) (SARFU II) at para 72.

9
URGENCY

26. The seriousness of the threat that Mr Zuma’s conduct poses to the

administration of justice and the rule of law requires this Court to intervene and

assert its authority without delay.

27. As a former President and leader of the Republic, Mr Zuma sets an example by

his words and conduct. He has the position and influence to do so, as others

look up to him as a leader. When Mr Zuma undermines the integrity and

authority of this Court, and the judicial system as a whole, there is a grave risk

that he will inspire others to do so.

28. This risk is compounded by the very public and forceful nature of Mr Zuma’s

defiance of this Court and attack on the judiciary.

29. For so long as Mr Zuma is allowed to disobey this Court’s order with impunity,

others may believe that they too can follow Mr Zuma’s lead, and defy court

orders with impunity.

30. Thus, not only Mr Zuma’s contemptuous conduct, but also any delay in

asserting the Court’s authority in response to it, poses a threat to the rule of

law. The interests of justice require a swift response.

31. Mr Zuma’s contempt of this Court’s order is also ongoing. He continues to defy

this Court’s order by refusing to obey the summons issued by the Commission.

The Commission’s lifespan has since been extended by three months, beyond

10
 31 March 2021. Should any order issued by this Court be suspended, it is

necessary that this be done before the end of term of the Commission.

32. No prejudice is caused to Mr Zuma by hearing this application on an urgent

basis, as Mr Zuma has not opposed the application.

33. It is, for these reasons, in the interests of justice for this Court to grant direct

access and hear the application on an urgent basis.

THE FACTS

34. The Chairperson of the Commission, Deputy Chief Justice Zondo, directed Mr

Zuma, in terms of regulation 10(6) of the Commission’s regulations, on 27

August 2020 and again on 8 September 2020, to respond on affidavit to certain

accusations made against him in evidence before the Commission.20

35. The Secretary of the Commission summoned Mr Zuma on 20 October 2020 to

appear before the Commission from 16 to 20 November 2020.21

36. At the hearing on 16 November 2020, Mr Zuma applied for the recusal of the

Chairperson. The latter refused the application on 19 November 2020

whereupon Mr Zuma walked out of the hearing and made it known that he would

no longer attend.22

20
These directives are annexures IM13 and IM14 to the founding affidavit, at pp 200 to 209.
21
This background is addressed in Secretary of the Judicial Commission of Inquiry v Zuma at para 49,
p 72.
22
Secretary of the Judicial Commission of Inquiry v Zuma at paras 50 to 51, p 72. See also founding
affidavit para 31, p 14.

11
37. The Secretary of the Commission again summoned Mr Zuma to appear and give

evidence from 18 to 22 January and from 15 to 19 February 2021.23

38. The Secretary also launched an application to this Court to compel Mr Zuma to

comply with the fresh summons.

39. That application was heard by this Court on 29 December 2020. Mr Zuma did

not oppose the application.24

40. Mr Zuma failed to appear as summoned on 18 January 2021, despite being

advised by the Commission that the summons was valid and binding on him.25

41. This Court handed down judgment on 28 January 2021. Paragraphs 4 and 5

of the its order read as follows:

“4. Mr Jacob Gedleyihlekisa Zuma is ordered to obey all summonses

and directions lawfully issued by the Judicial Commission of Inquiry into

Allegations of State Capture, Corruption and Fraud in the Public Sector

including Organs of State (Commission).

5. Mr Jacob Gedleyihlekisa Zuma is directed to appear and give

evidence before the Commission on dates determined by it.”26

23
Founding affidavit para 32, pp 14-15. The two fresh summonses are annexure IM1 and IM2, at pp
35 to 42. The returns of service are in annexure IM3, at pp 43 to 46.
24
Founding affidavit para 34, p 15.
25
Founding affidavit paras 35-37, pp 15-16.
26
This Court’s judgment is annexure IM6. The order appears at p 53.

12
42. Mr Zuma responded publicly to this Court’s judgment and order, by issuing a

public statement on 1 February 2021.27 In that statement he made plain his

intention to defy this Court’s order and to persist in his refusal to cooperate with

the Commission.

43. This Court’s judgment and order was formally served on Mr Zuma, at both his

residences in Forest Town and Nkandla, on 5 February 2021.28

44. In keeping with his stated intention, Mr Zuma intentionally disobeyed this

Court’s order by –

44.1. failing to appear and give evidence at the Commission on 15 to 19

February 2021, as directed by the Commission;

44.2. failing to file any affidavit in accordance with the Chairperson’s

directives under regulation 10(6);29 and

44.3. launching attacks on both this Court and the Commission in the public

statements he issued, in his own name, on 1 and 15 February 2021.30

27
Founding affidavit para 43, pp 18-19, and annexure IM7 at p 95.
28
Founding affidavit para 44, p 20. The returns of service are in annexures IM8 and IM9, pp 101 to
102.
29
Founding affidavit paras 58 to 63, pp 24-26.
30
Mr Zuma’s first public statement of 1 February 2021 is annexure IM7 to the founding affidavit at pp
95 to 100. For convenience, we refer to this statement as “Zuma 1”.
Mr Zuma’s second public statement of 15 February 2021 is annexure IM12 at pp 188 to 199. We refer
to this statement as “Zuma 2”.

13
CONTEMPT OF COURT

45. Contempt of court is a criminal offence. It is the unlawful and intentional violation

of the dignity, repute or authority of a judicial body or a judicial officer. 31 The

offence takes many forms but its essence lies in the violation of the dignity, repute

or authority of a court or judicial officer.32

46. One of the forms of contempt is the crime of “scandalising the court”. It is the

publication of any statement which brings the administration of justice into

disrepute. The nature of the offence of scandalising the court was expressed

by Kotzé J in In re Phelan as follows:

“ . . . any publications or words which tend, or are calculated, to bring

the administration of justice into contempt, amount to a contempt of

Court. Now, nothing can have a greater tendency to bring the

administration of justice into contempt than to say, or suggest, in a

public newspaper, that the Judge of the High Court of this territory,

instead of being guided by principle and his conscience, has been

guilty of personal favouritism, and allowed himself to be influenced by

personal and corrupt motives, in judicially deciding a matter in open

Court.”33

47. The offence of scandalising the court is normally prosecuted in the normal

criminal process. There was once a summary process by which contempt of this

31
Mamabolo para 13; Snyman Criminal Law 6ed, p 315.
32
Fakie v CCII Systems 2006 (4) SA 326 (SCA) (‘Fakie’) para 6.
33
In re Phelan (1877) Kotzé 5 at 7, cited in Mamabolo para 22.

14
 kind could be prosecuted and punished by the court or judicial officer who was

the target of the contempt. This Court disapproved, however, of this summary

process in Mamabolo.34

48. Another form of contempt is the wilful disobedience of a court order. This Court

described the offence of defying a court order in Pheko II35 as follows:

“Contempt of court is understood as the commission of any act or

statement that displays disrespect for the authority of the court or its

officers acting in an official capacity. This includes acts of contumacy

in both senses: wilful disobedience and resistance to lawful court

orders. This case deals with the latter, a failure or refusal to comply with

an order of court. Wilful disobedience of an order made in civil

proceedings is both contemptuous and a criminal offence. The object

of contempt proceedings is to impose a penalty that will vindicate the

court’s honour, consequent upon the disregard of its previous order, as

well as to compel performance in accordance with the previous

order.”36

49. As is apparent from this description, this form of contempt may also be civilly

prosecuted by the beneficiary of the court order which has been defied. This

Court described this feature in Pheko as follows:

34
Mamabolo paras 51 to 59.
35
Pheko II para 28.
36
Pheko II para 28.

15
 “The term civil contempt is a form of contempt outside of the court, and

is used to refer to contempt by disobeying a court order. Civil contempt

is a crime, and if all the elements of criminal contempt are satisfied,

civil contempt can be prosecuted in criminal proceedings, which

characteristically lead to committal. Committal for civil contempt can,

however, also be ordered in civil proceedings for punitive or coercive

reasons. Civil contempt proceedings are typically brought by a

disgruntled litigant aiming to compel another litigant to comply with the

previous order granted in its favour.”37

50. In Matjhabeng,38 this Court elaborated on this form of contempt as follows:

“It is important to note that it is a crime unlawfully and intentionally to

disobey a court order. The crime of contempt of court is said to be a

“blunt instrument”. Because of this, “(w)ilful disobedience of an order

made in civil proceedings is both contemptuous and a criminal

offence.” Simply put, all contempt of court, even civil contempt, may be

punishable as a crime. The clarification is important because it dispels

any notion that the distinction between civil and criminal contempt of

court is that the latter is a crime and that the former is not.”39

51. The main purpose of a civil application for contempt of court, by the failure to

obey a court order, is usually to coerce compliance with the order. But it may

37
Pheko II para 30.
38
Matjhabeng Local Municipality v Eskom Holdings; Mkhonto and Others v Compensation Solutions
(Pty) Limited 2018 (1) SA 1 (CC) (‘Matjhabeng’).
39
Matjhabeng para 50.

16
 also be used for punitive purposes, particularly when it is necessary to do so to

vindicate judicial authority.

52. Justice Cameron held in Fakie that a civil application for contempt of court is

never purely coercive and always has a public dimension to vindicate judicial

authority.40 He concluded as follows:

“A court, in considering committal for contempt, can never disavow the

public dimension of its order. This means that the use of committals for

contempt cannot be sundered according to whether they are punitive

or coercive. In each, objective (enforcement) and means

(imprisonment) are identical. And the standard of proof must likewise

be identical.

This approach conforms with the true nature of this form of the crime of

contempt of court. As pointed out earlier…, this does not consist in mere

disobedience to a court order, but in the contumacious disrespect for

judicial authority, that is so manifested.”41

53. This Court made the same point in Pheko II:

“Coercive contempt orders call for compliance with the original order

that has been breached, as well as the terms of the subsequent

contempt order. A contemnor may avoid the imposition of a sentence

by complying with a coercive order. By contrast, punitive orders aim to

40
Fakie paras 34 to 40.
41
Fakie paras 39 and 40.

17
 punish the contemnor by imposing a sentence which is unavoidable. At

its origin the crime being denounced is the crime of disrespecting the

court, and ultimately the rule of law.”

42

54. This Court again recognised in Matjhabeng that a civil order for committal may

sometimes be imposed to punish rather than coerce:

“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.”43

55. This approach, which allows orders for committal for contempt of court to punish

even if they do not coerce, accords with the broader purpose of the remedy. Its

broader public purpose is to vindicate the Constitution and the rule of law.

56. Section 165 of the Constitution, which vests judicial authority in the courts,

provides that orders of court bind everybody subject to them and enjoins the

state, by legislative and other means, to assist and protect the courts to ensure

their dignity and effectiveness.44 Enforcing contempt of court orders is one such

means.

42
Pheko II para 31.
43
Matjhabeng para 54.
44
Pheko II para 26.

18
57. The underlying purpose of punishing contempt of court is moreover to protect

the rule of law itself. This Court made the point in Coetzee45 (and repeated in

Mamabolo)46 that,

“The institution of contempt of court has an ancient and honourable, if

at times abused, history… the need to keep the committal proceedings

alive would be strong because the rule of law requires that the dignity

and authority of the courts as well as their capacity to carry out their

functions, should always be maintained.”

MR ZUMA IS GUILTY OF CONTEMPT OF COURT

58. An applicant for a punitive sanction for contempt of court must establish that

the alleged contemnor (i) had knowledge of the court’s order; and (ii) failed to

comply with the order. Once these facts are established, wilfulness and mala

fides are presumed unless the respondent leads evidence to establish a

reasonable doubt.

59. Thus, once the applicant has proved the order, service or notice, and non-

compliance, the respondent bears an evidential burden in relation to wilfulness

and mala fides: should the respondent fail to advance evidence that establishes

45
Coetzee v Government of the RSA 1995 (4) SA 631 (CC) para 61.
46
Mamabolo para 14.

19
 a reasonable doubt as to whether non-compliance was wilful and mala fide,

contempt will have been established beyond reasonable doubt.47

60. In this instance, there can be no doubt that Mr Zuma had knowledge of this

Court’s order.

60.1. Mr Zuma was served with this Court’s judgment and order on 5

February 2021.

60.2. Mr Zuma’s knowledge of the Court’s order is also plain from the

statement Mr Zuma issued on 1 February 2021 and the

correspondence the Commission received from his attorneys on 15

February 2021.48

61. There can also be no doubt that, despite knowledge of this Court’s order, Mr

Zuma deliberately refused to obey it.

62. Mr Zuma’s wilfulness and mala fides in refusing to comply with the Court’s order

is evidenced by both of his public statements. These statements demonstrate

a clear intention to defy this Court’s order, regardless of the consequences.

They evidence Mr Zuma’s belief that this Court’s order is politically motivated

and not guided by constitutional principle, and for this reason stands to be

disobeyed.

47
Fakie at paras 41-42, endorsed by this Court in Pheko II at para 36. See also Matjhabeng at para 67
on the applicable standard of proof.
48
This letter is annexure IM10, p 103.

20
63. Mr Zuma has presented no evidence whatsoever to avoid the conclusion that

his non-compliance was wilful and mala fide.

64. It bears emphasis that Mr Zuma’s views about the merits of this Court’s order

cannot absolve him from guilt for contempt. Unless an order of court is set

aside or varied by a competent court, it is valid and binding. Even if Mr Zuma

had genuine grounds for contesting this Court’s order – which evidently he does

not – his remedy lay in applying to this Court for variation or rescission of the

order. Any misgivings about the order of 28 January 2021 could also have been

raised in these proceedings, in which Mr Zuma has again elected not to

respond. Instead of following due process, Mr Zuma decided to malign the

Court.

65. Mr Zuma is accordingly guilty of the crime of contempt of court. The question is

what should be the appropriate sentence. We deal with aggravating factors

next.

MR ZUMA’S INSULTS ARE AN AGGRAVATING FACTOR

66. Mr Zuma has purported to defend his disobedience of this Court’s order in his

public statements of 1 and 15 February 2021. In these statements Mr Zuma

has aggravated his offence of contempt, by insulting this Court, the Commission

and the judiciary at large in a manner that appears calculated to bring the

judicial process into disrepute.

67. We do not ask this Court to decide whether Mr Zuma committed the offence of

scandalising the court. We submit that Mr Zuma’s statements are an

21
 aggravating factor in his offence of contempt of court. The statements have

been issued, their meaning is plain, and they have not been explained by Mr

Zuma before this Court. By issuing these statements, Mr Zuma sought both to

publicise and justify his defiance of this Court’s order and the Commission.

68. In what follows, we highlight some of Mr Zuma’s specially egregious insults. In

doing so, we refer to Mr Zuma’s public statements as “Zuma 1” and “Zuma 2”.

We have numbered the paragraphs of the statements for ease of reference.

Mr Zuma’s insults of this Court

69. Mr Zuma’s insults of this Court and its members are numerous. They include

the following:

69.1. The Constitutional Court “effectively decided that I as an individual

citizen, could no longer expect to have my basic constitutional rights

protected and upheld by the country’s Constitution”. The Constitutional

Court represents “a clearly politicised segment of the judiciary that now

heralds an imminent constitutional crisis in this country.” (Zuma 1 para

1)

69.2. The Commission recently ran to the Constitutional Court “to compel me

to attend at the commission and to compel me to give answers at the

commission, effectively undermining a litany of my constitutional rights

including the right to the presumption of innocence.” (Zuma 1 para 4)

22
69.3. The Constitutional Court’s judgment “also mimics the posture of the

commission in that it has now also created a special and different set

of circumstances specifically designed to deal with Zuma by

suspending my constitutional rights rendering me completely

defenceless against the commission”. This resembles the conduct of

the apartheid government, which legislated for the indefinite detention

of Robert Sobukwe, who was also “specifically targeted for his

ideological stance on liberation.” (Zuma 1 para 5)

69.4. I have no alternative “but to be defiant against injustice as I did against

the apartheid government”. I am again “prepared to go to prison to

defend the Constitutional rights that I personally fought for and to serve

whatever sentence that this democratically elected government deems

appropriate as part of the special and different laws for Zuma agenda.”

(Zuma 1 para 11)

69.5. The Constitutional Court judgment “effectively stripped me of my

constitutional right as a citizen and created… jurisprudence that only

applies to Jacob Gedleyihlekisa Zuma.” (Zuma 2 para 1)

69.6. I defy the Constitutional Court “not to undermine the constitution but to

vindicate it, in the face of what I view as a few in the judiciary that have

long left their constitutional station to join political battles.” (Zuma 2 para

2)

69.7. I defy the Constitutional Court and now await its sentence because “I

firmly believe that we should never allow for the establishment of a

23
 judiciary in which justice, fairness and due process are discretionary

and are exclusively preserved for certain litigants and not others.”

(Zuma 2 para 7)

69.8. “Many in our society have watched this form of judicial abuse….” (Zuma

2 para 8)

69.9. The Constitutional Court made a costs order against me. It has become

“common place for some of our courts to make these costs orders

against me in order to diminish my constitutional right to approach

courts.” (Zuma 2 para 14)

69.10. “It is not the authority of the Constitutional Court that I reject, but its

abuse by a few judges. It is not our law that I defy, but a few lawless

judges who have left their constitutional post for political expediency.”

(Zuma 2 para 17)

69.11. “I protest against those in the judiciary that have become an extension

of political forces that seek to destroy and control our country.” (Zuma

2 para 18).

69.12. The recent judgment of the Constitutional Court “is a travesty of

justice”. It is “based on mere conjecture and speculation about my

future conduct” and “a betrayal of the Constitution that many refuse to

confront as they scapegoat me for every malady in society.” (Zuma 2

para 21)

24
 69.13. “I protest against our black, red and green robes, dressing up some

individuals that have long betrayed the Constitution and their oath of

office.” (Zuma 2 para 30)

69.14. My statement “is a protest against some in the judiciary that have sold

their souls and departed from their oath of office.” My respect for the

law “obliges me to reject the abuse of law and judicial office for political

purposes.” (Zuma 2 para 31)

Mr Zuma’s insults of the Commission

70. The contempt of court for which the applicant seeks to have Mr Zuma punished,

is in the first place his unjustified defiance of this Court. But the gravity of Mr

Zuma’s offence is also exacerbated by his defiance of the Commission. That

is so because this Court ordered him to submit to and obey the Commission.

Mr Zuma’s intentional defiance of the Commission accordingly exacerbated his

contemptuous defiance of this Court’s order.

71. The following are some of his serious insults of the Commission.

71.1. The Commission “has continued with creating a special and different

approach to specifically deal with Zuma. The chairperson of the

commission, unprovoked, has called special press conferences to

make specific announcements about Zuma. This has never happened

for any other witness.” (Zuma 1 para 4)

25
71.2. “The commission… should have been rightly named the Commission

of Inquiry into Allegations of State Capture against Jacob Zuma as it

has been obviously established to investigate me specifically.” (Zuma

1 para 5)

71.3. Deputy Chief Justice Zondo has been “frugal and expedient with the

truth.” “I had relied on his own personal integrity, which now seems very

compromised.” “He literally created a dispute of fact in an application

about him and continued to adjudicate the matter where his version

was being contested by me. Again, a special and different set of legal

norms were employed because they were targeting Zuma.” (Zuma 1

para 7)

71.4. At the Commission “allegations made against the judiciary have been

overlooked and suppressed by the chairperson himself.” It is blatantly

clear to me “that I am being singled out for different and special

treatment by the judiciary and the legal system as a whole. I therefore

state in advance that the commission… can expect no further

cooperation from me in any of their processes going forward.” (Zuma 1

para 8)

71.5. Deputy Chief Justice Zondo and Advocate Pretorius SC did, what has

become their hallmark, “in making submissions to each other and

playing politics to influence public opinion.” (Zuma 2 para 3)

71.6. “That Deputy Chief Justice Zondo could mislead to the nation is

something that should concern us all.” (Zuma 2 para 4)

26
 71.7. The Chair “has always sought to prejudice me.” (Zuma 2 para 5)

71.8. “Deputy Chief Justice Zondo and due process and the law are

estranged.” (Zuma 2 para 6)

71.9. “Judge Zondo has today again displayed questionable judicial integrity,

independence and open-mindedness required in an investigation of

this magnitude.” (Zuma 2 para 9)

71.10. “The commission sought to deliver me at all costs and in this endeavour

is prepared to break every rule of justice and fairness.” (Zuma 2 para

16)

Mr Zuma’s insults of the judiciary

72. It is clear from the context of a number of Mr Zuma’s insults that they were

specifically directed at this Court and the Commission. But it is also clear that

some of them were insults more broadly of the judiciary as a whole. We

highlight a few further examples.

72.1. The public discourse has been “seeking to shield what I regard as a

few in the judiciary that have forsaken their oath of office….” (Zuma 2

para 19)

72.2. I “express my own protest about those in the judiciary that have turned

their back on their fundamental task in society… because I believe that

judges should never become agents of ruling classes in society.” (Zuma

2 para 20)

27
 72.3. I take this stance “because we continue to allow some in the judiciary

to create jurisprudence and legal inconsistencies that apply only to me.”

(Zuma 2 para 21)

72.4. “We sit with some judges who have assisted the incumbent President

to hide from society what on the face of it seem to be bribes obtained

in order to win an internal ANC election.” (Zuma 2 para 29)

72.5. It has become clear to me “that I will never get justice before some of

the current crop of our judges in their quest to raise their hands to seek

political acceptance at my expense.” (Zuma 2 para 34)

72.6. “History will soon reveal that it is only some in our courts that have been

captured to serve political ends and to undermine the Constitution….”

(Zuma 2 para 36).

THE SENTENCE IN THIS CASE

73. The applicant has asked for a punitive order in the form of an unsuspended

term of imprisonment, which in its nature, would not permit Mr Zuma to avoid

imprisonment by undertaking to comply. But the applicant also left the

possibility open to Mr Zuma to submit himself to the authority of the Constitution

and this Court by undertaking to comply, which has not happened.

74. The distinction between coercive and punitive orders is usefully set out in the

minority judgment in Fakie as follows:

28
“[74] The following are, I would suggest, the identifying characteristics of
a coercive order:

1. The sentence may be avoided by the respondent after its

imposition by appropriate compliance with the terms of the
original (breached) order ad factum praestandum together with
any other terms of the committal order which call for compliance.
Such avoidance may require purging a default, an apology or an
undertaking to desist from future offensive conduct.

2. Such an order is made for the benefit of the applicant in order

to bring about compliance with the breached order previously
made in his favour.

3. Such an order bears no relationship to the respondent’s degree

of fault in breaching the original order or to the contumacy of the
respondent thereafter or to the amount involved in the dispute
between the parties.

4. Such an order is made primarily to ensure the effectiveness of

the original order and only incidentally vindicates the authority of
the court.

[75] By contrast a punitive order has the following distinguishing

features:

1. The sentence may not be avoided by any action of the

respondent after its imposition.

2. The sentence is related both to the seriousness of the default

and the contumacy of the respondent.

3. The order is influenced by the need to assert the authority and

dignity of the court and as an example for others.

29
 4. The applicant gains nothing from the carrying out of the
sentence.”49

75. This matter falls in the second category. It is a unique and extreme case of

contempt of court, for which there is no meaningful precedent. The following

interrelated features render it unique:

75.1. Mr Zuma, a former president of the Republic, has deliberately defied

orders of the Republic’s highest court.

75.2. Mr Zuma went out of his way to make his defiance public and, in doing

so, sought to undermine the integrity and authority of this Court over

and over again and in the most scathing terms.

75.3. This Court ordered Mr Zuma to comply with the Commission’s orders

and directives. He instead deliberately defied the Commission, not only

in breach of this Court’s order, but also in breach of the orders and

directives of the Commission.

75.4. Mr Zuma did so in extreme terms and thereby sought to undermine the

work of the Commission instead of obeying it as this Court had ordered

him to do.

75.5. He used the occasion to attack the integrity and authority of the

judiciary generally.

49
Footnotes omitted.

30
 75.6. Mr Zuma’s failure to respond to this application at all further

aggravates his culpability, as it demonstrates a persistent attitude of

contempt and disregard for this Court and its processes.

76. We submit that all of these features must be taken into account in the

determination of Mr Zuma’s sentence because they are inextricably intertwined

with his defiance of this Court. Mr Zuma did not merely fail to obey its orders.

He gave vent to his defiance by making scurrilous statements about this Court,

the Commission and the judiciary generally, and has persisted in his

demonstration of disdain for the judicial process in these proceedings. He is

also continuing his defiance by not submitting himself before the Commission,

despite this Court’s order.

77. While there is a plethora of legislative provisions that make it an offence for a

witness not to heed a summons,50 none of these statutory provisions is an

appropriate guide to sentence in this case.

78. This is not a case of a witness who merely failed to obey a summons. Mr Zuma

failed to obey the Commission’s summons, but the most serious elements of

50
See, for instance, in the civil context:
- section 6(1) of the Commissions Act 8 of 1947 (six months);
- regulation 12(2) of the Commission’s Regulations, as amended (twelve months); and
- sections 35(4) and (5) of the Superior Courts Act 10 of 2013 (three months).
And in the criminal context:
- section 189(1) of the Criminal Procedure Act 51 of 1977 (two to five years); and
- section 41(2) of the National Prosecuting Authority Act 32 of 1998 (fifteen years).

31
 his offence were that he defied this Court and, in doing so, sought to undermine

it, the Commission and the judiciary generally in extreme terms.

79. This Court must, by its order, vindicate its authority and that of the Commission

and the judiciary generally. It should, we submit, recognise that Mr Zuma’s

defiance was an attack on the judicial system as a whole and was, despite Mr

Zuma’s protestations to the contrary, patently designed to imperil the rule of

law.

80. A mere fine or suspended sentence would not achieve this purpose. The

purpose of suspension would, in any event, have been to allow Mr Zuma to

purge his contempt, by complying. But this is pointless. Mr Zuma has made

it clear that he is determined not to heed this Court’s order. Despite the

Secretary indicating in the founding affidavit that the Commission may yet be

able to hear the evidence of Mr Zuma, should the Court be inclined to grant a

suspension of an order of committal to allow him to do so,51 Mr Zuma has not

come forth to give any undertaking that he would do so. Mr Zuma has

remained resolute in his defiance of the Commission and this Court, with the

result that no purpose would be served by a suspended sentence.

COSTS

81. The applicant seeks punitive costs on the attorney and own client scale,

including the costs of two counsel. This costs order is justified by Mr Zuma’s

51
Founding affidavit para 20, p 11.

32
 reprehensible conduct that has required the Commission to again approach this

Court at public expense.

82. Mr Zuma has deliberately and in bad faith defied an order of this Court. He has

also launched unjustified public attacks on this Court, the Commission, and the

institution of the judiciary. Mr Zuma’s public utterances against this Court have

been untruthful and malicious. When called upon to justify or explain the

statements on oath, Mr Zuma has failed to do so as he has not filed any

answering affidavit in this matter. Such malicious conduct is deserving of

censure in a punitive costs order.

Tembeka Ngcukaitobi SC
Janice Bleazard
Counsel for the Applicant
14 March 2021
APPLICANT’S AUTHORITIES

Argus Printing and Publishing Co Ltd and Others v Esselen’s Estate 1994 (2) SA 1 (A)

Bannatyne v Bannatyne 2003 (2) SA 359 (SCA)

Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC); 1999
(12) BCLR 1420 (CC)

Coetzee v Government of the RSA 1995 (4) SA 631 (CC)

Els v Weideman and Others 2011 (2) SA 126 (SCA)

Fakie v CCII Systems 2006 (4) SA 326 (SCA)

In re Phelan (1877) Kotzé 5

In re: Chinamasa 2001 (2) SA 902 (ZS)

33
Matjhabeng Local Municipality v Eskom Holdings; Mkhonto and Others v
Compensation Solutions (Pty) Limited 2018 (1) SA 1 (CC)

Pheko v Ekurhuleni City 2015 (5) SA 600 (CC) (Pheko II)

President of the Republic of South Africa and Others v South African Rugby Football
Union and Others 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) (SARFU II)

S v Mamabolo 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC)

Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,

Corruption and Fraud in the Public Sector including Organs of State v Zuma (CCT
295/20) [2021] ZACC 2

34