The justices are obliged by section 237 of the constitution to act diligently and without delay

18 January 2021 – 13:58

I refer to the delay in delivering judgment in the matter between the state capture commission and Jacob Zuma. From the coverage of the correspondence between Zuma’s lawyers and the commission it is reasonable to infer that the commission was hoping to receive the judgment last week (“Zuma says Zondo is trying to undermine pending Constitutional Court judgment,” January 15). 

On December 29, eight justices of the Constitutional Court sat in the urgent application brought by the commission against the former president aimed at compelling him to attend the commission and answer questions relating to the evidence given by more than 30 witnesses, who implicate him in the capture of the state in various ways. Eight is the minimum quorum of the court. The chief justice could not preside as he nominated the deputy chief justice to his position as sole commissioner, and obviously as applicant, the deputy chief justice could not sit in the case.

The matter was unopposed. The court had the benefit of input from amici curiae who were supportive of relief being granted to the commission. It appears to be the first time in the history of the court that it has heard a matter in late December in the middle of recess. (During the 2000 Christmas recess the court heard an urgent matter in late November concerning the best interests of a child and delivered its judgment within days.)

The Zuma matter is self-evidently urgent, but it is arguable that the urgency is self-inflicted as the commission has been more than patient with and accommodating of the former president in its dealings to secure his attendance. The pandemic also served to disrupt the workings of the commission in 2020. Now its chair has been exposed to a Covid-19 infected person, leading to an early adjournment last Friday.

Zuma’s pending review of the refusal of the commissioner to recuse himself is no excuse, and in the absence of an interim interdict for Zuma not to attend, he ought to be compelled to do so. His failure to respond appropriately to the summons served on him is a criminal offence if he is unable to discharge the onus on him of showing a sufficient cause for his non-attendance. The only “cause” he has advanced is the pending review.

The court may not be satisfied that the matter is so urgent as to justify an urgent direct approach to it. It may be minded first to allow the criminal justice administration to do its work on prosecuting the former president. It may be that the justices are equally divided as to what, if any, relief should be afforded to the applicant, the deputy chief justice. There may be other permutations as to what to do, none of them having the support of a majority of the eight justices.

What is beyond the realms of speculation and analysis is that the justices are obliged by section 237 of the constitution to act diligently and without delay. If the deputy chief justice is medically advised to isolate himself, the urgency of the matter is reduced slightly but, whether or not isolation is prescribed, it is difficult to explain why a judgment was not forthcoming earlier than the last working day before the former president was required by the commission’s summons to appear before it.

Paul Hoffman
Accountability Now