Civil imprisonment for contempt of court a ‘peculiarly SA remedy’

As the Constitutional Court justices mull former president Jacob Zuma’s application for a rescission of its June judgment on his contempt case, it is calling for submissions on international detention law and how it may impact their ruling.

But experts and analysts say this can’t be the first time these considerations have come up.

In June, the apex court found Zuma in contempt of its January order to appear before the Commission of Inquiry into State Capture and sentenced him to 15 months in jail. But the former president has now lodged an application to have the order rescinded. The application was argued last month and the court is currently deliberating on it.

On Friday, the court directed the parties involved in the case to file written submissions on the United Nations’ International Covenant on Civil and Political Rights.

It asked “in light of section 39(1) of the constitution, whether this court is obliged to consider the UN’s International Covenant on Civil and Political Rights when construing sections 12(1)(b) and 35(3) of the Constitution.”

“If it should, what implications do article 9 and 14(5) of the covenant together with the decisions of the Human Rights Committee have on the applicant’s detention?” it added.

Section 39(1) of the constitution provides that “when interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law”.

READ MORE: Zuma seeks to drag those who ‘benefited’ from arms deal with him

Section 12(1)(b) provides that everyone has the right “not to be detained without trial”. And section 35(3) deals with “fair trial rights” and provides for the rights “to a public trial before an ordinary court”, “to be present when being tried” and “of appeal to, or review by, a higher court”.

Article 9 of the UN’s covenant provides that: “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

And Article 14(5) reads: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

Dr Llewelyn Curlewis, of the University of Pretoria, yesterday said: “Surely this was one of the considerations that should have been taken into account the first time the matter was placed before the court. I cannot believe that not one of the justices who heard the original application would have brought it up.”

ALSO READ: Zuma’s hospitalisation: ‘No need to be alarmed yet’, says Foundation

Advocate Paul Hoffman said the legal representatives of the parties, too, must have considered international law when preparing their cases. He added that civil imprisonment for contempt of court was a “peculiarly South African remedy”.

“So I don’t think there will be any case anywhere that will be of any assistance to the court in determining the issue,” he said.