In contempt of court? Why you don't need a trial to be jailed

Former President Jacob Zuma is from this week spending time behind bars at the Estcourt Correctional Centre in KwaZulu-Natal after being found guilty of contempt of court by the Constitutional Court, which ordered he be jailed for 15 months.

Officials are seen at the Estcourt Correctional Centre, where former South African President Jacob Zuma began serving his 15-month sentence for contempt of the Constitutional Court, in Estcourt, on 8 July 2021. Picture: AFP

JOHANNESBURG - Was former President Jacob Zuma detained without trial, which is reminiscent of the days of apartheid, as Zuma and his legal team argued earlier this week before the Pietermaritzburg High Court?

The short answer is no!

Zuma is from this week spending time behind bars at the Estcourt Correctional Centre in KwaZulu-Natal before he is moved to another facility, after being found guilty of contempt of court by the Constitutional Court, which ordered that he be jailed for 15 months.

This is a simple definition of contempt of court, as contained in official documents in the Constitutional Court matter between Russell Mamabolo and the State, is as follows: "The common law offense of contempt of court manifests itself in a variety of ways. The offense embraces conduct such as the interference with witnesses, disobedience of court orders, failure to attend at court when required to do so, simulating court processes, disrupting court proceedings, anticipating the findings of a court in pending proceedings and scandalising the court."

The list is not exhaustive.

Zuma is guilty of disobedience of a court order, as the ConCourt had ordered him to return to the state capture commission to complete his testimony.

According to Cape Town-based legal firm, Schoeman Law Inc, contempt of court does not relate solely to criminal proceedings nor to criminal behaviour. Contempt of court applies whenever behaviour exhibits simple disregard of a court order.

"Contempt of Court is divided into two categories namely, civil contempt and criminal contempt. In terms of the latter instance, disgrace is brought upon the Court’s moral authority. In terms of civil contempt of court, an act of disobedience is displayed. Therefore, the separation of the two forms of contempt lies in the conduct of the contemnor and the resulting ‘effect’ it has on the particular Court. This clarification ensures that any notion whereby it is thought that criminal contempt is a crime and civil contempt is not, is dismissed.

"In civil proceedings, there are a variety of alternative remedies that can be relied upon and it is strongly recommended that these remedies first be considered (e.g. a writ of execution) and possibly exercised, as an application to find someone in contempt of Court (be it civil or criminal) may be punishable as a crime. This factor then brings about the issue of violation of the contemnor’s rights which is in conflict with Section 12 of the Constitution, stating that no person shall be deprived of freedom arbitrarily or without just cause as well as not being detained without a trial," the firm explains.

In direct relation to the Zuma matter, advocate at the Johannesburg Bar, Jason Brickhill, writes in the Oxford Human Rights Hub:

"The matter presented a vexing tension between the constitutional imperative to vindicate the rule of law, a founding value of the Constitution, and the human rights of contemnors. This tension arose in the muddy waters of the procedural dilemmas presented by the hybrid civil-criminal nature of contempt proceedings. Such proceedings originate in civil proceedings, but culminate in a finding of guilt – beyond reasonable doubt – of a crime, for which imprisonment is a competent sentence. All this happens without an ordinary criminal trial or any of the protections it offers."

Therefore, in the case of Zuma, his guilty verdict did not require a criminal trial before he was sentenced.

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