Counsel for Jacob Zuma on Friday argued, unsuccessfully, that the justices of the constitutional court who jailed Jacob Zuma for contempt in 2021 may harbour unconscious bias towards him, and should therefore recuse themselves from a case that will settle whether he can stand for parliament in elections later this month.
The application was dismissed, Deputy Chief Justice Mandisa Maya said after a morning of argument on this point. The court did not give reasons, but is expected to do so later in its judgment.
Zuma faced a tough test for recusal and the consensus has been that he could not meet it.
Advocate Dali Mpofu, SC, made the claim on bias after Justice Zukisa Tshiqi asked him why Zuma did not object when the same judges who handed down his 15-month sentence heard his application for rescission of their judgment three years ago.
She added that reasonable applicants also did not object to the same high court bench that found against them, hearing their application for leave to appeal.
“I need to understand what your problem is with us,” she said.
“The nature of your judicial system is that when you are sitting as a judge in the high court, when an application for leave to appeal is brought to you, the reasonable litigant believes that as a judge you are going to hear an application for leave to appeal and apply your mind.
“The same applies to rescission judgments, you have brought those applications,” she added, referring to the fact that Mpofu headed Zuma’s legal team when he filed an urgent application in July 2021 arguing, unsuccessfully, that the court had erred and should set aside both the contempt order and the prison sentence.”
Tshiqi asked why the current case, where the apex court must decide if that prison sentence disqualified Zuma from becoming a member of parliament, in terms of section 47(1)(e) of the Constitution, was any different.
This section bars anyone who has been sentenced to 12 or more months in prison without the option of a fine from becoming a member of the National Assembly for five years.
The Electoral Commission of South Africa (IEC) upheld a complaint that Zuma was not eligible for parliament, only to be overturned last month by the electoral court.
The court reasoned that the remission of the remainder of Zuma’s jail term by President Cyril Ramaphosa, after his early release on medical parole was found to have been unlawful, reduced the length of the sentence constitutional court imposed.
“So why is it different in this matter, us being asked to look at whether the remission by the president interfered with the sentence we imposed?” Tshiqi continued.
Mpofu replied that he was not seeking recusal because the judges could not rule on the impact of remission, but because they were conflicted on his other main points of argument, namely whether Zuma’s 2021 conviction was a conviction, and the sentence a lawful sentence.
It is Zuma’s case that he was jailed without a trial by the apex court, an argument that harps on the hybrid nature of contempt but throws overboard the established principle that punitive sanction can be imposed for civil contempt.
Zuma was jailed for defying an order of the court to testify before the commission of inquiry into state capture.
Tshiqi said even on this point, Zuma and his legal team should be pleased that the case is being heard by the apex court, which could answer the question with finality.
“There is a short answer: they are not happy and the reason is their conviction, their sentence is what causes the unhappiness,” Mpofu replied, before likening his client’s fear of bias to that of a sports team facing a referee who supported the other side.
“The human inclination, it might not even be conscious bias, the human inclination to defend, it is just a human thing and the fear is born from that thing.
“How can a litigant be happy about that, the only possible happiness could be that this matter be determined by this court but not by yourself.”
By Mpofu’s reasoning, about half the judges in the constitutional court should have recused themselves from the case.
But advocate Tembeka Ngcukaitobi, for the IEC, argued that the application stood to be dismissed.
The test for recusal is a strict and objective one.
The constitutional court has in the past stressed that judges enjoy a presumption of impartiality and must hear cases where they can.
Ngcukaitobi reminded the court that an applicant who seeks recusal must also pass the so-called double reasonableness test, meaning the applicant must be reasonable and the apprehension of bias in itself must be reasonable.
The former president’s legal team alleged a reasonable fear of bias but faced an uphill battle in persuading judges to recuse themselves from deciding if he is eligible for parliament
