Decision to jail Zuma was patently lawful: Helen Suzman Foundation

The Helen Suzman Foundation says the use of international law to interpret whether the detention of Jacob Zuma was justified reaffirms the ConCourt's decision to send him to jail. File photo.
The Helen Suzman Foundation says the use of international law to interpret whether the detention of Jacob Zuma was justified reaffirms the ConCourt's decision to send him to jail. File photo.
Image: Gallo Images/Volksblad/Mlungisi Louw

Using international law to interpret whether former president Jacob Zuma’s incarceration was justified would only confirm that his imprisonment did not violate his right to security and freedom.

This is an argument the Helen Suzman Foundation made in its submissions to the Constitutional Court on whether the apex court had to take the implications of international law into account over Zuma’s detention.

The court sentenced Zuma to 15 months in jail after finding him guilty of contempt of court.

Early this month, the ConCourt called on all parties involved in the case to make legal submissions on whether it was “obliged to consider” the UN International Covenant on Civil and Political Rights when looking at the fair trial rights under SA's constitution, as well as the right not to be detained without trial.

This after Zuma filed an application for a rescission of the court judgment which directed his imprisonment.

The Helen Suzman Foundation said in its submission: “This court gave careful, detailed and anxious consideration to Mr Zuma’s right to freedom and security of the person and his fair trial rights, and did so within the context of the unprecedented threat posed by Mr Zuma’s recalcitrance to the rule of law, constitutional supremacy and administration of justice, as it was required to do in terms of section 39(1)(a).”

It said as the ultimate guardian and interpreter of the rights in the bill of rights, the Constitutional Court found that the “pressing” and extraordinary facts and circumstances of this case required committal for contempt as the necessary and appropriate sanction to vindicate a most pressing challenge to the constitution itself.

“This court’s judgment would thus attract deference under the international law principle of subsidiarity, and will be accorded a margin of appreciation for its domestically driven and constitutionally sourced response to an unprecedented affront to the court’s dignity and directed threat to the country’s rule of law.

“In any event, further recourse to international human rights law would not have changed this court’s determination. If anything, it affirms its approach.

“Would consideration of international law change this court’s careful interpretative approach? Certainly not,” the foundation said.

According to the foundation, none of the international human rights instruments precludes imprisonment by a court for refusing to comply with a court order after a duly instituted court proceeding in accordance with existing procedures and laws.

“This court set out clearly and deliberately what the existing procedures and laws were in relation to civil contempt, and applied them to Mr Zuma.”

In fact, it said, the European Convention on Human Rights in article 5(1) specifically delineates, as an instance where deprivation of liberty is permissible, “detention of a person for non-compliance with a lawful order of a court”.

“This is precisely why the court ordered Mr Zuma to be imprisoned,” the foundation held.

It contended that international human rights instruments allowed imprisonment by a court for refusing to comply with a court order, so long as the process was not arbitrary and was within existing procedures and laws.

“This court, consistent with an international human rights approach, carefully determined and weighed up why imprisonment, and the period thereof, was not only warranted, appropriate and justified and provided for in law, but also the constitutionally necessary and required sanction for Mr Zuma’s contempt to vouchsafe the rule of law.”

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