Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others

Following a previous judgment in which the Constitutional Court found Mr Jacob Zuma guilty of contempt of court and sentenced him to 15 months' imprisonment for failing to comply with an order to appear before the State Capture Commission, Mr Zuma applied for rescission of that order. He argued that the order was granted in his absence and erroneously, and that his constitutional rights were violated as he was detained without trial and denied fair trial rights under sections 12, 34, and 35 of the Constitution. Mr Zuma had deliberately refused to participate in the contempt proceedings despite being properly served. He sought rescission in terms of rule 42 of the Uniform Rules of Court and/or the common law of rescission.

• Whether direct access to the Constitutional Court should be granted for the rescission application
• Whether the requirements for rescission under rule 42 of the Uniform Rules of Court were met
• Whether the requirements for rescission under the common law were met
• Whether exceptional circumstances existed to justify reconsideration of the Court's order in the interests of justice
• Whether the order was granted in Mr Zuma's absence within the meaning of rule 42(1)(a)
• Whether the order was erroneously sought or granted
• Whether the motion procedure for civil contempt complies with sections 12(1)(b) and 35(3) of the Constitution
• The role of international law (ICCPR) in interpreting the Bill of Rights

The application for rescission was dismissed by the majority. Direct access was granted. CASAC and Democracy in Action were admitted as amici curiae. Mr Zuma was ordered to pay the costs of the Commission and the Commission's Chairperson, including the costs of two counsel.

1. Rescission under rule 42(1)(a) requires that an order be granted in a party's absence AND erroneously. 'Absence' refers to involuntary exclusion from proceedings, not deliberate non-participation. Where a party has proper notice and deliberately chooses not to participate, the order is not granted 'in their absence' within the meaning of rule 42(1)(a). 2. An order is not 'erroneously granted' merely because a party failed to present defences that could have been raised. The error must be something the court was unaware of that would have precluded granting the order. 3. Under the common law of rescission, an applicant must provide a reasonable explanation for default AND show bona fide prospects of success. Both requirements must be met. 4. This Court is functus officio after delivering final judgment. The doctrine of finality and legal certainty are fundamental to the rule of law and can only be departed from in exceptional circumstances. 5. Rescission cannot be used as a substitute for appeal or to reopen matters already decided on the merits. 6. International law instruments like the ICCPR must be 'considered' when interpreting the Bill of Rights (section 39(1)(b)), but this does not mean they must be 'preferred' or that they create directly enforceable domestic rights. Unincorporated treaties bind South Africa at the international level but do not create justiciable domestic rights unless incorporated into domestic law.

The majority noted with concern that Mr Zuma's conduct throughout the proceedings demonstrated a persistent disrespect for the judiciary and the rule of law, representing a monumental waste of judicial resources. The Court warned against allowing litigants to adopt litigious strategies of deliberate non-participation only to later seek rescission. Khampepe J expressed concern about the second judgment's approach to international law, cautioning against elevating the ICCPR above domestic constitutional law or allowing its provisions to be invoked as grounds for rescission. The Court emphasized that international law principles like subsidiarity and margin of appreciation recognize that domestic courts are better situated to apply constitutional protections in their local context. The minority judgment observed that South African law on contempt of court proceedings remains unclear and that a coherent approach needs to be formulated. The minority suggested that the common law motion procedure for contempt may not comply with constitutional requirements for a 'trial' as envisaged in section 12(1)(b), though this issue was not definitively resolved. The minority also noted that even compliance with domestic law does not insulate South Africa from liability under international law if ICCPR violations are established.

This judgment is significant for clarifying the narrow grounds upon which the Constitutional Court will rescind or reconsider its final orders. It reinforces the principles of finality and legal certainty as essential components of the rule of law, while acknowledging limited exceptions in exceptional circumstances. The judgment addresses the distinction between rescission and appeal, emphasizing that disappointed litigants cannot use rescission as a backdoor appeal mechanism. It clarifies that deliberate non-participation in proceedings does not constitute 'absence' for rescission purposes. The judgment extensively discusses the proper role of international law in South African constitutional interpretation, clarifying that unincorporated treaties like the ICCPR serve as interpretative aids but cannot be directly invoked or enforced in domestic courts. The minority judgment raises important questions about the constitutionality of the common law motion procedure for civil contempt of court, particularly regarding detention without trial and fair trial rights, issues that remain unresolved and may require future clarification.