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Bouwer van Niekerk writes that Jacob Zuma cannot say the threat of a possible jail term is a sham because he has had many opportunities to state his case - which he has chosen not to do.
"You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now, without a lawyer present, you have the right to stop answering at any time."
All of us, who enjoy a good crime movie or series, is aware of this infamous warning. It is known as the Miranda warning, often referred to as the "Miranda rights", originating from the United States Supreme Court case of Miranda v Arizona. These are the quintessential lines delivered by the cops when they arrest the bad guys.
As a kid, I always enjoyed rehearsing these lines. On the one hand, I felt like a significant law enforcement officer, enjoined with the fearsome powers of the State and all that it entails. On the other hand, I enjoyed the fact that individuals could not, without ado, be intimidated by the stately powers that be, and that someone could always come up for the little innocent guy.
Something similar to reading the Miranda rights happened earlier this month. But it was not a movie. And the scriptwriters were not (so we hope) interested in creating a box office hit.
Zuma asked to make representations
In considering a possible sentence, the chief justice of the Constitutional Court requested the former president of South Africa – Jacob Zuma – to make representations in respect of his potential contempt of court punishment. It is difficult to imagine a more severe request; the threat of a jail term hardly sits well with the average citizen. But Zuma is no average citizen, and he is no average litigant.
Zuma's response was pointed and precise: the threat of a possible prison term was "a sham and an attempt to sanitise the gravity of the repressive manner in which the court has dealt with my issues."
READ | Analysis: The Constitutional Court needs to explain its latest decision on Zuma
A sham? Really? Let us consider this carefully.
A sham presupposes that it constitutes something that is not what it is purported to be. It suggests a false representation. In this case, it supposes that Zuma is faced with a proposition that he cannot possibly answer to, for his fate has been settled. This is something that he has suggested time and again. But the fallacy in his reasoning is both manifest and manifold – he has had umpteen opportunities to state his case. The fact that he has chosen not to make use of these opportunities obliterates his argument.
This is demonstrated by his subsequent statement, where he concedes that "[r]egrettably, if I accede to your request, I purge my conscientious objection for having not participated in the proceedings of the Constitutional Court".
But this is the point: if you want to participate in legal proceedings, you should do so in the manner that the court in question prescribes. This should not be news to Zuma – an experienced litigant who has been (and still is) involved in numerous court cases, and who is no doubt fluent in the various processes, to wit action proceedings (where oral evidence is presented) and motion proceedings (where evidence is presented by way of affidavit). His statement that "the Constitutional Court deems it appropriate and unlawful to impose a criminal sanction of incarceration of a person without hearing oral evidence from such an accused person" is both legally and intellectually offensive.
Undermining
But it is not ignorant, as Zuma is fully aware of this. His approach to "remaining silent" cannot be construed as anything but a concerted attempt to undermine a constitutionally convened system of justice that allows litigants to make representations in the furtherance of their case.
For if everyone can dictate who is suited or non-suited to hear their case in the manner that they want it to be heard by the persons they want it to be heard, or in the manner they want it to be heard, the judiciary will become gripped in the arms of those who shout the loudest and will become subservient to those with the power and means to dictate their own fate. No independent judicial system can function in such a manner, as intimidation and/or adherence to subjective criticism will invalidate objective functionality.
Make no mistake, political grandstanding is not unique to South African politics.
Desperate attempts to stay out of jail is nothing new.
Legislative actions or inactions and the consequences thereof are contained in the acts that govern our State. Grandiose arguments to avoid incarceration is as old as the mountains. Attempts to justify such acts in our courts are likewise common. But since the dawn of our democracy, this has taken place and has been adjudicated upon, where called upon within our judicial system.
Where appropriate, the judiciary has ruled on these issues. Where not appropriate, these issues have been left to the executive and the legislative arms of government to deal with. For the separation of powers is sacrosanct to our continuous, harmonious existence. All of this is contained in and governed by our Constitution.
But when push comes to shove, and a final call needs to be made on a critical issue that falls squarely within the realms of the judiciary, the Constitutional Court will have the last say.
READ | Ralph Mathekga: Zuma decision: The ConCourt is walking a fine line
It is then not up to a litigant – whoever they may be – to question the court's authority.
The audacity to ignore its requests and to then attack its standing in our society cannot stand. To openly defy it is to attack our constitutional, democratic way of life. To attack its integrity is to call into question everything that we hold dear in our pursuit of the freedoms that the Constitution provides us, including our right to have our disputes resolved in courts of law.
Everyone has the right to remain silent. Everyone has the right not to incriminate themselves. Everyone has the right to legal representation. Everyone has the right to have their disputes ventilated in a court of law. These are not only Miranda rights – these are rights contained in our Constitution. But these are choices to be made by litigants. And litigants must stand and fall by their choices and the consequences of their choices.
Let us hope that our highest court remembers this and acts accordingly, no matter the litigant's identity.
- Bouwer van Niekerk is a Johannesburg-based attorney.
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