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1. Whether contempt of court proceedings were criminal or civil.
2. Whether coercive sanctions were preferred compared to punitive sanctions.

Held by majority

1. The matter was self-evidently extraordinary. It was important in the interests of justice to depart from ordinary procedures. Never before had the court’s authority and legitimacy been subjected to the kinds of attacks that the respondent had elected to launch against it and its members. Never before had the judicial process been so threatened. It was appropriate for the court to exercise its jurisdiction and assert its special authority as the apex court and ultimate guardian of the Constitution, to the exclusion of the aegis of any other court.
2. The urgent proceedings were neither criminal nor civil, but sui generis, an amalgamation of the two. The evidence in question was a series of public statements purportedly made by the respondent. The applicant relies on the statements as evidence of the severity of the suit of contempt of court, and to demonstrate that it was part of a deliberate attack on the court’s authority. The probative value of the statements was merely that they exist in the public domain, and that they were publicised by, or on behalf of, the respondent.
3. An applicant who alleged contempt of court should establish that (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order. Once these elements were established, willfulness and mala fides were presumed and the respondent had an evidentiary burden to establish a reasonable doubt. Should the respondent fail to discharge the burden, contempt would have been established.
4. The respondent’s behaviour was so outlandish as to warrant a disposal of ordinary procedure, but it was becoming increasingly evident that the damage being caused by his ongoing assaults on the integrity of the judicial process could not be cured by an order down the line. It should be stopped now. Indeed, if the court did not intervene immediately to send a clear message to the public that the conduct stood to be rebuked in the strongest of terms, there was a real and imminent risk that a mockery would be made of the court and the judicial process in the eyes of the public. The vigour with which the respondent was peddling his disdain of the court and the judicial process carries the further risk that he would inspire or incite others to similarly defy the court, the judicial process and the rule of law. The respondent’s statements did not fall into the category of tolerable criticism.
5. It was not only the object of punishing a respondent to compel them to obey an order that rendered contempt proceedings urgent: the public interest in the administration of justice and the vindication of the Constitution of the Republic of South Africa (Constitution) also rendered the ongoing failure or refusal to obey an order a matter of urgency. That was the starting point: all matters in which an ongoing contempt of an order was brought to the attention of a court should be dealt with as expeditiously as the circumstances, and the dictates of fairness, allow. It was perspicuous that it was in the broad public interest that the court sends an unequivocal message that its orders could not simply be ignored with impunity.
6. The obligation to obey court orders had at its heart the very effectiveness and legitimacy of the judicial system and was the stanchion around which a State founded on the supremacy of the Constitution and the rule of law was built. It was perspicuous that the constitutional right of access to courts would be rendered an illusion unless orders made by courts were capable of being enforced by those in whose favour the orders were made. If the State, an organ of State or State officials did not abide by court orders, the democratic edifice would crumble stone by stone until it collapsed and chaos ensued.
7. Contempt of court was not an issue inter-partes. It was an issue between the court and the party who had not complied with a mandatory order of court. Contempt of court was not merely a means by which a frustrated successful litigant was able to force his or her opponent to obey a court order. Whenever a litigant failed or refused to obey a court order, they thereby undermined the Constitution. That, in turn, meant that the court called upon to commit such a litigant for their contempt not only dealt with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest.
8. A court was duty bound magnanimously to afford a litigant all the rights to which all litigants were entitled. It was fair to extend to the respondent the same procedural protection that was enjoyed by all people whose section 12 right stood to be severely curtailed. In response to the directions, the respondent addressed a 21-page, unsigned letter to the court. He did not depose to and file an affidavit of no more than 15 pages, as he was directed. His response was patently, and defiantly, non-compliant with the directions. Unfortunately, but not entirely unexpectedly, the respondent once again squandered an opportunity to follow and respect the country’s legal processes which guarantee all citizens fairness and equality before the law.
9. The case was exceptional, not in the sense that the respondent was being treated exceptionally, but because there were certain exceptional features of the factual matrix that justify the imposition of an exceptional sanction. The exceptional feature of the matter justified the punitive sanction because of the unique and special political position that the respondent enjoys as the former President. He had a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, were being closely observed by the public. If his conduct was met with impunity, he would significantly damage to the rule of law.
10. Although the respondent was no longer President, his conduct flew in the face of the obligation that he bore as President. It was disturbing that he, who twice swore allegiance to the Republic, its laws and the Constitution, had sought to ignore, undermine and, in many ways, destroy the rule of law altogether. The respondent was subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws. Even those who had the privilege of making laws were bound to respect and comply with those laws. For as long as they were in force, laws should be obeyed.
11. The instant court should grant an order that would vindicate its honour, and protect and maintain public confidence in the legitimacy of the Judiciary. The court could not be seen to condone and indulge a litigant’s flagrant defiance of an order, paired with unmeritorious and scandalous public statements that were clearly aimed at undermining the court’s authority and legitimacy. The cumulative effect of the aforementioned factors were that the respondent had left the court with no real choice. The only appropriate sanction was a direct, unsuspended order of imprisonment. The alternative was to effectively sentence the legitimacy of the Judiciary to inevitable decay. The respondent was to be subjected to a punitive order of committal,
12. To determine a quantifiable length of sentence, the court considered the circumstances; the nature of the breach; and the extent to which the breach was ongoing. The court would exercise its discretion and issue a sentence that it deemed just and equitable in the circumstances. Focus should be on what kind of sentence would demonstrate that orders made by a court should be obeyed and, to the respondent, that his contempt and contumacy was rebukeable in the strongest sense. The court would impose a punishment on the respondent to vindicate its court’s authority and the rule of law. An unsuspended sentence of imprisonment of 15 months would be preferred. He owed the sentence in respect of violating not only the instant court, nor even just the sanctity of the Judiciary, but to the nation he once promised to lead and to the Constitution he once vowed to uphold.
13. In regards to costs, punitive costs were warranted in the instant matter because, firstly, the respondent’s conduct smacks of malice and, secondly, his public utterances and accusations were utterly bereft of supporting facts. The combined effect of these factors rendered ordinary costs order insufficient in the circumstances. Punitive costs orders were accordingly indicative of extreme opprobrium. The respondent’s conduct was so extraordinary that it was worthy of rebuke.
14. The case did not merely concern an apathetic respondent. It concerned a respondent who breached the court’s order, chose not to explain why, and then, in defiance of unambiguous directions issued by the instant court, elected to file yet another provocative, unmeritorious and vituperative statement in the form of a letter. Evidently, the respondent had something to say, but he deliberately chose to say it unofficially and mostly on a public platform, thus denied the court and the applicant an opportunity to legitimately and officially engage with it and effectively escaping any accountability he could be brought to bear in respect of the statements. There was no explanation whatsoever for why the respondent could not participate in these proceedings, and the instant court agreed with the applicant’s submission that the respondent’s tactic was part of a deliberate and calculated strategy to undermine the court’s authority.
15. The instant court lamented the evident rise in a casual and reckless attitude adopted by many litigants who saw it fit to level unsubstantiated accusations against the Judiciary, both in the public domain and in their pleadings before the courts. The inexcusable state of affairs could not be tolerated or encouraged. It was not permissible for a disgruntled litigant to besmirch the reputation of the Judiciary or its members without fear of consequence and it was patently undesirable that an influential figure, like the respondent, should be allowed to exhibit such behaviour. At the current stage, to issue a coercive order and then expect the respondent’s compliance with the court’s order was akin to flogging a dead horse.
16. If, with impunity, litigants were allowed to decide which orders they wished to obey and those they wished to ignore, the Constitution was not worth the paper upon which it was written. Whoever that would abandon all ethical standards in pursuit of a cause should prepare to meet the court’s reproach, and the award of punitive costs that would naturally follow.

Per Theron, Jafta JJ (Dissenting Opinion)

1. The instant court was one that sat at first and last instance, and was asked to mete out an unsuspended term of imprisonment which was singularly punitive in purpose and effect. Whereas civil contempt proceedings had dual remedial and punitive purposes, the proceedings before us were wholly punitive. It was unconstitutional, to the extent that it violated sections 12 and 35(3) of the Constitution; to order punitive committal for civil contempt in motion proceedings, where no remedial or coercive relief was granted.
2. The ordinary remedy in civil contempt cases which had been granted in every single case in which a litigant had been found guilty of civil contempt that was come across was a period of suspended committal, which allowed the contemnor one final opportunity to comply with the court order and avoid imprisonment.
3. Mindful of the intense public interest in the case, both the minority judgment and the main judgment would impose a period of imprisonment on the respondent because he was in contempt of a court order. The point of divergence between the two judgments was whether it was constitutionally permissible to impose an unsuspended committal and in the context of civil proceedings, where the initiating party disavowed its interest in obtaining compliance with the original court order.
4. A coercive order would likely be an empty threat and, for that reason, inappropriate. The main judgment reached the same conclusion for a different reason, namely, that a coercive order would be pointless because the respondent’s statements demonstrated that he would not comply with a further order of the court, even in the face of imprisonment. The main judgment solved the problem by meting out a purely punitive order of unsuspended committal. That solution would no doubt resonate with those who, understandably, wish to see the respondent face punishment for his contempt of the court, but it was a solution that should not be supported. If a coercive order of committal would likely be inappropriate, the proper order would be an order to refer the matter to the DPP so that the respondent’s case could be tried according to criminal standards and subject to the necessary protections.
5. Contempt of court was divided into two categories according to whether the contempt was criminal or civil in nature. These types of contempt were distinguished on the basis of the conduct of the contemnor. Criminal contempt brought the moral authority of the judicial process into disrepute and as such covered a multiplicity of conduct that interfered in matters of justice pending before a court. It thereby created serious risk of prejudice to the fair trial of particular proceedings. Civil contempt, in contrast, involved the disobedience of court orders.
6. Where contempt of court consisted of the failure to comply with a court order, the party in whose favour the order was granted could initiate civil proceedings against the alleged contemnor in order to enforce the rights flowing from the order in question. A coercive order sought to enforce compliance with the original order and was made for the benefit of the successful party. In order for the coercion to be effective, a punitive sanction was suspended on condition that the contemnor complies with the original court order. Civil contempt proceedings also had a punitive purpose in that they sought to vindicate judicial authority. They could therefore result in a punitive sanction in the form of a fine or committal.
7. In a strange twist, the Commission did not, in these proceedings, ask for a coercive order to compel the respondent to comply with the court’s order. Instead, it asked for an unsuspended order of imprisonment, in the context of civil contempt proceedings, which was not designed to induce compliance. It was an order which, had not been made in the history of our jurisprudence on civil contempt.
8. The court should consider whether a punitive committal order ought to be made against a contemnor in the context of civil contempt proceedings, notwithstanding their dual character. The common law position was that civil proceedings for contempt of court could serve the object of compelling compliance with a court order and the object of punishing the respondent. They could be both coercive and punitive in nature. Under the common law, where an applicant claimed punitive relief not linked to compelling compliance with a court order, the applicant had no locus standi to claim that relief.
9. Where contempt was committed outside the court, it was the duty of litigants and in some cases the Attorney General to bring proceedings to commit the contemnor for contempt. However, litigants in such cases should be mindful not to assume that the essence of the contempt proceedings was to protect their dignity or for their personal satisfaction. The appellant’s role to protect the dignity of the court ceased once it was found the respondents guilty and convicted them for contempt. The court could not grant the personal satisfaction the applicant sought in the instant case.
10. Civil contempt proceedings potentially limit two constitutional rights, namely, the right to freedom and security of the person (section 12) and an accused’s right to a fair trial (section 35(3)). To that extent, if civil contempt proceedings fall short of the fair trial requirements in section 35(3), there would be a limitation on the section 35(3) rights the alleged contemnor would have enjoyed had the order of punitive committal been pursued in criminal proceedings. It did not transform the respondent into an accused person as the main judgment suggests. The main judgment missed the point. In fact, the exact opposite had occurred; despite the fact that the respondent was being prosecuted for committing a crime, civil contempt proceedings transform the respondent into a civil litigant.
11. Civil contempt proceedings would not violate section 35(3) merely because they were not conducted exactly as a conventional criminal trial would be. Whether the procedure met the requirements of section 35(3) would have to be determined according to the substance of the protections it offered and not merely according to the civil label attached to it.
12. The respondent was afforded only three court days to respond to ensure a fair procedure was followed, the court should nevertheless reason that the respondent would not have been pressed to similar timelines if the instant matter had proceeded by way of criminal proceedings. His defence would benefit from being conducted over a longer period of time, with more procedural safeguards. The main judgment concluded that because the court afforded the respondent an opportunity to make submissions in mitigation of his sentence, it followed that there had been no violation of his section 12 rights. It was surprising given that the right was but one residual fair trial right. The main judgement should have considered the numerous other procedural rights not enjoyed by the respondent. The main judgment, inexplicably, fixated on only one of these rights and reaches the illogical conclusion that because one procedural right had been afforded, there was no need to consider the many others which had not.
13. The main judgment considered it necessary to clamp down on the totality of the respondent’s contempt, and not only that part which constituted the crime of civil contempt. The main judgment further framed the threat to the rule of law posed by the respondent’s contempt as his disobedience of the court’s order and the statements made by the respondent even though the latter constituted a separate crime namely, that of scandalising the court. It was impermissible because it was counter to the principle that punishment should fit the crime actually committed. It also sought to justify a limitation of constitutional rights by pointing to benefits which flow from punishing an entirely separate crime, which had not been proven. While there was no doubt that the respondent’s civil contempt posed a threat to the rule of law, and that punishing him for that contempt would vindicate the rule of law, the punishment could not be justified by the fact that the respondent could, in addition, be guilty of the crime of scandalising the court.
14. Punitive contempt proceedings, like all proceedings that invoked the penal jurisdiction of the courts, could be resolved by means of ordinary prosecution at the instance of the prosecuting authority, or if that authority declined to prosecute, by means of a private prosecution brought by the civil complainant. The main judgment stated that a referral to the DPP would be inappropriate because the prosecution of the respondent would be left to the discretion of another branch of government. But the Commission was free to prosecute the respondent privately in accordance with section 8 of the Criminal Procedure Act.
15. A limitation of fundamental constitutional rights, which was the right not to be deprived of freedom without just cause and to be detained without trial, and the right to receive a fair trial. There were significant inroads into these rights which, when assessed in light of their fundamental importance, result in a significant violation. When a contemnor was faced with a coercive committal order, the limitation of rights was significantly tempered because the contemnor was given a final opportunity to avoid imprisonment by complying with a lawful court order. It was a further distinction between civil proceedings, in which coercive relief was sought, and civil contempt proceedings in pursuit of punitive relief which rendered the former reasonable and proportional.
16. Civil contempt proceedings served two important purposes, namely, the enforcement of rights flowing from a court order and the vindication of judicial authority and the rule of law. When a punitive order of committal was sought, they could not serve the first purpose because there was no pressing need to coerce compliance. That meant that the limitation of rights inherent in the civil contempt procedure were not balanced by a countervailing interest and need to enforce a court order and to facilitate the administration of justice.
17. In an open and democratic society based on human dignity, equality and freedom, litigants were not prosecuted criminally in civil court in circumstances where they were afforded no opportunity to purge their contempt in order to avoid being deprived of their liberty. The choice between to uphold the rule of law and protect the constitutional rights of the alleged contemnor was a false one. While the swift imposition of unsuspended committal in motion proceedings could very well vindicate judicial authority, the trade-off between to uphold judicial authority and to protect the rights of contemnors was not zero-sum.
18. In such a society, every possible deprivation of liberty should be adjudicated with as many procedural protections as was reasonable, taking into account countervailing public goods. In the instant case, the countervailing public good which sanctions the prosecution of civil contempt in motion proceedings was the need to provide the successful litigant with swift and effective redress. When a purely punitive order of committal was sought, the countervailing interest fell away and, with it, the justification for awarding such relief in the context of civil contempt proceedings.
19. In the instant proceedings, the Commission stated that it had no hope of the respondent agreeing to testify, did not ask for an order requiring the respondent to comply with the court’s order by testifying before the Commission’s tenure ends. Absent that interest, which would have given these proceedings a civil character, there was simply no pressing need for the respondent to be prosecuted for a crime in motion proceedings. There was no persuasion that the procedure followed here met the standard laid down in section 36(1) of the Constitution.
20. The Commission had at its disposal two alternative mechanisms it could have invoked in order to punish the respondent. Both options involved a referral to the DPP. First, the Commission could have referred the respondent’s failure to comply with the court’s order. Secondly, it could have referred the respondent’s non-compliance with the Commission’s directives and summonses in terms of the Commission’s Act. Non-compliance with summonses and directives issued by the Commission was anoffence under the Commissions Act 306 and the Commission could have sought to hold the respondent in contempt of the Act. In both instances, the DPP would be required to make a decision whether to institute criminal proceedings against the respondent.
21. The Commission was entitled, in its capacity as an informer, to bring the egregious case of contempt to the attention of the court. However, it was not entitled to a punitive order which was not linked to the enforcement of the court’s order. There were several other viable avenues the Commission could have pursued in an attempt to hold the respondent accountable. A

Application allowed; costs to the respondent

Orders

i. It was declared that the respondent was guilty of the crime of contempt of court for failure to comply with the order made by the court in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2.

ii. The respondent was sentenced to undergo 15 months’ imprisonment.

iii. The respondent was ordered to submit himself to the South African Police Service, at Nkandla Police Station or Johannesburg Central Police Station, within five calendar days from the date of the order, for the Station Commander or other officer in charge of that police station to ensure that he was immediately delivered to a correctional centre to commence serving the 15-month sentence.

iv. If the respondent did not submit himself to the South African Police Service as required by the Court’s order, the Minister of Police and the National Commissioner of the South African Police Service should, within three calendar days of the expiry of the period stipulated in the Court order, take all steps that were necessary and permissible in law to ensure that the respondent was delivered to a correctional centre in order to commence the 15-month sentence.

v. The respondent was ordered to pay the costs of the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, including the costs of two counsels, on an attorney and client scale.

Relevance to the Kenya’s justice system

The deliberate and willful disobeyance of court orders in Kenya has been a major cause of concern among stakeholders since it puts the rule of the law and the dignity of courts under threat. Compliance with court orders is not an option for any individual or institution. Courts are regarded as the temples of justice and a place of refuge for those seeking protection. They must never be despoiled either through acts of physical transgressions or blatant disregard of their pronouncements.

The definition of contempt of court was assigned under section 4 of the Contempt of Court Act, 2016 (Repealed). It had a double pronged definition; the first was civil contempt which was the willful disobedience of any court pronouncement and second was criminal contempt which was the publication by words, spoken or written meant to scandalize, lower judicial authority or interfere with the administration of justice. Section 28 of the Act provided for the maximum term that a contemnor could serve in prison to be 6 months. Alternatively, the contemnor can pay a fine not exceeding Ksh. 200,000. Of noteworthy, the Act was repealed for not involving the public during its making in the case of Kenya Human Rights Commission v Attorney General & another [2018] eKLR.

The threat to judicial authority is even worse when its coming from an arm of government. Notably, the Kenyan Executive has been defiant in honouring court orders such as in the cases of Peter M. Kariuki v Attorney General [2014] eKLR and Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR.

Kenyan courts have been showing mixed reaction when handling disobedience of court order cases. At times it would offer more time for the contemnor to abide by court orders as seen in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR. In this case, the court granted the defendant more time to pay the decretal sum in a suit where he was charged with contempt of court. In the case of Republic v Attorney General & another Exparte Mike Maina Kamau [2020] eKLR the contemnor was given 90 days to show cause why he should not be committed to civil jail for disobeying and willfully disregarding court orders. In other cases, the Kenyan courts have been swift to commit contemnors to civil jail as it was in the case of Peter Ndiritu Wairegi v Kennedy Kabogo & 2 others [2017] eKLR.

Unlike the South African case where the contemor Mr. Zuma was vocal in attacking the judiciary outside the court, contemnors serving as state official in Kenya have not been found to attack the courts in their defiance of court orders. Perhaps this could be reason why no state official found to be in contempt of court has been committed to civil jail.

The South African case is quite instructive to the Kenyan courts when determining future cases where contemnors especially state officials scandalize the court or lowers the authority of the judiciary through public statements. Cases involving contempt of court where the contemnor fails to enter defence should be swiftly determined without requiring them to show cause as to why they should not be committed to civil jail.