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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA, BRAAMFONTEIN

CC CASE NUMBER: 52/2021

In the matter between:

JACOB GEDLEYIHLEKISA ZUMA Applicant

and

SECRETARY OF THE JUDICIAL COMMISSION OF

INQUIRY INTO ALLEGATIONS OF STATE CAPTURE,
CORRUPTION AND FRAUD IN THE PUBLIC SECTOR
INCLUDING ORGAND OF STATE First Respondent

RAYMOND MNYAMEZELI ZONDO N.O Second Respondent

MINISTER OF POLICE Third Respondent

NATIONAL COMMISSIONER OF THE SOUTH

AFRICAN POLICE SERVICE Fourth Respondent

HELEN SUZMAN FOUNDATION First Amicus Curiae

COUNCIL FOR THE ADVANCEMENT OF THE SOUTH

AFRICAN CONSTITUTION Second Amicus Curiae

DEMOCRACY IN ACTION Third Amicus Curiae

DIA S WRITTEN SUBMISSIONS

AS PER CONCOURT DIRECTIONS DATED 06 AUGUST 2021

TABLE OF CONTENTS

A. INTRODUCTION ................................................................................................... 2
B. THE DISCRETION QUESTION ............................................................................ 3
C. THE SUBTANTIVE QUESTION ........................................................................... 5
(i) Implications of the Covenant ....................................................................... 6
(ii) Implications of UN Human Rights Committee Jurisprudence .................. 12
(iii) Implications of the African Charter ............................................................ 16
D. CONCLUSION ...................................................................................................... 18
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A. Introduction

1. On Friday 6 August 2021 this Court directed the parties and amici curiae to make
written submissions on the following issues:

1.1 In light of section 39(1) of the Constitution, whether this Court is obliged
to consider the United Nations International Covenant on Civil and
Political Rights (Covenant) when construing sections 12(1)(b) and 35(3)
of the Constitution. We dub this he discre ion q es ion .
1.2 If it should, what implications articles 9 and 14(5) of the Covenant,
together with decisions of the UN Human Rights Committee, have on the
a ca d . We dub this he s bs an i e q es ion .

2. Democracy In Action is grateful for this opportunity; as are we as its Counsel.

In truth, these are issues that should properly have been placed before this Court
in argument before the decision now sought to be rescinded was made. A trick
was missed there. For our part as Counsel for one of the amici, we regret having
failed to place this material before Court at the first available opportunity on 12
July 2021. That failure has no doubt contributed to the delay in the determination
of this rescission case, while a near-octogenarian is languishing in gaol for civil
contempt following motion proceedings. It is testimony to the thoroughgoing
processes of this Court that it has now called for submissions on implications of
customary international law on this unprecedented detention of a former Head
of State by the apex Court without being afforded fair trial rights. For that, this
Court deserves commendation, not condemnation. It is, regrettably, the amici
that missed the trick on 12 July 2021 as it was their duty to assist this Court and
point to any blind spots this Court may have missed.1

1
We note, without excusing ourselves entirely from blame, that Democracy In Action was, by Directions
issued by this Court on 10 July 2021, afforded less than 24 hours to make written submissions a
handicap to which we adverted in the final paragraph [48] of our initial written submissions.
 Page 3 of 20

3. Ma b .

B. The Discretion Question

4. Section 39(1) of the Constitution reads as follows:

(1) When interpreting the Bill of Rights, a court, tribunal or forum

(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign la .

5. Section 39(1)(b) does not confer a discretion on this Court as regards

consideration of international law in interpreting the Bill of Rights; neither does
section 39(1)(a) as regards promotion of the values that underlie an open and
democratic society based on human dignity, equality and freedom. Only in
relation to consideration of foreign law does this Court have a discretion in terms
of section 39(1)(c) of the Constitution.

6. All this is made clear by use of the peremptory m s in sections 39(1)(a) and
(b), on the one hand, and the discretionary ma in section 39(1)(c) on the
other. This appears to have been put beyond doubt by the unanimous judgment
of this Court in Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC); 2019
(3) BCLR 383; [2018] ZACC 52, at para 31, where this Court said: “[O]f
course, s 39(1)(b) requires us to consider international law when interpreting
the Bill of Rights . This language would seem to admit of no discretion. This
Court is required to consider international law. Consideration of international
law in the interpretation of the Bill of Rights, including sections 12(1)(b) and
35(3), is not discretionary. It is compulsory.

7. The Covenant (or ICCPR as it is generally known) is part of South African law
by virtue of section 232 of the Constitution which reads:
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Customary international law is law in the Republic unless it is inconsistent with the
C a Ac Pa a .

8. According to the interactive website of the United Nations Human Rights Office
of the High Commissioner last updated on 18 June 20212 South Africa

8.1 signed the Covenant on 3 October 1994, and

8.2 ratified or acceded to it on 10 December 1998

9. That ratification appears to have been done pursuant to the power that the South
African Constitution confers upon Parliament through section 234 which reads
as follows:

In order to deepen the culture of democracy established by the Constitution, Parliament

may adopt Charters of Rights consistent with the provisions of the Constitution.

10. The Covenant is thus part of customary international law as contemplated in

section 232 of the South African Constitution. Parliament appears to have
adopted it pursuant to the powers conferred on it by section 234 of the
Constitution after satisfying itself that the Covenant is consistent with the
provisions of the Constitution. Unless inconsistent with the South African
Constitution or Act of Parliament, the utility (and binding effect) of the Covenant
as part of South African law in the exercise of construing sections 12(1)(b) and
35(3) of the South African Constitution is thus undeniable.

11. There appears to be no inconsistency between articles 9 and 14(5) of the

Covenant, on the one hand, and provisions of the Bill of Rights Chapter
[including sections 12(1)(b) and 35(3)] in the South African Constitution, on the
other. We have not found any Act of Parliament, relevant for the determination
of the substantive question with which this Court is confronted, with which the
articles identified are inconsistent either.

2
https://indicators.ohchr.org/. For list of UN Treaties or Covenants ratified by South Africa, see
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=162&Lang=EN
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12. In the result, this Court is not only obliged to consider the Covenant when
construing sections 12(1)(b) and 35(3) of the Constitution; it is also bound by
the Covenant to the extent that there is no inconsistency with the Constitution or
applicable Act of Parliament. This is so because the Covenant has been
subsumed under South African law by Parliament. By so doing, Parliament must
be taken to have satisfied itself that the Covenant is consistent with the
Constitution, as it is enjoined by section 234 of the Constitution.

C. The Substantive Question

13. Now that we have established that not only is this Court obliged to consider the
Covenant in construing sections 12(1)(b) and 35(3) of the Constitution, but that
it is also bound by it, we now consider the implications that articles 9 and 14(5)
of the Covenant, together with a selection of decisions of the United Nations
Human Rights Committee, a a ca d .

14. Since South Africa also signed and ratified the African Charter on Human and
P R (the African Charter) on 9 July 1996,3 presumably pursuant to
the power conferred on Parliament by the old section 231 of the interim
Constitution, 1993,4 it is necessary, in our respectful submission, for this Court
also to grapple with the implications of the relevant articles of the African
C a a ca d .

3
See https://www.achpr.org/ratificationtable?id=49
4
Section 231 of the interim Constitution read as follows:
(1) All rights and obligations under international agreements which immediately before the
commencement of this Constitution were vested in or binding on the Republic within the meaning
of the previous Constitution, shall be vested in or binding on the Republic under this Constitution,
unless provided otherwise by an Act of Parliament.
(2) Parliament shall, subject to this Constitution, be competent to agree to the ratification of or
accession to an international agreement negotiated and signed in terms of section 82(1)(i).
(3) Where Parliament agrees to the ratification of or accession to an international agreement under
subsection (2), such international agreement shall be binding on the Republic and shall form part
of the law of the Republic, provided Parliament expressly so provides and such agreement is not
inconsistent with this Constitution.
(4) The rules of customary international law binding on the Republic, shall, unless inconsistent with
C a Ac Pa a , a a R b c.
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15. Masiwagawule siwarhuqa.

16. We begin with implications of the Covenant on the applican d ,

implications of some jurisprudence of the UN Human Rights Committee, and
finally ca A ca C a a ca d .

(i) Implications of the Covenant

17. Article 9 of the Covenant reads thus:

1. Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for
his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before
a judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not be the general rule
that persons awaiting trial shall be detained in custody, but release may be subject
to guarantees to appear for trial, at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an
c ab c a .

18. Article 14(5) says:

Everyone convicted of a crime shall have the right to his conviction and sentence being
db a b a acc d a .

19. We consider the implications of these articles. The approach that the UN Human
Rights Committee seems to follow is first to consider the “admissibility of a
complaint before considering its merits. We propose adopting a similar
approach.
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20. The assessment of the admissibility of a complaint is regulated by rule 99 of the

Rules of Procedure of the Human Rights Committee. It entails establishing the
following issues:

20.1 that the complaint is not anonymous but is submitted by an individual who
is subject to the jurisdiction of a State party to the Optional Protocol;
20.2 that the complaint is sufficiently substantiated;
20.3 that the complaint does not constitute an abuse of the right of submission;
20.4 that the complaint is not incompatible with the provisions of the
Covenant;
20.5 that the same matter is not being examined under another procedure of
international investigation or settlement; and
20.6 that the complainant has exhausted all available domestic remedies.

21. Once these have been established, then the Committee considers the merits of
the complaint.

22. It is Democracy In Action c b a paragraphs 29 and 30 of

the main judgment contain facts that, if placed before the UN Human Rights
Committee, would found a case for admissibility of a complaint by or on behalf
of the applicant. Since this Court is the highest court in South Africa, all
domestic remedies legally available to the applicant would have been
exhausted.5

23. While the question of whether or not the applicant has been subjected to arbitrary
detention by the apex Court may be open to debate,6 there would seem to be little

5
A Presidential pardon would in our submission not be one such remedy because it would not cure the
arbitrary nature, and therefore unlawfulness, of the detention by reason of this Court forsaking normal
procedures established by law.
6
The detention was preceded by a court process albeit, in our respectful submission, a flawed one since
no trial as ordinarily understood was held. In any event, see para 41 below on how the UN Human Rights
Committee construes arbi rar detention in contradistinction to nla f l detention.
 Page 8 of 20

doubt that the apex Court deliberately, by its own ipsissima verba, beat a path in
depriving the applicant of his liberty that is different from that es ablished b
la .

24. Article 9.1 expressly forbids this. It says: “No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are
established by law .

25. The main judgment of this Court expressly took leave of such procedure as
are es ablished b la and invoked what it terms the “interests of justice
standard in order to deprive the applicant of his liberty without affording him a
trial under section 12(1)(b) and fair trial rights under section 35(3) of the
Constitution. It does not seem to us that this most lofty of standards (interests of
justice) was intended for such a purpose. It seems to us that the interests of
justice standard, purposively applied, should likely have resulted in a different
outcome, namely, the rejection of a demand for a punitive detention of a near-
octogenarian for allegedly insulting the apex Court.

26. The extraordinary feature of the main judgment in its apparent violation of the
rule against deprivation of liberty dehors s ch procedures as are established
b la is in our submission manifest in the following dictum of the main
judgment:

[29] The matter is self-evidently extraordinary. It is thus in the interests of justice to

depart from ordinary procedures. N b a C a a d ac
been subjected to the kinds of attacks that Mr Zuma has elected to launch against it and its
members. Never before has the judicial process been so threatened. Accordingly, it is
appropriate for this 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
c . I a a b c d , he ends
of justice, would be served if this matter were to be required to traverse the ordinary, and
lengthy, appeals process that would render the litigation protracted. The urgency with
which this matter must be disposed of, a subject I deal with next, does not admit of that
kind of delay.

[30] N M Z a b a a d a a a ad a d a
procedure, but it is becoming increasingly evident that the damage being caused by his
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ongoing assaults on the integrity of the judicial process cannot be cured by an order down
the line. It must be stopped now. Indeed, if we do not intervene immediately to send a
clear message to the public that this conduct stands to be rebuked in the strongest of terms,
there is a real and imminent risk that a mockery will be made of this Court and the judicial
process in the eyes of the public. The vigour with which Mr Zuma is peddling his disdain
of this Court and the judicial process carries the further risk that he will inspire or incite
a d C , dca c a d a .
(our emphasis)

27. No amount of “extraordinary disdain for the apex Court can, in our respectful
submission, validly and reasonably justify this Court giving short shrift to the
a ca b d a d a [ 12(1)(b)] a d a cab
fair trial rights [s 35(3)]. Trial courts exist in our judicial system so that every
litigant can have the option to challenge a decision of the trial court in higher
courts. Once the apex Court usurps the function of a trial court in the name of
asser [ing] i s special a hori as he ape Co r , it deprives a litigant of
the right to challenge that decision in a higher court.

28. Such deprivation would seem to be in violation of another article of the

Convention: article 14(5) which entitles every convicted person to challenge his
or her conviction or sentence in a higher tribunal according to law. But when
the apex Court, deliberately o he e cl sion of he aegis of an o her co r ,
convicts a person and sentences him or her as a court of first and last instance,
to which higher rib nal domestically does the person challenge its decision
according o la ? None, it would seem. In such circumstances, the only
available avenue would seem to be, arguably, the UN Human Rights Committee
a d A ca C H a a dP R . T db ,
submission, because this Court as representative of the Judicial arm of State
is part of the State. But a trend of decisions of this Court that engage human
rights considerations being challenged in international fora would in our
respectful submission be wholly undesirable as that would lower the esteem and
legitimacy of the Court far more than the intemperate language of an
octogenarian politician and former Head of State with no proven political
ambition.
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29. Allied to article 14(5) of the Covenant is article 9.4 which entitles a detainee to
a right to challenge the proceedings of his or her detention in a court which must
decide expeditiously on the lawfulness of that detention and order release if the
detention is not lawful. This is also, incidentally, the right enshrined in section
35(3)(o) of the South African Constitution. While a plain reading of the section
seems to suggest that it applies only to “accused persons , it is our respectful
submission that such a construction is unwarrantedly narrow. Section 233 of the
Constitution directs this Court, when interpreting any legislation , to

prefer any reasonable interpretation of the legislation that is consistent with international
law over any alternative interpretation that is inconsistent with international law.

30. While the Constitution is stricto sensu not legislation, there is no reason in
principle why interpretation of provisions of the Bill of Rights Chapter that is
consistent with international law should not be preferred over interpretation that
is not. An interpretation of section 35(3)(o), for example, that confines its
application to “accused persons (in the sense of persons who have been
charged and pleaded in a criminal court, or who have had a plea entered on their
behalf in a criminal court) would be inconsistent with international law in the
form of article 9.4 of the Covenant. Article 9.4 applies to persons deprived of
liberty by arrest or detention. We submit that section 35(3)(o) of the South
African Constitution should be interpreted in a way that is consistent with article
9.4 which forms part of customary international law as contemplated in section
232 of the Constitution and subsumed under South African law when ratified by
Parliament in December 1998 pursuant to the powers conferred on Parliament
by section 234 of the Constitution.

31. When the apex Court is the court mandating the detention as in this case it
stands to reason that the person detained on the orders of the apex Court would
have no recourse to a higher court for determination of the lawfulness of that
detention and its setting aside if found to be unlawful. The only domestic
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recourse would be the apex Court itself by way of rule 29. The alternative would
be international tribunals such as the UN Human Rights Committee and the
A ca C H a a dP R . T a a a d,
respectful submission, be undesirable as it would not augur well for the esteem
and legitimacy of this Court in the long run. By ordering the detention of the
applicant as a court of first and last instance, it seems to us that this Court may
be found to have violated article 9.4 of the Convention if such a complaint were
to be submitted to the UN Human Rights Committee.

32. Article 9.3 seems to combine elements of section 12(1)(b) [to the extent that it
entitles an arrested or detained person to a trial] and section 35(3) [to the extent
that it entitles an arrested or detained person to trial within a reasonable time.
Again, on the authority of section 233 of the Constitution, we urge upon this
Court an interpretation of section 35(3)(c) and (d) of the Constitution that is
consistent with article 9.3 which entitles arres ed or de ained persons to a
trial within a reasonable time over one which confines its application to
“accused persons in the sense described in paragraph 30 above. If submitted,
we take the view that a complaint founded on article 9.3 against the State (of
which this Court as representative of the Judicial arm) would likely be admissible
and find favour on its merits with the UN Human Rights Committee.

33. We accept still, as we did during argument on 12 July 2021, that not all civil
contempt cases will require a trial. This is not one of those cases, however. This
is a case that should have been referred to the prosecuting authority, as the
minority sought to do. There was self-evidently no urgency. In any event,
sacrificing human rights at the altar of contrived urgency as in this case is
hardly the stuff of which the interests of justice is made.

34. Article 9.5 of the Covenant says: “Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compensation. This is no
different from the ordinary damages claim for unlawful detention in South
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African law. Assuming the applicant submitted a complaint with the UN Human
Rights Committee founded on this article, it would seem to us to be a
consequential finding if the complaint founded on article 9.1 were to find favour.

(ii) Implications of UN Human Rights Committee Jurisprudence

35. There is some jurisprudence of the UN Human Rights Committee on these

articles. They are termed “Views . We touch on three, dealing with each of the
four articles identified, namely, articles 9.1, 9.3, 9.4 and 14(5).

36. Taran v Ukraine CCPR/C/128/D/2368/20147 engaged numerous articles

including the full spread of article 9 and article 14(5). The undisputed facts, in
summary, were:

36.1 T c a a a a , c a d , ad b
raided by several police officers in the morning hours.
36.2 He was then taken into custody for questioning where he was tortured
until he lost consciousness several times.
36.3 During his pre-trial detention, he was denied access to proper medical care
and access to his lawyer. On each occasion that he made requests for
access to his lawyer, he was beaten.
36.4 His pre-trial detention was longer than the Ukranian Criminal Procedure
Code allowed.
36.5 Police officers forced him, by torturing him, to confess to a crime, and his
complaints about torture to the Ministry of the Interior fell on deaf ears.
36.6 He requested unlimited access to his criminal case file, but was granted
only two hours per week to prepare for his defence.
36.7 He was ultimately sentenced to life imprisonment for participating in 30
crimes ranging from theft to murder. This was based on the evidence of
people who had later retracted their evidence claiming to have been

7
https://juris.ohchr.org/Search/Details/2824
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tortured. His appeals up to and including the Supreme Court were

rejected.
36.8 The Supreme Court (the highest court) decided his appeal in his absence
and in the absence of his lawyer.

37. The Committee found, among other things:

37.1 that the State party had failed to explain why it did not allow the
c a a a c a a d a a S C a a
proceedings, and that in these circumstances there had been a violation of
article 14(5) of the Covenant;
37.2 a c a a initial detention was both arbitrary and unlawful as
he was not informed, at the time of apprehension, of the reasons for his
arrest or of any charge against him, and he was not brought promptly
before a judge. In the circumstances, the complainant rights under
article 9 of the Covenant have been violated;
37.3 that the State party is obligated to take appropriate steps to: (a) quash the
conviction and, if necessary, conduct a new trial, in accordance with fair
trial principles; (b) conduct a thorough, prompt and impartial
a c a a a a ; (c) d
complainant with adequate compensation and other measures of
satisfaction for the violations that occurred; (d) take all steps necessary to
prevent similar violations from recurring.

38. I b , a d conviction and sentencing of the

applicant in his absence, and in the absence of his lawyers, in what was
effectively civil (not criminal) proceedings, without affording him fair trial rights
in the ordinary manner that usually precedes a finding of guilt before a criminal
 Page 14 of 20

conviction and detention, constitutes arbitrary deprivation of liberty within the

meaning of article 9.1 of the Covenant.8

39. De la Vega v Colombia CCPR/C/129/D/2930/20179 engaged, among others,

articles 9 and 14(5) of the Covenant. In brief:

39.1 The Criminal Cassation Chamber of the Supreme Court (the highest court
in Colombia on non-constitutional matters) declared the complainant (a
Minister of the Interior and Justice) criminally responsible effectively for
b b a d c d 80 ,a 167
a a , a d 112
disqualification from the exercise of public rights and duties.
39.2 He had allegedly offered bribes to another politician to induce her to vote
in favour of the re-election of the President. That other politician admitted
having been offered a bribe by the complainant and was prosecuted.
39.3 Th S C conviction and sentencing of the complainant
having been made by the highest ordinary court was not susceptible to
appeal. T Sa a d c a a a S
Court is responsible for hearing and ruling on such cases in sole
10
ins ance , and that its rulings cannot be appealed. The Supreme Court
judgment itself stated: no appeal is possible . Nevertheless, the
complainant made unsuccessful attempts at appealing it first to the Civil
Cassation Chamber and then to the Labour Chamber of that court.

40. The Committee found that the complaints anchored in article 9 were
inadmissible because the complainant had not fully substantiated them. It,
however, found that the State party had violated article 14(5) of the Covenant in
view of the fact that there was no available effective remedy whereby the

8
The UN Human Rights Committee defined “arbitrary detention in Sotnik v Russian Federation
CCPR/C/129/D/2478/2014 at para 7.3; see para 42 below.
9
https://juris.ohchr.org/Search/Details/2862
10
Presumably meaning as a court of first and last instance
 Page 15 of 20

complainant could request that his conviction and sentence be reviewed by a

higher court. Accordingly, the Committee found that the State party had violated
the complainant d a c 14(5) C a .

41. This finding of the UN Human Rights Committee is particularly instructive in

relation to the implications of article 14(5) of the Covenant to a ca
detention in this case, and in light of section 35(3)(o) of our Constitution,
purposively construed in line with the direction of section 233 of the
Constitution.

42. Sotnik v Russian Federation CCPR/C/129/D/2478/201411 engaged articles 9.1,

9.5 and 14(1) of the Covenant. Its significance for purposes of this case lies in
C d a c arbi rar detention in
contradistinction to nla f l detention. It held that detention may be lawful
but nonetheless be arbitrary. It said:12

[A]n arrest or detention may be authorized by domestic law and nonetheless

be arbitrary. The notion of a b a b a d a a
a , b b d b ad c d
inappropriateness, injustice, lack of predictability and due process of law,13
as well as elements of reasonableness, necessity and proportionality. For
example, remand in custody on criminal charges must be reasonable and
necessary in all the circumstances.14 Furthermore, while the fact that a
criminal defendant was ultimately acquitted, at first instance or on appeal,
does not in and of d a c d d a ,15 the
a c a ac a d a a
domestic law or violation of the Covenant itself.16
(footnotes in the original text)

11
https://juris.ohchr.org/Search/Details/2842
12
at para 7.3
13
Gorji-Dinka v. Cameroon (CCPR/C/83/D/1134/2002), para. 5.1; and communication No. 305/1988, Van
Alphen v. Netherlands, para. 5.8.
14
Kulov v. Kyrgyzstan (CCPR/C/99/D/1369/2005), para. 8.3.
15
Communication No. 432/1990, W.B.E. v. Netherlands, para. 6.5; communication No. 963/2001,
Uebergang v. Australia, para. 4.4.
16
Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,
para. 51.
 Page 16 of 20

43. In our respectful submission, the a ca d as ordered by this Court

without affording the applicant fair trial rights to which he was entitled in terms
of section 12(1)(b) and 35(3) of the Constitution17 a d, a d
own admission, eschewing all the ordinary procedures that are usually reserved
for the lower courts included all the elements identified by the UN Human
Rights Committee as constituting arbitrary detention. Specifically, it was
inappropriate, unjust, lacked predictability and due process of law, lacked
reasonableness, lacked necessity and lacked proportionality.

(iii) Implications of the African Charter

44. South Africa signed, ratified and deposited the African Charter with the
Secretary-General of the Organisation of African Unity (now the African Union)
on 9 July 1996 presumably pursuant to section 231 of the interim Constitution.18
Consequentially, the African Charter like the Covenant by similar means has
become subsumed under South African law and so forms part of customary
international law as now contemplated in section 232 of the Constitution. That
means, not only are South African courts including this Court obliged to
consider the African Charter when interpreting the Bill of Rights, they are also
bound by it to the extent that its provisions are not inconsistent with provisions
of the Constitution or an Act of Parliament.

45. As in the case of articles 9 and 14(5) of the Covenant, there appears to be no
inconsistency between the applicable articles of the African Charter (discussed
below), on the one hand, and provisions of the Bill of Rights Chapter [including
sections 12(1)(b) and 35(3)] in the South African Constitution, on the other. We
have not found any Act of Parliament, relevant for the determination of the

17
Interpreted in a manner that is consistent with the Covenant and the African Charter as enjoined by
section 233 of the Constitution.
18
See paragraph 14, together with footnotes 3 and 4, above
 Page 17 of 20

substantive question with which this Court is confronted, with which the
identified articles of the African Charter are inconsistent either.

46. Section 233 of the Constitution demands that this Court prefers an interpretation
of the Bill of Rights [including sections 12(1)(b) and 35(3)] that is consistent
with the African Charter (as part of international law) over that which is not so
consistent.

47. Article 6 of the African Charter mirrors to a significant degree article 9.1 of the
Covenant. Like article 9.1 of the Covenant, it says:

No one may be deprived of his freedom except for reasons and conditions previously laid
down by law. In particular, no one may be arbitrarily arrested or detained .
(our emphasis)

48. In our submission the bases for the a d d d

a ca a , b a d words, a depar [ re] from
19 20
ordinar proced re and a disposal of ordinar proced re . Those
bases, which on the whole amount to little more than a fit of pique, found no
a ab d a ca d a
procedure which he was entitled to expect, including the right not to be detained
without a trial in terms of section 12(1)(b), and other fair trial rights as enshrined
in section 35(3). Therefore, the detention ordered by this Court was arbitrary.

49. We submit that there would exist a reasonable basis for a complaint to the
A ca C H a a dP R d d a c 6 A ca
Charter. An individual is entitled to submit a case against a State party in terms
of article 5(3) read together with article 34(6). It would seem, however, that the
competence of the African Court to receive such a case will depend on the State

19
See main judgment, para 29
20
See main judgment, para 30
 Page 18 of 20

party making a declaration that it consents to the Court receiving and

determining the case. This is in our submission seems, regrettably, more like a
political rather than legal consideration.

50. Article 7(1) has traces of articles 9.3, 9.4 and 14(5) of the Covenant. In relevant
parts, it says:

Every individual shall have the right to have his cause heard. This comprises: (a) the right
to an appeal to competent national organs against acts of violating his fundamental rights
as recognized and guaranteed by conventions, laws, regulations and customs in force
[and] (d) the right to be tried within a reasonable time by an impartial court or tribunal.

51. We submit that the same considerations discussed in paragraphs 27 to 33 above

in relation to articles 9.3, 9.4 and 14(5) of the Covenant apply with equal measure
in relation to article 7(1) of the African Charter.

52. In Institute for Human Rights and Development in Africa v Angola (292/04)
(attached), the African Commission restated its position in relation to article 7(1)
of the African Charter that

. . . every individual has the right to appeal to competent national organs for violations of
his/her fundamental rights, and as such, if one is detained without charge or trial and there
exists no legal remedy to challenge the detention, it is a clear violation of Article 7(1)(a). 21
(footnotes omitted)

53. In Anaclet Paulo v United Republic of Tanzania (Application 020/2016) 21

S b 2018 (a ac d), A ca C H a a dP R
dismissed a complaint founded on article 7(1)(a) of the African Charter because
the complainant had elected not to participate in the court proceedings that
culminated in his conviction and sentencing.22

21
at para 58
22
See, specifically, paras 75 to 83
 Page 19 of 20

54. It is true that the applicant in this case was afforded an opportunity to make
written submissions to this Court about the appropriate sentence should he be
found to have been in civil contempt of this Court. In our respectful submission,
that opportunity ca a b ca da a a ca
on the merits of the case in a trial setting. On the contrary, his conviction appears
to have been a fait accompli as he was not afforded an opportunity to have his
case heard on the merits of that civil contempt conviction.

55. We know from the pleadings (which an amicus curiae will have had to read in
order to ascertain what legal points to advance in assisting the Court) that the
applicant had complained about the conflicted position of the Chairperson of the
Commission to which these proceedings relate. Had the applicant been afforded
an opportunity to state his case on the merits and in a trial setting, it is
conceivable that he may have chosen to call the Chairperson as a witness in order
to establish and demonstrate to this Court the facts that informed his refusal to
appear before the Chairperson (in contradistinction to the Commission itself),
thereby conceivably lending a complete defence for his alleged civil contempt
C d a a b C a .

56. T d a c, c b ,d a ca c c
not to participate in the motion proceedings of this Court from the choice made
in the Anaclet Paulo case.

D. Conclusion

57. In the result, not only is this Court obliged to consider the identified articles of
the Covenant and the UN Human Rights Committee Views thereon as well
as the identified articles of the African Charter and the rulings of the African
H a R C a d A ca C H a a dP R
it is also bound by them.
 Page 20 of 20

58. We urge this Court to embrace customary international law, even if it does not
like the outcome to which such embrace may result.

VUYANI NGALWANA SC
NOMGCOBO JIBA

Pro Bono Counsel for Democracy In Action

Chambers, Sandton
13 August 2021