Dear Editor
Everyone is saying that Mr Zuma will be eligible for parole after serving a quarter of the fifteen month sentence imposed on him for contempt of court. In the face of such unanimity of opinion, I hesitate to sound a discordant note, but I feel I must.
In De Lange v Smuts NO and Others 1998 (7) BCLR 779 (CC), Ackermann J reminded us that imprisonment for contempt of court is designed to compel a person to testify who recalcitrantly refuses to discharge a legal duty to do so.
A time is fixed in which the detainee is to be imprisoned, but it operates merely as an upper limit on the term of confinement since people so detained can, by agreeing to purge the contempt and testify, voluntarily secure an earlier release.
In consequence, such detainees are said to ‘carry the keys of their prison in their own pocket’ and, when they turn the key, they can be expected to return to court and testify. Fresh periods of imprisonment can be imposed if they show continuing obduracy by refusing to enter the witness box or, when there, to testify dutifully, they can be sentenced to imprisonment again and, if necessary, yet again.
People so imprisoned cannot, it seems safe to say, be paroled. Why not? One reason is that the process of committal for contempt cannot, in the words of Judge Ackermann, ‘be regarded as a criminal proceeding [and] does not result in the examinee being convicted of any offence’; incarceration in such circumstances, the judge continues, ‘cannot be regarded as a criminal sentence or be treated as such’. A second reason is that it is the court that controls the duration of the detention, and parole is a power vested only in the Department of Correctional Services.
Since the process is redemptive rather than punitive, a court should order a recalcitrant witness to be detained for no longer than is likely, in its judgement, to produce a change of heart.
Fifteen months is, I venture to suggest, far more than is required and smacks of retribution rather than rehabilitation. If the Constitutional Court declines to reconsider the sentence, as well it might, the solution lies in Mr Zuma’s hands: he can, by recanting, unlock the door of his cell, but if he does not, he will have to sit tight for the full term of a year and a quarter The choice is his to make.
Yours faithfully
I Noall
* By request, this letter is published under a nom de plume. The author, a lawyer, is known to the Daily Friend
[Image: GovernmentZA]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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