Direction to Zuma shows due caution

Directions from the Constitutional Court on Friday seeking an affidavit from Jacob Zuma on what penalty it should impose if it finds him in contempt of court have raised questions about whether the court is giving him special treatment and why the directions were issued in the name of chief justice Mogoeng Mogoeng even though he did not sit in the case.

The directions came after the court reserved judgment in an application by the state capture commission for Zuma to be jailed for two years for contempt of court. This was after he ignored the court's order to obey the commission's summons and did not turn up to give evidence in February.

When the application was argued, Zuma chose not to participate and did not file opposing papers. The Constitutional Court has therefore only heard the commission's side, and on Friday it asked Zuma to submit an affidavit on two issues:

• An appropriate sanction, should the court find him in contempt; and

• The "nature and magnitude of sentence that should be imposed, supported by reasons" if the court "deems committal to be appropriate".

There is nothing unusual or untoward about directions from the chief justice in a case in which he did not sit. All directions from the Constitutional Court are issued in the name of the chief justice because the rules define directions as "directions given by the chief justice with regard to the procedures to be followed in the conduct and disposition of cases".

It is also not uncommon for courts, including the Constitutional Court, to ask parties for submissions after judgment has been reserved. The top court has done this frequently - the cases of Jacobs v the State, and MEC for Local Government and Development Planning of the Western Cape v Paarl Poultry Enterprises are two examples turned up by a quick search. Asking for affidavits is less common, but it has happened, for example in the case of Mayelane v Ngwenyama.

Contempt proceedings are a hybrid of criminal and civil law, which makes them different to ordinary civil applications. In a criminal case, it is common for a court to find someone guilty and then ask the parties to address it on the appropriate sentence.

Here though, the court has not yet found Zuma in contempt. These lastest directions are also certainly different to how the court dealt with Zuma in December when he also did not participate in the commission's application to get him to obey its summons.

However, there are other aspects of the Zuma case that are unprecedented. This is the first time the Constitutional Court has been asked to send someone straight to prison - as a court of first instance from which there can be no appeal. It is also the first time it has been asked to do so where the other side has not been argued and, indeed, where the person concerned was not even present.

During the hearing, the commission addressed the court at length on why imprisonment was the only sanction that would assert the authority of the court after Zuma had defied its order, and on why two years was appropriate.

The fact that the court did not hear Zuma was by his own choice. The doctrine of audi alteram partem does not require a court to hear both sides - it requires only that a court offer both sides a fair opportunity to be heard.

However, given that once the Constitutional Court has spoken that will be the final word, its approach to Zuma could be described as prudent. It was unusual perhaps but not against its rules.