As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Mr Jacob Zuma has not been found guilty of any crime and has a constitutional right to be presumed by our courts to be innocent until proven guilty by the state beyond reasonable doubt. We must never forget that and must respect our courts to come to a conclusion about Mr Zuma’s guilt or innocence after the state has had the opportunity to present all the relevant evidence to that court.
There is, however, a difference between the question of whether Mr Zuma is guilty of corruption in terms of the Corruption Act on the one hand, and the question of whether Mr Zuma is the best person to lead South Africa after the next election, on the other. The first is a criminal matter, requiring an extraordinary burden of proof. The latter is a political, ethical and moral matter requiring wisdom, a moral compas and common sense.
As an accused person (or a person who might again soon be an accused) Mr Zuma has every right to use the vast resources at his disposal (paid by us, the taxpayers) to try and prevent the state from getting to that point where it can put before a court the evidence it believes can secure a conviction against him.
In that regard, he is in an enviable position as he can pay extremely good lawyers millions of Rands to fight the state tooth and nail to prevent them from ever getting that opportunity. An ordinary accused person would long since have been tried and either acquitted or convicted because such a person would not have been able to pay such vast sums of money to lawyers to challenge the state on every technical point imaginable. But that is Mr Zuma’s right and I do not begrudge him that luxury that comes with being a rich and influential man.
As a politician, this course of action should, however, not be without consequences – given the fact that another man (Schabir Shaik) has been sentenced to a 15 year jail term for corrupting Zuma and soliciting a bribe on his behalf from an arms company. That conviction has placed a huge question mark over Mr Zuma’s fitness to hold public office – let alone his fitness to be President of South Africa. That is why I believe it was untenable and inexplicable – as judge Nicholson has pointed out in his recent judgment – that Mr Zuma was initially not charged alongside Shaik.
The initial decision by Bulelani Ngcuka to announce that there was a prima facie case against Zuma but that he would not be charged constitutes a grave dereliction of duty on the part of Ngcuka and created the perception that he was not making decisions about who to prosecute without fear, favour or prejudice – as he was constitutionally required to do. It was only after Ngcuka was replaced by Vusi Pikoli and Shaik was convicted that the NPA decided to do the right thing by charging Zuma, thus allowing him to face the same charges on which Shaik was convicted.
In the absence of an acquittal by a competent court of law, the question of whether Mr Zuma is a corrupt man will linger on as only a court (and not the ANC NEC or anyone else) can clear Mr Zuma’s name. The sooner he faces these charges and is either convicted or acquitted the better for Zuma and the better for South Africa.
If I was Mr Zuma and if I was innocent, I would be begging the NPA to charge me so that I could clear my name once and for all. This is because no less than three different courts have made very serious legal and factual findings that suggested Mr Zuma is unfit for public office. Of these, the most important judgment is probably that of the Supreme Court of Appeal (SCA) in the case of Shaik and Others v The State.
First, the SCA found that “[i]t is not in dispute that Shaik gave benefits which were not legally due to Zuma at the time that Zuma held public office, being initially that of MEC for Economic Affairs and Tourism in KwaZulu-Natal and later Deputy President of the Republic of South Africa (par 65)” and then concluded that:
In our view the State successfully proved that Shaik or one or more of the appellant companies made payments to or on behalf of Zuma in the total amount of R1 249 244.91 over the period 1 October 1995 and 30 September 2002 (par 84).
Why did Shaik make these payments? Well, the SCA found in this regard as follows:
Plainly, Shaik did not simply direct relevant correspondence to the appropriate quarters as a sort of go-between. He obtained Zuma’s intervention in order to advance Nkobi’s business (par 123) … On a conspectus of all the evidence there is, in our view, only one reasonable inference to be drawn. It is that, in making the payments in issue (whether as inducement or reward), Shaik intended to influence Zuma, in furtherance of the business interests of Shaik and his companies, to act in conflict with the duties imposed upon Zuma by the terms of sections 96(2) and 136(2) of the Constitution (par 131).
This means that the SCA has confirmed that money was given by Shaik to Zuma to get Zuma to try and use his influence as a politician to further Mr Shaik’s business interest. The SCA also found clear evidence that Mr Zuma had obliged in this regard. Although the SCA was careful not to make any finding as to whether Mr Zuma had the intention of receiving this money and doing the favours for corrupt purposes as defined by the Act, it did find that Zuma was involved in a serious way in the corruption for which Shaik was found guilty and sentenced to 15 years imprisonment. Most politicians in a democracy would not have survive such a factual (not a legal) finding by a court. The fact that Mr Zuma has so far done so, says much about Mr Zuma’s political skills in getting South Africans to forget about these inconvenient factual findings.
On the third count of corruption on which Mr Shaik was convicted, the SCA found that an encrypted fax setting out the terms of the bribe to be paid to Zuma by Thint was genuine and admissible as evidence in the Shaik case. In doing so, it indirectly implicated Mr Zuma in the soliciting of a bribe from an arms company.
The fax, the correspondence, Shaik’s false evidence, the service provider agreement and the payment in terms thereof cumulatively, in our view, fully justified the finding of the court below that it had been proved beyond reasonable doubt that what Shaik described as a request for a donation to the Jacob Zuma Education Trust was in fact a request for the payment of a bribe to Zuma. As was found by the court below the service provider agreement was in reality nothing more than a vehicle to give effect to the request recorded in the encrypted fax and to disguise the fact that the amount of R249 925, paid in terms of the service provider agreement, was intended to be a bribe (par 203).
Mr Zuma chose not to testify at his erstwhile friend’s trial, which was probably a wise legal move, given the fact that he is still potentailly facing charges about the same bribe. But politically, it does leave many very, very awkward questions for Mr Zuma to answer, including questions about his role in the soliciting of the bribe. These questions are made even more awkward by the fact that Zuma did meet representatives of the arms company from whom the bribe was solicited and then misled Parliament about this meeting by giving the impression (while leaving room to wiggle out of the misleading statement) that he never met with the arms company representative at all.
It is also interesting to note what the SCA further had to say about this fax and the bribe that was solicited on behalf of Zuma:
In terms of the fax Zuma confirmed Shaik’s request in a code devised by Thétard and evidently explained to Zuma by Shaik. The appellants submitted in the court below that Shaik could have misrepresented the meaning of the code to Zuma; that there is consequently a reasonable possibility that Zuma did not know of the bribe and did not agree to the bribe; and that in order to succeed the state had to prove that Zuma knew of the request and agreed to accept the bribe. The court below rejected this argument on the ground that Shaik testified that Zuma knew what was being discussed; that Shaik would not have misrepresented the position as there was a risk that his deception would subsequently be revealed; and that it was unlikely that a dishonest broker would arrange a meeting between the two parties that he was deceiving (par 204).
This passage reminds us that the High Court had found that Zuma must have known about the soliciting of the bribe. The SCA did not find it necessary to make a finding on this point, but politically this places a very serious question mark over Mr Zuma’s honesty and integrity as a court has found that he knew about the soliciting of a bribe on his behalf.
The only way for Mr Zuma to clear his name is to meet the evidence presented by the NPA in court. However, he has chosen (as is his legal right) to try and avoid his day in court by all means necessary – including by bringing applications to challenge the legality of the decision to charge him. He has also tried everything to prevent the state from building a case against him by trying to prevent the NPA from procuring evidence about his meeting with the arms representatives from Mauritius. He also tried to prevent the NPA from making use of evidence secured in raids on his own premises and the premises of his lawyer in any possible trial. He failed on both the latter counts.
Mr Zuma was treated in a tardy fashion by the NPA when they decided to charge Shaik and not him. Although no court has found that his right to dignity or a fair trial has been infringed, several courts have made factual findings suggesting that he does have a prima facie case of corruption to answer. Legally, his best option is therefore to try and prevent a trial from taking place at all.
But politically the question does arise whether one would want to vote for a President against whom a prima facie case of corruption exists. The only way for Mr Zuma to wiggle out of this very difficult situation is to argue that he is being charged unfairly for political reasons. Others have also been involved in corruption and have not been charged, so the argument goes, so it is unfair for him alone to face the music. This is exactly what Mr Zuma and his supporters have done rather successfully over the past few years.
A few questions arise from all of this: should we as a nation forgive Mr Zuma for his indiscretions (which might or might not amount to criminal conduct carrying a 15 year mandatory sentence) because he might have been singled out for prosecution and if we do, what would that say about our collective morality? Should we not rather insist that an independent and impartial NPA vigorously pursue those other cases of corruption alluded to by Mr Zuma and others? Mr Zuma has said if he is charged he will reveal “the truth” about the arms deal, so should the NPA perhaps enter into a plea bargain with Mr Zuma in exchange for his co-operation to catch the bigger fish? And who are these bigger fish? Should we vote for a President who says he has evidence of corruption which he will reveal only if he is prosecuted? Will such a President uphold the law and could he be trusted?
I suspect how we answer these questions will say much about our own ethical commitments and our vision of what kind of country we wish South Africa to be. I fear, though, that I might not like the answers given by many of my fellow South Africans. That may be the tragedy we are living through now.BACK TO TOP