Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
28 May 2021

No good legal options: Zuma could be planning an all-out political attack on the judiciary

Former president Jacob Zuma’s trial on charges of corruption, racketeering, money laundering, fraud and breaches of the Income Tax Act finally got underway in the Pietermaritzburg High Court earlier this week when he pleaded ‘not guilty’ to the charges put to him. Arguments flighted by Zuma in his special plea for the removal of prosecutor Billy Downer, and the appointment of Adv Dali Mpofu to his defence team, suggest that Zuma’s defence strategy might not primarily be aimed at obtaining an acquittal, but could rather be aimed at politicising his trial in order to delegitimise the judiciary and the criminal justice system.

South Africans first became aware of Jacob Zuma’s alleged involvement in corruption towards the end of 2002 when the Mail & Guardian reported that the Scorpions were investigating Zuma, partly based on an encrypted fax which confirmed that the former president had agreed to accept a bribe from an arms deal company in exchange for his protection and support.

Zuma managed to stall his prosecution for 19 years without ever putting his version of events before either the courts or the public. (Zuma has shown a similar reluctance to testify before the Zondo Commission of Inquiry into State Capture.)

The stalling continued this week with Zuma’s submission of a special plea to have prosecutor Billy Downer removed from the case. For me, the most interesting aspect of this document is the “background” section where – for the first time – Zuma seems to provide what looks like the outlines of a possible defence.

Zuma argues that his prosecution was in fact “an attempt to prosecute the culture and norms” of the liberation struggle itself, as ANC members were often financially supported during the struggle with donations from international and local sources. These donations had to be kept hidden to “protect the military, intelligence and political activities of the liberation struggle”. According to Zuma, it was for this reason that many comrades (including Schabir Shaik) supported him without demanding anything – except loyalty – in return.

A similar argument advanced by Shaik during his trial was ultimately rejected by the court, who held that regular payments made by Shaik to Zuma “created [a] mutually beneficial symbiosis” between them that “can only have generated a sense of obligation” in Zuma. In other words, it was no longer possible to assume that financial assistance to a comrade (now serving in government) would be made without expecting a favour in return.

This is perhaps not a view that is easily accepted by anyone who believes that the ANC (and loyalty to one’s comrades) is more important than the country or loyalty to the Constitution or other laws. If this is correct, one might speculate that Zuma’s regular attacks on the judiciary and persistent complaints about his alleged “persecution”, is not merely a self-serving ploy (although it is that too), but may also reflect a genuine incomprehension that he is being prosecuted for something he believes was perfectly acceptable during the liberation struggle.

But this line of reasoning will not serve Zuma well in his criminal trial.

This is not only, or even primarily because the court had rejected a similar argument in the Shaik trail. After all, the factual findings in that trial are not binding on the judge hearing Zuma’s case, and there is always a small chance that it could find that the payments to Zuma had not generated “a sense of obligation” in him to use his position to assist Shaik.

The problem is that any admission by Zuma that he had received financial support from Shaik and others may expose him to a conviction on the charge that he defrauded Parliament by not declaring some or all of these donations, and on the charge that he breached the Income Tax Act by not declaring some or all of these donations. There is also the problem posed by the encrypted fax and all the evidence linking Zuma to payment of a bribe in exchange for protecting Thales from various investigations.

At first blush, it seems strange that Zuma is raising this issue in his special plea because Shaik had argued at his trial that much of the money he paid to Zuma should not be viewed as financial support, but rather as loans to be paid back by Zuma. But perhaps this is because those “loans” were in fact never paid back, so this claim is not open to Zuma. But it may also signal Zuma has accepted that the state would be able to prove many of the factual claims on which the prosecution is based. Could it be that Zuma and his legal team had concluded that his team’s resources might be better spent on the political arguments, given the strength of the state’s case?

One never knows for certain whether an accused will be convicted until the state and the accused have played all their cards, but at this point it looks like Zuma and his lawyers will struggle to secure his acquittal on all the charges.

In such a situation, there are no good  legal options for an accused, but the best of the bad options for a politically powerful accused might well be to launch an all-out political attack on the judiciary and on the prosecuting authority in the hope of causing as much damage to these institutions as possible. Such political attacks may also be used to try and sway the presiding judge in one’s favour.

After Zuma was first charged with corruption in 2007, he and many of his most powerful supporters (including the then leader of the ANC Youth League, Julius Malema) launched a similar vicious attack on the judiciary, which at first seemed to bear fruit when judge Chris Nicholson set aside the NPA decision to prosecute Zuma and held that there was political meddling in his case.

The judgment was rightly overturned by the Supreme Court of Appeal (SCA), and there is no evidence whatsoever to suggest that Nicholson had been swayed by these attacks. But the attacks helped to bolster Zuma’s political standing at the time and created a sense of judicial crisis.

It is in this context that the arguments advanced in Zuma’s special plea must be understood.

As several other commentators have pointed out, the special plea stands little chance of success because the legal precedent stands against it, and because various courts had already rejected most of the arguments contained in it. Zuma’s special plea should therefore be read as a political and not a legal intervention. It is aimed at persuading a sizable number of people that Zuma is the victim of a vast conspiracy hatched by white monopoly capital and foreign spy agencies.

If these attacks are supported by an influential political party (such as the EFF), a powerful faction within the ANC, or powerful trade unions, it has the potential to delegitimise any decision of the court to find Zuma guilty of some or all of the charges he faces. It may also undermine the judiciary and the entire constitutional system whose enforcement depends on it.

I see Zuma’s decision to brief former EFF national chairperson, Dali Mpofu, as part and parcel of this strategy. (To be clear, I express no opinion on Mpofu’s reasons for taking on this brief.) I say this because Mpofu might not be a great defence lawyer, but he is rather good at using legal platforms to advance political claims and discredit his and his party’s political opponents.

His cross-examination of minister Pravin Gordhan earlier this year nicely illustrates this point. While the cross-examination was not effective in the traditional sense, Mpofu excelled at intimidating and shaming Gordhan, and at dropping catchy, politically incendiary quotes into the cross-examination. This delighted EFF and RET supporters, and were widely shared and reshared on Twitter. If the political aim was to generate excitement for the EFF and expose Gordhan as a prickly and rather arrogant man, it worked brilliantly.

Of course, while Mpofu is a practising advocate of some standing, he is also an EFF politician, which means it is often assumed that the EFF is sympathetic to his high profile and politically influential clients. His association with Zuma (despite any pro-forma denials invoking the taxi-cab rule) is likely to enhance Zuma’s standing with many EFF supporters.

If Zuma could somehow persuade the EFF to join his all-out war on the judiciary and the criminal justice system, they could have a devastating impact on the legitimacy of the judiciary.

Zuma and the EFF leadership have steadily moved closer to one another over the past year, perhaps because both camps find themselves on the wrong side of the criminal justice system. It is therefore no surprise that both parties have recently launched scathing attacks against the judiciary.

This past Tuesday, during the National Assembly debate on the department of justice and constitutional development’s budget vote, EFF MP Yoliswa Yako launched a scathing attack on the justice system and against the National Director of Public Prosecutions, Shamila Batohi, stating that the failure to prosecute Markus Jooste and apartheid criminals “lends credence to the perception of many that justice in South Africa has eyes and ears, and that it particularly does not like black faces and views whites as saints”.

The attack was factually misguided as the NPA can only prosecute individuals once the Hawks or SAPS have properly investigated a case, but it was nevertheless effective because the failure to properly investigate and prosecute people like Markus Jooste and apartheid criminals who were never granted amnesty is clearly indefensible. But Yako went further, scurrilously referring to Batohi as a “renowned Indian racist” who only strengthens the hold racists have over the criminal justice system.

Jacob Zuma and his foundation recently used similar arguments in their attacks on the Zondo Commission and the Constitutional Court, with the foundation suggesting earlier this year that Justice Zondo was being directed by “The Master” to change laws to deal with him, “like how the Apartheid government created Sobukwe laws to deal with Sobukwe”.

While these attacks are clearly self-serving and cynical, they might gain some traction exactly because there is some truth to the accusation that the legal system tends to treat rich people with more deference than anyone else.

For some South Africans, it would matter little that Zuma and Malema are both rich and powerful and that they have both benefitted from this in their dealings with the NPA and the courts.

The rest of us would do well to continue debunking the claims by the Zuma/EFF axis about their martyrdom and about the unsubstantiated accusations of judicial bias or corruption, while not turning a blind eye to the way in which the legal system works better for the rich than it does for the poor.

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