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
6 August 2008

On “innocence” and an orange prison suit….

Last year I spent a few hours in prison. Not as a guest of the state, I should add, but to accompany students on study tour. Contrary to popular belief, prison is not a great place to spend your life. It’s cramped and dark, the food is foul, one has no privacy and one’s dignity is severely compromised. Besides, I don’t think anybody looks their best in an orange prison suit.

For the state to send somebody to prison is therefore a very serious matter indeed. That is why our Constitution safeguards the rights of accused persons and why the state has to prove the guilt of an accused beyond reasonable doubt. This is an extraordinary high hurdle for the state to overcome and with good lawyers and enough money many guilty individuals are acquitted. Some accused individuals are also acquitted because the police bungle the investigation or because they really are innocent and were framed by the police.

Because sending someone to prison is such a drastic infringement of an individual’s liberty and rights, our Constitution also requires that every individual be given a fair trial before an impartial and independent court where an accused will be presumed innocent until such time as the state has shown – once again, beyond reasonable doubt – that the accused is guilty of the crimes of which he or she is being accused.

This is also why Mr. Jacob Zuma – like every other South African, whether they are rich or poor, black or white, politically connected or not – should never be presumed to be guilty of a criminal offence – either by a court, by the media or by ordinary citizens – before a court of law has found him guilty. To hold otherwise would be to undermine one of the basic tenets of our constitutional state based on the Rule of Law.

Mr. Zuma – and the ANC leaders who support him in his dark hour – are therefore correct to insist that no one should assume that Mr. Zuma is guilty of an offence merely because he was accused of wrongdoing by the NPA. They are correct, also, that he should not be treated as a criminal merely because he is an accused in a criminal trial.

However, does this mean that we should be prohibited from making any value judgment about Mr. Zuma’s character and his fitness for high public office until such time as he is either acquitted or convicted by a court? I think not.

When we make value judgments about an individual – especially an individual in the public sphere – we are not required to establish beyond reasonable doubt that any allegations of wrongdoing by that person are true or not – just as we are not required to establish beyond reasonable doubt whether an individual is a good or bad person, a kind or nasty person, a good or bad leader, before we decide whether we want to befriend that person or elect him or her to high public office.

A provocative example will suffice to illustrate my point.

A few years ago Dr. Wouter Basson (dubbed “Dr. Death” by the media) was charged with very serious crimes, including murder, for his role in assisting the apartheid military in various “dirty tricks” campaigns. Basson was acquitted and was therefore not sent to prison. Evidence presented in court and widely reported in the media suggested that Dr. Basson was not a man of particular integrity – to put it mildly.

Because of this evidence, most sane South Africans formed an unflattering opinion of Dr. Basson and I am sure if he were ever to run for public office there would – rightly – be an outcry that such a man could even think of sitting in Parliament. Although a court found there was not sufficient evidence to send him to jail, evidence presented in court allowed ordinary South Africans to make a value judgment about his character. This is how we always form opinions of public figures.

Very few South Africans would say that because Wouter Basson was acquitted, he is the kind of man that we would fight and kill for, the kind of man that should lead South Africa as its President. I, for one, would be freaked out to wake up from an operating table to find old Wouter bending over me with his scalpel in hand. Quite frankly, I would not even want to have him to my house for a cup of tea.

This is because the threshold for everyday value judgments about public figures is much lower than the threshold employed by a criminal court. If it were otherwise, it would be almost impossible to form any opinion about a public figure or to make any ethical value judgment about the character of any politician.

I happen to think there is no moral equivalence between Wouter Basson and Jacob Zuma. Mr. Zuma spent several years on Robben Island and paid a high price for his fight against apartheid and is – in my opinion at least – of a much higher moral character than Wouter Basson. I would love to have Mr. Zuma over to my house for a cup of tea – he looks like a fun guy and he will have such interesting and inspiring stories to tell about his time on Robben Island and in the ANC in exile.

But Mr. Zuma is an accused person in a criminal trial. The highest court in the land has confirmed that he received money from a fraudster and then did favours for that fraudster, that he met with arms deal representatives who then paid him a bribe via the fraudster, and that he lied to Parliament about this.

All this does not make Mr. Zuma guilty of any criminal offence. However, in the absence of any plausible explanation by Mr. Zuma about these findings, it does make him, in my opinion, unfit for high office. This does not mean I am presuming he is guilty of the charges brought against him. It merely means that given all the evidence presented by the state and reported in the media and given Mr. Zuma’s own lack of explanation, I have made a value judgment about his character, much in the same way that I made a value judgment about Wouter Basson.

Those who defend Mr. Zuma and who utter dark threats to all and sundry about killing or dying for him, seem to conflate criminal guilt or innocence with this other kind of judgment – namely whether, in the absence of any plausible explanation by Mr. Zuma, any of us should find him a good, trustworthy, honest man worthy of being President of South Africa.

Because Mr. Zuma clearly has a real case to answer in a criminal court and because all the facts known to us point to Mr. Zuma being a deeply flawed man, they want to force us not to form an adverse opinion about him before a court has found him guilty. But this is not how human beings operate outside of a criminal court setting. We make value judgments about people based on the evidence available to us and, so far, it’s not looking good for Msholozi.

I suspect that is also why defenders of Mr. Zuma are attacking the courts and the NPA and making lengthy procedural arguments in his defence. They want to bully us into suspending our ordinary common sense way of judging an individual’s character and would like us to adopt a standard that is not workable because it is far too high and only fit for a criminal court that must decide on whether to send a poor man to jail for 15 years.

They want to obliterate the facts already known to us and never contradicted by Mr Zuma or anyone else, because these facts make it very difficult for any sane person not to worry about Mr. Zuma’s character.

Of course, Mr. Zuma may well prove us wrong. He may at any time produce plausible explanations for taking the money from Shaik, for meeting with the arms company representatives, for lying to Parliament. Sadly he has not done so. Instead, he has muttered darkly about conspiracies without addressing the real concerns presented by the conviction of Shaik and by his prosecution by the NPA. This silence, more than anything else, makes it very difficult not to conclude that Mr. Zuma – while not convicted of any crime and thus innocent – is not a suitable candidate for the President of the ANC or South Africa.

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