Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
25 June 2008

The Hulley letter: what does it mean?

I do not get angry often, but today I am livid. How dare these people play with our future?

Michael Hulley, Mr Jacob Zuma’s lawyer, wrote a letter dated 20 June 2008 to the Constitutional Court to say that he and his client were “perturbed by speculations that the judgments [before the Constitutional Court regarding Jacob Zuma] may be delayed until” the JSC had dealt with the complaints of the Constitutional Court and Judge President John Hlophe.

The letter – written in a rather opaque manner – continues as follows:

Disturbing allegations and counter-allegations of the most serious import have been made, the logical adjudication of which would invariably impact on the credibility of either the complianant or those complianed against with all the necessary adverse inferences to be drawn.

Whilst not pre-empting the findings which the JSC would be enjoined to make, the purpose of this correspondence is to register our clients unease and disquiet at these developments. Respect for our constitutional democracy and due process is the principle to be jealously guarded. Unfortunately, and with the greatest respect, these developments do little to engender and promote the principle, the resultant effect of which is the eroding of confidence in those mandated to give effect thereto.

Accordingly, our instructions are to vigilantly monitor the complaints referred to the JSC with the view to safeguarding our clients rights while equally respecting the high office to which all the parties to the dispute have been called.

I must say, I find the behaviour of Mr Zuma and his lawyers quite shocking. It is of course not that uncommon for lawyers to inquire when a judgment affecting their client will be delivered, but this was clearly not the intention of this letter. Mr Zuma’s legal defense so far has been based on stalling tactics to keep his criminal case out of court, so they clearly are not anxious about a speedy handing down of this judgment. This aspect of the letter is therefore merely an excuse to get to the real reason for the letter as set out above.

They have thus written the letter for far more sinister, political, reasons.

Carefully worded as the letter is, it can be read as an implicit threat to the Constitutional Court. One could read it as saying: “If you do not find in favour of Mr Zuma we will do everything in our power to destroy your credibility which has already taken a knock with the handling of the Hlophe matter.” Why else would Hulley warn the Constitutional Court that he will “vigorously monitor” the complaints with a view of safeguarding Mr Zuma’s rights?

It is not clear from the letter how they think the complaint against Hlophe threaten Mr Zuma’s rights, perhaps because there is no threat to Mr Zuma’s rights. But that is not important. What is important is to create the impression amongst ordinary South Africans that the two things are linked and that even the Constitutional Court is now part of the dark forces out to conspire against the ethically challenged mr Zuma.

What is clear form the letter is that Hulley and Zuma are scared that the judgment in the Constitutional Court will go against them and they are playing a very dangerous political game to try and destroy the credibility of the Constitutional Court in order to delegitimise a finding against Zuma.

The letter clearly – but “with the greatest respect” of course – states that developments around the Hlophe complaint have eroded confidence in the judges of the Constitutional Court to respect due process of the law. This is an outrageous – and legally misguided – allegation for the lawyer of the potential next head of state to make. It was exactly to ensure trust in the outcome of the Zuma cases that the judges made public their complaint against Hlophe so that it could be shown for all to see that they were not influenced either way by the alleged improper approach by Hlophe.

The suggestion that Mr Zuma’s rights are under threat is also outrageous as it suggests that the Constitutional Court judges will trample on his rights because of their complaint against Hlophe. It can be read as being aimed at creating doubt about the credibility of the court so that the political fall-out of an adverse finding against Zuma will be minimised.

The longer this fight continues the more it becomes apparent to me that behind his friendly smile Mr Zuma is a ruthless and irresponsible politician who will do almost anything – even destroy one of the pillars of our democracy – to stay out of jail and become President of South Africa. It suggests that he loves himself and his own ambition far more than he loves this country, its constitution and its people.

The Constitutional Court dealt with this letter in a restrained and completely appropriate manner, requesting the parties to the Zuma cases to make submissions about how the recent developments might influence the rights of Zuma or the outcome of the cases against him before Friday 4 July. They are therefore calling Hulley’s bluff, saying: if you have anything to complain about, then make submissions to this court so that we can consider them.

I suspect Hulley will not make further submissions to the Court because he has no leg to stand on. His letter – which he informed the press about yesterday – was meant as a political ploy to embarrass the Court. Let us only hope that it will not succeed.

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