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.
Why is it that so many of the die-hard supporters of Mr Jacob Zuma believe that judges who rule against Mr Zuma or academics who point out the errors in judgements favouring Mr Zuma have a deep and abiding hatred of Zuma? I for one do not hate Mr Zuma. Many people say he is a nice guy and who am I to disagree as I have never met him.
After all, he attends braais with Steve Hofmeyer and Leon Schuster, visits poor whites as well as marginalised and reviled groups in townships, carries a tune and regularly entertains us with some nifty dance steps outside courtrooms – a bit like Michael Jackson really, but without the weird skin “disorder”.
Ok, Zuma is a homophobe and he is a sexist – but that makes him no different from almost 90% of South African men. He is not much different from our fathers and our brothers and friends. I suspect the five judges who handed down the decision yesterday do not hate Mr. Zuma either. (Maybe they do have a grudge against judge Nicholson, but that’s another story….)
So one should distinguish between one’s personal feelings about Mr. Zuma on the one hand, and the legal and political issues on the other. It does not constitute hatred of Mr. Zuma, the ANC, black people, traditional African values, or the struggle, to point out that yesterday’s SCA judgment reminds us that Mr. Zuma has been charged with very serious counts of corruption (which carries a fifteen year jail term), that even Bulelani Ngcuka who refused to prosecute him said there was a prima facie case for Mr Zuma to answer, but that Zuma has done everything in his power to ensure that he does NOT have to answer that case (unlike with the rape charge which he quickly and squarely faced and won).
In this spirit it might be important to ponder the legal realities of Mr Zuma’s case in the wake of the SCA judgment. When doing this, it is always good to see what Cosatu has to say on the topic (because unlike on many other topics, Cosatu is usually dead wrong on Zuma). So I was amused to note that News24 is reporting that Cosatu does not believe that the SCA judgment handed down by a full bench of five judges yesterday:
changes the basic facts, which are that it will be impossible for the ANC president to have a fair trial given the long delays and the trial by media. Cosatu remains convinced that the whole prosecution process has been politically motivated and will continue to demand the dropping of all charges.
It might well be that Cosatu has a point here. Maybe Mr. Zuma was only targeted for investigation and prosecution because he was a rival of Thabo Mbeki and maybe his case is therefore politically motivated. As the SCA pointed out so astutely yesterday, we have no way of knowing whether this is correct or not as we have no evidence before us to prove or disprove this suspicion. It might be true, or the Scorpions might only have investigated Mr. Zuma and not Mr Mbeki, Chippy Shaik, the ANC itself (whom the Sunday Times alleged last year got R28 millions in bribes from arms dealers to finance their 1999 election campaign)) because they were lazy or lacked the manpower. Who knows? Anything is possible.
But let us accept that it is true (as Cosatu and Mr Zuma himself is suggesting without providing any proof) that Mr Zuma’s prosecution is politically motivated. What should we do about it and where does it leave Mr Zuma – LEGALLY?
Well, we do know that Mr Schabir Shaik was convicted for bribing Mr. Zuma and for soliciting a bribe on behalf of Mr Zuma – the Constitutional Court even confirmed this finding. We therefore know that Mr Zuma has a very serious case to answer. Ordinary, level headed individuals might well harbour a reasonable suspicion that he is guilty of corruption.
The only question in Mr. Zuma’s case is really whether the state will be able to prove – beyond reasonable doubt – that Mr Zuma had the necessary criminal intention to be corrupted and to accept the bribe from the arms company. Only a court can make that determination. But because Mr Zuma has taken every legal point our taxpayers money can buy to prevent a court from considering the matter, we have to wonder – as a matter of politics and morality, not of law – whether he does not have something serious and ugly to hide (and I am not talking about his man breasts).
It is the job of the media and us academics to point this out. This is NOT a trial by media. It is called accountability in a democracy. Cosatu has not argued – nor can they credibly do so – that Mr. Zuma has no case to answer and that the media has made up the reports about Mr Shaik’s conviction, the encryptred fax implicating Mr Zuma in bribery, the millions of Rand given to Mr Zuma by the fraudster and the favours done by Zuma for that fraudster. These facts are all in the public domain.
Mentioning them does NOT constitute a trial by media – it constitutes straight forward news reporting, which, the last time I checked, was not only allowed in a democracy but actually essential for the flourishing of democracy.
So Cosatu is talking through its nose when it natters on about a trial by media. For them a trial by media means the media mentions proven facts that puts their hero in a bad light.
What remains is the question of whether Mr Zuma would be able to get a fair trial, given the very long time this case has been dragging on. Mr. Zuma might well decide that he does not want to take a chance in court. He then has a right to avoid clearing his name and to approach a court with an application to have his trial quashed on the basis that a fair trial was impossible and that a permanent stay of prosecution must be granted. That would be his right as a citizen of this country.
Who knows, the right judge might even agree with him. Cosatu leaders, however, are not judges so they cannot make a ruling on the matter. Their statement is therefore premature as it usurps the power of the judciary to make a decision on the matter if it is ever brought before such a court. Pointing this out does not make one a hater of Zuma, merely a level headed person trading in facts. But facts are not welcome in the land of Zumaville – especially if those facts suggest that Mr Zuma is a bit of a shyster.
If I was a Cosatu spokesperson I would argue that there are circumstantial evidence that Mr Zuma was singled out for investigation because he was a threat to Mr Mbeki politically, that many others – including the ANC itself – have to be investigated and brought to trial if crediblke evidence is found of corruption, and that courts must then, once and for all, decide who is corrupt in South Africa and who is not. If Mr Zuma is innocent, he should volunteer to go first – as he will then be acquitted and his name will finally be cleared (and the media will dutifully report on this, as they have reported on the various serious allegations now hanging over his head).
This is not going to happen of course. Because a trial might go horribly wrong and Mr Zuma might find himself not in the Union Buildings but in Pollsmoor Prison. To avoid this unpalatable fact, those of us who remind Cosatu and others of it will continue to be branded Zuma haters, racists, colonialists, Michael Jackson supporters or whatever insult is at hand.
But insults cannot erase facts, so we will continue to wonder why it is that Mr Zuma is so desperate to avoid his day in court.BACK TO TOP