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
15 January 2020

Zuma vs Zondo: How the rich and powerful use procedural arguments to avoid legal accountability

By all accounts, former president Jacob Zuma is not keen to answer questions about his alleged involvement in corruption, bribery and, what has colloquially come to be known as, “State Capture”. Over the years his lawyers have relied on procedural rules (linked to a politically convenient narrative of victimhood) to protect him from having to answer difficult questions in legal settings (which would require truthful answers). It seems that if you are really rich (or if you have unlimited access to public funds as Zuma did), you can buy your way out of (or indefinitely delay) legal accountability.

This week before the Zondo Commission, advocate Thabani Masuku claimed that the Commission’s evidence leaders denied Zuma his dignity when they applied for a summons to force him to testify. “It’s just extraordinary,” complained Masuku, “but it tells us exactly what we accuse them of – that there is a deep-seated antipathy, and I use very strong terms because it is what it is, towards our client.”

Masuku’s performance before the Commission was worthy of a Golden Globe nomination (perhaps in the supporting actor category). But legally, many of the claims and arguments made by him on former President Zuma’s behalf – including the complaint that a summons infringed on Zuma’s dignity – are pure nonsense upon stilts. But from a strategic (if not an ethical) perspective this must surely not matter much to Zuma and his lawyers.

First, the claims and arguments made on Zuma’s behalf before the Zondo Commission bolster the preferred political narrative that the former President is a victim of a vast conspiracy aimed at besmirching Zuma’s “good name”.

Second, recall that Zuma has used the legal system successfully to delay his criminal prosecution for more than a decade. He ultimately lost almost every legal battle he engaged in, but this did not matter much. Launching a legal challenge against every conceivable decision by prosecutors (the so-called Stalingrad option) bought Zuma 14 years of freedom from prosecution. Even when Zuma lost court cases, he won at the very least another substantial delay in his prosecution.

Many of Masuku’s hyperbolic claims about Zuma’s victimhood will never fly in a court of law. But that may not matter much. Given Zuma’s history of exploiting the law to delay legal proceedings, this kind of rhetoric signals to the Commission that should it treat Zuma like any other witness, his lawyers will challenge any adverse decision in court, and will thus delay the work of the Commission for another two, or three, or ten, years.

If this happens, it would matter not if Zuma lost every single court challenge launched by his lawyers. The legal challenges (implicitly threatened by Masuku at the Commission earlier this week) will indefinitely delay Zuma’s testimony before the Commission. Similarly, if the Commission at some point reaches the conclusion that Zuma can testify because he is not desperately ill as claimed, it would provide Zuma and his lawyers with another opportunity to turn to the court, to delay Zuma’s appearance before the Commission and to claim that Zuma is being victimized.

Now, if the claim by Zuma that he is poor and may not be able to afford his legal fees is true, none of these possible legal challenges will materialise. If you do not have money to pay your lawyers to bring one after the other court challenge with little or no prospect of success, then you will not be able to use the legal system to avoid or delay your legal accountability.

Given Zuma’s slippery relationship to the truth, I am sceptical about the claim that he has no access to funds to pay his lawyers, as well as about the claim that Zuma is too ill to give evidence before the Commission and will get treatment abroad in an undisclosed country for an undisclosed illness.

If my scepticism proves warranted, Zuma and his lawyers may well be able to protect him from ever having to answer difficult questions before the Zondo Commission. This they could do by launching legal challenges against any decision by Deputy Chief Justice Zondo that would bring Zuma closer to have to provide his version of events. Even if Zuma and his lawyers lose every single court case, they would still have won if they had managed to delay Zuma’s appearance as a witness until after the Commission’s mandate came to an end.

But even if Zuma really does not have access to large sums of money to continue his “Stalingrad” strategy, this may not matter. Perhaps partly because Zuma is a former President of the country, and partly because he has a history of using legal processes to avoid legal accountability, it seems to me as if the Chairperson of the Zondo Commission is treating Zuma and his lawyers with kid gloves. For example, Zondo agreed to send Zuma “areas of interest” on which he would be asked questions – something not done for other witnesses. And the chairperson has appeared to bend over backwards not to have to issue summons to force a reluctant Zuma to testify.

Ironically, so it seems to me, Zuma is – perhaps inadvertently – getting special treatment from the Zondo Commission. This may have something to do with the fact that he is rich (or at least perceived to have access to his own funds or the funds of secret backers) and because he is still relatively politically powerful. But maybe it also has something to do with the fact that he has shown in the past that he is ready and willing to use this power and access to resources to thwart legal processes and that there is a real fear that Zuma will do the same to the Commission.
When you have unlimited access to funds to pay lawyers and when those lawyers are willing to do battle on your behalf (by challenging every adverse decision no matter how hopeless your case), you can win even while you keep on losing in court.

It is not fair that the rich and powerful (people like Jacob Zuma and the Marcus Jooste’s of this world) are often able to fund endless procedural challenges to buy time and, perhaps, even to buy immunity from legal accountability.

Whether you are a powerful politician with unlimited access to public funds (or the funds of secret backers), or whether you are a big bank or a very rich businessman or woman, you will have an unfair advantage in any civil litigation against an ordinary middle class or poor individual or small company. And while it is (correctly) assumed that procedural rules are necessary to protect individual criminal accused from abuse of power by the police and prosecuting authority, those rules may also unfairly help the really powerful and rich to avoid criminal liability altogether.
The most radical way to deal with this problem (essentially a problem of inequality), is to move away from the adversarial legal system towards a more inquisitorial system.

Currently, Commissions of Inquiry operate in a more inquisitorial manner, but many lawyers dislike this system as it reduces their power and influence and limits their ability to deploy procedural arguments on behalf of their clients. Worst of all, the aim of the inquisitorial system is to find the truth, and parties with something to hide have fewer arrows in their quiver to defend themselves against the truth. (In an adversarial system, the assumption is that the truth will emerge from the sparring of the two sides – a kind of free market view of justice.)

Not surprising then, that many lawyers who assist clients before Commissions of Inquiry in South Africa either wrongly believe, or pretend, that the Commission procedure is similar to that of a criminal court, and thus invoke all kinds of procedural protections not usually associated with inquisitorial proceedings.

While this illustrates how difficult it would be to change the legal culture away from the adversarial mindset, the even bigger problem with this solution is that it probably has very little political support. (Which politician is going to support a legal process which affords them fewer procedural protections and where the aim of the process is to establish the truth?)

Another solution is to make it more difficult for litigants to use procedural rules to delay or even completely avoid legal accountability in court. This would have to be done in such a way that it does not disadvantage litigants or accused persons who are already at a disadvantage because they lack the social status, political power or wealth of their opponents. This is easier said than done and it is impossible to explore what this might entail in a column like this.

Maybe the first step to fix the problem is to get lawyers and judges – embedded in a formalistic legal culture – to stop worshipping at the altar of formal legal rules, as if these rules will inevitably produce a fair process and allow the court or other body to establish the truth. Instead, lawyers and judges should be prepared to ask more often and more consistently whether the process is substantively fair and whether it actually is likely to reveal the truth. If lawyers ask the latter type of question, they will seldom if ever try to use the law to protect their clients from having to give their side of a story.

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