IT IS not just that the President has had three litigious reversals in the last month, nor that he regards accountability as an unnecessary detail; it is not even that he is a complete stranger to the rule of law and constitutional democracy.
No; actually, the crunch is that the consequence of him losing impeachment proceedings is that he may not receive any benefits of the high office he has held since May 2009. For as profligate a spender as Jacob Zuma (think of the 783 counts pending, so painstakingly assembled by Advocate Billy Downer SC and his team), this is the type of reversal that he is unable to risk.
In baseball the rule is “three strikes and you’re out”; but with Zuma no such rule appears to apply. By and large, he has sailed on: dispensing patronage, involving himself and his family in the capture of the state and orchestrating what serious academics have chillingly described as a silent coup.
Ducking, diving, denying, delaying and deferring have been the hallmarks of the Zuma presidency. Up until December 2017, Zuma had all the appearance of a man made of Teflon.
What is most interesting about the three reversals in litigation in December 2017 is the identity and the diversity of those with whom he has litigated with no success.
Three courtroom setbacks
First, there was the drubbing in the Nxasana affair. Not only did the president lose, he was, in effect, found to have lied on oath in his account of the bribe he arranged so as to get pesky and independent-minded national director of public prosecutions Mxolisi Nxasana out of the way of his second term.
Zuma’s opponents in this matter were equally pesky NGOs: Freedom Under Law, Corruption Watch and the Council for the Advancement of the South African Constitution in the civil case and Accountability Now in the criminal investigation still pending, now fortified by the civil judgment. It will be difficult to come back from a finding that Shaun Abrahams was hand-picked to do his bidding, and from the prohibition that Abrahams be allowed to have anything to do with the pending 783 counts of corruption.
In the second case his nemesis was one of his own appointees, Public Protector Thuli Madonsela, surely the biggest error in appointment ever made by Zuma, given his usual criteria of putting himself first and the country last in effecting the many and varied appointments required of him in terms of the Constitution.
The case concerned his discomfort with being dictated to as to who the commissioner in the long-awaited, but still pending, commission of inquiry into state capture should be. The choice made by Madonsela to require the chief justice to select the judge for the commission probably falls foul of the doctrine of the separation of powers, but if the whole of the Cabinet and the speaker of the National Assembly are themselves captured, who better to make the selection?
It is not without significance that the chief justice took a strong dissenting line invoking and relying upon the doctrine of the separation of powers in the third matter.
Opposition parties team up
The third matter involves the “who’s who” of opposition politics. The EFF, UDM, Cope and later the DA ganged up to complain that our ANC-dominated Parliament has not been holding the president to account for his constitutional delinquency, especially around the Nkandla affair which saw a massive overspend on supposed “security enhancements” on the property he and his family occupy in Nkandla.
With civil society, the Office of the Public Protector and the loyal opposition separately litigating with him in cases that have come to a head in the same merry month, it must surely be so that the president is feeling the heat.
Will he brazen it out, face the fury of the opposition’s cross examiners in the televised parliamentary inquiry (Lynne Brown calls these “kangaroo courts”) that must by law now follow, and take the risk of losing his pension, his protection and his other benefits of office?
Will he try to play the appeals rope-a-dope yet again in the other two cases, with a view to prolonging his tenure of office? Will he survive the wrath of his own party, which, as with Thabo Mbeki before him, has the power to recall its deployed cadres, even those deployed as head of state?
If he is well advised, he will quit now.
President Jacob Zuma’s time is up, his Teflon has expired. He should retire gracefully and with full benefits either to Nkandla or Dubai, depending on the advice he receives.
* Paul Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt. Views expressed are his own.
Opinion editorial published in Fin24 on 4 January 2018