When it is taken into consideration that the Democratic Alliance (DA) first launched its application for a judicial review of the decision of then ANDPP, Advocate Molokoti Mpshe, not to prosecute then private citizen Jacob Zuma in April 2009, the words which fell from the lips of Judge of Appeal Mohamed Navsa in the judgment on appeal regarding certain preliminary points taken in the case gather increased significance. Speaking for a unanimous Bench of five judges of appeal he observed toward the end of the carefully crafted judgment:
“Generally, courts should be slow to allow parties to engage in piecemeal litigation, with attendant delays. Put differently, courts should be intent on obviating prolonged litigation. This case has shown precisely how undesirable for the administration of justice to-ing and fro-ing between the high court and this Court over a long period of time, without the merits being finally adjudicated, can be. Courts should be circumspect when suggestions are made about the procedure to be followed on the basis that it might shorten rather than lengthen litigation.”
Quite so. The question on the lips of most inquirers is: what happens next? This is difficult to divine. Spare a thought for Richard Young*, who unsuccessfully applied to intervene. He may be upset about the costs order against him and his company, CCII, but is unlikely to want to run up further costs over the question of the liability for costs. He could justifiably complain that the court was a little obtuse in its assessment of his case in that he was in a position to rely upon the findings, approved on appeal to the selfsame court in the Schabir Shaik case, in which Zuma was implicated as recipient of bribes of R500,000 per annum from an arms dealer seeking his “protection”. The situation in which Young found himself was correctly described in the judgment as that of a “fall back position” and now that the standing to sue of the DA has been resoundingly established (and is unlikely to be successfully assailed in any appeal on this aspect) it is most probable that the intervening parties will swallow their medicine in adverse costs and fade from the forensic battleground.
The DA, as successful litigant, will want to get on with the review as soon as possible. The matter should not be allowed to languish in a long queue in the High Court, having been delayed for almost three years since its inception already. Justice delayed, is justice denied. It is always open to a litigant to ask that a matter be given preferential treatment on the roll for hearing, and this is an avenue that the DA may wish to explore in the interests of reaching a final determination in the matter sooner rather than later. An alternative strategy would be to seek direct access to the Constitutional Court, effectively asking it to give expression to the words quoted from the judgment above by sitting as a court of first and final instance on the merits of the review. It is certainly invidious for a puisne judge to adjudicate so weighty a matter alone.
The NPA may want to do whatever it can to avoid the embarrassment of making public even the most limited record of the documentation before it at the time that the decision not to prosecute was made. It has been ordered to make an abridged record available. The former Scorpions investigators were particularly outspoken critics when the decision not to prosecute Zuma was taken back in April 2009. What they were saying privately among themselves in inter-office memoranda and emails is likely to be more damaging to the NPA’s defence that the impugned decision not to proceed with the prosecution was a reasonable and rational route to follow. Sadly, as the NPA has slipped from its former constitutionally prescribed independent status to implementing the vision of the ANC, don’t expect it to appeal unless instructed to do so.
It is, of course, President Jacob Zuma who has the most to lose in the light of the appeal judgment which now clears the way for the actual merits and demerits of the Mpshe decision to be examined by an appropriate court. His legal woes will be compounded by the political fall-out that is likely to follow the ANC’s internal analysis of the outcome of the appeal. His options are to appeal, to abide the review outcome, to oppose it or to continue to obfuscate – resigning himself to his fate is not Zuma’s way.
Rather less can reasonably be expected than the death knell of Thabo Mbeki’s political career that was sounded by the famous (and later overturned) decision in favour of Zuma that was delivered by Judge Chris Nicholson in the run up to the NPA’s abandonment of the 783 charges of corruption that still haunt his career. It is nevertheless fair to anticipate that those factions of the tri-partite alliance that have lived to regret their Polokwane vote for Zuma and have since fallen out with him may use the opportunity to strike back and promote the candidacy of others for the leadership of the ANC after, or even before, Mangaung. Cosatu has broken with Zuma over e-tolling and labour broking and what it calls the corrupt “hyena” phenomenon that has flourished on Zuma’s watch. The ANCYL is at odds with Zuma over nationalisation, foreign policy toward Botswana and general economic policy, as well as the manner of the clipping of wings and culling of its leadership orchestrated by the Zuma led ANC hierarchy. Both may seek to make political capital out of the decision by calling for Zuma’s head in much the same way as Mbeki was treated in September 2008. Whether this is embarked on, either successfully or at all, remains to be seen. It will certainly be an indicator of likely outcomes of possible leadership contests (those that the ANC is officially not meant to contemplate until October) in respect of which the battle lines are already been drawn.
It is reasonable to suppose that the ANC nobility has lived to regret the decision made in Polokwane to put Zuma in the driving seat of the tri-partite alliance. While there are elements who remain loyal to him, that loyalty is based either on blindness or on the patronage which he has been able to dispense by reason of the exulted positions he holds. Some may see these forms of loyalty as signs of the weakness of the current ANC leadership and others may seek to exploit real or perceived weaknesses for their own advantage.
A lot can turn on how the DA’s case pans out and particularly on how quickly it is brought to final determination. Zuma’s unlikely senior counsel, the dishevelled and eccentric (even by the standards of senior counsel) Kemp J Kemp, is a past master at what is called the “Stalingrad strategy” in which all available technical and delaying points in the book and a few more beside are taken. This strategy has worked well for Zuma. In tandem with the alleged tape recordings of irrelevant gossip it has had the effect of holding off the 783 charges of corruption which the DA would like to see properly ventilated in a court of law. Should that day dawn, or even emerge as the viable prospect it actually is, the political career of Zuma must surely end. It is impossible to run as complex a country as SA from the dock of the Pietermaritzburg High Court.
Let it not be forgotten that even Mpshe, vulnerable as he was, insisted that the merits of the charges against Zuma are sound. If the threadbare excuse for not proceeding with them is found to be unacceptable for its irrelevance and because it was legally based on an over-turned Hong Kong decision, Zuma may well find himself in the dock in a dispensation in which equality before the law and the presumption of innocence remain cherished values. Whether the ANC is prepared to allow Zuma’s Stalingrad strategy to play out endlessly is for it to decide. Its future trajectory depends on the decision it takes.
*A joint investigative team looked at the arms deal in 2000. This team, consisting of the auditor general, the public defender and the national director of public prosecution, found in a November 2001 report there were no grounds to believe that government had acted “illegally or improperly”.
But in October 2009 documents provided by Cape Town businessman Richard Young, whose company, CCII Systems, lost the tender for the navy’s new corvettes, showed their initial report had been doctored.
Paul Hoffman SC