The time for scolding Jacob Zuma as if he is a naughty schoolboy is over. If he doesn’t testify at the Zondo commission, he must go to jail, writes Paul Hoffman.

Former president Jacob ZUma leads a charmed life in the courts of SA.

He escaped conviction on a charge of rape when in 2006 the Gauteng High Court found it reasonably true that the intercourse he had with a now deceased and ill young woman was consensual. The judge scolded him with quotes from Rudyard kipling’s poem “if” and sent him on his way to Polokwane.

There he emerged as victor, having spooked delegates into believing that his charm, geniality and apparent malleability was preferable to the continuation of the perceived imperial leadership of Thabo Mbeki.

His admission of unprotected sex with a child of a struggle era comrade, a eoman young enough to be his daughter, who was his house guest and his post-coital shower were overlooked or forgiven in 2007 and also five years later in Mangaung, by which time the inwardness of his character ought to have been as apparent as his unsuitability to lead a modern constitutional democracy that is committed to upholding the rule of law.

A pesky chief prosecutor, Visu Pikoli, was dismissed to smooth his way to high office in 2009. It took until October 2017 for the judicial review of a decision made in 209 to withdraw the Scorpions corruption charges against him to end in success; but now, in 2021, the hearing of evidence in the trial involving 18 serious charges has yet to commence, let alone end.

The Scorpions were disbanded along the way, replaced by the Hawks, a police unit that is underfunded and lacking in clout. The Hawks feebly attempt the investigative work on corrupt activities (among other priority crimes) and a hollowed out prosecution service is supposed to take the corrupt to trial.

Zuma’s appointment of mendacious Menzi Simelane as his first NDPP was set aside on judicial review as irrational.

The courts scolded Zuma for ignoring the lies in oath split by Simelane in the collective desperation to get rid of Pikoli.

Simelane had the bizarre notion that he was appointed as NDPP to implement the vision of the ANC in his new position. So much for the integrity, professionalism and fealty to the constitutional requirement that he act without fear, favour or prejudice.

When the new NDPP, Mxolisi Nxasana, let it be known that he was prepared to prosecute Zuma if the judicial review referred to above ended in success, he was eased out of office by Zuma in a corrupt deal which has been set aside by the civil courts.

The deal was not referred to the prosecuting authority for investigation, the courts preferring to rely on another mere scolding to get Zuma to mend his wicked ways.

Charges based on the Nxasana deal whhich were laid against Zuma in 2015 languish in the in-basket of our prosecutors.

They have no appetite for a short, sharp trial in which the record of the successful civil proceedings to set aside the Nxasana deal would be available.

Two silks of the Cape bar opine that Zuma has a case to answer. Tf asked they will help the NPA to prosecute the case in which they have already settled a charge sheet, six years ago.

Nkandla upgrades

When Zuma was caught, by Thuli Madonsela, with his hands in the national till, misappropriating funds for the upgrades to his home at Nkandla, civil proceedings again followed and he was scolded to the point of excoriation by the unanimous decision of the Constitutional Court on his delinquency. Once again the file was not referred to the prosecutors by the courts.

Charges laid in 2013 by Accountablity Now and in 2014 by the DA and EFF are “still under investigation” according to the NPA. Zuma sails on with impunity.

To make matters worse, the court got its sums all wrong in relation to the calculation of the amounts repayable by Zuma, as a consequence of which he was required to pay back a tiny fraction of the public money he misappropriated on his illegal home improvement scheme.

Public funds were diverted from worthy poverty alleviation to finance the Nkandla rebuild.

A chapter of my book “Confronting the Corrupt” is devoted to the topic under the heading “Firepool or Waterloo? Accountability Now and Nkandla”. There is just no political appetite to process the charges laid in 2013 or even to correct the patent error in calculation in the judgment.

Scolding, not punishment is the order of the day when it comes to dealing with the quirks of Jacob Zuma. His laughter at getting off so lightly for his wrongdoing at Nkandla echoes through Constitution Hill in Braamfontein.

The effect his two terms in office has has on the country was recently considered by the National Planning Comission which concluded:

“Over the past decade, there have been clear signs of danger that South Africa could veer towards a downward spiral. Governance gaps have spilled over into the central processes of raising and distributing public resources. We are now beyond the cross-roads…The Covid-19 pandemic has accelerated a downwards spiral, in an already vulnerable economy. We are in a vicious circle ensuing from a toxic confluence of factors, namely falling investment, further dimishing tax revenues, debt service costs that crowd all other spending… The results are falling employment and rising poverty and inequality. This downward spiral must be broken.”

The work of the state capture commission is a useful starting point for breaking the downward spiral, but it is clearly not enough. The Deputy Chief Justice is not equipped with a magic wand to undo the ravages of state capture, to recover the loot from the kleptocrats and to end the grand corruption with impunity which marked the disastrous Zuma era.

The state capture commission will, later this year, make findings of fact which bind no one and it will present recommendations to the President which he may or may not act on or accept. Its work may, or may not, be of interest to the NPA. The commission has no powers to prosecute, no capacity to rake back loot and no life beyond the filling of its report.

Not surprisingly, the commission has come into conflict with Zuma, the man on whose watch the slide observed by the NPC took place. Zuma has now, in the wake of yet another scolding by the Constitutional Court – which has ordered him to appear before Zondo commission, let it be known that he will not testify and is prepared to go to prison rather than appear before Zondo DCJ.

Given the ineffectiveness of the serial scolding of Zuma, it is not all that surprising that he continues to behave like an errant teenager defying his school masters rather than a man who has twice sworn to uphold the Constitution and the rule of law. It is now high time to get real and stop molly-coddling him. His impunity and that of those in his extensive patronage network, an entire faction of the ANC, must end.

It is up to the NPA to man up and celebrate two years of Shamila Batohi in the Saddle by charging Zuma either for decapitating the NPA (easy, short and sharp case on limited facts) or for his role in the Nkandla debacle (more difficult). He should be arrested or summoned, his passport should be surrended as part of his bail conditions and he must be brought to trial without delay. The minimum sentence is 15 years, which sounds right.

The refusal to testify before Zondo DCJ is legally unsustainable.

The onus is on Zuma to show “sufficient cause” not to appear. Unless he produces a credible sick note or obtains an interim interdict in the High Court restraining the commission from interrogating him, pending the outcome of the recusal review he was pending in court, he will go to jail for his contempt of the highest court in the land and/or for disobeying his summons to appear. His reluctance to ask for an interim interdict speaks volumes.

He has no doubt been advised, correctly so, that he does not have grounds to obtain an interim interdict but, expect him to ask for one, as late as possible, as a further delaying tactic.

The time for scolding Jacob Zuma as if he is a naughty schoolboy is over; the criminal justice administration has to put its best foot forward, demonstrate its impartiality and independence and act to end the impunity which Zuma has enjoyed for too long. If he doesn’t go to the commission to testify, he should go to jail.

–Paul Hoffman SC is a director of Accountability Now.