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Zuma’s very public playing of the ‘victim card’ doesn’t fool anyone any more

Opinionista • Paul Hoffman • 18 April 2021

Jacob Zuma is no prisoner of conscience. He is a thorn in the side of the rule of law and a minor threat to the constitutional democracy project on which South Africa embarked in 1994 with such high hopes and rosy expectations.

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When directed by the Constitutional Court to provide evidence in mitigation of his possible sentence on a finding that he is in contempt of its order that he obey the summons of the State Capture Commission, Jacob Zuma instead produced a long and rambling letter (instead of the short affidavit required). In the letter, he seeks to portray himself as the prisoner of conscience of the court.

What nonsense he spouts in his letter.

Most of the justices he attacks are his own appointees. Only Justice Sisi Kamphepe was in a green court gown before Zuma became president and only one or two of the justices are recent Ramaphosa appointments. The Chief Justice, Mogoeng Mogoeng, who is not on the panel hearing the contempt case, is Zuma’s surprise choice for that post.

In the new South Africa, the first brush Zuma had with the law was in the form of a charge of rape that was laid against him when he was a private citizen, having been fired as deputy president by Thabo Mbeki after the conviction of Schabir Shaik on charges of corrupting Zuma (who was not charged).

In the rape case, which was finalised before he was voted into power at Polokwane in December 2007, Zuma was able to persuade the court that it was reasonably possibly true that he thought the complainant was consenting.

His defence was that the young lady in question, the troubled daughter of a Struggle stalwart who gave Zuma comfort and support, to his knowledge HIV positive, was his house guest. By wearing a kanga she somehow showed him her willingness to have unprotected sex with him, a man she called “uncle”. This was at a time when she was less than half his age. His only precaution against contracting the dreaded disease was to take a shower after the sexual intercourse. His folly earned him the showerhead he still wears in Zapiro cartoons, a constant reminder of his moral turpitude.

The delegates at Polokwane who overlooked Zuma’s flaws, the very flaws apparent from his own version of the alleged rape, have a lot to answer for to their fellow citizens. Once again at Mangaung, the ANC faithful (mis)placed their faith in Jacob Zuma.

Upon ascending to power, with a full measure of undercover, but somewhat ineffective, support from Cape Judge President John Hlophe, Zuma proceeded to eviscerate the criminal justice administration of SA. He did so by dissolving the Scorpions and putting his pals into positions of power in the prosecution service. No police commissioner in the new South Africa has ever seen out her or his term of office. The SAPS is widely regarded as the most corrupt institution in South Africa. Zuma exacerbated this intolerable state of affairs to suit his own agenda.

When Johannesburg businessman Hugh “Bob” Glenister sought to challenge the ability of the Hawks to do the work of the Scorpions, he obtained expert evidence from a professor at Stellenbosch University and a learned researcher at the Institute of Security Studies (ISS) regarding the circumstances applicable during the Zuma presidency as they relate to the combating of corruption. He did so because the court had ruled in earlier litigation that the decision of “a reasonable decision-maker in the circumstances” was required when establishing adequately independent anti-corruption machinery of state that is able, effectively and efficiently, to deal with the corrupt.

The experts did not disappoint Glenister; they produced a long litany of evidence of “the circumstances” pointing toward that which every sentient being in SA now knows about the crookedness and perfidy of the Zuma administration.

Zuma’s legal team, and the other lawyers representing his Cabinet members separately, instead of dealing with the facts adduced by the experts, as should in the normal course be done, elected instead to apply to strike out the material on the basis that it was vexatious and irrelevant to the decision to be made. They did so without traversing the material painstakingly placed before the court, a risky and irregular step.

The courts did not disappoint Zuma. In the majority judgment penned by the Chief Justice, the allegations of malfeasance and misfeasance by Zuma and his cronies in Cabinet were (mis)described as “odious political posturing” and the failure to answer them was conveniently overlooked. A little tinkering with the Hawks legislation followed. As a consequence of these missteps, the criminal justice administration still lacks the investigative capacity of true specialists, fully trained, clothed with structural and operational independence, properly resourced and with secure tenure of office.

Those whom some veterans of the Scorpions derisively refer to as “stasie speurders” (station detectives) were bumped up to populate the ranks of the Hawks. To this day, the Hawks report to the Minister of Police, Bheki Cele. He lost his job as police commissioner after being found to be “incompetent and dishonest” by the Moloi board of inquiry. The late Judge Khalipi “Jake” Moloi also recommended that Cele be investigated for corruption.

The Ramaphosa-era Investigating Directorate of the NPA is working on the Cele docket, but no charges have been formulated yet. This despite the fact that the alleged corruption preceded the hosting by South Africa of the Fifa World Cup in 2010. Cele, “a big man” in KZN politics, sails on with complete impunity and considerable status.

The Zuma-era State Capture project was enabled and perpetuated by the unwillingness of the courts to face facts and insist upon proper compliance with their own rulings about the characteristics of and criteria for the anti-corruption machinery of state. Instead, a rotten regime was propped up by the supportive and protective stance taken in the majority judgment of the Chief Justice written in November 2014 in the third of the Glenister cases.

Zuma cannot make up the rules as he goes along to suit himself. His very public playing of the “victim card” does not fool anyone any more. Zuma is defiantly contemptuous of an order of the highest court in the land. His recalcitrance is intolerable in any functioning constitutional democracy such as ours.

As each fresh revelation of what was actually going on at that time in government and the state-owned enterprises tumbles out at the State Capture Commission, the embarrassment, if not mortification, of that majority should deepen. So cunning and clever was the argument put up by Zuma that the two justices who had penned the ruling of the court in earlier litigation could not agree on what they meant in that judgment!

And then, we come to Nkandla. A leaked report by the Public Protector in December 2013 led to the laying of charges of corruption, fraud, theft, embezzlement and procurement irregularities in the home improvements effected by the state, at taxpayers’ expense, at the country seat of the Zuma family in Nkandla. Not a single criminal case has followed. The matters are reportedly still under investigation in Gauteng and KZN.

Civil proceedings concerning the matter of Nkandla did end up in the Constitutional Court. The delinquency of Zuma was by then undeniable. His counsel threw in the towel dramatically at the last minute.

A resounding judgment on the demerits of what Zuma had done and how Parliament had tried to cover it up followed. And yet, to the surprise of many who had read the report of the Public Protector called “Secure in Comfort”, the Constitutional Court again dropped the ball in a manner favourable to Zuma.

Instead of ordering him to repay all of the unauthorised expenditure on his home, the Constitutional Court saw fit to identify only a few items for refund. This step involved a misreading of the report that had the effect of favouring Zuma by millions of rand. The gory details are in my book Confronting the Corrupt in the chapter headed Firepool or Waterloo?

The matter of the decapitation of the National Prosecuting Authority by Zuma also bears mention. The ensuing civil proceedings did not end well for Zuma or for Mxolisi Nxasana who was ordered to repay his golden handshake. However, the Constitutional Court did not refer the self-evident criminality in the matter to the Hawks for investigation of the corrupt activities manifestly in evidence in the matter. The charges later laid by Accountability Now languish on the desk of a Zuma appointee in the NPA, seven years after they were laid against Zuma. All efforts to get a progress report have proved fruitless.

There are other matters in which the courts have been kind to Zuma. The spiriting away of Omar Al-Bashir, the butcher of Darfur, is one. The inordinate amount of time it took to finalise the review of the decision not to charge Zuma for his generally corrupt relationship with Schabir Shaik is another.

Zuma’s questionable appointments frequently did not end well. Consider the fates of Riah Phiyega, Berning Ntlemeza, Des van Rooyen and others like them. Known Travelgate fraudsters were appointed by him to infest his Cabinet along with their “smallanyana skeletons”. Blots on the political landscape like Malusi Gigaba, David Mhlobo and Bongani Bongo are all Zuma appointees.

In his epistle to the Chief Justice, Zuma complains bitterly that he cannot understand why retired Judge Siraj Desai was not appointed to the State Capture Commission. Perhaps he has forgotten that Judge Desai was his counsel during Struggle-era criminal litigation. Perhaps he does not know that it would not be proper for Desai to accept the appointment given the history between them.

Zuma tries to rely on his pending review of the refusal by Deputy Chief Justice Raymond Zondo to recuse himself. He can’t do so in circumstances in which many of his points are raised far too late to be valid. Also, he has not sought an interim interdict preventing the commission from hearing his evidence until after the review has been finalised.

He is acting on good advice in not seeking the interdict: he is most unlikely to get it. His case is so threadbare as not to justify the granting of the interdict. Without the interdict the refusal to recuse stands. It ought to be respected by Zuma because that is the way the law works. We are all equal before the law; there is no interdict-free special dispensation for Zuma.

Zuma is no prisoner of conscience. He is a thorn in the side of the rule of law and a minor threat to the constitutional democracy project on which South Africa embarked in 1994 with such high hopes and rosy expectations.

The court should regard his letter as containing information that is in aggravation, not mitigation, of his sentence. But, it is more likely that the letter will be ignored because it is not in the form of an affidavit, as required by the court directives.

Zuma cannot make up the rules as he goes along to suit himself. His very public playing of the “victim card” does not fool anyone any more. Zuma is defiantly contemptuous of an order of the highest court in the land. His recalcitrance is intolerable in any functioning constitutional democracy such as ours.

Zuma richly deserves such punishment for his contempt of the court as it deems meet. A stiff suspended sentence, suspended on condition that he cooperates with the SCC, is indicated. DM

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