Jacob Zuma: Abusing the Law to Delay Justice
A month ago, when Gauteng Judge President Dunstan Mlambo handed down the first of three damning judgments against President Jacob Zuma in the North Gauteng High Court, a metaphor began forming in my mind. A good court judgment is like a good slice of bread: it needs to be fresh, evenly buttered and well spread.
For readers from beyond South Africa who are not familiar with the actual events, here is a summary.
On Dec. 8, Justices Mlambo, Ranchod and Van Der Linde sliced Corruption Watch and Freedom Under Law vs President of SA et al finely, finding President Zuma’s appointment of Advocate Shaun Abrahams as National Director of Public Prosecutions to have been unlawful and based on deceits and lies. They then buttered the slice with an appetizing spread by authorizing the Deputy President (currently Cyril Ramaphosa) to now make a new appointment because the President was conflicted and “unable to perform his function” in this specific regard due to the fact that he faces charges of corruption that the NDPP must press.
On Dec. 13, Justice Mlambo handed down two other judgments. Together with Justices Borucowitz and Hughes, they dismissed the President’s application to have the court set aside the Public Protector’s remedial action that obliged the President “to appoint a commission of inquiry within 30 days, headed by a judge solely selected by the Chief Justice who shall provide one name to the President.” Recall that on October 2016 the former Public Protector Advocate Thuli Madonsela had completed the report within hours of the expiry of her constitutional mandate. Her astute remedial action effectively tied up the President in a proverbial Gordian knot.
To really ruin the Zuma family Christmas, Justice Mlambo then handed down a third ruling, this time with concurrence from his deputy, Judge Mojapelo, and Judge Fourie, to add a discomforting noose to the knot. They found that the President must personally bear the legal costs with respect to his urgent interdict application to prevent the finalisation and release of the Public Protectors State of Capture report. He failed in his application. The Public Protector, the EFF, UDM, COPE, the DA and Vytjie Mentor (a former ANC MP who had submitted evidence to the Public Protector that she had been offered a cabinet post by the alleged capturers, the Gupta brothers, if she did their bidding) joined up to argue that his legal action had nothing to do with his office as President. It was entirely a personal matter, which meant that Zuma had no right to use the State Attorney and public money to fight a case which he was destined to lose anyway.
The bread slicing and buttering process was so complex, and the issues so important, that another senior judge had been tasked to project manage the torrent of litigation precipitated and amplified by the President’s “lawfare” strategy, to lessen the likelihood of higher courts over-ruling the judgments on appeal. The time and judicial resources of eight judges was occupied by Zuma’s use of the law to evade justice. All of this litigation was funded from the public purse.
I was particularly sensitive to this abuse of judicial resources because in October Advocate Geoff Budlender SC had to make yet another expensive, unbudgeted trip from Cape Town to Pretoria to represent my friend and fellow activist Sinegugu Zukulu to argue against the law fare strategy of another serial abuser of the judicial system, the South African National Roads Agency Ltd (SANRAL). In a similar ‘litigation by attrition’ strategy, SANRAL and the Minister of Environment had tried to prevent Sinegugu Zukulu and other rural residents from the amaDiba community on the Wild Coast from seeking a judicial review of the N2 Wild Coast Toll road environmental authorisation. Justice Tuchen had summarily dismissed SANRAL’s interlocutory application six weeks before. Predictably, the Government appealed, necessitating yet another trip by advocate Budlender to the North Gauteng High court.
For the uninitiated the long and winding road of SANRAL’S shortcut can be learned by watching this documentary.
Before the ink was dry on the judicial signatures, Zuma served notice of his intention to seek leave to appeal the judgments wherever he could. Next came the ANC Electoral Conference. Losing the battle to obtain judicial cover to get away with his sins, he tried to curry political favour by another reckless announcement calculated to boost the presidential campaign of his former wife Dr. Nkososana Dlamini Zuma: free education for the masses.
It failed, however, to sway the conference from electing her rival Cyril Ramaphosa, who is currently the Deputy President — the same man empowered to appoint the next NDPP — as the new ANC President and heir apparent to become State President after the next elections. That is if the ANC happens to win at the polls. Before every election for the past twenty years has been a foregone conclusion. That is no longer so. The election of Ramaphosa provided those within the ANC who still seek the promise of justice with political ‘ham’ to add to the judicial ‘bread’ buttered by seven senior judges of the North Gauteng Division of the High Court..
Then on the last working day before the end of 2017 the Constitutional Court handed down another more thickly sliced judgment with no less than four ‘spread’s — one majority judgment and three minority dissenting judgments — all proceeded from the same assumption: that Jacob Zuma had indeed failed to uphold the Constitution and had violated his oath of office, thereby providing grounds for impeachment. Whether or not the remedy prescribed was judicial over-reach should not distract one from the consensus. All judges agreed that Zuma was guilty of gross ‘over-reach’ as head of the Executive, and that the Speaker had clearly over-reached herself to protect him while all the evidence pointed to the fact that he could not escape responsibility for the exorbitant expenditure of state funds on his private residence at Nkandla. The Judiciary had ruled in support of the remedy prescribed by the Public Protector. Zuma must pay back the money.
With four judgments from the first part of December and four at the end of December, the only question now left is whether the ANC has the guts to digest the dagwood-sized judicial sandwich and make sure that Jacob Zuma becomes, well, toast. If they again fail to do that, the entire party may go down in history as the liberation movement that failed to liberate itself from the same corrupting dynamics of power that bothered James Madison at the end of the 18th Century, and which in turn came to epitomise colonial rule under Cecil John Rhodes at the end of the 19th Century, and then again under the apartheid regime in the 20th Century. Why would the 21st Century be any different?
There is a clear sequence to the decline of corrupted leaders and the parties that keep them in power. First they become blind, then bound and finally burned. It seems to me that the settings on the toaster have been turned up by the judiciary, leaving the ANC with only one option to avoid becoming burned toast with Zuma. He has to go, and have his day in court, but this time in a criminal trial for fraud and corruption.
While casually watching a History Channel documentary “Ultimate guide to the Presidents,” I learned that President Abraham Lincoln actually had no civil authority to sign the Emancipation Proclamation on September 22 1862 and a startling thought hit me. The Judiciary has in fact given Cyril Ramaphosa special ‘war powers.’ He needs to use them boldly.
Lincoln’s proclamation that as of January 1, 1863, all slaves in states in rebellion against the Union “shall be then, thenceforward, and forever free” was never sanctioned by Congress, least of all his Republican Party. The body count in the US Civil war was steadily mounting to the 600,000 mark. Lincoln, as president of the Union states, was delegated by Congress with special war powers in his capacity as Commander in Chief to deal with any “wartime necessity.” He used them boldly, taking a gamble which paid off. The Union armies were infused with an emergent normative moral absolute and they prevailed over the Confederate armies.
Ramaphosa does not even need to take a gamble on the normative matter facing him. He has been authorised by the Judiciary to act. Politics may be the art of the possible, but this is not really a political decision, but an administrative justice decision. Even if Shaun Abrahams and President Jacob Zuma don’t like it, there is really nothing they can do about it. It’s the law. This time law promising justice, rather than evading it.
It might be stretching it to conclude that Ramaphosa’s decision as to whom to appoint as our new NDPP is equivalent in historical significance to Lincoln’s emancipation proclamation, but there can be no doubt that the emancipation of the State from captivity to the same sinister, exploitative forces that slavery feeds on, is simply the right thing to do.