Jacob Zuma has finally unveiled his conspiracy claims and, after all the hype, the evidence he presents is surprisingly insubstantial.
On Monday Zuma’s lawyers delivered what he clearly hopes will be a knock-out blow to the corruption case against him, before it even starts.
One thread of his voluminous application for a permanent dismissal of the charges is his claim that the case is essentially malicious, and has been pursued to stop him becoming president.
It is the weakest strand in an otherwise impressively silky legal cord, with which the defence will seek to ensnare the prosecution and beguile the judge when both Zuma’s application and the state’s bid for a long postponement are argued on September 5. And the attempt to drag President Thabo Mbeki into the case appears to feed more into Zuma’s political campaign than his legal one.
Given that Zuma was at the centre of government and the ANC, and given that he has sympathisers in all the security agencies, one expected a few aces when he finally put his conspiracy hand on the table.
But there are no surprises here. Zuma comes up with essentially three familiar facts:
l The “off the record” briefing to editors by former national director of public prosecutions Bulelani Ngcuka, where, Zuma claims, Ngcuka tried to recruit them in “a furtherance of the conspiracy against me”.
l Ngcuka’s announcement that, while there was a “prima facie” case against Zuma, the prospects of success did not warrant a prosecution. Zuma describes this as “character assassination of the first order”.
l The 2001 Zuma-signed letter to the chairperson of Parliament’s Scopa committee, Gavin Woods, rejecting, in the most sarcastic terms, Scopa’s request for the special investigation unit to be involved in the arms deal investigation. Zuma makes much of the fact that in February this year Mbeki admitted he was the author.
This last point is instructive. Zuma now says he was instructed to sign the letter, meaning that findings against Schabir Shaik hinging on the letter were misdirected.
But Zuma did not disclose this at the time, when the letter was seen as a decisive blow to parliamentary investigation of the arms deal, nor during the Shaik trial, when it might have been helpful to his dear friend.
Instead, Shaik’s defence was left to suggest rather coyly that perhaps Zuma was not the author. And Judge Hillary Squires’s judgement in fact accepted the possibility that Zuma had only signed and not written the letter, but found that he had done so because the contents suited him.
The only public account of the briefing of editors was the one offered by former City Press editor Vusi Mona, whose evidence was ruthlessly demolished at the Hefer commission.
And Ngcuka’s comments on the initial decision not to prosecute Zuma, while contentious, are explicable for reasons other than a grand political conspiracy.
Indeed, nowhere does Zuma explain why Ngcuka would engage in a conspiracy against him, nor does he provide evidence that Ngcuka’s successor, Vusi Pikoli, also aligned himself with the plot.
All Zuma offers is speculation that there might have been improper communication between Pikoli and Mbeki ahead of Pikoli’s decision to prosecute.
Zuma states that he believes that, from the outset, the investigation into the arms deal was an excuse “to ostensibly legitimise a wide-ranging investigation of my conduct and financial affairs in order to find some aspect which could be used to discredit me”.
But no supporting evidence is presented, other than the fact that only he and Shaik have been charged over the arms deal.
The other elements of Zuma’s attempt to have the charges quashed are stronger. They rely mainly on claims that Zuma’s right to a fair trial has been compromised by unreasonable delays and prejudice to his defence due to last year’s raids on his various premises and those of his attorney, Michael Hulley, and former attorney Julie Mohamed.
The Constitution provides that a fair trial includes the right to have the matter proceed within a “reasonable time” after charges are laid.
In Zuma’s case this would be in June last year, but he indicates the defence will argue that the court should consider the date of his first recorded receipt of a benefit from Shaik, in 1995.
It is also likely that the defence will argue that Ngcuka’s “prima facie” statement in August 2003 had the same substantial effect as a decision to charge Zuma.
More telling, however, is Zuma’s argument that the trial is likely to be delayed by at least another two years, given that crucial documents are still the subject of legal dispute in South Africa and Mauritius.
The delay argument is unlikely to be enough for the court to strike down the charges permanently, which the Constitutional Court has ruled is appropriate only in extreme cases. The more likely remedy would be to remove the case from the roll, so that Zuma can be recharged when the state is ready. Such a move would be a major political victory for him.
On the question of prejudice, Zuma repeatedly claims that the August 2005 raids were designed to “discover his defence”. But he gives no example of a legally privileged document that was seized, while the state can point to one contrary judgement that finds the raids lawful.
But Zuma’s affidavit is subtly drafted to allow his legal team maximum flexibility for their eventual arguments.
Combine that with Judge Herbert Msimang’s rather studied display of judicial impatience at the first appearance, and the state should now have no illusions: it has a real fight on its hands.