Political time runs quickly. It takes an SMS from the Pietermaritzburg High Court a split second to reach Gallagher Estate. It takes Jacob Zuma in all his fleshy solidity less than two hours to get to Midrand. A newspaper listing the manifold ways that the National Prosecuting Authority (NPA) has miscarried its delicate task can hit the streets in less than 12 hours.
But judicial time runs slowly. Bulelani Ngcuka made his prima facie error on August 23 2003, and it was two years later, on June 8 2005, that Judge Hilary Squires found that Schabir Shaik and Jacob Zuma were bound together in a “generally corrupt relationship”.
Less than one political week later, President Thabo Mbeki had sacked his deputy.
It is in the awful shear zone where these two temporal regimes collide that the trials of Zuma must unfold — and, indeed, where South Africa must reside until they are over. This is a desperate place for a country to find itself and, for the players at the heart of the drama, it is close to impossible.
Hamlet — as Chris Hani might have reminded us — finds himself in a similar predicament. Claudius, the usurping regicide, sits on the throne, and the rottenness in the Danish state expresses itself as a kind of cosmic disorder. The prince, importuned by the law in the shape of his father’s ghost to fix things, thinks it all terribly unfair. “The time is out of joint,” he laments, “O cursed spite, that ever I was born to set it right.”
And while he delays justice, politics happens. Ophelia drowns herself, Polonius is killed and Claudius schemes — and in the bloody finale two political conspiracies collide. Everyone who matters dies by poison, the sword, or both, and an outsider, the Norwegian prince Fortinbras, steps into the gap.
Of course, Jacob Zuma is not yet on the throne, but he is the pretender, and if he takes the crown, notwithstanding all the accumulated evidence of his unsuitability for the job, it will be a political injustice of cosmic proportions.
Bulelani Ngcuka may or may not have relished Hamlet’s task — it depends whose conspiracy theory you believe — but his successor, Vusi Pikoli, and his lieutenant Leonard McCarthy, must surely be cursing spite as Zuma’s allies and Judge Herbert Msimang impugn their conduct and their motives.
Do they deserve it? On the face of it, the answer is yes.
In the bright morning of hindsight that dawned on June 9 2005, the decision not to charge Zuma together with Shaik seemed a colossal blunder. It was clearly a political decision, with Ngcuka and McCarthy electing to ignore the advice of the career officers who led the investigation.
In a healthier political culture Squires’s verdict would have finished Zuma’s career in government and the ANC, leaving the judicial process to unfold relatively insulated from the succession battle. But the political climate is not healthy, and Zuma’s opponents within the ANC supplied exactly the “innocent until proven guilty” rhetorical ammunition that now sustains his supporters.
The fundamental difference between political and juridical responsibility has not been established in this country. Indeed, even juridical guilt is not enough to end a political career: just ask the crowd that escorted Tony Yengeni to jail.
The next error, if you ask Zuma’s legal team, came with the decision to charge him with corruption on June 20 2005. Clearly, they argue, if the NPA wasn’t ready to go to court on the agreed date of July 31 this year, it jumped the gun.
Was that a political decision? A prosecutorial decision? A bit of both? And was any other option available? The evidence relating to payments made by Shaik to Zuma before 2002 had been tested in court, and it held up. The encrypted fax held up. Shaik was guilty. And Zuma was guilty by implication.
Legal and political reality were in violent collision, and the only solution, as Zuma himself insisted, was for a legal decision to supervene. Both sides represented his “day in court” as the moment where the two irreconcilable time frames would be brought together and resolved.
At a more basic level, the NPA clearly had evidence to successfully prosecute him. They had no choice but to lay charges. But they wanted more certainty than the Durban judgement could give them, and they believed there was evidence of payments between 2002 and 2005 — freely admitted to by Shaik — that would clad in steel an already solid case. That evidence, the Scorpions believe, shows that the payments totalled R3,7-million, more than three times the figure Squires found had constituted the basis of a “generally corrupt relationship”.
And in their anxiety to counter political fire with prosecutorial zeal they were led into what may yet prove to be a genuine, avoidable blunder.
Or not.
The broadly drafted search warrants that took in Zuma’s homes and offices, and the premises of his legal advisers, obviously yielded valuable evidence. They also obviously pushed the limits of the NPA Act and violated attorney-client privilege. Two high court judges have already found that they overstepped those limits, and it is now up to the Supreme Court of Appeal to decide if they were right.
For Judge Msimang, that was fatal. There was no certainty, he pointed out, that this evidence could be introduced in court by the first quarter of next year, or ever. The contested seizures, he suggested, were the flaw in the foundation of the state’s case.
That gave the Zuma camp some marvellous sound bites to distribute. But it is not at all clear that Msimang was right to strike the case off the role, or indeed that the contested evidence ultimately will matter. As the state argued in Pietermaritzburg, Zuma’s lawyers were free to contest the admissibility of the search-and-seizure evidence during his trial. Had they succeeded in keeping it out, the NPA would have fallen back on the evidence led in the Shaik trial.
It is almost certain Jacob Zuma will be charged again — even if Shaik wins his appeal. The only question is when.
Political time runs ever more quickly as 2007 approaches. Legal time unfolds at its own regardless pace. The NPA and the courts cannot, on their own, cure this dislocation. There is no Fortinbras on our horizon, only the difficult job of learning democracy.
We had better learn fast.
Nic Dawes is associate deputy editor