It was almost three years ago to the day that Jacob Zuma’s life reached a fork in the road. The national director of public prosecutions decided to drop the corruption charges that had hung over Zuma’s head for as many years before. Between his famous victory in Polokwane in December 2007 and the director’s controversial April 6 2009 decision, two pathways lay ahead — one to the presidency, the other to prison. The director’s decision sent him to the Union Buildings.
Now the Supreme Court of Appeal has ruled that the decision to discontinue the prosecution can be reviewed by the court. Much has already been said about this ruling and much more has still to be said. It triggers a whole new chapter in the extraordinary legal and political life of the president.
Once again, and perfectly legitimately, Zuma will avail himself of the independence of the judiciary and integrity of the rule of law to protect his interests and rights. One hopes that he recognises how much he benefits from a system whose strength and probity he seems to disregard at times, such as the clumsy language he deploys to talk about the powers and authority of the judicial branch of government.
It cannot be easy. On the one hand, the courts have provided him with sanctuary and great victories: the acquittal on rape charges by Judge Willem van der Merwe in May 2006 and the judgment of Judge Chris Nicholson in September 2008 that was the start of the eight days that overturned Thabo Mbeki’s world.
Last year, Van der Merwe was appointed by Zuma to be part of the judicial inquiry into the arms deal, though he subsequently withdrew. And Nicholson recently headed the inquiry into the rotten governance at Cricket South Africa. It seems Zuma likes to reward those who do him favours.
On the other hand, the law has repeatedly threatened to thwart Zuma’s political ambitions. Indeed, there can be little doubt it was the challenge to the decision of the director of public prosecutions to drop the corruption charges that prompted Zuma’s attempts to intimidate the Bench in recent months and lies behind his apparent inclination to clip the judiciary’s wings.
The latest court ruling will only agitate the president further as his personal legal problems inevitably become intertwined with the stance he adopts in the Cabinet and in his presidential statements. At the very least, that will be the perception.
Smart people in the ANC will appreciate how difficult it is going to be to have this case smouldering in the background for the next few years. It will be difficult for Zuma, yes, difficult for the ANC and the government and difficult, indeed, for the country as a whole.
For good tactical reasons, Zuma’s legal team will employ its previous legal filibustering — each and every step in the legal process will be contested. His first legal choice is whether to appeal the appeal court ruling in the Constitutional Court, which in recent times he has appeared to want to avoid. He appointed the arms deal inquiry rather than have the Constitutional Court order it and decided against appealing the appeal court decision that declared his appointment of Menzi Simelane as the director of public prosecutions irrational and therefore unlawful.
Just because the court has decided that the director’s decision can be reviewed does not mean it will be declared unlawful. The reinstatement of the corruption charges is a faraway destination; the legal road towards it is long and winding.
But those people in the ANC will ask: Have we not been down this road before? Do we really need this? Is there not a good reason for Zuma to step aside at this point?
Thus, the political implications of the ruling are, at least in the short to middle term, far greater than the legal ones. It will make a difference to the Mangaung political calculus. It may tip the balance of opinion in favour of a challenge to Zuma, though it may also serve to stiffen the sinews of his supporters, as it did during the initial campaign to unseat Mbeki, if Zuma again uses the case to present himself as a victim, this time of the Democratic Alliance, the applicants in the review application.
Part of the ruling is that the National Prosecuting Authority has been compelled to produce the record of its decision to discontinue the case. It would be all but impossible to review it without access to the documents that informed the decision. As the court pointed out, although Zuma would be within his rights to resist this, it might not be in his interests because, without a full record, the court may draw an adverse inference.
The 2009 announcement was so partial — in both senses of the word — and so thoroughly inadequate and unpersuasive that it is in the public interest that a full record be disclosed. It is already clear that state institutions of the criminal justice system were exploited by Mbeki and his acolytes to wage a political campaign against Zuma. But whether and to what extent that was the only, or the only decisive, evidence that could justify the decision to discontinue the prosecution remains obscure.
As the new round of legal endurance begins, Zuma will be fortified by the presence at his side of Michael Hulley, his long-time attorney. Happily for Zuma, Hulley is now employed as the legal adviser to the president. The conflict of interests is self-evident, not least because Hulley is employed by the state part-time, as I understand it, to allow him to maintain his private legal practice as well. What is not self-evident is why this situation is allowed to exist and why it causes so little offence.
Hulley’s firm is listed as the attorneys of record in the appeal court case. Zuma should be paying for those legal fees from his own pocket. The public should not be paying for the legal advice Zuma receives from his private attorney in proceedings where he is a party not because of his acts or omissions as a public office holder, but as an individual citizen who may or may not have committed criminal acts of corruption.
The public should also not be paying for a presidential legal adviser who, presumably, is having a field day in deploying the information gleaned from the extraordinary access he has to the president and presidential decision-making to buttress his private practice.
It is an egregious and outrageous state of affairs, and just plain wrong.
State’s performance part of court review
When the Cabinet first clumsily announced last November that it intended to conduct a “review” of the performance of the Constitutional Court, my first reaction was “bring it on”. The court has nothing to hide and boasts a proud record of wrestling, sincerely and with integrity, with the most difficult constitutional problems.
Moreover, a properly conducted review could add to the public discourse about the Constitution and prompt a reasoned national conversation about socioeconomic transformation and the role of the Constitution, and the law in generally, in achieving it.
I stick to that view, fortified not by Jacob Zuma’s even more clumsy subsequent statements to the media about reviewing not the performance but the powers of the court — an entirely different proposition — but by the words of acting Deputy Chief Justice Zac Yacoob. Speaking at the University of Cape Town’s Constitution Week recently, he said we should not be squeamish about assessing the judgments of the court, provided that a review was carried out in good faith.
Finally, the terms of reference of the review have been published and they give the idea that the motive behind it is not, in fact, malign, and the intention is to procure the services of reputable research institutions to conduct an ambitious piece of work.
It is especially welcome that the terms of reference extend not only to the jurisprudence of the Constitutional Court and the Supreme Court of Appeal, but also to the implementation of their orders by the executive arm of the government and to assess, in this context, its own contribution to the transformation of South Africa. — Richard Calland