Over the past 11 days President Jacob Zuma has had his legal hands unusually full, even for a president who has spent his entire term in office fending off such challenges. Since August 11:
- His personal architect has been singled out as responsible for R155-million of state money wasted on Nkandla;
- His choice to have the police minister determine how much he may owe on Nkandla has drawn fierce criticism;
- His counsel has admitted to the Supreme Court of Appeal (SCA) that there were no grounds on which to argue against the release of the infamous spy tapes; and
- He has been accused, in the Constitutional Court, of presiding over a failure by the state to establish an effective corruption-busting organisation.
As a result, he faces new questions not only about Nkandla and the legality of what he has done about it, but also the prospect of a new attempt to overturn a 2009 decision not to charge him with corruption, as well as the likelihood that the Constitutional Court will again criticise his government for some of the structural failings in its efforts to combat corruption.
Such questions will be vexing to Zuma’s substantial legal team, among whom the most prominent and apparently most influential is Michael Hulley. At the end of 2013 the department of justice said it had paid Hulley R8.8-million in the previous four years for work on, among other things, the spy tapes saga.
The timing is not under Zuma’s control, and the pace of events is quickening. By the end of this week lawyers for Zuma and the Democratic Alliance must come to an agreement on how to sort the confidential from the nonconfidential in documents relating to a 2009 decision to drop corruption charges against him. Should the parties fail to reach agreement, the SCA will most likely step in. Either way, the DA should be in a position to renew its efforts to have those charges reinstated, efforts to which Zuma will have to respond.
The Constitutional Court on Tuesday reserved judgment on whether the police’s priority crime unit, the Hawks, is sufficiently out of political reach to investigate corruption, even if that investigation may cause the executive discomfort. The last time the court ruled on much the same issue, it delivered a bombshell, a scathing indictment of how the Hawks had been structured, alongside a stern lecture on the importance of combating corruption.
For the time being, Nkandla is the domain of Parliament, where the ANC has a great deal of sway over events. Opposition parties, however, have proven themselves eager to be seen as the champions of the Nkandla issue: the DA in the courts, and the Economic Freedom Fighters in a more spectacular public fashion. Undue delays or a sidelining of Nkandla will almost certainly trigger such actions again, with unpredictable consequences.
For Zuma, each of these three long-running issues poses a serious risk to reputation, legacy, finances and even freedom.
But he has proven himself to be someone who does not lightly yield, either in politics or in court. Fired as deputy president, he ultimately ousted Thabo Mbeki. Found to have been the other half of a corrupt relationship that sent Schabir Shaik to prison, he nonetheless fended off prosecution for close on a decade and counting.
There are strong arguments that it is time for Zuma to change his legal strategy, and that a more forward-thinking president, concerned with the administration to follow his, would do so.
“It’s not working,” says political analyst Ralph Mathekga of Zuma’s approach since 2003. “Here is a president who has had more and more sustained contention with the judiciary than any other, on two levels: in the exercise of his executive prerogative, and also personally. The one colours the other, forcing us to ask questions every time he makes a decision.
“Any appointment now to the judiciary or the NPA [National Prosecuting Authority] is a poison chalice, because we are wondering whether he is preparing the way for possible prosecution after his term ends.”
If Zuma was concerned about the long-term health of institutions – and with the perception problems that the next ANC leader could face – he would not delay any possible reinstatement of corruption charges against him, says Mathekga.
The same opinion, for different reasons, can be found in legal circles.
“I would say that the president should set an example and should not play the process, and make technical points to avoid the merits of the cases in which he is involved,” says senior advocate Wim Trengove. “Delinquent debtors are allowed to play the system, to play the rules to their best advantage. Presidents shouldn’t.”
What a more presidential approach would be, though, Trengove cannot say. “His lawyers seem to have served him well so far.”
Though a broad causal link is impossible to prove, some officials suspended on full pay for months or years while fighting disciplinary action against them have privately pointed to Zuma’s example as proof that they were entitled to explore every available avenue.
Should Zuma not change his strategy – and there is nothing to suggest that he will – a mass of filings and statements by and on his behalf over the past decade points to three broad approaches that will come into play over the coming months.
Delays deny him a fair trial
Zuma’s legal team has often been accused of delaying tactics to slow down action against and relating to him. The team has often angrily denied, yet the denials have become harder to swallow since last week, when Zuma’s legal team stood before the SCA, unable to point to a basis for the appeal they were engaged in.
Legal experts say there are many ways for him to delay any attempts to recover money spent on Nkandla from him, as well as reviews of a decision to reinstate corruption charges, even though his options for delaying the production of evidence necessary to initiate a review of the decision not to charge him now appear exhausted. One novel approach would be to argue that the delays to date have denied him the opportunity to a fair trial.
Playing the rural victim
Despite being the undisputed incumbent of the most powerful office in the land, Zuma has claimed victimhood in the political and legal arenas. He twice suggested to Parliament that the Nkandla scandal was propelled by discrimination against those from rural areas (Zuma being one of them) or at the very least by a lack of understanding of the challenges of rural areas.
In representations on charging him with corruption, the same approach – claiming there was a political conspiracy against him – saw prosecution halted. He has also claimed that attempts by the DA to have corruption charges against him reinstated were politically motivated, and so should not be entertained.
A bid for immunity
The legal theory was most controversially stated by lawyer Michael Hulley on Zuma’s behalf in court papers in 2009: a South African president, “like the president of the United States, cannot be charged with criminal conduct (or continue to be prosecuted) during his incumbency. Charges can only be brought if he is successfully impeached in terms of the Constitution, or after his term of office ends.”
Zuma will be 77 when his term ends, and a hypothetical prosecution would take several years.