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05 Jan 2017 00:00
Swamped: Important cases were fought this year but were buried in the deluge of No 1’s legal and other battles. Photo: (Halden Krog, Bloomberg)
OPINIONIn a small room in the Labour Court in Randburg, Johannesburg, a civil rights group secured a crucial land rights victory for about 10 914 or so labour tenants.
Did you know about it? Probably not. Did it get good media coverage? Not at all.
And that’s the problem.
In December, the Association for Rural Development (Afra) fought for thousands of labour tenant farmers — people who, for generations, exchanged their labour for grazing rights on white-owned farms.
Nelson Mandela enacted a law while president designed to ensure these farmers and their families could make claims to parts of the land they had lived and worked on for decades.
The government is now trying to appeal that ruling, which means the claimants — some of whom are more than 100 years old — will have to continue waiting for the resolution of a promise made to them nearly two decades ago.
This case, which is so important to the key struggle for land restitution in South Africa, seems destined to be mired in delay.
The days of courts being used to fight for the rights of the poorest and most vulnerable are a distant memory. Instead, it is the epic legal-political chess games fought in our courts that grab headlines rather than the battles for education, access to antiretrovirals, gay rights, basic services and land.
This year, as in 2016, President Jacob Zuma’s fight to avoid prosecution for corruption, and possible accountability for the state capture scandals, will largely dominate South Africa’s court diary.
These are big cases and their consequences are significant. But after years and years of the president’s bad and illegal decisions and his refusal to take responsibility for his actions clogging up the court roll, it remains to be seen how judges — and the public — will respond to this latest tide of litigation.
Zuma’s most urgent task is to persuade the Supreme Court of Appeal to hear his so-called spy tapes appeal. If he doesn’t achieve this, he reverts to being accused of benefiting from multimillion-rand corruption and the political consequences may be extremely damaging.
Zuma has asked the appeal court for the right to challenge a Pretoria high court ruling that the state’s decision not to prosecute him for corruption was irrational and unlawful and should be set aside.
Three judges, led by Deputy Judge President Aubrey Ledwaba, found that Zuma “should” be prosecuted and said the spy tapes could not be used as a basis to withdraw the case against him.
The ruling did more than just pave the way for the president to face trial. It arguably rubbished the victim mythology that Zuma has spent more than a decade weaving around the state’s strong case against him.
The National Prosecuting Authority said the spy tape recordings of former NPA head Bulelani Ngcuka discussing with Scorpions boss Leonard McCarthy the timing of when Zuma would be recharged with corruption was clear evidence of untenable political interference. Political interference, the NPA said, that poisoned the entire case against Zuma.
Not so, said the Pretoria high court. “Apart from the contradictory versions as to who took the decision to delay the service of the indictment and for what reason,” the court said, “there has been no attempt in the papers to explain how Mr McCarthy’s alleged influence and lobbying to have the service of the indictment delayed would have disadvantaged Mr Zuma.
“It seems to this court that it would be logical to assert the view that the service of the indictment before the Polokwane conference would have thwarted the ambitions of Mr Zuma to assume the leadership of the ANC.
“However, it is not indicated in the papers before us how the service of the indictment after the Polokwane conference, as allegedly advocated by Mr McCarthy, would have been a tool to influence the outcome of elections, which, as logic dictates, would by then have occurred.
Indeed, it so happened that the indictment was served on Mr Zuma after he had been elected president of the ANC.”
In other words, the court asked, what were Zuma and the NPA on about? The NPA’s history-changing decision to drop the charges against Zuma could not withstand judicial scrutiny. It made no sense.
The NPA tried and failed to challenge the high court’s decision in the Constitutional Court, which refused to hear the case.
Zuma has now turned to the appeal court, which has not granted him leave to appeal but agreed to hear his leave to appeal argument.
The court has done this before, when it allowed Zuma’s convicted corruptor Schabir Shaik to attempt to challenge his fraud and corruption convictions and his 15-year sentence.
The court ultimately refused leave to appeal and found that both the conviction and the sentence must stand. It reiterated the damaging high court findings on Zuma and his relationship with Shaik.
“For his part, Zuma was seen by Shaik and by others in the know as destined for very high political office and possessed of the potent influence appropriate to that situation. Added to that, there was Zuma’s almost crippling financial vulnerability. He had heavy family commitments but wanted a smart and publicly visible lifestyle.”
In a separate decision, five appeal court judges made it clear that evidence that a prosecution was improperly motivated (as Zuma has alleged the case against him was) is not enough to justify quashing that prosecution.
Overturning Judge Chris Nicholson’s ruling that there was a plot against Zuma by former president Thabo Mbeki, a ruling the ANC used to justify removing Mbeki from office, the court said:
“A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded.”
Zuma’s lawyers said the appeal court should hear his spy tapes appeal because it would provide “certainty” on the powers of the National Director of Public Prosecutions to discontinue a prosecution. This despite the fact that the appeal court has ruled that a decision not to prosecute can be overturned, if it is found to be irrational and unlawful.
In other words, Zuma’s bid to overturn the decision that could lead to his prosecution is based on shaky ground.
He may stand a far better chance of success in his bid to review the public protector’s State of Capture report, which has ordered an independent judicial inquiry into accusations that directly implicate Zuma and his son, Duduzani.
Zuma says that only he, as the president, is constitutionally empowered to institute a judicial commission of inquiry, and choose the judge who will conduct it and define its terms of reference.
He says the inquiry’s findings and recommendations will ultimately be given to him, and that he will have to decide what to do with them.
“Following the remedial action, I will indeed be acting as judge and jury in my own course since the commission of inquiry would be reporting to me for my action or inaction on my recommendations.”
It would be far better, Zuma says, for the new public protector, Busisiwe Mkhwebane, to continue with the investigation, as her remedial action would have to implemented, unless challenged in court.
Zuma’s arguments are valid. But they are underpinned by a logic that is tragic and disturbing.
The president’s strongest point may be that he should not be trusted to take action on an inquiry into state capture, one that could publicly expose if, how and to what extent his friends, the Gupta family, have taken control of him and his government.
After being found to have violated the Constitution with his failure to act on former public protector Thuli Madonsela’s Nkandla remedial action, and years of baseless taxpayer-funded litigation, Zuma is now in effect admitting that he can’t be trusted to do the right thing.
That’s not just an argument. It’s an indictment.
Another indictment is the 10 914 or so labour tenants who will continue to be denied their constitutional rights as Minister Gugile Nkwinti and his land reform department drag their heels over their land claims.
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