Unfinished business: Spy tapes, Nkandla still hang over Zuma’s head

NEWS ANALYSIS

President Jacob Zuma lived to see another day on the weekend, but his troubles go beyond his own party – not least of which is a number of court cases that he is embroiled in.

Zuma’s most immediate legal headache is the Democratic Alliance’s case challenging the rationality of his recent Cabinet reshuffle, in which he fired finance minister Pravin Gordhan and his deputy Mcebisi Jonas.

Though hastily rescheduled on Monday, the high court in Pretoria is due this week to hear arguments on whether Zuma can be compelled to hand over documents relating to the decision, including a fabled “intelligence report”. Zuma told alliance partners labour federation Cosatu and the South African Communist Party that the report, alleging a conspiracy between Gordhan and foreign bankers, was central to his decision.

The intelligence services have disclaimed any knowledge of the report, which makes it at best informal, and at worst illegal under rules that reserve the right to spy for the state. If ordered to produce it Zuma seems to have only two choices: claim he had lied to close allies about the reasons behind a major decision, or admit he used dodgy intelligence and face the consequences.

Zuma also faces an early June deadline for filing papers in his Supreme Court of Appeal bid to escape prosecution for corruption. It has been 17 years since Zuma allegedly told an arms company head: “I see the Eiffel Tower lights are shining today” – to signal acceptance of a bribe. He had not yet been appointed president. Nor was he president when his financial adviser, Schabir Shaik, was sent to jail for their corrupt relationship.

Those words and that relationship are still haunting him as the DA doggedly pursues its marathon legal battle to see him face corruption and fraud charges.

Since 2009 those serious criminal charges have been largely handled – mostly by being kicked into touch – through the significant legal and logistical firepower of the presidency. Zuma did not answer questions about the allegations but his spokespeople did, including, for many years, the redoubtable Mac Maharaj. Zuma’s legal strategy came from his once personal fixer, attorney and later formal presidential legal adviser, Michael Hulley.

Zuma wants the appeal court to reverse the high court’s order that saw him become, once again, a criminal accused.

The corruption charges come with the possibility of a lengthy jail sentence and the seizure of assets if he continues to lose in various courts.

The National Prosecuting Authority (NPA) has the power to discontinue a prosecution at any time prior to the accused pleading to charges. Even in Zuma’s much-contested case there is nothing to preclude a new decision on the prosecution, provided it is taken rationally and lawfully. But, in theory at least, such a decision lies outside of Zuma’s power to influence.

In the case of the extraordinary circumstances under which Shaun Abrahams became the head of the NPA (which must decide if Zuma will continue to face prosecution), what was a professional legal problem has crossed over into the personal. In the legal challenge by pressure group Freedom Under Law (FUL) Zuma provided one version of events, and the departed head of the NPA Mxolisi Nxasana provided a starkly different one. The difference is yet to be explained – and whether President Zuma or Citizen Zuma can be called to explain it.

“Nxasana says there was a lie, that the president actually committed perjury,” says retired judge Johann Kriegler, who heads FUL. “Now it has become an ethics issue, which turns on the ethics of Zuma.”

After more than a decade of legal strategies that relied heavily on stretching out timelines and outright delay, there are other problems Zuma will have to keep track of.

The presidency has been directed by former public protector Thuli Madonsela to set up a high-powered inquiry into allegations of state capture – with Zuma at the heart of those allegations. Legally, the establishment of that inquiry is on pause only because Zuma took Madonsela’s State of Capture report on judicial review.

Although Zuma can at least try to influence the timing of a state capture probe, the ongoing Nkandla saga is now well outside of his control. Zuma has settled the R7.8-million bill for the undue benefit he and his family derived from state-sponsored upgrades to their home, but that was not the end of it.

The public disciplinary hearings of public works officials intimately involved in the upgrades have got off to a slow start but are due to continue. And the Special Investigating Unit remains committed to retrieving some R155-million it says was wasted on the project.

Although his name was liberally used when strange and costly (for the state) decisions on Nkandla were made, no evidence was found that Zuma had sought to channel money into his own pocket. If such evidence exists, though, it is most likely to be held by a public works technocrat whose job is under threat, or by an architect facing a huge civil claim.

Phillip De Wet
Guest Author
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