Zuma’s legal woes lay bare justice system vulnerabilities

Imagine the scene. It is shortly before the Supreme Court of Appeal (SCA) is to hear the appeal brought by then-president Jacob Zuma in the so-called “spy tapes” case. The high court had reinstated charges against Zuma, who presumably had been advised to appeal the order. His legal team has prepared for the appeal, filed the necessary written argument and is about to descend on Bloemfontein for the hearing.

They suddenly change tactics. They consult their client and inform him that the prospects of succeeding on appeal are zero. He looks stunned. “Does that mean,” he asks, “that I will finally have to answer to these charges in a criminal court?”

“No,” they say, “not at all. We are going to allow national director of public prosecutions Shaun Abrahams to make a decision about whether to charge you. We, of course will hurl files of paper at his door, all designed to represent your case that no prosecution should be reinstituted. In the highly unlikely event that Shaun acts contrary to his excellent record to date and reinstates the charges, we can approach the high court to review his failure to accede to the representations. And if the high court dismisses this application, we can keep going on appeal to the SCA and if necessary to the Constitutional Court. This strategy, even if ultimately it is legally unsuccessful, can buy you another three to four years.”

Now this scenario is pure speculation by this columnist, though it is lent support by reports citing Zuma’s lawyer, Michael Hulley, to the effect that a review of the decision to recharge Zuma is being considered. A number of implications for the legal system and its profession arise from this continuation of what Zuma’s lawyers once referred to as the “Stalingrad defence”, referring to the way, in World War II, that the Russians fought the German advance into Stalingrad block by block and street by street.

In the first place, there is an argument that the taxpayer should not have to pay millions of rands to fund this strategy. Even if it can be argued that Zuma should be funded by the taxpayer to mount the best legal defence at his criminal trial, this privilege should not be extended to the countless review applications that have and may still be brought to prevent the criminal trial from proceeding.


Second, when Zuma’s lawyers threw in the legal towel in the SCA’s courtroom when abandoning the spy tapes appeal, the court could have ordered the legal representatives to pay the successful parties’ costs personally — and on a punitive scale. After all, the litigants were required to prepare their opposition to the appeal and travel to Bloemfontein.

If, as was legally obvious, there were no prospects of success on appeal, when did Zuma’s lawyers finally work out that the appeal could not succeed? If the decision to abandon the appeal at the last minute was part of a strategy of delay, then the court, after affording Zuma’s lawyers an opportunity to explain themselves, could have made a punitive costs order.

That principle should be applied to review proceedings in the trial ahead. As Abrahams made clear in his announcement that the charges were to be reinstated, it is for the trial judge to decide on the question of whether Zuma can be given a fair trial.

This principle is surely a settled principle of law, as appeal court Justice Louis Harms made clear in his judgment in 2009 when he reversed the unfortunate judgment of Judge Chris Nicholson and reinstated the National Prosecuting Authority’s indictment of Zuma.

If Zuma seeks to review Abrahams’ decision, and the court finds that there is no legal merit in such a challenge, it should consider ordering that the Zuma lawyers pay the costs of the opposing parties on a punitive scale.

Members of the legal profession are obviously obliged to represent their clients to the best of their ability, but they also owe a fiduciary duty to the legal system of which they are an important part as officers of the court. Hence they do not have free rein to engage in the abuse of process or strategies that are at war with the very core of a legal system.

The issue of the ethical boundaries of lawyers has been highlighted by way of the numerous pieces of litigation launched by the Guptas, as well as in the legal inquiries into allegedly recalcitrant public officials and bodies. It is high time that both the Bar and the Law Society of South Africa revisit the principles of what constitutes proper, ethical conduct by its members.

Failure to do so will undermine the legal system in the eyes of the public, who surely will adopt an increasingly cynical view of a system that can be manipulated to protect those who can afford an army of high-charging lawyers to lodge endless appeals, whereas the poor are sent to prison without even a modicum of decent legal representation.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Serjeant At The
Guest Author
Bar Author
Guest Author

Related stories

Advertising

Subscribers only

How lottery execs received dubious payments through a private company

The National Lottery Commission is being investigated by the SIU for alleged corruption and maladministration, including suspicious payments made to senior NLC employees between 2016 and 2017

Pandemic hobbles learners’ futures

South African schools have yet to open for the 2021 academic year and experts are sounding the alarm over lost learning time, especially in the crucial grades one and 12

More top stories

Zuma, Zondo play the waiting game

The former president says he will talk once the courts have ruled, but the head of the state capture inquiry appears resigned to letting the clock run out as the commission's deadline nears

Disinformation harms health and democracy

Conspiracy theorists abuse emotive topics to suck the air out of legitimate debate and further their own sinister agendas

Uganda: ‘I have never seen this much tear-gas in an...

Counting was slow across Uganda as a result of the internet shutdown, which affected some of the biometric machines used to validate voter registrations.

No way out for Thales in arms deal case, court...

The arms manufacturer has argued that there was no evidence to show that it was aware of hundreds of indirect payments to Jacob Zuma, but the court was not convinced.
Advertising

press releases

Loading latest Press Releases…