Stay of prosecution or of justice?

The trigger in former president Jacob Zuma’s mshini — both in and outside the KwaZulu-Natal high court in Pietermaritzburg this week – provided flashbacks of the past 15 years, during which an entire democracy and its legal system appeared consumed by one man’s determination to stay out of prison.

It was a trigger for lawfare and Stalingrad legal approaches. For one man’s actions, from alleged rape to state capture, relentlessly consuming newspaper column inches and broadcast soundbites. For a populist obsession with an individual and his treatment of an impoverished majority as nothing more than props for political and financial ambition.

Zuma and French arms company Thales are seeking a permanent stay of prosecution of charges, including corruption, fraud and racketeering, linked to the South African government’s late 1990s multibillion-rand arms deal. The charges were first instituted in 2005 and relate to payments made to Zuma by his former “business partner”, Schabir Shaik, and an alleged agreement facilitated by Shaik for Thales to pay Zuma R500 000 for the apparent greasing of one part of the arms deal.

During his opening arguments on Monday May 20, Zuma’s lawyer, advocate Muzi Sikhakhane, told a full bench of the high court that the National Prosecuting Authority’s (NPA) legal pursuit of Zuma constituted a public “lynching” that left his client a “victim of mob justice”.

The NPA’s actions, Sikhakhane argued, constituted a “pattern of behaviour” that “prolong[ed] the social stigma that comes with being an accused person” and made Zuma’s name “synonymous with corruption”.

This behaviour, Sikhakhane told presiding Judge Jerome Mnguni and Judges Thoba Poyo Dlwati and Esther Steyn, started in August 2003 when then NPA boss Bulelani Ngcuka announced that he would be prosecuting Shaik but — despite having a prima facie case against Zuma on related charges — would not indict Zuma.

Sikhakhane then detailed political interference by former president Thabo Mbeki and former justice minister Penuell Maduna in the NPA’s work, the prosecution’s requests for postponements, and collusion between former NPA boss Bulelani Ngcuka and Scorpions head Leonard McCarthy on the timing of charges against Zuma to coincide with the ANC’s 2007 national elective conference in Polokwane as other examples of this “pattern”.

At Polokwane, Zuma was involved in a bitter battle with Mbeki for the party’s leadership.

Angolan intelligence

Also cited from the contorted history of Zuma’s attempts to stay out of jail – characterised by the use of state intelligence agencies in the shadows and a Stalingrad approach to lawfare in the courts – was the Browse Mole intelligence report that the Scorpions compiled, which identified Angolan intelligence operatives working to replace Mbeki with Zuma.

The NPA, Sikhakhane said, had acted unconstitutionally and society had missed this because “we want to hate Mr. Zuma” because of the stigma attached to him.

According to Sikhakhane, our constitutional democracy no longer allows for these kinds of “lynchings”, even for much greater crimes such as the apartheid state’s murder of schoolchildren in Soweto in 1976: “But we don’t lynch them [the police officers who killed children on 16 June] in the way we go after Zuma.”

Telling the court that Zuma deserved to be treated with “humanity” by the legal system and society at large, Sikhakhane referred to him as “someone’s father, someone’s son”. It was the victimhood argument that echoed claims by the “100% Zulu Boy” supporters since Zuma was sacked as deputy president of the country in 2005, after Shaik was convicted of fraud and corruption.

A martyr and victim mythology – correct in relation to Mbeki’s machinations – advanced into the popular political imagination as Zuma rallied forces around him to create a Zunami of popular support to ascend to the country’s presidency.

Get-out-of-jail-free card

The presidential office was Zuma’s ultimate bid to stay out of jail. He appears to have used it to undermine the independence of institutions such as the NPA, crime intelligence, the judiciary and the police service while seemingly allowing for the capture of state enterprises and departments to potentially ensure a litigation fund if the charges against him were reinstated.

On Monday 20 May, Zuma the victim was back, returned to a nation that had experienced this infection of its body politic for 15 years. A disease from which it had gained brief palliative respite when the ANC recalled him as president in February 2018.

On Tuesday, Thales’ lawyer, advocate Anton Katz SC, argued that former NPA boss Shaun Abrahams had acted with procedural irrationality by not allowing the French company to make representations to his office before he reinstituted charges against it in 2018. Katz also argued that Abrahams, as national director of public prosecutions, did not actually have the power to reinstitute the charges against Thales.

Another member of the Thales’ legal team, Mushahida Adhikari, told the court that the company would not be able to call witnesses in its defence since they were unavailable and the state was unable to locate them. This would unfairly prejudice their case, Adhikari said.

The arguments were technical, which saw the dregs of Zuma supporters – already thinned out considerably compared with previous court appearances – leave. Out went former provincial social development minister Meshack Radebe and former KwaZulu-Natal ANC provincial secretary Super Zuma, with only the latter returning to the empty benches in the afternoon.

Pot shots at the president

Outside court, where Zuma addressed about 1 500 supporters on Monday, there were more triggers. He sang and danced his Mshini Wami, which the crowd was already requesting 18 minutes into his half-hour address.

He displayed his profound sense of revisionist relativism, which is always allied with cloaked political messaging. The ANC, he told the crowd, while taking veiled potshots at ANC president Cyril Ramaphosa, would not have done as well in the recent general elections if he had not joined the election campaign when he did.

The facts, though, refute this. The ANC suffered dramatic losses in KwaZulu-Natal, where Zuma’s alleged proxy parties – such as the African Content Movement (ACM), the African Transformation Movement (ATM) and Black First Land First (BLF) – failed to pick up the votes shed by the ANC.

The ATM received a mere 921 votes in Pietermaritzburg, a familial stronghold for the Zuma clan until recently, the ACM received 27 votes and the BLF, 684. In eThekwini, where the ANC slumped to 762 304 votes (55.55%) in 2019 from 928 416 (65.39%) in 2014, the BLF received a measly 4 300 (0.31%) votes.

The EFF appeared to have hoovered up some of the eThekwini votes, with their numbers rising to 11.65% in 2019 from 2.6% in 2014. This suggests that marginalised black voters are tiring of the lack of services and attention from an ANC-run municipality riddled with corruption that appears to be the apogee of the Zuma project that swept the former president to power in the ANC in 2007. — New Frame