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Zuma’s onslaught on the law is flawed

Former president Jacob Zuma’s years-long strategy to sidestep the South African legal system recently evolved into a total onslaught on the courts. Therefore the decision of the ANC’s national executive committee, as communicated by President Cyril Ramaphosa, to distance the organisation from attacks on the judiciary is most welcome.

The tactics of Zuma and his lawyers over more than a decade have been well known and widely criticised: postponements and other delays; numerous technical points; avoidance of the real issues; involvement of supporters blinded by loyalty or their own fear of the law; populist mobilisation methods — from singing and dancing to parading Carl Niehaus as a spokesperson, in a camouflage military uniform, nogal, as if he needs to be invisible in the bush while speaking in the city.

These are often accompanied by clichés such as “everyone is presumed innocent until proven guilty”; “I want my day in court to prove my innocence”; and “the charges against me are a political conspiracy”. 

The first is, of course, a sound but much abused legal principle — the apartheid regime often used “no comment, the matter is sub judice”.  The desire for a speedy day in court is not reflected by the delaying tactics. And allegations about political conspiracies have since been used by bank robbers and other common criminals, inspired by Zuma’s success.

Misgivings about the legitimacy of courts are not rare. Many an insolvent farmer whose cattle are confiscated by the bank, with the approval of a court, harbour these. So does the parent who loses custody of children in an emotional contested divorce case; and a caring mother who simply cannot accept that the soft, loving son she raised is convicted of murder.

Historically concerns about the legitimacy or fairness of courts have been dealt with in different ways. During the anti-apartheid struggle, young Umkhonto weSizwe members sometimes refused to be legally represented or even speak up in their own defence, because they did not want to recognise the court’s legitimacy. Some of them were convicted and executed. 

But courts were also sites of struggle for significant victories, for example by using administrative law as a tool to open up space for protest. Perceptions that a judge may be biased must be addressed in court by way of an application for recusal, not by staying away to write a lengthy, rambling media statement.

In his famous “black man in a white man’s court” speech Nelson Mandela politely but clearly told the magistrate how he felt in a court where every official, from the magistrate and prosecutor to the clerks and court orderly in a police uniform, was white. He stated that he had no personal doubts about the magistrate’s integrity. But he spoke out on the lack of legitimacy of an apartheid court.

In the Rivonia trial he neither relied on delaying tactics and technical points, nor tried to deny or blur his actions. Instead, he explained his motivation for the court and the world to hear. By famously stating that he was prepared to die for his ideal of a nonracial democratic South Africa, he practically challenged the judge to impose the death penalty — a real possibility at that time.

Centuries earlier, on another continent and in another culture, the ancient Greek philosopher Socrates was charged before a “people’s court” with “corrupting the youth of Athens” and “meddling with holy things in heaven and on earth”. 

Addressing the court, he said that he was an old man, not acquainted with legal rules, tactics and language.  Anyone could regularly hear him openly debating and asking questions on the market square. If that deserved death, the court had to sentence him accordingly. 

Afterwards he turned down an opportunity to escape, arranged by his friends; he drank the poison cup voluntarily; and he kept philosophising while lying down as the poison spread through his body.

Mandela and Socrates did not use Zuma’s tactics. They stated their views openly and courageously, in the court — “for the record” as many would nowadays say.

When the Zuma legal strategy of delay and avoidance — sometimes referred to as “the Stalingrad defence” — seemed to become ineffective, the campaign had to change into a higher gear, from abusing the law to actively undermining it. 

The refrain that there was “no court in this country that could give Zuma a fair trial” emerged years ago. It was based on the allegation that the political conspiracies against him, supported by the media, effectively made all judges openly or subconsciously biased against him. Effectively it meant that he could never be tried for any crime in this country. 

Yet he was acquitted of rape by a white judge, appointed during the apartheid era.

This slogan has now been reinvented to become a full-scale attack on the integrity of Deputy Chief Justice Raymond Zondo, the Constitutional Court — and in fact all courts — and thus the legitimacy of the judiciary. Believing the allegations made by Zuma and his soldier Carl may well result in Zuma and many others effectively being above the law.

A corrupt judiciary could bring death to a constitutional democracy. Other countries took years to recover from that scourge, or are still suffering it. Even mere perceptions of corruption spread through a legal system like the poison through Socrates’ body. Corrupt attorneys take money from trusting clients to bribe judges — and pocket these, because the judge is honest, but believed to be crooked. 

Allegations and suspicions of corruption in the judiciary must be vigorously investigated, based on evidence, not wild gossip. Rumours of corruption could be a deadly virus on the way to becoming a pandemic. It is not a legal defence.

Zuma’s antics do not create a constitutional crisis. He is an ordinary citizen with legal woes, not the president and head of the executive arm of government and the armed forces. The law must take its course. If his public support may create real danger for law enforcement, the relevant  agencies responsible for crime intelligence and counterterrorism must do their work properly. 

We should not emulate the US, where several deaths resulted from inefficiency, or a lack of political will, at the Capitol on 6 January this year. We, after all, are a constitutional democracy under the rule of law.

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Johann van der Westhuizen
Johann van der Westhuizen, who assisted in drafting South Africa’s constitution, is a retired justice of the Constitutional Court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services. The views expressed are his own

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