Addressing the Constitutional Court in the Nkandla case, Advocate Jeremy Gauntlett memorably said it was, for his client, “a delicate time, in a dangerous year”.
Whether Gauntlett was referring simply to the Nkandla matter or was speaking of the wider political context with municipal elections on the horizon, only he knows. But it neatly captured the current state of Zuma’s world. For soon enough, Zuma may find himself in need of a Gauntlett, or someone just as able, to represent him in criminal proceedings.
In late April 2016, the North Gauteng High Court handed down judgment in a case with potentially even greater political consequences than the Nkandla Constitutional Court judgment – namely, the judicial review application brought by the DA against the decision taken in April 2009, shortly before the election that brought him to power, to drop corruption charges against Zuma.
The court ordered that the decision to drop the charges was taken without a rational basis and, therefore, unlawfully. It has put considerable further pressure on the president, as well as on the National Director of Public Prosecutions (NDPP), Shaun Abrahams, who one way or another will have to decide whether to proceed with the prosecution of Zuma.
This will fiercely test Abrahams’s independence; the perceived wisdom is that he is Zuma’s lackey, having been appointed by the president in 2015.
This matter stretches back to the last century. However, I vividly recall as if it were yesterday the sight of then NDPP Bulelani Ngcuka striding around like a peacock at the ANC national conference in Stellenbosch in 2002. He was accompanied by Leonard McCarthy and Willie Hofmeyr, who at the time headed up key parts of the Scorpions Rather indiscreetly, they were discussing their investigation and how it had led them to Zuma and how they were going to take care of him.
It related to Zuma’s relatively modest involvement in the infamous arms deal, whereby South Africa had procured in the late 1990s around R70-billion worth of weapons.
But when the moment to prosecute Zuma came, the National Prosecuting Authority blinked. In 2003, Ngcuka announced that although there was a prima facie case against Zuma, they would proceed only against his “business associate”, Schabir Shaik. A year after that, in June 2005, Shaik was tried and convicted and given a long prison sentence. Zuma slipped away – legally, at least – to fight another day.
But then Mbeki decided to bring Zuma’s political career to a drastic halt, and fired him on 14 June 2005. But Zuma had not actually been convicted of anything; he was guilty by association. And the matter was inevitably going to be appealed, as indeed it was (though doing so did not help Shaik, who was later sentenced to 15 years in prison). And so Mbeki must have had a political motive for removing Zuma. The reasonable supposition is that he did not trust Zuma and did not want Zuma to succeed him, which, because he had been elected deputy president of the ANC at its national conference in Mafikeng in December 1997, he would have done.
If Mbeki’s aim was to remove his deputy from the political future, and kill off his chances of becoming ANC president and then president of South Africa, then he failed completely. Paradoxically, Mbeki sowed the seeds for his own destruction at Zuma’s hands. At an all-time low, Zuma shuffled off to lick his wounds. He then carefully but swiftly built a strong, anti-Mbeki coalition that included Cosatu and the SACP, exacting revenge by defeating his cerebral opponent at the ANC’s national conference at Polokwane in December 2007. The ANC would never be the same again.
Mbeki fought back; he may have lost the presidency of the ANC, but he was still president of the country. On 28 December 2007, just days after Polokwane, Zuma was re-charged, but these charges were mysteriously dropped in early April 2009. In the interim, Mbeki had fallen on his sword after the ANC’s NEC decided that he should be “recalled” in September 2008, and he resigned as president of the republic. Again, the catalyst for such a dramatic and drastic political event was a court decision. This time it was the Pietermaritzburg High Court and Justice Chris Nicholson who perhaps unwittingly made their mark on political history and shifted its course. Nicholson went out of his way – unnecessarily and inappropriately, the Supreme Court of Appeal later said – to describe the political conspiracy that had been directed against Zuma.
This, in essence, rendered the prosecution fatally contaminated and, therefore, unlawful. On 12 September 2008, Judge Nicholson granted Zuma’s application to have the corruption charges against him dismissed.
If Mbeki’s decision to fire Zuma in 2005 had vast implications for Zuma’s future, Nicholson’s had an even greater and certainly more immediate consequence for Mbeki.
When Nicholson’s judgment went on appeal shortly thereafter, the SCA attacked the judge with rare ferocity, finding that on the issue of political interference he had gone off on a frolic of his own and that the court had “over-stepped the limits of its authority”. On this basis at least, the decision to recall Mbeki was unjustified. Accordingly, the charges were reinstated from the date of the SCA’s judgment on 12 January 2009. But this was to prove a short-lived victory for justice.
At the press conference announcing the decision to discontinue the prosecution of Zuma just three months later, the nervous acting NDPP, Mokotedi Mpshe, spoke in general terms about the prosecution process having been tainted by “political interference” from former Scorpions boss Leonard McCarthy, but was vague and far from convincing about the legal basis for the decision to discontinue.
The DA acted fast, filing papers in the North Gauteng High Court the next day, 7 April 2009. The case, dubbed “the spy tapes case” by mainstream media, was finally heard in early March 2016. That it took seven years to get to the hearing was due primarily to Zuma’s legal team’s skill in filibustering.
The spy tapes case hinges on whether a decision to discontinue a prosecution is judicially reviewable and, if so, whether the decision to drop charges was made on a rational, and therefore lawful, basis.
In 2012, the SCA decided that it did not need to decide this question since Zuma and the NPA had conceded that any exercise of public power, including a decision to discontinue a prosecution, was liable to a “rule of law” review – that is to say, that it conforms with principles of constitutionality and public accountability.
In politics, eventually your chickens will come home to roost. The North Gauteng High Court is not well disposed towards Zuma and his administration. Unfortunately, while the court was decisive in its reasoning about the main issue – the rationality and lawfulness of the decision to discontinue the prosecution of Zuma – it was not terribly clear about the impact of its finding. Immediately after the judgment was delivered on 29 April 2016 by the deputy judge president, Aubrey Ledwaba, there was argument and confusion as different interpretations of the judgment were debated in social media and elsewhere. Our view at CASAC was that “the only logical and sound interpretation of the high court’s ruling is that it restores the situation as it was immediately before the decision to discontinue the charges was taken: namely, that as things stand, President Zuma is indicted with numerous serious charges of fraud, corruption and racketeering”.
On this interpretation, NDPP Abrahams has no decision to take. The charges are reinstated. All things being equal, the NPA should proceed with the prosecution of Zuma.
Not everyone agreed, however. The ANC put out a statement saying that as far as it was concerned, because the decision to discontinue the prosecution had been put before a court, it would require a court decision to restore the charges. But this is nonsense. In its judgment, the court stated at paragraph 93: “The respondents further argued that since the charges against Mr Zuma were formally withdrawn in court on 8 April 2009 after Mr Mpshe decided to discontinue the prosecution the order sought in the notice of motion may be of no consequence. We are constrained to state that said technical argument was not raised in the papers and it cannot render the order we are to make herein inept and ineffective”. The court put it succinctly: “Mr Zuma should face the charges as outlined in the indictment”.
On 23 May 2016, Abrahams announced his decision to appeal the high court ruling. However, courts do not always grant leave to appeal. The test is whether there is a “reasonable prospect of success”. On 24 June, the high court therefore rightly refused to grant leave to appeal. Now the NPA must try its luck with the SCA. Since the core issue – whether a court can judicially review a decision not to proceed with a prosecution – has already been ventilated in the SCA in the Mdluli matter, which was a trial run for the Zuma case, it is difficult to fathom that the court will see any merit whatsoever in an appeal on the same point of law. The NPA will then be forced to go directly to the Constitutional Court, which will likely grant leave on the basis not only that it does not have the authority to overturn the SCA precedent, but also that the matter is of such great public interest that it requires the highest court in the land to rule.
This would then put the matter off until late 2016 or early 2017. Zuma, via the NPA, can kick the can down the road for a while, but sooner rather than later the matter is likely to come back to the NDPP, who will have to make a decision about whether or not to proceed with the prosecution.
The delay notwithstanding, the case will put Zuma’s integrity once again in the spotlight. It will persistently remind everyone that he was due to face very serious corruption charges.
The problem for Zuma will be this: even if he can sustain the narrative that the Mbeki regime was out to get him and that this tainted the NPA’s approach at the time to prosecuting him, it does not necessarily impact on the merits of the case. If there is evidence against Zuma, with a reasonable prospect of success, the prosecution should succeed. Zuma should get what he has always claimed he wants: his day in court.
The ANC leadership will not be the only ones under pressure. NDPP Shaun Abrahams will face the toughest decision of all.
Will he be up to the task of deciding whether to prosecute a sitting president? The appeal of the high court decision may “stay” the matter and give Abrahams some breathing room, at least for a year or so, by which time the whole game may have changed. If not, the question of presidential immunity may also raise its head. The assumption is that, because the constitution does not say that an incumbent president is immune from prosecution, he is not. However, when one looks around the world – and the court may take foreign law into account – common practice and jurisprudence is that when the law is silent, it is taken to mean that there is presidential immunity.
Such an outcome will just shift the decision-making to another era. Whoever succeeds Zuma will find himself or herself head of a government that will have to decide whether to proceed with the prosecution of Zuma.
While in theory the government may not interfere with the prosecutorial independence of the NPA, in practice there may be pressure to drop the charges again or else even to go as far as offering Zuma a presidential pardon, which, in turn, would probably be subjected to judicial review. And so it will go on.There are a number of big decisions that lie ahead and which will impact on the next three years and beyond. First, the Constitutional Court will likely have to decide whether it agrees that the April 2009 decision to drop the charges against Zuma was irrational. Second, it must decide whether to order reinstatement or “merely” that the NDPP reconsider doing so, in which case, third, NDPP Abrahams will have to decide whether to reinstitute those charges. Fourth, the ANC will have to decide whether the return of the corruption charges is a tipping point that tilts the political equation finally against Zuma and that they can no longer sustain having him as president. Fifth, there is the question of whether or not Zuma does enjoy presidential immunity. And finally, if he does, there is the matter of how his successor handles the question of his prosecution and the possibility of granting a presidential pardon.
The uncertainty about Zuma’s corruption case serves to further diminish his already lousy reputation, both at home and abroad. Number One is not taken seriously by the market, by at least half of his party, by most public servants and, now apparently, by the majority of the population of South Africa. Only those who fear Zuma continue to respect him. And his ability to instil fear and loyalty with seductive and irresistible inducements should not be underestimated.
That trademark giggle, the feigned bonhomie, and the populist song-and-dance routine should fool no one. He is a ruthless and dangerous manipulator, of people and of truth. This only adds to South Africa’s political uncertainty at a time when it can least afford it. It is a delicate time in a difficult year and there are risks everywhere you look.
l Make or Break: How the Next Three Years Will Shape South Africa’s Next Three Decades, by Richard Calland, published by Zebra Press, an imprint of Penguin Random House.
Where to from here for Jacob Zuma?
Whether Gauntlett was referring simply to the Nkandla matter or was speaking of the wider political context with municipal elections on the horizon, only he knows. But it neatly captured the current state of Zuma’s world. For soon enough, Zuma may find himself in need of a Gauntlett, or someone just as able, to represent him in criminal proceedings.
In late April 2016, the North Gauteng High Court handed down judgment in a case with potentially even greater political consequences than the Nkandla Constitutional Court judgment – namely, the judicial review application brought by the DA against the decision taken in April 2009, shortly before the election that brought him to power, to drop corruption charges against Zuma.
The court ordered that the decision to drop the charges was taken without a rational basis and, therefore, unlawfully. It has put considerable further pressure on the president, as well as on the National Director of Public Prosecutions (NDPP), Shaun Abrahams, who one way or another will have to decide whether to proceed with the prosecution of Zuma.
This will fiercely test Abrahams’s independence; the perceived wisdom is that he is Zuma’s lackey, having been appointed by the president in 2015.
This matter stretches back to the last century. However, I vividly recall as if it were yesterday the sight of then NDPP Bulelani Ngcuka striding around like a peacock at the ANC national conference in Stellenbosch in 2002. He was accompanied by Leonard McCarthy and Willie Hofmeyr, who at the time headed up key parts of the Scorpions Rather indiscreetly, they were discussing their investigation and how it had led them to Zuma and how they were going to take care of him.
It related to Zuma’s relatively modest involvement in the infamous arms deal, whereby South Africa had procured in the late 1990s around R70-billion worth of weapons.
But when the moment to prosecute Zuma came, the National Prosecuting Authority blinked. In 2003, Ngcuka announced that although there was a prima facie case against Zuma, they would proceed only against his “business associate”, Schabir Shaik. A year after that, in June 2005, Shaik was tried and convicted and given a long prison sentence. Zuma slipped away – legally, at least – to fight another day.
But then Mbeki decided to bring Zuma’s political career to a drastic halt, and fired him on 14 June 2005. But Zuma had not actually been convicted of anything; he was guilty by association. And the matter was inevitably going to be appealed, as indeed it was (though doing so did not help Shaik, who was later sentenced to 15 years in prison). And so Mbeki must have had a political motive for removing Zuma. The reasonable supposition is that he did not trust Zuma and did not want Zuma to succeed him, which, because he had been elected deputy president of the ANC at its national conference in Mafikeng in December 1997, he would have done.
If Mbeki’s aim was to remove his deputy from the political future, and kill off his chances of becoming ANC president and then president of South Africa, then he failed completely. Paradoxically, Mbeki sowed the seeds for his own destruction at Zuma’s hands. At an all-time low, Zuma shuffled off to lick his wounds. He then carefully but swiftly built a strong, anti-Mbeki coalition that included Cosatu and the SACP, exacting revenge by defeating his cerebral opponent at the ANC’s national conference at Polokwane in December 2007. The ANC would never be the same again.
Mbeki fought back; he may have lost the presidency of the ANC, but he was still president of the country. On 28 December 2007, just days after Polokwane, Zuma was re-charged, but these charges were mysteriously dropped in early April 2009. In the interim, Mbeki had fallen on his sword after the ANC’s NEC decided that he should be “recalled” in September 2008, and he resigned as president of the republic. Again, the catalyst for such a dramatic and drastic political event was a court decision. This time it was the Pietermaritzburg High Court and Justice Chris Nicholson who perhaps unwittingly made their mark on political history and shifted its course. Nicholson went out of his way – unnecessarily and inappropriately, the Supreme Court of Appeal later said – to describe the political conspiracy that had been directed against Zuma.
This, in essence, rendered the prosecution fatally contaminated and, therefore, unlawful. On 12 September 2008, Judge Nicholson granted Zuma’s application to have the corruption charges against him dismissed.
If Mbeki’s decision to fire Zuma in 2005 had vast implications for Zuma’s future, Nicholson’s had an even greater and certainly more immediate consequence for Mbeki.
When Nicholson’s judgment went on appeal shortly thereafter, the SCA attacked the judge with rare ferocity, finding that on the issue of political interference he had gone off on a frolic of his own and that the court had “over-stepped the limits of its authority”. On this basis at least, the decision to recall Mbeki was unjustified. Accordingly, the charges were reinstated from the date of the SCA’s judgment on 12 January 2009. But this was to prove a short-lived victory for justice.
At the press conference announcing the decision to discontinue the prosecution of Zuma just three months later, the nervous acting NDPP, Mokotedi Mpshe, spoke in general terms about the prosecution process having been tainted by “political interference” from former Scorpions boss Leonard McCarthy, but was vague and far from convincing about the legal basis for the decision to discontinue.
The DA acted fast, filing papers in the North Gauteng High Court the next day, 7 April 2009. The case, dubbed “the spy tapes case” by mainstream media, was finally heard in early March 2016. That it took seven years to get to the hearing was due primarily to Zuma’s legal team’s skill in filibustering.
The spy tapes case hinges on whether a decision to discontinue a prosecution is judicially reviewable and, if so, whether the decision to drop charges was made on a rational, and therefore lawful, basis.
In 2012, the SCA decided that it did not need to decide this question since Zuma and the NPA had conceded that any exercise of public power, including a decision to discontinue a prosecution, was liable to a “rule of law” review – that is to say, that it conforms with principles of constitutionality and public accountability.
In politics, eventually your chickens will come home to roost. The North Gauteng High Court is not well disposed towards Zuma and his administration. Unfortunately, while the court was decisive in its reasoning about the main issue – the rationality and lawfulness of the decision to discontinue the prosecution of Zuma – it was not terribly clear about the impact of its finding. Immediately after the judgment was delivered on 29 April 2016 by the deputy judge president, Aubrey Ledwaba, there was argument and confusion as different interpretations of the judgment were debated in social media and elsewhere. Our view at CASAC was that “the only logical and sound interpretation of the high court’s ruling is that it restores the situation as it was immediately before the decision to discontinue the charges was taken: namely, that as things stand, President Zuma is indicted with numerous serious charges of fraud, corruption and racketeering”.
On this interpretation, NDPP Abrahams has no decision to take. The charges are reinstated. All things being equal, the NPA should proceed with the prosecution of Zuma.
Not everyone agreed, however. The ANC put out a statement saying that as far as it was concerned, because the decision to discontinue the prosecution had been put before a court, it would require a court decision to restore the charges. But this is nonsense. In its judgment, the court stated at paragraph 93: “The respondents further argued that since the charges against Mr Zuma were formally withdrawn in court on 8 April 2009 after Mr Mpshe decided to discontinue the prosecution the order sought in the notice of motion may be of no consequence. We are constrained to state that said technical argument was not raised in the papers and it cannot render the order we are to make herein inept and ineffective”. The court put it succinctly: “Mr Zuma should face the charges as outlined in the indictment”.
On 23 May 2016, Abrahams announced his decision to appeal the high court ruling. However, courts do not always grant leave to appeal. The test is whether there is a “reasonable prospect of success”. On 24 June, the high court therefore rightly refused to grant leave to appeal. Now the NPA must try its luck with the SCA. Since the core issue – whether a court can judicially review a decision not to proceed with a prosecution – has already been ventilated in the SCA in the Mdluli matter, which was a trial run for the Zuma case, it is difficult to fathom that the court will see any merit whatsoever in an appeal on the same point of law. The NPA will then be forced to go directly to the Constitutional Court, which will likely grant leave on the basis not only that it does not have the authority to overturn the SCA precedent, but also that the matter is of such great public interest that it requires the highest court in the land to rule.
This would then put the matter off until late 2016 or early 2017. Zuma, via the NPA, can kick the can down the road for a while, but sooner rather than later the matter is likely to come back to the NDPP, who will have to make a decision about whether or not to proceed with the prosecution.
The delay notwithstanding, the case will put Zuma’s integrity once again in the spotlight. It will persistently remind everyone that he was due to face very serious corruption charges.
The problem for Zuma will be this: even if he can sustain the narrative that the Mbeki regime was out to get him and that this tainted the NPA’s approach at the time to prosecuting him, it does not necessarily impact on the merits of the case. If there is evidence against Zuma, with a reasonable prospect of success, the prosecution should succeed. Zuma should get what he has always claimed he wants: his day in court.
The ANC leadership will not be the only ones under pressure. NDPP Shaun Abrahams will face the toughest decision of all.
Will he be up to the task of deciding whether to prosecute a sitting president? The appeal of the high court decision may “stay” the matter and give Abrahams some breathing room, at least for a year or so, by which time the whole game may have changed. If not, the question of presidential immunity may also raise its head. The assumption is that, because the constitution does not say that an incumbent president is immune from prosecution, he is not. However, when one looks around the world – and the court may take foreign law into account – common practice and jurisprudence is that when the law is silent, it is taken to mean that there is presidential immunity.
Such an outcome will just shift the decision-making to another era. Whoever succeeds Zuma will find himself or herself head of a government that will have to decide whether to proceed with the prosecution of Zuma.
While in theory the government may not interfere with the prosecutorial independence of the NPA, in practice there may be pressure to drop the charges again or else even to go as far as offering Zuma a presidential pardon, which, in turn, would probably be subjected to judicial review. And so it will go on.There are a number of big decisions that lie ahead and which will impact on the next three years and beyond. First, the Constitutional Court will likely have to decide whether it agrees that the April 2009 decision to drop the charges against Zuma was irrational. Second, it must decide whether to order reinstatement or “merely” that the NDPP reconsider doing so, in which case, third, NDPP Abrahams will have to decide whether to reinstitute those charges. Fourth, the ANC will have to decide whether the return of the corruption charges is a tipping point that tilts the political equation finally against Zuma and that they can no longer sustain having him as president. Fifth, there is the question of whether or not Zuma does enjoy presidential immunity. And finally, if he does, there is the matter of how his successor handles the question of his prosecution and the possibility of granting a presidential pardon.
The uncertainty about Zuma’s corruption case serves to further diminish his already lousy reputation, both at home and abroad. Number One is not taken seriously by the market, by at least half of his party, by most public servants and, now apparently, by the majority of the population of South Africa. Only those who fear Zuma continue to respect him. And his ability to instil fear and loyalty with seductive and irresistible inducements should not be underestimated.
That trademark giggle, the feigned bonhomie, and the populist song-and-dance routine should fool no one. He is a ruthless and dangerous manipulator, of people and of truth. This only adds to South Africa’s political uncertainty at a time when it can least afford it. It is a delicate time in a difficult year and there are risks everywhere you look.
l Make or Break: How the Next Three Years Will Shape South Africa’s Next Three Decades, by Richard Calland, published by Zebra Press, an imprint of Penguin Random House.
Would you like to comment on this article?
Register (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.
Trending Now
Latest Videos