Zuma’s tactics expose SA’s deeply flawed justice system
SA's record of prosecuting criminals is an absolute disaster
One of my goals for 2020 was to stay away from political-leaning news and current affairs for the first two months, as a detox of sorts.
It was difficult for me. My wife didn’t think I would last. I was determined to prove her wrong. I logged off Facebook and Twitter and only casually browsed through headlines on news platforms. I was doing well and was on my way to proving my wife wrong until Jacob Zuma sent a sick note to the Pietermaritzburg high court in KwaZulu-Natal.
Any patriotic South African will have, at some point, been concerned by public failures of the criminal justice system in our country, but it struck me that no-one has exposed its inadequacies quite as well as Zuma. I say this with a little reluctance because I love this country, I don’t like criticising it without justification. But if there is one thing this country is an absolute disaster at, it is bringing alleged criminals to book. I have been a victim and witness to crimes, as a teenager and as an adult. I have first-hand experience; our criminal justice institutions are unhelpful.
The Zuma case is unique because it has shown us that our system is highly susceptible to corruption, manipulation and all sorts of political skullduggery
In 2019, when National Prosecuting Authority (NPA) head Shamila Batohi released the institution’s annual performance statistics they seemingly went by unnoticed. Serious crimes in this country have a prosecution rate of 2%; hijackings 3%; home robberies 4.6%. And less than 20% of murder cases end up in court.
This essentially means that if you are robbed, hijacked and killed, there is a high probability that there will not even be an attempt at justice being served. One would expect public outrage on the release of such statistics, but it seems South Africans have become numb to injustice. We can’t even fake indignation. Injustice seems to be the order of the day.
The Zuma case is unique because it has shown us that our system is highly susceptible to corruption, manipulation and all sorts of political skulduggery. At first Zuma was more calculating in his moves against the system, in cahoots with other political and executive loyalists. But those smaller victories have given him the confidence, and brazenness, that he is not even moderate any more. The man thinks (or maybe knows) that he is above the law.
The rape and corruption trials were his testing ground for this strategy, where he learnt the art of using public sympathy and political power against the system. It didn’t help that the NPA completely botched things in 2006, resulting in judge Herbert Msimang having to dismiss the case while scolding the prosecutors. The alliance used this to feed the political narrative surrounding Zuma, thus launching a strategy that has come to dominate in SA: using political influence to help bend the system to your will. The court appearances allowed Zuma to hold political rallies of his own. If you’re going to be in court all day, you might as well make something out of it.
In late 2007, just as the NPA was getting its ducks in a row, Zuma planned a coup of his own. The first stage included the 2007 Polokwane conference, then the illegal obtaining of the phone call transcripts between the former head of the NPA, Bulelani Ngcuka, and former Scorpions head Leonard McCarthy. Both of these (the victory and the tapes) would provide the political muscle needed to strong-arm the then head of the NPA, Mokotedi Mpshe, to drop the charges.
It took the DA to bring sanity to the situation. For eight years it wrestled with the NPA right up to the appeals court, to force it to reinstate the charges. Meanwhile, SA sat with an alleged criminal in the Union buildings with full executive power. And with this executive power came two benefits, which would also be incorporated into his defence strategy:
- Zuma had full access to state funds, which he could use to fight all his legal battles. This meant the financial burden of evading justice would fall on the very public who were victims of his crimes.
- He had the right to appoint the national director of public prosecutions, the same person who would have the responsibility of prosecuting him.
These two benefits were fully used by Zuma. The man had to be told twice by the Constitutional Court that his appointments to head the NPA were unconstitutional. And he didn’t hold back on using public money either — that was fully used to the tune of more than R15m.
But this was not all. Have we forgotten the tussles with the public protector in the Nkandla matter? And how can we forget the famous leaked tape of Thuli Madonsela trying to force Zuma to answer the most basic of questions in the state capture investigation? The reason we have a state capture commission now is because of the allegation that executive privilege and responsibility was surrendered to three brothers in Saxonwold.
When accountability came in the form of Madonsela, Zuma obstructed and frustrated her into asking for an inquiry under the control of the chief justice. This was Madonsela’s last duty as public protector; she would not take the chance of leaving this responsibility to her successor, which in hindsight was one of the wisest and most patriotic of her decisions. She knew that if she let that one slip Zuma may never have to account for his actions.
As the testimony flowed before the commission the former president and his team took none of it seriously. Oh, how naive we were: the man walked in with an exam pad of scribbled notes, and then ranted about nothing substantial, mainly gossip and conspiracy theories about those who had provided testimony against him. And when the commission’s evidence leaders eventually got the opportunity to put questions to him about testimonies that implicated him Zuma and his lawyers went to great lengths to undermine the commission and its chair.
First, it was that Zuma's attorney had not received the evidence that implicated him. Then it was that the questions had not been sent to him. According to his advocates, Zuma did not expect to be asked any questions relating to the evidence. He apparently thought he would come to the commission to have a cup of tea with the chair. So difficult were those questions that he felt they had turned into an interrogation.
Deputy chief justice Raymond Zondo was patient and accommodating with Zuma, and I respect his approach. But if he thinks Zuma is ever going to provide the truth he must think again. There is no political or legal institution whose powers Zuma has not tested, from the high court to the Constitutional Court, to the legislature, the public protector, the NPA and even the ANC itself. They had to drag him out kicking and screaming, because he wanted six more months to introduce Cyril Ramaphosa to the AU’s leaders.
If there is anything we know about the Zuma playbook it is that he has taught us that immediate victories are not his objective. He just needs to live to die another day. In delaying processes, circumstances evolve, political principles shift, witnesses become sick and die, and so the political playing field can change fundamentally. Zuma just needs to stay alive until the national general council meetings of the ANC, or the next elective congress, that could turn things around for him.
The bigger danger, however, is the consequence for the country. By constantly evading accountability and making a spectacle of our institutions of justice Zuma is teaching younger politicians, and even citizens, that it is not only possible to be successfully corrupt, but that they can ascend to the highest seats of influence by doing so.
This provides a triple blow for the nation because not only will more corrupt criminals get away with it, they will become successful at it, and may even become leaders of the nation. Law-abiding citizens will be led by the worst in our society: delinquents and crooks. Evil will triumph over good. We have already had glimpses of what that society would look like, and that is an SA I do not want live in.
• Mtsuki is a professional speaker, writer and social entrepreneur.