TONY LEON: Power of the courts prevail against SA’s once-most-powerful citizen
The judicial kicking Jacob Zuma received was a long time in coming, especially from a court system he had used and abused, writes Tony Leon
“This is the way the world ends”, TS Eliot wrote at the conclusion of his 1925 poem The Hollow Men, “Not with a bang but a whimper.”
An apt epigraph for how the Nkandla stand-off ended late on Wednesday evening as Jacob Zuma was arrested and sped off to spend his first night incarcerated. No insurrection, no violence, no son laying down his life for his father. No police minister risking his own contempt committal. Just eventual compliance with a court order, with minutes to spare before the midnight deadline.
Zuma and his ragtag supporters, who at the pinnacle of power hollowed out so many vital and once fine national institutions, are now revealed in the precipice of his decline to be, like Eliot’s poem, a fading light in the “cactus land ... neither living nor dead”. Hollow men indeed.
Still, as the country and its constitution breathed easier the day after the night of no-long knives, our jurisprudence owes a debt of gratitude to the “recalcitrant deliberately defiant litigant”.
That splendid laceration of Zuma by Tembeka Ngcukaitobi SC in the KwaZulu-Natal High Court on Tuesday was in marked contrast to the meagre legal pleadings of Zuma’s lawyers — a half-baked last gasp at freedom — which in the hands of his hectoring counsel, Dali Mpofu SC, became the thinnest of gruel. And no doubt will lead to another legal reversal.
Yet it was “the deliberately defiant litigant” who stress-tested repeatedly the foundations and timber of our constitution, which did not crack at crucial moments.
In 1923, two years before Eliot published his famous poem, US legal scholar Arthur Linton Corbin reversed the well-worn legal adage in an article entitled “Hard Cases Make Good Law.” And so, at crucial moments Zuma’s legal jousts, wearying as they have been, have revealed our constitutional health to be sound.
This is not to be underestimated at the crossroads of Nkandla. It is easy to forget that while our courts carry great weight under our constitution, in reality, lacking either the power of sword or purse, they wholly depend on agencies of our enfeebled, hyper-partisan state to enforce its writs. And in the lastminunte.com fashion we have come to normalise here, they eventually did so.
At crucial junctures, both around Nkandla and its chief inhabitant, the power of the courts prevailed, against the once-most-powerful citizen in the land. For a young democracy in a rough neighbourhood that is not to be underestimated.
The first test arose in the 2016 judgment of the Constitutional Court concerning the public protector report on the illegal, state-funded improvements to the Zuma homestead. The crux of that case was whether the president was bound by the findings of the public protector, which disgracefully both parliament and the executive had at first filibustered and then ignored and, later, attempted to rewrite. The court held that neither body had the power to bypass the remedial action proposed in her report and to do so was both illegal and unconstitutional.
As an aside, it is worth reminding ourselves given the current legally wayward incumbent in the protector’s office that the court also held that the public protector was “one of the most invaluable constitutional gifts to our nation in the fight against corruption... and for the betterment of governance.” Since her accession to office, Busisiwe Mkhwebane has made a mockery of both that injunction and her office, following as she did the stellar tenure of Thuli Madonsela. No “embodiment of the biblical David and true crusader of anti-corruption” is she, as the court suggested she should be. Rather, the reverse.
The more recent test case was the June 29 judgment of the same court concerning the now typical Zuma-esque wilful defiance against adverse rulings. In this case, concerning his contempt of the Zondo commission, he did not even bother to appear, nor even brief his latest legal team to do so. Instead, in the face of a looming 15-month jail sentence, he attempted to suborn a lower court to do the impossible — suspend or stay the ruling of a higher court. Never mind playing a bad hand from a weak seat. In the words of Francois Botes SC on these pages on July 7, his stratagem was “producing a joker after your hand has been played”.
Of course, none of these rulings and Zuma’s current incarceration deal with the elephants in the stateroom — his corruption trial relating to the arms deal, which has been trundling on for nearly 14 years. Nor do they deal with any charges relating to state capture, in which he was front and centre. That awaits the findings of the Zondo commission, the disparagement and denigration of which resulted in Zuma’s imprisonment.
Nevertheless, as one of the bibles for foreign investors, the Financial Times, recently editorialised: “Like Al Capone, Zuma would be imprisoned for a lesser crime, in his case refusing to give testimony to a commission of enquiry into state capture. That does not detract from the message it would send... [It] draws a line in the sand. In the year SA’s post-apartheid constitution turns 25, it shows that the guardian of the constitution is alive and kicking.”
The judicial kicking Zuma received was a long time in coming, especially from a court system he had used and abused and which has shown exquisite deference and patience in dealing with its most famous — or infamous — applicant and accused. Until, finally, its patience ran out.
This week was hardly the first time the temperature gauge in KwaZulu-Natal was on red alert. Back in May 1995 there was a now forgotten page in our turbulent recent history when the incumbent president unleashed a volley of unconstitutional threats against a recalcitrant KwaZulu-Natal politician. The incumbent was Nelson Mandela, and the “recalcitrant” was then IFP leader Prince Mangosuthu Buthelezi.
At a May Day rally Mandela threatened to “cut off the funds to the province” then governed by the IFP. This in response to Buthelezi’s threat to “organise people to revolt against the government”. Mandela warned that “those who call on Zulus to resist the authority of Pretoria don’t know what they have started.” The row between the two continued the next day in parliament, but later on was, in the spirit of amity which soon replaced the bellicosity between the two, squared away.
How ironic then, some 26 years later and in the perilous stand-off we witnessed around Nkandla, that current President Cyril Ramaphosa kept his counsel. Whether out of caution or from cold feet we do not know. More ironic was that the one figure of consequence who called the facts for what they were was the nonagenarian Buthelezi, remarkably still active in politics and the Byzantine intrigues in KwaZulu-Natal.
He said the behaviour of the amabutho who gathered around Nkandla to prevent Zuma’s arrest was “treasonous”. Those who led their regiments there were, absent the permission of the king, on whose behalf he spoke, “an insult to the Zulu nation”. Buthelezi, after Zuma the last of the KwaZulu-Natal political veterans still standing, noted; “People there [at Nkandla] are challenging the state and in doing so they are [a threat to] all of us who are guided by the rule of law.”
As the army of Zuma supporters melted into the midnight darkness on Wednesday evening, not for the first time the country owes a debt of gratitude to Buthelezi.
• Leon, a former leader of the opposition, now chairs a communications company.
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