EDITORIAL: Jacob Zuma flip-flops in the dock
In most legal cases, the cost of going to court is an important factor
In four successive court cases, lawyers acting for President Jacob Zuma have presented arguments, sometimes holding to their stance for years through the original applications and the appeal proceedings, only to make major legal concessions at the very last moment. If this had happened once, it would be understandable. But four times suggests malfeasance. The question is, what kind of malfeasance?
In the latest example this week, Zuma’s lawyer Ishmael Semenya made yet another major admission in conceding that the R17m golden handshake offered to former National Prosecuting Authority (NPA) boss Mxolisi Nxasana was unlawful.
The case stretches back to 2015, when Nxasana left the NPA abruptly, accepting a R17m payout, amid an inquiry into his fitness to hold office. Nxasana said afterwards that he believed his forced departure was linked to fears on the part of the president that he would reinstate corruption charges. Subsequently, Corruption Watch, Freedom Under Law and the Council for the Advancement of the South African Constitution launched an action declaring his removal invalid.
The case has been dragging on, as court cases of this nature are wont to do, but the question is why the respondents are making this concession only now?
The Nxasana case is, in a way, the least egregious example. The president conceded in the Supreme Court of Appeal in Bloemfontein, no less, that the decision to drop corruption charges against him in 2009 had been irrational. In other words, after seven years of chasing this case through the courts in appeal after appeal, on the brink of verdict, the president’s lawyers changed their mind on the central issue of the case. The third example similarly happened after an extended court case: he told the Constitutional Court that he would pay back the money for the Nkandla "security upgrades", turning the court case into a kind of laughing stock.
The fourth occasion concerns former public protector Thuli Madonsela’s state-capture report. Initially, the president went to court to interdict the release of the report. In midstream, the president changed course and dropped the challenge without much explanation. It was clear, though, that the interdict idea had been a poor strategy; it would make more sense to challenge the report’s recommendations, which is what Zuma is now doing.
There are really only two possibilities why this is happening: ineptitude or delinquency. Either the president is getting bad legal advice, which is inexcusable given his resources, or his lawyers are encouraging him to engage in legal claims of doubtful validity for some other reason. One possibility here is that because the state is picking up the tab, lawyers are advising the president that there is a case to be made in order to fatten their own purses. Alternatively, the president is insisting his lawyers make claims that his legal advisers know are of doubtful validity, but they are too afraid to contradict him.
In some ways, this is the root of the problem. In most legal cases, the cost of going to court is an important factor in deciding whether to litigate. In the best of all possible worlds this shouldn’t be the case, because costs do limit access to justice. But it does have one benefit: the cost of trial makes both sides think seriously about the consequences of losing, financially and otherwise. As a result, the courts are not flooded with frivolous cases. But if applicants and respondents can access the public purse, then there is really no incentive to limit applications.
It’s time for the Law Society of SA and the General Council of the Bar to intervene. Whatever their cause, these legal flip-flops are bringing the legal system into disrepute, which puts the issue squarely in front of the professional organisations. In circumstances in which the cost of going to court no longer worked to inhibit frivolous claims, perhaps the president’s lawyers would be more exacting if they knew their own professional standing might be at risk.