Zuma’s stalingrad falls
In court last week, something momentous occurred: Jacob Zuma’s lawyer Michael Hulley stood up to defend the former president by himself. Zuma, it seems, may be running out of cash to fight futile battles
It has taken nearly a decade and millions of rands in legal fees to get former president Jacob Zuma back in a court room to face charges of corruption, racketeering and fraud. But, if Zuma has his way, it may take another decade before he actually pleads to the case against him. Central to whether the dormant prosecution of SA’s former first citizen ever actually goes ahead will be if — and how — he gets the money he needs to fight it.
Last week, Zuma appeared for the second time in the Durban high court to face the recently revived 12-year-old case against him.
Speaking to his supporters outside court afterwards, it was all Zuma could do to contain his fury. "I don’t want to be provoked. They speak about me in public and I am warning them in public. Tell them to stop messing with me ... I am warning that I will start speaking," he said.
Though Zuma didn’t mention his successor, he is also seething that President Cyril Ramaphosa has failed to defend him from the consequences of his own futile litigation strategy.
This appears evident from the affidavit he filed in recent days in response to two damning state capture judgments against him by the courts — rulings that played a significant role in his political unravelling.
Last month, Ramaphosa withdrew the presidency’s appeal against the north Gauteng high court’s state capture judgments, which both endorsed former public protector Thuli Madonsela’s remedial action and ordered Zuma to personally pay the costs of his "reckless" legal challenge.
Even more devastating for Zuma, however, is the fact that Ramaphosa has also bowed out of the crucial court battle that will decide if – and how – the state continues to fund Zuma’s defence in his corruption trial.
The effect of that decision was evident inside the Durban high court last week, when Zuma’s long-standing attorney Michael Hulley stood up to represent the former president on his own. Significantly, it was the first time in nearly 15 years of acting for Zuma that Hulley had done so.
"The mandate of counsel had been terminated due to uncertainty over the payment of fees," Hulley told the FM in an interview.
In court, Hulley had told the judge that he had sought clarity from Ramaphosa about whether the state will continue to fund Zuma, pending the outcome of court battles with the DA and EFF over his legal fees. It’s a crucial point, considering that Zuma is now sitting with an estimated R10m legal bill — owed, in part, to the EFF.
What it means
Zuma’s legal defence will be in shambles if he loses state funding to finance it
Zuma has described that costs order — which amounts to the equivalent of nearly four years’ salary for him — as a "burden" and an unfair punishment. "It is not relevant that I held the view, and still do, that there were legitimate grounds to review [Madonsela’s] report and to appeal the decision of this court. I focus on that part of the order that affects me personally," Zuma said in his affidavit. "That I do not agree with the withdrawal of the application for leave to appeal by the current president is not relevant for present purposes."
Ramaphosa should have pursued that appeal, Zuma evidently believes. He is adamant that Madonsela got it wrong when she took away Zuma’s power to choose the judge to preside over the state capture inquiry. Instead, Madonsela ordered that chief justice Mogoeng Mogoeng should choose that judge, because Zuma was too deeply implicated in the allegations, which also involved his son Duduzane and his friends the Gupta family.
Yet north Gauteng high court judge president Dunstan Mlambo had described Zuma’s bid to challenge Madonsela’s remedial action as "ill-advised and reckless".
Mlambo, in another case, made this rather telling observation about the former president’s litigation style: "There is the broader pattern of the president’s conduct in litigation, of defending what ultimately turns out — on the president’s own concession — to have been the indefensible all along, banking on any advantage that the passage of time may bring."
The judge said this pattern has played out so often, including in the case of Nkandla and the spy tapes and other well-publicised cases in the courts and "it would be naive to ignore".
Ultimately, this impression reverberates into Mlambo’s later decision on the costs of the state capture case.
"His court action has resulted in further delaying the resolution of the ‘state capture’ allegations," Mlambo wrote. "The president had no justifiable basis to simply ignore the impact of this corruption on the SA public. His conduct also falls far short of the expectation of him as head of state to support institutions of democracy such as the public protector."
Zuma now, predictably, insists that reasoning is deeply unfair to him. It is a "violation of access to justice," he argues.
"It is not clear to me whether the court is of the view that I, or any litigant, must bring a case only if success is guaranteed. I submit that another court may well deem it unfair to prevent litigants from approaching them to have a dispute adjudicated upon simply because [he or she], in the court’s view, may not have a good case," he says in court papers.
Zuma’s argument now is telling. It speaks to a justification of his own litigation strategy.
When Zuma was first charged with corruption back in 2007, his advocate Kemp J Kemp famously told the Durban high court: "We have adopted a Stalingrad strategy in response to this prosecution ... we will fight [the state] in every street, in every house, and in every room."
True to his word, Kemp launched multiple legal challenges to Zuma’s prosecution. He challenged the search warrants used to seize an estimated 93,000 documents from the homes and offices of Zuma and his lawyers and he fought the state’s request for mutual legal assistance to Mauritius.
There were other fights too — not least of which was Zuma’s initially successful case that the state had unlawfully denied him the right to make representations about why the case against him should be dropped. They’d done so for "political reasons" he said.
That argument found favour with judge Chris Nicholson, who delivered a ruling that ultimately cost former president Thabo Mbeki his job. Nicholson’s judgment was later overturned, and — like every single other Zuma prosecution challenge — ended in victory for the state.
But, if Zuma’s argument in the state capture case is to be believed, a reasonable prospect of victory should not be a key factor in determining whether to litigate or not. However, when you’re exploring every legal tributary using an unending stream of state funding, it becomes a far less worthy argument.
Documents filed by the presidency as part of the DA’s and EFF’s legal bid to stop the state funding Zuma reveal how state attorney Aletta Mosidi was disconcerted about government paying for Zuma’s multiple court cases against the National Prosecuting Authority (NPA). Mosidi even sought legal advice on whether this was appropriate, given that these cases were not, strictly speaking, directly linked to his corruption trial. Ultimately, though, the state funded these futile cases — and didn’t seek to recover the costs from Zuma.
It’s an interesting area of law in which there is still some debate. Recently, our courts have ruled that the police minister must fund the defence of officers accused of crimes committed in the scope of their duties. Those cases include that of apartheid-era police officers accused of murdering 23-year-old Nokuthula Simelane, as well as former Hawks Gauteng head Shadrack Sibiya and officer Leslie Maluleke, who are on trial for their alleged involvement in the illegal rendition of Zimbabweans.
But those rulings do not necessarily imply that Zuma will succeed in his battle for continued legal funding.
As EFF leader Julius Malema argues: "All the litigation pursued by Zuma since 2005 ... was not aimed at ensuring that the prosecution proceeded to a proper acquittal after a swift and fair trial ... but rather to ensure that the prosecution would never proceed to trial at all."
In other words, Malema argues, Zuma has used untrammelled state funding to avoid having to face the allegations against him. Just like he sought to avoid the consequences of his own conduct in the Nkandla saga, the state capture scandal and multiple other cases.
Hulley, of course, sees it differently. He has made it clear that Zuma will challenge the decision to revive the corruption case against him and, if that fails, he will go to court to seek a permanent stay of his prosecution.
But the battle over who will pay for those fights will be time consuming and expensive — and pivotal to determining the character of the Zuma prosecution war to come.
The essential truth of Zuma’s Stalingrad strategy is this: when you have access to endless ammunition and willing soldiers, it’s far easier to fight endless battles in the streets, in every room and in every house. But, when those guns and armies disappear, your ability to fight pointless battles dries up too. You simply can’t afford it.