TIM COHEN: Zuma’s trials are like a never-ending dirge

What is it about South African judges, poetry and trials involving President Jacob Zuma?

When Judge Willem van der Merwe found in 2006 that the future president had not in fact raped Fezekile Kuzwayo, because the sex was consensual, he proffered some advice. "Had Rudyard Kipling known of this case at the time he wrote his poem If, he might have added the following: ‘And if you can control your body and your sexual urges, then you are a man, my son’," the judge said.

It is hard to imagine a more toe-curling piece of advice or a more inappropriate vehicle. It was written as a tribute to Leander Starr Jameson, the leader of the ill-fated Jameson Raid, which led to the Boer war; hardly a figure of great reverence in the new SA, never mind the old. The poem is a paean to stoicism, but the judge was recommending restraint, surely a different thing. Despite the inappropriate vehicle, it is sad his advice was never heeded.

In his judgment in what has become known as the spy tapes case, Acting Deputy Judge President Mahomed Navsa opens his formidable judgment with an extract from a poem. But this is an entirely different kettle of fish. He quotes a line from the TS Eliot poem Little Gidding, saying the poet spoke of "the recurrent end of the unending".

Hofmeyr did not provide facts from which he or this court could draw such damning conclusions

—  Mahomed Navsa
Acting deputy judge president

It’s a great line and very appropriate. The poem is typical of Eliot: a depressing, convoluted, impenetrable dirge with flashes of redemption and brilliance. Eliot wrote it while London was being blitzed by the Nazis. He concludes by suggesting things will be well "when fire and the rose are one".

Little Gidding was a town torn to pieces in the English civil war. The poem’s central suggestion is akin to Buddhist notions of salvation through the blending of opposites, in this case the fire and the rose, which stand for many things, including the Calvinist parliamentarians (the fire) and the royalists, whose symbol was the rose. It’s a great poem.

I think what Navsa was referring to without going there was the bizarre nature of the case and its winding trajectory. The case has come to an end so many times, but it is still seemingly unending. None of the substantive facts has even been heard yet. The salient argument over the past nine years has simply been over whether the case should be heard at all.

The court’s finding is that it should be. Hallelujah.

After 12 years, we have managed to crawl over the start line — almost. I know it is said that "the millstones of justice turn exceedingly slow, but grind exceedingly fine".

This, however, is verging on ridiculous.

Navsa scythes through the impediments with terrifying lucidity, and the person who comes out worst is Willie Hofmeyr, who was deputy national director of public prosecutions for the National Prosecuting Authority (NPA) and head of the Asset Forfeiture Unit at the time.

The issue was, if you can remember back that far, whether an illegal, unverified telephone recording — which the defence obtained somehow, probably illegally — of a discussion between the then head of the Scorpions, Leonard McCarthy, and NPA head Bulelani Ngcuka about charging Zuma. They debated whether the case should be launched before or after the ANC’s Polokwane conference.

If the case was brought before, the duo worried that it might seem as if an organ of state was being used to hurt Zuma’s chances in the ANC election.

Hofmeyr was adamant that this constituted a terrible and total failure of justice and that the Scorpions could now no longer bring the case because they didn’t have "clean hands". From the start, this notion was simply ridiculous.

In the judgment, Navsa says: "Hofmeyr did not provide facts from which he or this court could draw such damning conclusions against any of the individuals mentioned. He speaks of his investigations, the ambit and nature of which are not disclosed. He refers to rumours and tells us what he believes. He makes statements such as ‘as far as I am concerned’. This is a wholly unsatisfactory approach.

"He refers to unconnected political activity, which in my view was resorted to in order to create an atmosphere against McCarthy and those he considered co-conspirators."

In the end, the judge says: "The picture that emerges from the documents filed in the court below is of an animated Hofmeyr, straining to find justification for the discontinuation of the prosecution."

Hofmeyr did great work in the Scorpions and the Asset Forfeiture Unit. My suspicion is that he thought that if he could save Zuma, he could preserve the institution and the work of the NPA and the Scorpions. Too late he realised his mistake. Like many before and after him, he was tossed aside as soon as it became clear he wanted to do his job.