GARETH VAN ONSELEN: Zuma’s damning legal history is simply a sorry tale

Over the course of his time in the Presidency Jacob Zuma has been subject to an inordinate number of formal, ethical complaints. Some of these have involved chapter nine institutions, such as the Public Protector, a few concerned civil litigation (defamation cases, often brought by Zuma), but the bulk involve legal challenges to decisions he has made, or criminal complaints regarding his conduct.

He has fared extremely badly, too. His record in court is dire. The result is a litany of damning jurisprudence and legal opinion about him — and that is just with regards to his own, personal record. Include cases the government or the ANC has lost and the pile of adverse findings becomes mountainous.

In short, viewed exclusively through the eyes of the courts and those institutions designed to safeguard the rule of law, Zuma has performed miserably. The most recent of these was handed down by a full bench of the Pretoria High Court, last week. Delivering the judgment, Judge President of the Gauteng division of the High Court Dunstan Mlambo set out a raft of damning findings against Zuma.

They included the fact that the President deliberately acted unlawfully in paying out former National Director of Public Prosecutions (NDPP) Mxolisi Nxasana ("he was persuaded to vacate the office by the unlawful payment of an amount of money substantially greater than that permitted by law"); that he was too personally compromised to appoint a new NDPP ("in our view the president would be clearly conflicted in having to appoint an NDPP, given the background to which we have referred, particularly the ever-present spectre of the many criminal charges against him that have not gone away"); and that the president routinely abused the legal process ("there is the broader pattern of the president’s conduct in litigation, in 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 might bring").

It is the stark language of the judgment that is most striking. This was not a technical decision but, by and large, a moral one. And it showed in the language. The clear inference was that the President knew the law, with regards to Nxasana, and willingly violate it anyway.

The same tone and attitude was adopted by the Constitutional Court in its March 2016 judgment on Nkandla ("No binding and constitutionally or statutorily sourced decision may be disregarded willy-nilly").

The great legal narrative unfolding around the president, one yet to be concluded, concerns the pending criminal charges against him. After eight and half years of tortuous legal obfuscation and evasion ... the paper house he had built would eventually fold in on itself before the SCA in October this year.

In its finding, the court left little doubt as to the president’s conduct. It was scathing about his failure to abide by or take the Public Protector’s report on review and his decision, instead, to indulge a parallel and illegitimate process. The lynchpin line in that judgment — "The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land" — has become political lore, regularly evoked by the opposition as evidence of the President’s contempt for the office he holds.

But even the language of the Constitutional Court on this issue pales in comparison to that adopted by former public protector Thuli Madonsela, in her Nkandla report.

She argued the entire affair constituted no less than "a toxic concoction of a lack of leadership, a lack of contro,l and focused self-interest".

The appointment of a competent NDPP, a position so central to Zuma’s political prospects, has caused him no end of legal grief. One of the very first acolytes he attempted to entrench into the role was Menzi Simelane. But that too was challenged, this time on the grounds of competence, and found wanting.

The adverse finding against the President by the High Court was echoed up the judicial hierarchy. First by the Supreme Court of Appeals (SCA) in December 2011 ("The minister and the President both made material errors of fact and law in the process leading up to the appointment of Mr Simelane.") and later, in October 2012, by the Constitutional Court ("the President’s decision to ignore [the Ginwala Commission] was of a kind that coloured the rationality of the entire process, and thus rendered the ultimate decision irrational").

But the great legal narrative unfolding around the President, one yet to be concluded, concerns the pending criminal charges against him. After eight and half years of tortuous legal obfuscation and evasion, in which he had lost every challenge he has made (bar one High Court ruling that was successfully appealed), the paper house he had built would eventually fold in on itself before the SCA in October this year.

There was no great revelation or damning judgment, just the pathetic capitulation of his legal representative, Adv Kemp J Kemp, who, with no room left to move, would concede that the National Prosecuting Authority’s (NPA) initial decision to drop the charges against Zuma was, indeed, irrational.

"In other words, they made an irrational decision?" Judge Azhar Cachalia, said to Kemp. All he could offer up in response was, "That is then correct, yes". And that was that.

You can see why the Pretoria High Court, on the Nxasana matter, was so contemptuous of Zuma’s attitude to the law, for that simple concession was all the DA, the party that has doggedly and bravely pursued this matter from the get go, had ever wanted to establish as fact. It took millions upon millions of rand, and a political lifetime, for Zuma to concede. When he did, he revealed that his entire defence was a sham, and always had been.

But one can go back further still. All the way back to 2005 and the case against Schabir Shaik, Zuma’s legal adviser and personal financier. One of the most damaging and destructive legal decisions ever taken in South African history was the NPA’s move to prosecute Zuma and Shaik separately. It made no legal sense and did much to advance the narrative, driven largely by Zuma, that his prosecution was mendacious. And yet, while he did receive his own sentence, the judges in his various trials and appeals could not but help refer to Zuma. By its nature, corruption involves two parties. And Zuma was the other.

In his judgment in the matter between the state and Shaik and others, on May 31 2005, Judge Hillary Squires would say with regards to count 1: "Accepting, then, the evidence of these witnesses as the truth of the matters they described, makes the case on count 1 not just convincing in total, it is really overwhelming."

Count 1 charged that, over a period of time, a total sum of R1,340,078 was paid to Zuma by Shaik, and that this was done corruptly, the object being to influence Zuma to use his name and political influence for the benefit of Shaik’s business enterprises or as an ongoing reward for having done so from time to time.

When Shaik took the matter to the SCA, where he would again lose, it, too, referred to Zuma in its finding of November 6 2006.

The relevant paragraph read:

"The payments to Zuma, a powerful politician, over a period of more than five years were made calculatingly. Shaik subverted his friendship with Zuma into a relationship of patronage designed to achieve power and wealth. He was brazen and often behaved aggressively and threateningly, using Zuma’s name to intimidate people, and particularly potential business partners, into submitting to his will. He sought out people eager to exploit Zuma’s power and influence and colluded with them to achieve mutually beneficial results. In our view, the sustained, corrupt relationship over the years had the effect that Shaik could use one of the most powerful politicians in the country when it suited him."

There have, of course, been myriad other legal and para-legal ethical findings against Zuma over the years.

One of the very first was a Public Protector finding in April 2010 that Zuma had failed properly to disclose his financial interests to Parliament. That report found there was "a systemic pattern of non-compliance with the timelines and some of the requirements stipulated in the code by a substantial number of members of the executive, which should be attended to by the Cabinet urgently".

Through the eyes of the courts, Zuma is an abomination, and while it is true that, through all these judgments, the historical record will not be kind to Zuma, it all counts for little in the moment.

Likewise, he was told, by the High Court, to hand over a government report on Zimbabwe’s 2002 general election to the Mail & Guardian. As is his wont, he took that decision all the way to the top, losing at the SCA along the way. In December 2010, however, the Constitutional Court found "no evidential basis has been established by the appellants for refusing access to the report" and so, once again, Zuma had lost a legal challenge for which he could provide no compelling legal case.

Every time, the purpose seems to be to circumvent the law, to protect the compromised, or hide from the public information pertinent to it. As one judge on the Zimbabwe report case noted, "the report potentially discloses evidence of a substantial contravention of, or failure to comply with, the law and, therefore, the public interest supersedes the harm that may occur should the report be released".

There have been personal indictments, too. Zuma might have won his rape case in May 2006, but that did not prevent the High Court from damning his conduct:

"The accused should not have had sexual intercourse with a person so many years younger than himself and, furthermore, being the child of an old comrade and a woman plus/minus his age. The complainant said that in spite of her own attitude that she would not have unprotected sex, it still remains the choice of a person to have unprotected sex. In my judgment, that is exactly what she and the accused did that night of November 2 2005. Having heard the evidence of Prof Martins, it is inexcusable that the accused did so. It is totally unacceptable that a man should have unprotected sex with any person other than his regular partner and definitely not with a person who, to his knowledge, is HIV-positive. I do not even want to comment on the effect of a shower after having had unprotected sex."

And the president’s desire, now long since abandoned, to sue for defamation has never worked out either. Zuma lodged a R5m defamation case, later reduced to R100,000, against Zapiro. He eventually withdrew it, ostensibly because he claimed it was a distraction, but in reality because he stood no real chance of winning. Before that, he had also attempted to sue Zaprio for R15m (part of a bigger R63m claim) for three cartoons published by Independent Newspapers: Zuma being sworn in as President in court; a depiction of Zuma and the moral degeneration handbook; and his first cartoon of Zuma with a shower protruding from his head. All to no avail.

It took millions upon millions of rand, and a political lifetime, for Zuma to concede. When he did, he revealed that his entire defence was a sham, and always had been.

Likewise, the High Court dismissed a R5m defamation case brought by Zuma against Rapport for an article titled "Piekniek by Dingaan" [Picnic with Dingaan], with a picture of Zuma in the company of comedian Leon Schuster and singer Steve Hofmeyr, after Zuma failed to submit the relevant documentation on time.

The composite picture created by all of this, is of a President completely at odds with the law. Not just at odds — but at war. He has been found to have violated the Constitution; benefited from a corrupt relationship; abused the legal process; failed to exercise proper judgment; withheld public information; deliberately ignored the law; and behaved irrationally. And none of those things were in trivial circumstance. From a R250m personal property, to the appointment of the NDPP, to his relationship with a powerful businessman and his own potential criminal case.

And yet Zuma prevails.

The question one is forced to ask is what sort of power the judiciary actually wields in SA. And the answer is depressing indeed. Through the eyes of the courts, Zuma is an abomination, and while it is true that, through all these judgments, the historical record will not be kind to Zuma, it all counts for little in the moment. In the moment, which has now lasted for eight years, he endures.

It is perhaps common cause that politics is where real power lies in SA, and with the ANC in particular. But there is going to come a point where the political culture that underpins that organisation is going to have to be properly interrogated. All this is enough evidence to bring down any administration, certainly a president, several times over in any democracy that practises some kind of deference before the law. But not here, and not in the ANC.

The ANC’s elective conference is now days away. Most eyes will be on the contenders for the throne, but it is perhaps to the masses on the conference floor that attention should really be directed. It is there, among those 6,000 delegates that the ANC really lives. And the things that hold them all together are not always easily identifiable. One of them is a contempt for the judiciary, as evidenced by their willingness to endlessly indulge these damning assessments of their president. And, if the judiciary is, indeed, the last line of defence in our democracy, over the next decade that attitude could be the very thing that makes or breaks the country.

Whoever leads the ANC, come January, will inherit this culture of disdain, and these things are not easily reversed. What Zuma’s time in office demonstrates is not so much a president unfit for office but a party with which none of this resonates in any meaningful moral sense — certainly not enough ever to act on. And if that is the bottom line, then what SA’s courts have really been doing over the past decade is no more than documenting our decline. It’s just a story.