Here, seemingly plaintive words: “I watched the proceedings of the court on 28 December 2020 in which I was addressed in very unkind words, labelled ‘accused number 1’ at the commission by the commission lawyers, a defiant against the authority of the commission.”
These are the words of our former president addressing then chief justice Mogoeng Mogoeng in unprecedented form — by letter — to refuse the court’s directive that he file an affidavit about his contempt of court matter.
Despite the apparently bruising indignity of being referred to as “accused number 1”, Jacob Zuma had no compunction about repeatedly styling prosecutor Billy Downer and legal journalist Karyn Maughan as accused number 1 and 2 in Monday’s proceedings before the KwaZulu-Natal High Court.
They are accused not by any prosecuting authority or court (as Zuma is and has been) but by Zuma himself, and on entirely spurious grounds. Their alleged wrongdoing? Exchanging a medical report that had already been entered into the court record and so made a public document by Zuma’s own attorneys.
None of this is surprising. Here is Zuma on Maughan’s application to have his private prosecution summons set aside as an abuse of court process: “now that the shoe is on the other foot Ms Maughan is employing exactly the same weapons or strategy which she has consistently labelled as Stalingrad. In my view this is nothing but duplicity and disingenuity laced with a touch of racial bigotry.”
You might think accusations of duplicity and disingenuity could not lie in the mouth of a man who seeks postponement of his own criminal trial by tying up the individual prosecutor and prominent legal reporter in a vexatious legal suit. A man who has railed against the courts at every opportunity as biased, political players to whom he will not submit, but in whom he now apparently has such renewed confidence that he seeks to use them to pursue private prosecutions.
Most poignant
As this ugly spectacle plays itself out before our courts, a new book has hit the shelves, The Mandela Brief: Sydney Kentridge and the Trials of Apartheid. Chronicling the SA legal career of Kentridge, said to be the greatest advocate of his generation, it explores his role in defining cases such as the treason trial, the Steve Biko inquest, the prosecution and persecution of Winnie Mandela, and the trial and disbarment of Bram Fischer.
SA is steeped in a rich legal culture, several of its most exceptional legal practitioners having used their skills to battle racial injustice and oppression in the courts. Kentridge well deserves the honour. But what is perhaps most poignant in this account of legal battles sewn tight into SA’s history is not the legal preparation or the skill wielded, or even the inexhaustibility, all of which were prodigious (the full transcript of the treason trial runs to more than 25,000 pages), but the integrity with which the courts were approached.
The courts then, too often instrumentalised as tools of blunt oppression and persecution, were perversions of justice. Yet defence counsel and the accused in the matters profiled, as if to underline their difference, acted with scrupulous, life-endangering integrity. Of Nelson Mandela during the treason trial Kentridge recalled: “He never said things in the hope that he’d be liked for it. Even in the witness box he knew that there were things the judges didn’t want to hear, but he spoke them out.”
Fischer, convicted of charges under the Suppression of Communism & Sabotage Act, instructed Kentridge that there was no apology to be given in mitigation of sentence, even as the prosecution sought the death sentence. Instead, Kentridge relayed to the court: “My client has accepted full responsibility for his actions and declared that for him to ask for forgiveness would be a betrayal of his associates.”
Integrity — to say what I mean and mean what I say — is fundamental to any sense of justice: then and now.
• Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.
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