It is generally assumed that it is in the interest of a party in a legal dispute to try to advance the strongest possible legal arguments in their favour with the aim of ultimately securing a legal victory in court. If the legal case seems hopeless, parties with deep pockets may decide to advance their interests by exploiting procedural loopholes, either to buy time or to secure a legal victory on technical grounds. In other words, it is generally assumed that legal battles are best fought with legal tools with the aim of securing a favourable legal outcome in the appropriate forum. 

In so-called “lawfare” cases, brilliant lawyers, relying on the existing legal principles, will develop legal arguments that they believe will convince the court. Such clients may well try to mobilise support from the public for the justness of their cause, but will do so by popularising their legitimate or plausible legal claims.

The example often trotted out is that of the Treatment Action Campaign (TAC), which launched a carefully crafted legal attack on the failure of the state to roll out a comprehensive programme to prevent mother-to-child HIV transmission. While lawyers advanced a winning legal argument inside the courts, TAC activists mobilised the public to support their cause and to convince them that the provision of life-saving ARV treatment to all South Africans was a human right guaranteed by section 27 of the Constitution.

The manner in which Jacob Zuma and his lawyers have engaged with the law during their battle with the State Capture Commission seems to depart drastically from the above approaches. Zuma and his lawyers have not seriously attempted to craft legal arguments aimed at convincing the presiding judge that the law is on their side. Instead, they seemed to have crafted arguments to drum up political support for Zuma — even when these arguments were detrimental to their prospects of success before the commission or other courts. 

Zuma and his legal team have consistently advanced implausible or clearly mistaken “legal” arguments — even when better legal arguments were available — and followed a legal strategy that had no prospect of success — even when a different approach might well have delayed his appearance before the commission until after its term had ended. 

One example of the clearly mistaken legal arguments advanced by Zuma relates to the decision by Deputy Chief Justice Zondo not to recuse himself after being requested to do so. Earlier this week it was reported that during a meeting between Zuma and the ANC top six leadership, Zuma accused Zondo “of acting as judge, jury and executioner by hearing the application for his recusal, rather than requesting that a court or another judge hear it”. A similar argument was advanced by Zuma’s lawyers during the recusal application. In fact, advocate Muzi Sikhakhane claimed that they would lodge a complaint with the Judicial Service Commission (JSC) because Zondo acted as a judge in his own cause.

Anyone with even a glancing knowledge of South African law on recusal would know that this argument is legally untenable. Not only is it permitted for the judge being asked to recuse him or herself to hear such an application and to decide on it, but it is also required by our law. In the 1999 judgment of the Constitutional Court in the case of President of the Republic of South Africa and Others v South African Rugby Football Union and Others, the Constitutional Court confirmed that “judges have jurisdiction to determine applications for their own recusal”. 

Article 13 of the binding Judicial Code of Conduct — approved in 2012 when Zuma was president of the country — reaffirms the Constitutional Court’s position that it would be impermissible for a judge being asked to recuse him or herself, to request that a court or another judge hear the application and decide on it. In note 13(v) it is clearly stated that:

“Whether a judge ought to recuse him or herself is a matter to be decided by the judge concerned and a judge ought not to defer to the opinion of the parties or their legal representatives.”

If one assumes that Zuma’s lawyers were aware of this, they would have known that their argument had no prospect of success either before Zondo or before another court in a review application. They would also have known that a complaint to the JSC would literally be laughed out of court. The fact that they nevertheless advanced this argument, suggests that they were not trying to persuade Zondo or any of the other members of the judiciary who might hear a review or an appeal that the argument had legal merit. Instead, the argument seemed to have been aimed (or could have had the effect) of misleading the broader public (or at least Zuma’s potential and actual supporters), into believing that Zondo acted in breach of his legal duties and the Judicial Code of Conduct. 

It is at this point that we arrived in the era, not of fake news, but of fake law. 

Other aspects of the legal strategy also suggest that it was not primarily aimed at securing any legal victories, but rather at advancing a political argument aimed at persuading members of the public to support Zuma in his fight with the commission, thus bolstering his political support.

A few examples. To stay on the right side of the law, Zuma could have approached the high court on an urgent basis to challenge the validity of the summons or to ask the court for some other relief to stay it. After Zondo decided not to recuse himself, Zuma ran away from the commission, instead of allowing his lawyers to argue that he had “sufficient cause” in terms of section 6 of the Commissions Act not to testify. And when the commission approached the Constitutional Court for an order compelling Zuma to testify, Zuma declined to participate in the proceedings, despite the fact that he had a plausible argument to make, namely that the court should not grant the order while his review application in the recusal matter was being considered by another court. 

Instead of pursuing any of these legal avenues, Zuma, his foundation, and to a lesser extent his lawyers, have been attacking the commission in decidedly unlegal terms. When calling it a “Slaughterhouse Commission”, making unsubstantiated allegations that judges were bribed, and accusing the commission of bias against Zuma, Zuma and his lawyers were not making arguments sourced in law, but were engaging in populist brinkmanship.

There are at least two ways in which such a strategy could potentially benefit Zuma. 

First, if the strategy manages to whip up sufficient indignation and hostility towards the commission and the judiciary, the hope may be that the chairperson of the commission, or judges who later consider review or appeal applications, will be intimidated to such a degree that they will feel pressurised to subvert the law and rule in Zuma’s favour — despite the legal rules requiring the opposite. 

Even some critics of Zuma seem to have tacitly accepted the logic of his strategy, fretting about whether the Constitutional Court should impose a prison sentence on Zuma if it finds him to be in contempt of court, and whispering about the looming constitutional crisis. The assumption being that Zuma may be too powerful to be forced to obey the law.

Zuma and his supporters may well have concluded (wrongly, I believe) that this was what happened in 2008 when Judge Nicholson declared the decision to charge Zuma unlawful after Zuma’s supporters launched a sustained attack on the judiciary and threatened civil war if he was charged. (Nicholson’s judgment was eventually overturned by the Supreme Court of Appeal.) As was the case in 2008, I believe this strategy will ultimately not succeed, due to the integrity and commitment to the impartial application of the law of Zondo and the other judges of the Constitutional Court.

Second, and perhaps more troubling, the assumption underlying this strategy is that political power is ultimately what really matters in any legal dispute, not what the law actually commands. Put differently, it assumes that if a party to a dispute is powerful enough and has sufficient political support, he or she becomes legally untouchable. When I say such a person may become legally untouchable, I do not mean that such a person will consistently secure legal victories in legal fora even when the law requires the opposite. Instead, I mean that the person will in effect not be bound by judgments of courts or other legal bodies, because the judgments will not be enforced.

Unfortunately, the commission might have encouraged this belief when, at first, it treated Zuma more favourably than other implicated individuals, almost certainly because of his power and status as the former head of state and because of his accusations that he was being victimised. 

If this is correct, it would make sense for Zuma to use the legal process not to try to win the legal argument, but rather to try to firm up his support with certain sections of the public. Boiling it down to its essence, the aim would be to whip up enough political support to become legally untouchable so that Zuma may be able to say: “It does not matter that Zondo and the Constitutional Court had ruled against me or even ordered my imprisonment, because I am too powerful to be forced to obey the law.” (The short-lived presence of a group of young men dressed in camouflage uniforms outside Zuma’s Nkandla home could be seen as part of the same strategy.)

Even some critics of Zuma seem to have tacitly accepted the logic of his strategy, fretting about whether the Constitutional Court should impose a prison sentence on Zuma if it finds him to be in contempt of court, and whispering about the looming constitutional crisis. The assumption being that Zuma may be too powerful to be forced to obey the law.

Most of us have no way of knowing how popular or politically influential Zuma is and whether his campaign has been successful. We do not know whether he is more like the former Ciskei military ruler, Oupa Gqozo, (whose popular support never materialised when the crunch came), or more like Nelson Mandela (who led the ANC to a 62% majority in the first election). But, either way, it should be irrelevant when considering what censure the Constitutional Court should impose on a private citizen found to be in contempt of the court. 

If it comes to that — and there is no way of knowing whether Zuma will eventually capitulate to avoid imprisonment — there will only be a crisis if the Ramaphosa government fails to enforce the law out of a (probably misplaced) fear of Mr Zuma’s political power and influence or because of a misplaced belief that not all are equal before the law. The authority and legitimacy of any democratically elected government partly depend on its ability and willingness to uphold the law, and its failure to do so if required to do so, in this case, will be catastrophic for the legitimacy of the Ramaphosa government and for democracy. 

This is why we should perhaps worry less about what Zuma and his supporters (including the handful of young men dressed up in camouflage uniforms) might do, and worry more about whether the Ramaphosa government is truly committed to the rule of law and to democracy, and thus prepared to take the necessary steps (and face the political consequences) of upholding the law. 

Let’s hope that President Ramaphosa — despite troubling evidence to the contrary — has the backbone to uphold the rule of law and to stand up for the principle that no one, no matter how powerful or influential, is above the law. DM