South Africa

Pre-Prison Diaries Analysis

Zuma’s self-made Nkandla Cul-de-Sac

Former president Jacob Zuma makes a brief appearance outside his Nkandla homestead on Saturday 3 July 2021 in KwaZulu-Natal flanked by his bodyguards, AmaButho and supporters and MKVA members. Zuma has filed an urgent application against the Constitutional Court ruling which sentenced him to prison for 15 months. (Photo: Leila Dougan)

The next few days will bring finality to the question of whether former President Jacob Zuma will go to jail peacefully. Key to this is the question of whether he will call, allow or enable violence to be used to keep him out of jail. If he does allow violence to be inflicted in his name, it could reduce his political options, and perhaps remove most of the remaining political support he can still count on.

 

That said, there are now several options available to our political and judicial leaders, and they have many different problems to consider.

On Friday Zuma lodged an urgent application at the Constitutional Court for the rescission of its order that he serve 15 months in prison for contempt of court by refusing to obey its earlier order that he testify at the Zondo Commission.

Meanwhile he told his supporters that he would not go to jail, and that he believed he had been treated unfairly by the court.

This raises the spectre that has haunted this entire issue: would Zuma comply with this ruling, or would there be violence as part of an attempt to resist arrest.

Zuma’s track record here is complicated.

He played an important, perhaps critical role in bringing peace to KwaZulu-Natal when the province was riven with violence between supporters of the ANC and the IFP. His supporters could even claim that, without him, that violence would not have ended as quickly as it did, and that he brought peace to KZN.

On the other hand, there have been instances when violence or the threat of violence has been used by his supporters, and he has not disavowed it.

In 2006 his supporters held placards outside the Johannesburg High Court during his rape trial, insulting and threatening violence against his accuser. He said, and did, nothing.

In 2017 a man appeared to threaten the home of the SACP deputy general secretary Solly Mapaila with a gun, and again, it appeared that this was the action of someone supporting Zuma. Again, presidential silence was the only consequence. 

The MKMVA and others threatened violence against his removal, many times; again he did not disavow those statements. 

Here, Zuma has now appeared with the people who are supporting him, clearly giving them encouragement. 

But this does not mean that should the moment come, violence will necessarily be the result.

While this situation has many bad possible outcomes for Zuma, perhaps the worst for him would be to still end up in jail even as violence is used in his name. That would mean he would have played possibly the only card he had, lost, and along with that decision lost any support or sympathy he may have had among ANC members across the country. And when he then went to jail he would be politically isolated, with people furious at a situation for which only he himself can be blamed.

Former president Jacob Zuma makes a brief appearance outside his Nkandla homestead on Saturday 3 July 2021 in KwaZulu-Natal flanked by his bodyguards and supporters. (Photo: Leila Dougan)

It also makes no strategic sense for Zuma to provoke the power of the state. If there is physical opposition to his arrest all of the people involved, the Police Minister, the National Police Commissioner, the President, the judiciary, everyone, will be forced into a position in which they have no other choice but to win, lest their authority be challenged forever. And despite its obvious current weaknesses, the state will always win such a confrontation.

Thus it is in Zuma’s own interest to ensure that actually there is no violence.

It also shows how important it is that he does not lose control of the situation, to ensure he can still control the moves and prevent violence from actually occurring. 

This is also a demonstration of how important it will be for political leaders in the ANC and in KZN to remain close to the action.

While some may view the visits to Nkandla by the Premier Sihle Zikalala and the ANC’s provincial secretary Mdumiseni Ntuli as a suggestion of support for Zuma, in fact it appears they are trying to ensure some kind of peaceful resolution. And considering the situation it would be much more dangerous for them to be absent rather than present.

Meanwhile the next few days are also going to see judges in the Constitutional Court and the High Court in Pietermaritzburg having to make difficult decisions.

Zuma has applied to the Constitutional Court to rescind its earlier judgment, but in the meantime the Pietermaritzburg High Court has to decide whether to stay the order that he be arrested.

While this decision will have to be based on the law, one would have to be less than human not to have sympathy with whoever hears the case in the High Court. They may well want to be seen to be allowing the Constitutional Court to make a decision, and thus grant the stay, simply to give everyone breathing room.

This would then mean that the action would move to the Constitutional Court.

Essentially, Zuma is asking the same judges who ordered that he be jailed to now come to a different decision. 

Key to this may be whether the facts have in fact changed. 

But one of the main problems Zuma faces is what could be the tension between the facts, and his version of them.

Zuma previously refused to make any submissions to the court when the Zondo Commission first asked that he be found guilty of contempt of court. Even after that, Chief Justice Mogoeng Mogoeng asked Zuma if he would like to make submissions about any possible sanction, or jail time, before they came to their decision.

Again, Zuma refused. Instead, he issued a public statement attacking the court.

Now in his application, he says that he did not make submissions because of his financial hardship. He says also that when he left the commission’s hearing, he did so because he had to take medication and believed that he had the permission of the commission to leave.

But if that is the case, why did he not say that before? Why, instead of saying that to the court, did he issue a public statement attacking the court?

Also, if indeed he had no money for legal advice (he refers in his application to the debts he currently owes, particularly the R20-million he owes the state after it funded all of his previous legal battles), there was no one stopping him from coming to address the court personally.

Just two weeks ago, a former member of the EFF won a ruling in the Supreme Court of Appeal in a defamation case against the party’s leader Julius Malema. He did so by submitting a handwritten affidavit saying that he did not have the funds to fight a legal battle that included Malema’s two top advocates Tembeka Ngcukaitobi SC and Kameel Premhid. Such was the context of the case and the strength of his previous argument that he was victorious. 

There was no reason why Zuma could have not done the same. Or at least issued a public statement explaining his position.

This poses serious problems for the judges.

For them to accept what he now says simply at face value, with no interrogation, could be to undermine the rule of law. 

How can they now accept his version without interrogating it? Surely he has to be asked to prove what he now says, because he refused to say it before.

The court also has to deal with his argument that Judge Dhaya Pillay (who was in the majority in this case) is biased against him and thus should not have heard the case.

Zuma bases this on her findings in the Hanekom defamation case, and in her findings about a sick note that he submitted during his criminal trial. He also says that her friendship with Public Enterprises Minister Pravin Gordhan shows her bias against him (she was confronted with this during the Judicial Service Commission hearings).

In essence, he is asking the court to say that one of its judges should not sit in the case because she has ruled against him before. 

If this is accepted it would mean that a precedent has been set, that a judge who has found against a person cannot sit in another case involving them. That would have the possibility of rendering the entire system unworkable. Zuma has lost many cases in the Constitutional Court before (Nkandla, the Zuma Spy Tapes case, the attempt to extend the term of office of then Chief Justice Sandile Ngcobo etc)… Would this mean that none of the judges who heard those cases can hear this case? 

That would render the Constitutional Court, and probably the Supreme Court of Appeal impotent. 

The problem the court may now have is that even if it is of a mind to change its earlier finding (and that is unlikely), to do so would mean it has to accept that Judge Pillay should not have been part of the case in the first place, and that it will now accept submissions from a person that could change the outcome of a case, after they have already ruled.

The outcome of that would be a judicial and legal earthquake. There would be no end to litigation.

This would also run the risk that Zuma would be the only person (in so far as is known…) to have won such a rescission application in this court, in effect to have had their case heard twice. And that in turn would then raise the question of whether the court is really treating people equally – is everyone equal before the law, or is he somehow special?

Of course, it could also be argued, as Zuma does, that this is a unique case for many reasons.

It is not only that he would be the “first direct prisoner of the Constitutional Court under our democracy”, it is also that this is the first time someone has been jailed in this way for contempt of a commission.

This may well explain why the court has agreed to hear this application; it is mindful of the completely unique situation that is at play here, politically and legally.

This application, and the court’s decision to hear it, also buys time. It allows the political situation around Nkandla to be dealt with carefully.

There are several resonances with the situation now, and that slightly strange time in 2018 when the ANC was preparing to tell Zuma to resign as President.

Then, as now, it may be that the outcome is much more important than the methods. Zuma had control of the armed forces then and surely posed much more of a danger to the country than he does now. And yet the end result was that he still had to leave office.

It was always inevitable that a court order compelling Zuma to go to jail, to be the first elected former head of state to report to a police station in our democracy, was going to result in last-minute court applications, political difficulties and threats. 

But it may be that the outcome is what will really matter, and that violence can be avoided. DM

 

 

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All Comments 23

  • “How can they now accept his version without interrogating it? Surely he has to be asked to prove what he now says, because he refused to say it before.”
    You’ve probably hit the nail on the head. If the Concourt decides to ask him to prove it, I would imagine that this will start a process of multiple hearings and appearances with many months between each one. Justice delayed, justice denied. One happy Jacob Zuma, and one further disheartened populace of a country drifting aimlessly while “led” by a bunch of thieves.

  • He has been sentenced to jail time for contempt of the constitutional court and not for contempt of the commission – an important distinction, one is a common law offence and the other a statutory offence.

    • Andre, there seems to be many different legal opinions flying about.

      How can the local High Court say anything that binds the ConCourt in any direction?

      He is not appealing the sentence (he can’t). An appeal would suspend implementation. The OK to hear rescission application does NOT suspend the sentence order. He either presents himself or Cele must arrest him.

  • It is really frustrating to watch this person get away with flagrant disrespect of the law, government, and good morals, whilst all and sundry make excuses for him, and look for reasons to appease him. Would that common citizens should be so fortunate. Steal a loaf of bread, and off to jail you go. Refuse to appear in court, and off to jail you go. Exceed the speed limit by over a certain number, and off to jail you go. Zuma, not a chance.

    • And very interesting indeed that bluster big-mouth Cele is now “seeking clarity” about Zuma’s arrest. Funny he didn’t seek clarity when he was threatening us law abiding citizens with arrest for smoking / drinking etc. He’s another idiot and a bully or which part doesn’t he understand about arrest warrant??

  • JZ has no moral compass as whatsoever. The truth of the matter is that if JZ had shown the tiniest respect for the rights of the citizens of South Africa when he was constitutionally obliged to do so as President then he would not be in the situation he is in now. How dare he continually claim rights that through his acts as the Commander in Chief of “State Capture” he denied to his fellow South Africans. A great number of unemployed and poverty stricken South Africans suffer due to diminished state services and yet he expands a fortune on desperate legal maneuvers.

    All this histrionic legal posturing is nothing other than self preservation. An evil man wants to avoid his just desserts.

    A man bereft of a moral compass deserves no sympathy from an unbiased judiciary and one can only hope that he begins at long last to feel some of the pain he has inflicted on his fellow South Africans. Being a most corrupt and unscrupulous leader who uses expensive lawyers to avoid telling the truth will lead to a time of reckoning. His time of reckoning has only just started and that is a good thing for South Africa.

    Congratulations to the Constitutional Court for enforcing a sentence appropriate to the offence. The morally superior party in the fight that JZ has started will win and that is good news for the principle of legal accountability in South Africa. Politicians will have to follow the morally superior party in this case. If not South Africa will be a very sad country indeed.

  • Stephen, once again, a well written article. In 1999, and up to 2007, the media, predominantly white journalists, predicted that Zuma will never become the president of the ANC, and then president of the country. Despite a rape case, despite a case of corruption. And still, 14 years later, it is still the same. Virtually all commentators are white, with white mindsets, including DM. I have in the last few days lost a lot of trust in the media, and journalists, still mostly white. This is Africa, and 1st world mentality does not apply here. To me, this is not just about Zuma going to jail or not. This is about what the majority thinks. And they will continue to support corrupt parties like the ANC or EFF, and in the long term I do not really see any change that what happened in the last 22 years. At some stage another corrupt person will become president, and the down slide of the country will continue. Off course I hope I am wrong, but the signs do not point that way.

    • Quite correct Coen. Africa is Africa and any expectation of a different outcome in SA to the rest of Africa is naive in the extreme. We all hoped for the best in 1994 but sadly there is really no real hope for Africa. People will continue to vote for the perceived Big Man” no matter how atrocious their behaviour. Even the West is goinmg that way with the supposedly educated Americans continuing in their blind support of ex-president Trump who is so clearly a narcistic sociopath not to mention a crook . Civilizations cycle is almost complete and the barbarians are at the gate. The Israeili’s and the Arabs will continue to hate each other on the basis of antiquated religious beliefs. Europe will be Muslim in a few decades throughnumbers overwhelming the establishment in countries via their own Democratic priocesses. . Luckily I will not be here to witness the inevitable mess.

      • This is not the view Homo Sapiens currently subscribe to in general. The sad news is that Homo Sapiens is in continuous denail of what we truly are. It has been like this since the commencement of life 4.2 billion years ago and I don’t see any changes anytime soon. Perhaps the folliwing generations may find a solution. The current ones cannot.

  • It would be obvious to a 10 year old that this further dithering plays into the hands of the criminal element and further erodes the rule of law.

    The 3 not-so-secret steps to success:
    1. Send the sentenced citizen to prison.
    2. Deal with any consequences humanely but firmly.
    3. Move forward – to a brighter future for everyone.

  • KZN IFP peacemaker????

    He may have been part of the peace process but he was most certainly 200% behind stoking the violence in the first place!!!

  • My position on this is if the court changes it’s stance, then anybody else who does no go to answer at a commission of enquiry could do the same as Zuma. Think about it, Zuma appeared twice. He heard all the rumblings and had no issue with DCJ Zondo until it did not suit him. Change him into orange.

  • Jacob Zuma keeps saying to his supporters “they haven’t told me what I’ve done”(wrong) . That is correct – the ANC, cowards that they are , never explicitly told him- so now he will always be able to say , as he does, what have I done?

    • I’m not convinced that Zuma was smart enough to comprehend the extent to which he was being used by the Guptas. No doubt it suited him to not think too deeply about it at the time. Now he’s happy in his state of denial which explains his “they haven’t told me what I’ve done”(wrong).

  • Well one positive thing …Zuma actions and appearance this weekend prove that he is in fine fettle so can’t be using his health as reason not to be incarcerated in the normal way!

  • Stephen, I think you are being extremely optimistic when you say “the Police Minister, the National Police Commissioner, the President, the judiciary, everyone, will be forced into a position in which they have no other choice but to win, lest their authority be challenged forever.” So far the only arm of the state that has shown it will stand by the rule of law is the Judiciary. I will be very surprised if the Police Minister and the National Police Commissioner act in the face of what is currently happening in KZN. And starting from the Travelgate scandal and Sarafina etc, the ANC has not shown it recognises that any wrong doing needs to be addressed at the start to prevent it getting out of control. We are currently paying a very high price for that.

    Remember also that KZN politics and Zulu nationalism are more unstable at the moment as a new king is not recognised and therefore does not have authority, so there is a power vacuum which Zuma is very skilful at exploiting. Distressing times ahead I fear.

  • Zuma’s case is certainly unique in that he has already made a laughing-stock of the Constititional Court by persuading them to hear him again after they had leant backwards to hear his views. So, when will they themselves regard their ruling as a final ruling? Mamparas, outfoxed! And a country embarrassed.

  • Zuma is just doing what he has always done :dodging, weaving, not answering, tossing out a few irrelevant excuses… heh heh heh. I think it’s called gaslighting. Unfortunately it has time and again hamstrung those seeking justice because they have to entertain every grain of sand he kicks into their eyes. I hope the courts will now give a crisp clear rejection of these dishonest tactics and send him to jail.