South Africa

ANALYSIS

Propaganda without shame: Zuma ‘detention without trial’ claim is a mockery of suffering endured under apartheid

Former president Jacob Zuma. (Photo: Leila Dougan)

Jacob Zuma, his supporters and his legal team have argued that the former president’s imprisonment on contempt charges violates international law and is tantamount to apartheid-era ‘detention without trial’.

Winnie Madikizela-Mandela was reading a biography of Tolstoy when security police kicked down the door of her home in Soweto on the night of 12 May 1969.

Madikizela-Mandela recounted the moment in detail in her 2013 memoir, “491 Days: Prisoner Number 1323/69”. 

She remained in detention until February 1970 while charges were formulated and then withdrawn. As Madikizela and 22 others stepped out of court, they were re-detained by security police and taken back to their cells.

“I was stripped outside and entered the cell naked after the matron had searched my naked body. Inside the cell, my clothes were on the floor, four stinking blankets, one sanitary bucket and drinking water plus two sisal mats.” (Pg 13).

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On 6 August 2021, Jacob Zuma’s legal team filed papers in the Constitutional Court responding to a request by the court for the legal teams from both sides to make fresh submissions on the role of international law in the case, and in relation to Zuma’s last-minute application for a rescission of the sentence (still to be decided).

Zuma has argued that the court violated his rights to a fair trial and that international law required judges to allow him a full criminal trial before sentencing him.

Zuma and his supporters have repeatedly circulated the lie that the former president has been “detained without trial”.

The facts could not be further from the truth, and the ongoing perpetuation of this interpretation of why Zuma finds himself behind bars diminishes and negates the suffering and pain of those who faced this particular form of brutality under the General Laws Amendment Act of 1961 and the Terrorism Act of 1967, as well as other laws.

From Solwandle Looksmart Ngudle on 3 September 1963 to Alfred Mabake Makaleng on 26 August 1988, there were 67 acknowledged deaths in detention in apartheid South Africa.

The Terrorism Act gifted the state with a deadly and “legal” iron fist and was passed two years before Winnie Mandela was dragged off in the night by Major Johannes Viktor and his security police goons, leaving behind two small daughters.

It was the massacre of 69 people at Sharpeville in 1960 that prompted the passing of the General Laws Amendment Act, providing for 12 days detention without trial in non-emergency situations. In 1963 this was extended to 90 days.

With the Terrorism Act, detainees could be held indefinitely in despicable conditions for “interrogation purposes” without access to family, the courts or legal representatives.

Around 1.30am on 8 July 2021, Jacob Zuma’s VIP motorcade snaked through the gates of the Estcourt Correctional Centre where the former president was set to begin serving a 15-month sentence in the new facility for contempt of court.

The night before, Zuma had been holed up with his family and friends in his Nkandla home, with its R240-million upgrades and high-security fence, negotiating his “hand-over”.

Zuma’s first night behind bars warranted a media conference by Justice Minister Ronald Lamola the following morning, confirming the new inmate was “in good spirits” after having had his breakfast and taken his medication.

Correctional services later released a menu of what Zuma’s breakfast might have looked like. Cereal, milk, sugar, bread with margarine and spread and tea or coffee with sugar and milk. At lunch, the former president would be presented with a light meal, a vitamin-enriched drink or fresh fruit or soup.

Dinner would be a protein-rich dish, starch, two vegetables, tea or coffee with sugar and milk.

During her detention without trial, Winnie Mandela was served uncooked porridge and black coffee for breakfast, porridge and sugar beans for lunch and “dry cooked mielies and phuzamandla” for supper. (Pg 16).

In August 2021, Zuma was transferred to a hospital outside prison for observation prior to a medical procedure. This has once again delayed his corruption trial.

Winnie Mandela’s interrogation sessions and prison conditions were so dire and cruel that she considered suicide at one point: “I thought there would be no better method of focussing the world attention on the terror of the Terrorism Act than this.” (Pg 25).

She had been detained while suffering from a heart condition and lost a serious amount of weight. She also found “my monthly periods are just continuous”. Solitary confinement and torture caused other life-long ailments that were to remain with  Winnie Mandela as a reminder of this wretched time in her life.

Her treatment in prison hospitals would bear no resemblance to the treatment Jacob Zuma is currently receiving.

By the time teacher Ahmed Timol fell to his death from the 10th floor of John Voster Square in 1971, there had already been 21 deaths in detention in police cells and prisons across South Africa. In 2021, 50 years after Timol’s death, security policeman Joao Rodriques faces trial in a democratic South Africa – but only after a relentless push by members of the Timol family for the apartheid policeman to be held accountable.

Many detainees were subjected to sadistic torture, including Barbara Hogan, later to become a Cabinet minister in an ANC-led government.

Jacob Zuma was presented with multiple opportunities to engage with and comply with a 29 June Constitutional Court order that he appear before the Zondo Commission of Inquiry into State Capture or face censure, including possible imprisonment.

As a powerful politician accused of being at the centre of a political and economic project which weakened the state and took corruption to new heights in the ANC, Zuma has always claimed his innocence and demanded his “day in court”.

From the outset, the former president was vociferously averse to being held to account by the commission, no matter how gently everyone massaged his heart of stone or ameliorated his simmering rage and resentment. 

For Jacob Zuma – once the most powerful man in the country – and his family and supporters to peddle the lie that he has been detained without trial is a cynical undermining of history and a negation of the sacrifice and suffering of those who fought and died for the very constitutional democracy Zuma has trampled on time and time again.

In November 2020, Zuma walked out of the commission after an unsuccessful application for Deputy Chief Justice Raymond Zondo to recuse himself. He made his exit flanked by bodyguards and lawyers and was whisked away by his driver. 

Zuma contested the historic 29 June Constitutional Court verdict that he was guilty of contempt and should face 15 months behind bars. However, he declined to offer any justification or explanation for his decision to defy an order by the same apex court.

And so it came to pass that Zuma was indeed arrested and incarcerated.

As colleague Stephen Grootes noted, Zuma was going to go to jail not for facilitating industrial-scale corruption during his term of office and bringing the state and the country to its knees – not because he irregularly received money from Schabir Shaik – “but simply because he refused to obey a Constitutional Court order that he must testify at the Zondo Commission”.

“To put it another way; he’s going to jail for refusing to give evidence that he has said he wanted to give, to a commission he himself appointed.”

Zuma has been amply represented in his more than decade-long legal challenge of pending corruption charges related to the arms deal. In fact, the taxpayer has so far funded Zuma’s estimated R15-million worth of legal bills in various attempts to escape prosecution – an amount that he has now been ordered to repay.

For Zuma to compare his current situation with that of apartheid detainees is opportunistic and disrespectful.

Zuma’s lawyer, Advocate Dali Mpofu, has argued that the court has violated the former president’s fair trial rights and that international law required judges to allow him a full criminal trial before sentencing.

“A fair criminal trial cannot mean the same thing as motion proceedings in the Constitutional Court (or any other court.) A fair trial is not even the same thing as a fair civil trial, let alone motion proceedings,”  Mpofu argued.

The Constitutional Court has now called for the parties to file papers between 13 and 18 August, which consider the role of the UN International Convention on Civil and Political Rights (ICCPR), with specific reference to Articles 9 and 14.

Zuma’s legal team argued that “a correct reflection of the ICCPR within our Constitution would lead to the conclusion that Mr Zuma’s incarceration was a grave judicial error”.

Earlier, Advocate Thembeka Ngcukaitobi, representing the Zondo Commission in the Constitutional Court application for censure, said that despite an order from the highest court, Zuma had failed to appear at the commission in February as he had been summoned to do.

Zuma had failed to participate in the hearing or submit court papers to argue why he should not be held in contempt. Ngcukaitobi said the law provided that those who wilfully and in bad faith did not comply with court orders, were held in contempt.

“His status as former president does not protect him from the law.”

At a press conference at Nkandla on the Sunday prior to his arrest on 7 July, Zuma likened his imminent arrest to apartheid-era “detention without trial”.

“Things like detention without trial should never again see the light of day in South Africa. The struggle for a free South Africa was a struggle for justice that everyone was treated equally before the law,” said the former president.

Zuma’s supporters argue that had he been afforded a “fair trial”, the former president would have wanted to call Zondo as a witness to demonstrate “the facts that informed his refusal to appear before the Chairperson (in contradistinction to the Commission itself), thereby conceivably lending a complete defence for his alleged civil contempt of this court’s order to appear before the Chairperson”, argued NGO Democracy in Action in support of Zuma.

None of this has to do with detention without trial as it was experienced and understood by South Africans who felt the brunt of this draconian measure. Many died lonely and agonising deaths at the hands of the security police without ever even appearing in court.

As Barbara Hogan has written, these were laws aimed at silencing opponents of apartheid for interrogation and punitive purposes, as well as separating individuals from their communities and constituencies.

For Jacob Zuma – once the most powerful man in the country – and his family and supporters to peddle the lie that he has been detained without trial is a cynical undermining of history and a negation of the sacrifice and suffering of those who fought and died for the very constitutional democracy Zuma has trampled on time and time again. DM

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  • The ANC asks us to pray for Zuma.
    I pray that he will recover (from illnesses real or imagined), is returned to Estcourt Prison to serve his current sentence and then faces trial, is found guilty and serves the inevitable imprisonment for bribery, corruption, etc etc.
    That is my prayer.

  • Opportunistic and disrespectful… sounds like every other cadre, suckling on the public purse; Or the appointment of a speaker to Parliament chosen by an extra-parliamentary committee of a political party?

    Mr Zuma is already receiving special treatment, more than you or I would – and will continue to do so. There are so many walking in his footsteps, including our ‘national leadership’ it cannot be any other way.

    The mantra of demonising Mr Zuma as the great Satan who corrupted the ANC, is childish and naive. The pretence that punishing him will change the ANC’s past and future blotted histories, is bluntly, letting off the tripartite alliance far too lightly. Rule of law? Please – neither Mr Zuma nor Mr Ramaphosa see wrong doing.

    Let’s look at the law. At the heart of the moral bankruptcy, is the belief – embellished in our law – that BBBEE justifies racism, self enrichment and entitlement. It is widely held to be true, even by the erstwhile critics of Jacob Zuma.

    Frankly it would be cheaper and less waste of everyone’s time to let him go, on whatever pretext. It’s a time-honoured tradition amongst thieves and politicians the world over, to forgive and carry on looting.

    • I get the sarcasm but nobody is laughing except Zuma & co. Thankfully it’s also a time-honoured tradition amongst the working class to rise up and overthrow the decadent, selfish, arrogant, entitled and greedy ruling class.

      • I actually believe Michael is serious and I agree with his sentiment. Except the part about letting him go. He and his whole entourage, including his so-called advocate, should be jailed for life.

  • Everything that Jacob Zuma and his cronies ,associates and family, touches , gets tarnished, whether it is conceptual or real. His remedial treatment ,such as it is , is meted out to him by a state that is dysfunctional and unstable. Unfortunately, for the citizens, that is the situation where probably someone who steals a loaf of bread because he is hungry, is treated in a far more inhumane way

  • How’s this extract from Plato’s republic written some 2,000 years ago which could have been tailor written for Zuma. “In the early days, doesn’t he have a smile for everyone, and a warm greeting for anyone he meets? He denies that he is a tyrant and makes lots of promises in private and in public, frees people from their debts, and distributes land to the people and to his own circle, and he pretends to be kind and gentle to everyone. And yet, I believe, once he is reconciled with some of his enemies in exile, and has destroyed the others, and all is quiet in that regard, he sets about waging some war or other, constantly, so that the people will be in need of a leader. And so that they will also be impoverished by paying taxes, forced to focus upon their day to day needs, and less inclined to conspire against him. And if he suspects that some people, with exalted notions of freedom, won’t accept his authority, he can come up with a pretext to destroy these people, by handing them over to the enemy. So, for all these reasons it is imperative that a tyrant stirs up war, continuously”.

  • Although I find the above predictable and frankly tedious, – for me – an interesting alternative angle is that the more fuss he makes, the more he advertises that it is possible even for the ex-president to go to jail (and hopefully stay there) – which I imagine can only be a good thing.

  • The statement that “Zuma and his supporters have repeatedly circulated the lie … ” is misleading. It is his self interested legal counsel with its continuous stream of specious legal arguments that have fomented and fanned this claim. They have abused our legal system to perpetuate (and continue to do so) this myth. Until such time as the so-called guardians of ‘professions’ take seriously the need to protect a ‘profession’ from this unscrupulous behaviour, we will continue down the slippery Hlope of abuse by a few recalcitrant individuals. In this instance even a distinguished legal scholar like Pierre Vos accorded dilly Dali with the ‘distinction’ of using courtrooms adroitly to spread his specious (and often littered with derogatory comments) arguments. I only hope it is not going to take a lifetime (like they did with Giuliani in the US) to suspend the licence to practice of the small coterie who would subjugate and bring into disrepute an entire profession. The irony of this entire disinformation project is that JZ was subject to the very ‘laws’ which his own party in the main, helped to formulate ! Talk about cynicism … and double talk !

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