The Supreme Court of Appeal (SCA) in 2017, in one of the cases of former president Jacob Zuma [Zuma v DA], and which notoriously and collectively are referred to as the “Spytapes cases”, made reference of the Christian poem “Little Gidding” by TS Eliot, which in part reads as follows: “In the uncertain hour before the morning; Near the ending of interminable night; At the recurrent end of the unending…”

The poem is such an intriguing poetic tapestry which provides from a perspective of spirituality an emotional commentary on a tragic 20th century. Highlighted by Eliot are solutions that are merely political, economic, or cultural, empty ideologies, the vanity of human ambitions, and the violence at the heart of man. 

The Court did not unpack the relevance of using the quote from “Little Gidding”, which is about a small Anglican community in Huntingdonshire that experienced a troubled history during the English Civil War. Yet, there was something significant then, as there  is now, concerning the Zuma trials.  

The fifth and final section of “Little Gidding” ends with contemplation and analysis of the ending. The questions are: Is the current Zuma case of corruption, racketeering and money-laundering the end of the saga or the beginning again of the saga? If the Zuma case ever ends, how will it end? Will it end in a mistrial or a string of recusals of judges? Is this periplum for Mr Zuma and the judiciary? (A “periplum” is a word coined in the poetry of Ezra Pound to refer to a journey where the traveller ends up back where he started).  

Latest events around the Zuma trial demonstrate that we are back at the “long and troubled history” of the Zuma trials, which was pointed out by the SCA in the 2009 case, National Director of Public Prosecutions v Zuma.

Zuma has been unwavering in his defence, emphasising relentlessly the existence of a political conspiracy and baseless accusations against him. In the “Spytapes” saga, Zuma’s defence alleged unfair treatment and that there was “the existence of a political conspiracy, of which the NPA was part, to discredit Mr Zuma”. As a reminder, in the Spytapes case, Zuma’s lawyers alleged an unholy discussion between the National Prosecution Authority (NPA) and some politicians within the ANC against their client, which was intended to benefit former president Thabo Mbeki as solace for losing to Zuma at the 52nd national conference of the ANC held in 2007 in Polokwane.  

The Zuma defence is not convinced that the correspondence took into account fairness and expediency to their client. Zuma believes he is being unfairly victimised and bullied by the courts and the NPA.

An important contention in the Spytapes saga is that the Zuma camp alleged the infamous tapes were to prove that manipulation of the “timing of the decision to charge Zuma and that [the NPA] had deliberately delayed the decision until after Polokwane with one purpose in mind: to undermine Zuma’s chances of being elected as ANC President at Polokwane. Following Zuma’s election and Mbeki’s defeat, McCarthy had moved with haste to charge Zuma.”

Fast forward: Zuma still has some public support, with devoted followers like Carl Niehaus not mincing their words that he is persecuted. “President Zuma and the terrible racist persecution that he suffers as an African South African is the personification of that struggle for full liberation and black dignity, economic justice and an end to racism and continuing apartheid practices,” said Niehaus.  

There seems to be an overheating of emotions. Ideal justice is depicted by Lady Justice who appears in courts in paintings, sculptures, coats of arms or metal statues with balance scales, a sword, and a blindfold. For those in defence of Zuma – both inside and outside the court – only the sharpened sword of Damocles is directed at Zuma, and the judiciary is not affording him the benefit of the balance scales and the blindfold as it would other accused persons.

Eric Mabuza, Zuma’s lawyer, has raised the defence’s dissatisfaction and objection that the NPA and KwaZulu-Natal Judge President Achmat Jappie have been holding ex parte discussions about the trial date. The bone of contention, according to the letter written by Mabuza, is an email dated 21 May 2020 which was addressed to the judge following the Judge President’s enquiry to the NPA about “when the criminal matter mentioned above is likely to commence and what the estimated duration of the proceedings will be”. 

In the letter, Mabuza states that Zuma “is aggrieved by the fact that the Honourable Judge President, who is the most senior Judge in the Division, has deemed it appropriate to discuss the matter directly with the State without any consultation with him or his legal representatives”.

An ex parte communication occurs when a judge communicates with any person concerning a pending or impending proceeding without notice to an adverse party. According to Mabuza, such ex parte conversations are “inappropriate”.  However, the NPA sees nothing sinister about the discussion with Judge Jappie and says the correspondence was routine and part of the usual process of preparing for court. KwaZulu-Natal Director of Public Prosecutions, Advocate Elaine Zungu, said that the correspondence “was conducted in the normal course” of business.

The Zuma defence is not convinced that the correspondence took into account fairness and expediency to their client. Zuma believes he is being unfairly victimised and bullied by the courts and the NPA.

“Given the history of this matter, and how he believes he has been persecuted by the system, he remains apprehensive and concerned by what appears to be secret and inappropriate discussions,” Mabuza said. 

The following further questions need to be asked: Is there an unholy alliance or ex parte relationship between the KwaZulu-Natal court and the prosecutor? Is the discussion about the date and duration of the trial improper? Is the state so desperate to get Zuma in orange overalls that it would resort to conspiratorial prosecution? Are we back to where we started with the Spytapes saga?

In a politically charged trial like that of Zuma, ex parte communications must be minimised. Further, in no way should the conduct of the trial or proceedings create the impression or appearance of the impression that “one side of a controversy can discuss or influence the decision-makers’ opinion and thereby receive a tactical or substantive advantage”.

Going to the basics of law: The routine nature of discussions between the NPA and the judge should not be readily assumed as improper. As noted by Roberta K. Flowers of Stetson University College of Law in a journal article in 2000, “the nature of the prosecutor’s practice requires constant contact and cooperation with the trial judge. This constant contact causes the relationship to take on characteristics that are different from the relationship between the judge and other lawyers” [at page 253].

I must, however, add a cautionary note: this relationship should be within the permissible limits of the law and should never be elevated to normalcy where judges help prosecutors in strategising their cases, or by creating a misconception that judges and prosecutors are on the same side. The routine nature of the correspondence between the NPA and the judges must only be about ensuring that justice is administered fairly and expediently. Otherwise, such ex parte discussions will be improper. It is improper, for example, to hold ex parte discussions “suggesting to a Court administrator that a particular court venue or judge should hear the case”. Be the judge: Do you think it is improper for a judge to ask the NPA when a case will start and be concluded?

It would be prudent that the NPA and the KwaZulu-Natal bench appreciate that inasmuch as there may be nothing wrong with their ex parte correspondence as long as it is or was done within the permissible limits of the law, that defence and public appreciation are the by-products of the cooperative relationship between a prosecutor and the bench. In a politically charged trial like that of Zuma, ex parte communications must be minimised. Further, in no way should the conduct of the trial or proceedings create the impression or appearance of the impression that “one side of a controversy can discuss or influence the decision-makers’ opinion and thereby receive a tactical or substantive advantage”. Already Mabuza finds it hard to believe that the reported ex parte communication between Billy Downer and Judge Jappie “was not deliberate and initiated to gain some strategic advantage over the accused”. 

The cardinal rule of criminal justice is that every aspect of the Zuma case must satisfy the appearance of justice. As succinctly put in the dissenting judgment of Justice Felix Frankfurter in the United States Supreme Court case of Denis v United States, “[t]he appearance of impartiality is an essential manifestation of its reality.” Judges are triers of fact and must at all times maintain judicial independence and impartiality.

The NPA’s task is to seek justice beyond a reasonable doubt. The phrase “reasonable doubt” is very important to emphasise because inasmuch as there are exceptions to the rule against ex parte communications, the nature and the profile of the case must dictate to the NPA and the bench when to exclude the defence and when not – even if the defence may not necessarily deserve to be included in the conversation between the NPA and the judge. Such foresight will be the difference between the continuation of the case to conclusion, and delays, which may include the application for recusal of the judge and for a mistrial.

Bad faith attacks on the benches only serve to undermine the constitutional project of the republic. There is nothing wrong with criticism of the judiciary, provided such criticism is not turned into personal censure that can even lead fanatical supporters to harm those they perceive as enemies of their idols.

As it is, even those who are not parties to the ongoing legal battle have expressed concern at the ex parte discussions. Replying to my earlier opinion on the last episode of Zooming with the Zumas, one Twitter contributor  [Thapelo Podile@lefatshe] wrote: “Will see if the OCJ is captured as well. How do you discuss a case without all parties involved? These captured journalists just write without thinking of law basics.”  

The narrative of the capture of the Office of the Chief Justice (OCJ) is too important to ignore. Perhaps it is now the time for Chief Justice Mogoeng Mogoeng to establish an inquiry into the state of the South African judiciary post-apartheid, to deal once and for all with the insinuation that our judiciary is corrupt and captured. Waiting for those who allege capture and corruption of the judiciary to come forward to prove their allegation with irrefutable evidence is an exercise in futility. What such delay only does is to benefit the list of high-profile people and politicians who are implicated in corruption and other illegal or unlawful activities.

With the mounting criticism of the judges, the judiciary is pushed into a corner and some courts are bound to respond to what they consider “baseless” attacks on the judges. The Constitutional Court judgment of 29 May 2020 in the case of EFF v Gordhan; Public Protector b Gordhan Justice Sisi Khampepe made profound concluding remarks regarding criticism of the judges. According to Khampepe:

 “…courts should not be immune to reasoned criticism. In fact, in a constitutional democracy like ours, criticism of the courts and other public offices is strongly encouraged. There should be robust debates in the public domain on pertinent issues that affect it. However, there is danger in following populist rhetoric and labelling courts as captured and corrupt, without sound reasons or evidence. This undermines one of the core tenets of our constitutional democracy” [at paragraph 98].

Bad faith attacks on the benches only serve to undermine the constitutional project of the republic. There is nothing wrong with criticism of the judiciary, provided such criticism is not turned into personal censure that can even lead fanatical supporters to harm those they perceive as enemies of their idols.

The NPA and the bench must not compromise effective administration of justice and their integrity by involving themselves in unnecessary questionable ex parte communication without the knowledge and/or consent of Zuma’s lawyers. But the Zuma lawyers should not expect the NPA to reveal every significant and insignificant detail of its strategy.

In conclusion, as per Justice Frankfurter in the United States Supreme Court case of Dennis v. the United States, 339 U.S. 162, 182 (1950), at 56: “Many and conflicting are the criteria by which a society is to be deemed good, but perhaps no test is more revealing than the characteristics of its punitive justice. No single aspect of our society is more precious and more distinctive than that we seek to administer criminal justice according to morally fastidious standards. These reveal confidence in our institutions, respect for reason, and loyalty to our professions of fairness.” DM