As the wagons circle on a range of characters who are central to the State Capture saga in this country, the law, and thus the courts, are about to be used, it appears, in increasingly political as opposed to strictly legal ways. 

Forensic legal argument fashioned on the basis of a careful construction of the relevant facts is to be replaced by rousing calls to political context and the employment of soundbites that can be fashioned as a defensive weapon by carefully arranged social media bots. 

Take the criminal trial that Jacob Zuma has at times claimed he wishes to have in order to clear his name, but the conduct of which he has fought to delay with every resource available to him for more than a decade. His initial counsel, the late Kemp J Kemp SC, coined the term “Stalingrad tactic” to capture the essence of his strategy: use every legal argument however little legal merit it possessed so that each adverse finding could be appealed through three courts, thereby kicking the can further down the road. 

But even Kemp would have been impressed with the latest move — seeking the removal of advocate Billy Downer SC from the trial on the basis that he has no title to prosecute. One can well understand that Zuma would want Downer out of the way in that he may feel his legal team is forensically outgunned by Downer, but that is surely not the real reason. Running a full-blown criminal trial of this kind requires a sustained legal ability to cross-examine in meticulous detail. 

Let’s examine the relevant law captured in the case of Porritt in 2015, where Tshiqi JA, on behalf of the Supreme Court of Appeal (SCA) said:

“Prosecutors neither make the final decision on whether to acquit or convict, nor on whether evidence is admissible or not. Their function is to place before a court what the prosecution considers to be credible evidence relevant to what is alleged to be a crime. Their role excludes any notion of winning or losing. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings. The United Nations Guidelines on the Role of Prosecutors requires prosecutors to perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system. Further prosecutors are enjoined, in the performance of their duties, to:

“(a) carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;

“(b) protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect.”

Justice Tshiqi continued:

“In adversarial criminal proceedings such as ours, it is inevitable that prosecutors will be partisan. They conduct the case for one of the two sides in a trial, namely the State, as representing the citizenry. They often carry out their prosecutorial functions vigorously and zealously. A prosecutor’s role in a criminal prosecution therefore makes it inevitable that he or she would be perceived to be biased. Prosecutors usually approach criminal prosecutions with a view, sometimes a very strong view, that accused persons are guilty. That is permissible, subject to the caveat that they must not prosecute in single-minded pursuit of a conviction.”

The SCA emphasised that a prosecutor may not mislead the court or conduct himself or herself in a manner where fidelity to law or fact is eschewed. But to make such a showing requires evidence, not political posturing. In Porritt, there was one prosecutor who was in private practice and another who had been involved in litigation involving the liquidation of a company in which the accused had an interest. Neither fact was considered sufficient to conclude that either lawyer had no title to prosecute. 

In the Zuma case, the key argument is that Downer deposed to an affidavit in litigation brought by the DA to reinstate the charges against Zuma. But an examination of that affidavit deposed to in 2015 reveals that it was in the form of a confirmatory affidavit to the effect that, unlike the floundering former NPA head Mokotedi Mpshe, the prosecution team wanted to ensure that Zuma be prosecuted.

Frankly, save for Zuma and his rapidly diminishing group of supporters, so does the whole country. And as in the case of Porritt, it is truly difficult to see how this affidavit or Downer’s determination to have a court decide whether Zuma is guilty as charged can constitute a basis for a finding that Downer is without title. 

Coherent argument lacking

In the absence of a coherent argument to the contrary, it appears as if this is another in the Stalingrad legal playbook, designed at worst to delegitimise the trial politically and at best to ensure further delays.

Then there is the application of Ace Magashule, launched against his own party. Again the papers prepared on Magashule’s behalf reveal a political case with a light sprinkling of law. Ironically, in litigation that he should know well, that is in Ramakatsa v Magashule, the Constitutional Court was careful with regard to judicial intervention in the internal affairs of a political party: 

“At common law a voluntary association like the ANC is taken to have been created by agreement as it is not a body established by statute. The ANC’s constitution together with the audit guidelines and any other rules collectively constitute the terms of the agreement entered into by its members. Thus the relationship between the party and its members is contractual. It is taken to be a unique contract.”

A court will thus tread cautiously when dealing with internal political disputes, particularly when the issue of urgency is based on Magashule’s personal view of his own centrality to the future of the country. But like the Zuma application, turning a case into a political trial rather than it being based on legal principles that need to be applied appears to be the main objective.

All this was occurring as the country learnt that the Guptas had hijacked some R49-billion, the money that could and should have gone to those in desperate need, including children whose schools are built with mud, hospitals without sufficient resources to cater for those most in need, and the millions who remain homeless. 

To see the courts employed to resolve political grievances of the Zuma or Magashule kind rather than being the venue for holding those criminally responsible for creating the conditions in which the Guptas benefited in this sickening way is truly a most damning indictment on the state of this country. And, with it, the integrity of the legal system that has helped spawn this conduct. DM