Here we are, then, Tuesday morning 6 July (when I usually write this column) and Zuma’s people are trying to prevent him from being imprisoned — after he has been sentenced.
There was an “order” of sorts, to arrest him if he failed to present himself to the authorities last Sunday, but he finagled a way of staying out of prison for at least a few more days. We have to wait and see.
By the time this column goes to press he may well be in shackles and behind bars. However, my gut feeling and from more than three decades of observing South African politics — especially acutely over the past decade or so — tells me that Zuma will not be arrested and he may not serve time in prison.
At best, I suspect, he would be placed under some kind of house arrest, or the courts will reconsider the order that he be arrested and suspend his sentence. The worst-case scenario is that never mind South Africa’s rather comprehensive legal corpus, the Zuma case will be politicised to the extent that it might affect the body of South African law.
An all too brief summary of the law — by a non-legal person
South Africa has something of a hybrid legal system made up of a combination of English common law and civilian Roman-Dutch legal principles that can be traced to a civilian (colonial political) heritage. In this context, court procedure owes much to the common law tradition that includes adversarial trial, detailed case reports (including dissenting judgments) and general adherence to precedent.
In parallel to this, what is essentially a European system is customary law. In terms of Sections 30 and 31 of the Constitution, customary law is an equal partner in this hybrid legal system. Customary law was been defined by the Constitutional Court in Bhe v Magistrate Khayelitsha (15 October 2004) and is made up of three different forms: law that is practised in the community; law that is found in statutes, case law or textbooks on official customary law, and academic law.
The current hybrid system in a sense replaces the wilful imposition of laws during the settler colonial and colonial era, which were generally foreign. This typically marginalised or completely ignored the laws of indigenous people. A corollary of this is that local common law — that which stems from Roman-Dutch and English law — excluded African customary laws, which held together, so to speak, the indigenous people of southern Africa.
The key, here, is that since the end of apartheid, there have been attempts to ensure that African Customary Law is developed and given the same standing as the common law which historically favoured the colonisers. In so doing the attempt is to reconcile African Customary Law with the Constitution of 1996. Out of this ought to emerge a legal pluralism through the application of both African Customary Law and common law, and this pluralism can contribute to building social cohesion — with one law dominating the other, or two different legal approaches for the same “crime”.
It is worth bearing in mind that during English colonial rule, there was a system of “Native Administration” — a type of indirect rule. In terms of this policy, indigenous people could rule themselves according to indigenous law in certain matters (like marriage) while the colonial state retained exclusive jurisdiction over matters such as serious crime. I should stop here, as I am insufficiently qualified to say any more than that which I have presented here, nicht abgesichert — insufficiently protected from criticism.
My formal knowledge of legal matters was acquired during my study of international trade law with a focus on the pre-Meiji era in Japan where legal and political systems operated in tandem with Japanese social customs and put a lot of pressure on people to resolve problems among themselves without the aid of lawyers. It should be said, though, that in the Meiji Era there were no lawyers, as we know them today, in Japan. During the Tokugawa period (1603-1867) there was a great emphasis on social harmony.
Imagining a life beyond the Magna Carta and ‘the African Way’
A set of questions arise. Can indigenous or “traditional” law supersede common law, and given the rising nativism and an African turn towards a type of ethno-nationalism that besets the European world, destabilise South African society and force a retreat into indigeneity?
Let’s face it, whether we like it or not, South Africa’s Constitution is crafted on the basis of western liberal democracy and more particularly, on principles drawn from the Magna Carta which has (since the 13th century) served as the basis for individual rights in Anglo-American jurisprudence.
In step with this (if I may be so bold), South Africa has embraced late capitalist or industrial modernity that is constantly transforming our social and political economic relations. Given that the swelling radical economic transformation (RET), grouping wants nothing to with anyone that has anything to do with “white monopoly capital” and periodically speaks of “decoupling” from the global political economy, at what point do they make the point that Zuma is being judged by non-African laws, and he is not treated in “the African way” — a bit (slightly) like pre-Meiji era Japan shirked conventional Eurocentric jurisprudence in favour of indigenous settling of arguments for the sake of social cohesion.
We know, already, that there have been veiled threats of violence. Zuma’s lawyer, Christopher Mpofu, has threateningly said that sending the former president to jail could “create another Marikana” and that such a decision would “go against the will of the people”. Here “the people” determine Zuma’s fate, and not the legal system. Julius Malema, the putative leader of the RET faction, is on the record as saying white people should apologise, “for their rape, for their murder. When they apologise, they must do it the African way. We need cattle… a synonym of money. They must pay us billions and billions.”
In April 2016, Zuma told the National House of Traditional Leaders he would be “very happy that we solve the African problems in the African way because if we solve them only legally they become too complicated. Law looks at one side only, they don’t look at any other thing… They [courts of law] deal with cold facts and I was complaining [about] that, but they’re dealing with warm bodies. That’s the contradiction.”
That year, Zuma specifically said he would prefer that the Nkandla matter be dealt with “in an African way” rather than through a court of law — the very law that Zuma swore to uphold and protect.
What we are faced with, it seems to me, is that the law — I spent some time and space above to lay it out the best I understand it as a lay person — is largely derived from European principles and practices (and therefore “non-African). There is a pluralism in South African law that makes for traditional law operating alongside common law (a hybrid system that includes English common law, civilian Roman-Dutch legal principles, and customary law).
Politically, however, there is a push-back against anything non-African, coupled with an increase in demand for an Afro-centric nationalism (an African Nationalism, so to speak), that breaks with all things associated with “white monopoly capitalism” which is code-speak for everything from modernity, land ownership to providing the basis for decolonising everything.
What, then, does all of this hold for a future South Africa? There is already an increase in scapegoating of non-Africans, repeated insistence on “the African way” and challenging the Constitution (based as it is in principles derived from the Magna Carta), all of which has distinct echoes with ethno-nationalism (white nationalism) and a fear that the West is losing its grip on the world, and that “the massive influx of non-whites is bad for the West”.
So, with the Zuma case, are we perhaps not witnessing the advent of Afro-nationalism, the African variant of the ethno-nationalism of the European World, and a rejection of the mainly Eurocentric body of South African law, never mind its pluralism and hybridity along with everything “non-African?” There certainly is a lot to think about. We’re still allowed to think what we want, non? DM
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Let’s call it what it is … a crafty cunning individual who will use any and all methods to achieve his goals, which are to essentially do as he pleases when he pleases, without regard to others, to further his own agenda of wealth and power accumulation. At the same time ignoring those inconvenient laws of the land he lives in which for 10 years he swore to personally uphold. Let’s not confuse this with the many thousands of people denied justice pre and post apartheid, due to lack of money and perceived ignorance. Zuma and Malema are in it for themselves, and show the the finger to us all by their actions. It is up to us to say no and insist that they do not get to do as they please, when they please.
I agree. He follows Eurocentric law when it suits him (enriching himself and his family with Rands and property in the process), but now wants to follow ‘other laws’ when it doesn’t suit?
Exactly! Well said James.
To the point. Thought provoking. And a good read.
Interesting analysis worthy of further thought and discussion. My preferences are western. I do like the idea of open systems that are holistic. When it came to King Dalindyebo, Zuma used the legal system as his reason for not assisting. Schabir Shaik seemed to get a more receptive response. Interestingly, I read elsewhere that King Dalindyebo said today that “your about to taste medication you once served on others while in power.”
Good read as well.
Thank you Ismail… a very logical, historic and philosophically real and thought provoking read indeed. Articles like this really do add value to a deeper understanding of the crossroads we all face in the future.
Probably because I was a pre school teacher, global and national issues of inequality, power and as this one, the argument over the rule of law, are easily reduced to a simple micro representation of a pre school classroom where the teacher represents the authority, or power or social mores and the various children represent the diversity of a society. There is always going to be one child who takes all the toys and screams the loudest when encouraged or “told” to share. In the case of Zuma, you are saying that the teacher has the wrong idea of what is just. That we know too well, is very possible. It depends on where the school is and who’s paradigm its serving.
zuma is a criminal and belongs in jail – were he in china he would have been in jail long ago
Wrong! They would have shot him.
oh please! The REALITY is that the Afro-centric anti-white-monopoly-capital crowd love to live it up in Houghton mansions, love nice cars and cash, frequent top hotels & restaurants and basically run on Johnny Walker Blue Label. Painting them as noble savages with their hearts and roots steeped in some ancient, mythical and noble pan-African culture is at best naive.
There is no more an African or Black culture as there is an Afrikaner culture. Language is only a means of communication, no more. Race is only race, skin color does not create commonality more than what is apparent. I can take you to dozen entirely discrete Afrikaner families that share NOTHING but language. They do not have the same belief about diet, about abortion, about church, about justice, about economics, about anything. A Zulu family in rural KZN is as foreign to a Zulu family in Sandton as they both are to a Baganda family in Uganda.
This cloak of “African” has no fabric.
Well said sir! At best these “Afro-nationalist” cultural musings are just an intellectual foray with little bearing on actual beliefs, behaviour and motivation which tend to be far more basic and primal.
Zuma wants to have his cake and eat it. He uses European systems when they suit him, and cries murder when they don’t. This is the same for many others who are finding themselves facing the law, because many of them thought “I am in charge, I can do what I want”.
It turns out, you can’t.
Brilliant article Ismail and well presented. South Africa is now truly part of Africa, maybe the African Dawnis here earlier than expected. The sooner we get used to this the happier we will be for all. Over 1 billion people can’t be wrong with their lifestyle choice, can they? Maybe it depends which side of the burglar bars we sit on. I just wish to pay less tax 😉.
All I know about pan-Africanism and the “African Way” is that Africa’s dictators, strongmen and warlords have used it to great effect. Qadaffi and Amin loved these concepts. Right now, Mali and Eswatini uses it to justify their brutal crackdowns. I’m sure Ethiopia also used it to rebuff criticisms of its civil war. I’m certain Afwerki has it as his personal slogan. The African Way has just become way for Africa’s Machiavellian politicians to divide the people.
Is the King of Eswatini giving us a clear example of the African Way?
The thing about putting forward the ‘African law’ argument is that Jacob may not actually like what he would receive were he to successfully invoke it… That said I do think Africa is in a unique position to take what is working from ‘western’ law and fine tune it to the African context.
I presume that according to African Customary Law, Zuma will be absolved of any crime because he occupied a prominent position and has some name recognition? Much like a member of a royal or Mugabe family could do anything they chose to do?
There us no such thing as “an African way”, and least of all can it be compared to “a European way”. “An African way” proposes that Africa is a united, homogenous cultural grouping, which is, of course, false. Probably the only thing that unites Africa, apart from a skin color, is the colonisation of the continent by outsiders, at that point hailing from Europe. This so-called African way then is merely a common purpose, to decolonise. However, I can’t think of one African state that is actively attempting to decolonise itself. But let’s not get fooled by motor-mouth Mpofu or his client. They will do anything, ANYTHING, to keep Zuma out of jail, and will even go as far as destroying the ANC. I think we are facing our gravest challenge yet, as a young nation. If the correct action is not taken – Zuma arrested by midnight tonight – then our constitutional democracy has been destroyed. This will serve the RET well. They want it ended. We have to be outraged, and show it, or else we are lost.
Interesting piece Issy!
Totally disingenuous piece based on a maximal interpretation of the facts. As I understand it, Traditional Law is NOT on a par with South African Law and that in ALL cases where there is a conflict SA Law takes precedent – one of the reasons you appeal to the SCA not a tribal authority. This is for many reasons: one of which is that women do not enjoy equal rights to men in terms of traditional law in clear violation of the Constitution. Traditional Courts and Traditional Tribal systems in general are perpetuated by those who benefit from them, usually men. Nowhere is this even hinted at in your piece.
Yesterday …after reading your article, I thought you has a rather pessimistic (for a pessimist like me) outlook on how things will pan out . As late evening details reveal. My conclusion was based on the a little publicised report about ‘daughter’ (amidst all the reports of masculine chest thumping!) who apparently said they would proudly escourt (not to be confused with the correctional facility of the same name) JZ to prison. The only ‘rational’ voice in the sea of uncontrolled testosterone – but there none the less.