South Africa’s National Prosecuting Authority needs to box smart – there is no better way to clear the air than swiftly to charge Jacob Zuma for the corrupt manner in which he relieved Mxolisi Nxasana of his post as the head of the NPA. This crime is far more serious, far more recent and far more relevant to the future of the rule of law and constitutionalism in South Africa [SA].
The 18 criminal charges against former President Jacob Zuma, reinstated by the Supreme Court of Appeal on 13 October 2017 in the culmination of a judicial review initiated by the DA in April 2009, must stand. Zuma’s unpublished but bulky representations aimed at their withdrawal have failed, as was announced by current National Director of Public Prosecutions, Shaun Abrahams, in an 11-minute press briefing on 16 March 2018.
Four serious crimes are identified in the 18 charges: corruption, fraud, money laundering and racketeering. All of the charges flow from 783 transactions between Zuma and his former financial adviser, Schabir Shaik, or companies controlled by the latter or in which he had a major interest.
Shaik and his companies were convicted in the High Court on various counts of corruption and fraud in June 2005. The state alleged and proved to the satisfaction of that court (and both higher courts to which appeals were directed) that over a period of nearly seven years, they made some 238 payments either directly to, or for the benefit of, Jacob Zuma, at all material times a prominent politician. The payments had been made between October 1995 and September 2002 as an inducement to Zuma to use his name and political influence for the benefit of Shaik’s businesses or as an ongoing reward totalling R1,340,078 for having done so.
The Shaik trial lasted more than six months, generated huge media interest and attracted a great deal of public attention. More than 40 witnesses testified. The record comprises more than 12,000 pages with oral testimony constituting more than 6,000 pages.
When the Shaik matter reached the Constitutional Court on appeal relating to the forfeiture of the fruits of the crimes, Acting Deputy Chief Justice O’Regan, writing for a unanimous court, observed that:
“It is clear that corruption is a serious crime which is potentially harmful to our most important constitutional values. Moreover, it is clear that both our Parliament and the international community recognise the close links between corruption and organised crime.”
The prosecution has, for the purposes of the now pending case against Zuma, expanded the number of transactions from 238 to 783 and it intends to call over 200 witnesses in the matter, including forensic experts.
Given the length of the Shaik trial, it is clear that the Zuma trial will be considerably longer and a very expensive undertaking, particularly so if the hitherto consistent “Stalingrad strategy” of the Zuma legal team is persisted with during the trial. There is no reason to doubt that the strategy will not be abandoned.
It seems, from what little was revealed during President Ramaphosa’s first parliamentary question session, that the taxpayer will foot the bill for the defence of Zuma and will only be able to seek to recover costs if a conviction is secured at the end of the trial and the appeals which routinely form part of the Stalingrad strategy. This arrangement (flowing from an agreement with then President Mbeki) is both wrong and outrageous; the validity of the agreement ought to be impugned as Zuma does not hold any political office now and was not put in office to commit crimes.
It is also a racing certainty that, for the purpose of delaying the matter, the decision announced on 16 March 2018 will be taken on review, and if necessary on appeal, by Zuma. He may also apply for a permanent stay of prosecution which will also hold up the commencement of the trial.
A rather misguided stab at a permanent stay has already been launched by an obscure NGO in the Western Cape High Court. Both the NGO’s standing to sue and the jurisdiction of that court to hear the matter will doubtless feature prominently in the application. While it is pending, the application will delay the commencement of the criminal trial. The Judge President in Cape Town is a known Zuma sympathiser with a Stalingrad strategy of his own in relation to long-outstanding disciplinary proceedings against him.
The National Prosecuting Authority needs to box smart in the circumstances sketched above. After the review and stay applications are dispensed with (probably on appeal) a long, complex and expensive trial about 783 smallish transactions that mostly took place in a previous century is required.
This trial is not the only option for bringing Zuma to book.
Far more relevant and topical is Zuma’s role in the attempted capture of the state, some State-owned Enterprises and in particular the criminal justice administration itself.
A trial soon, over one transaction which took place as recently as the autumn of 2015 that impacts on the NPA’s overall credibility directly, would involve evidence on a single invalid and corrupt payment, admittedly made, of over R17-million and will, if successfully prosecuted, set the tone of the post-Zuma era. This prosecution is a possibility the management of the NPA ought to consider. Only one prosecution witness need be called and all of the limited quantity of documentation relating to the matter tends to support his version of the corrupt transaction at the heart of the case. Only two charges are needed, one of corruption and one of defeating the ends of justice.
A criminal complaint in relation to the matter has been under investigation by the Hawks since July 2015, when, fortified by a favourable opinion of two senior counsel, and armed with an affidavit and draft charge sheet, Accountability Now laid the two charges concerning the manner in which former NDPP Mxolisi Nxasana was relieved of his duties.
Related civil proceedings, brought by FUL, Corruption Watch and CASAC, have already reached the Constitutional Court on appeal, and judgment in the matter is imminent. The validity of the appointment of the current NDPP, Abrahams, is a live issue in the appeal. It was common cause in argument that the transaction complained of is illegal and invalid. Its criminality was not in issue in the civil case nor was the available evidence of Nxasana, which would be adduced in the criminal trial, before the court, having been excluded from the record because it was presented late. The High Court nevertheless rejected the version put forward on oath by Zuma. During argument in both courts, counsel did describe the payment of Nxasana’s golden handshake to agree to leave office as a bribe.
This low hanging fruit is available for plucking by the NPA, if it chooses to “box smart”. In the Shaik trial a sentence of 15 years was imposed on the corruptor of Jacob Zuma. This is the minimum sentence laid down in the applicable legislation. Zuma, now 75 years old, will surely not get a lesser sentence if convicted for bribing Nxasana to leave office after a short, sharp and well directed trial. There is no special dispensation for pensioners in SA, unlike the Italian criminal law which has been exploited by Silvio Berlusconi after his conviction.
What Zuma did to the country and the NPA by easing out Nxasana is a far more serious matter than his corrupt relationship with Shaik. It goes to the overall administration of criminal justice, not to 783 petty corrupt payments intended to oil the fortunes of the Shaik business empire.
The NPA top management ought to be able to muster the moral fortitude to discern the need to clear the air around its widely perceived lack of constitutionally required independence in its leadership; the dark cloud of suspicions that Abrahams was previously willing to align the NPA with Zuma’s interests rather than the interests of the administration of justice and the general feeling that the NPA “ain’t what it used to be”.
If it is so able, there is no better way to clear the air than swiftly to charge Zuma for the corrupt manner in which he relieved Nxasana of his post as the head of the NPA. This crime is far more serious, far more recent and far more relevant to the future of the rule of law and constitutionalism in SA.
The Constitution itself enjoins the entire public administration to use resources in an effective, efficient and economical way. If the objective of a “winnable case” for the prosecution is the appropriate conviction and punishment of the accused, let’s get there sooner rather than later.
It is time for the NPA to recall the words of the unanimous Constitutional Court quoted above and also to bear in mind that on 17 March 2011 our highest court’s concerns about corruption were expressed in the following words of Moseneke DCJ and Cameron J in the second Glenister case concerning the unconstitutionality of the Hawks:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
When the relatively trivial “small time crook” nature of the corruption between Shaik and Zuma is contrasted with the serious harm done to the overall administration of justice and the trajectory of constitutionalism in SA by the “dis-appointment” of Nxasana, then it ought to be a no-brainer that the latter matter deserves priority on the roll for hearing in the criminal sessions of the High Court.
It is up to the NPA to do the right thing, not because the DA’s successful review and a change of president points it in that direction, but out of inner conviction, unswerving independent-mindedness and to preserve its own integrity.
If Jacob Zuma ever considers doing the right thing he could consider negotiating a plea bargain by pleading guilty to common law crimes (those that don’t have minimum sentences, a la the travelgate fraudsters) in both matters and confess to all other wrongdoing on his part so as to shop those he threatened to shop when first charged concerning his cosy relationship with Shaik. Zuma’s little black book of “Where the ‘smallanyana’ skeletons are buried” could be usefully handed to the NPA as part of the plea bargain.
Urban legend has it that when told by Mbeki (whom he later threatened to force into the witness box in the long arms deals related trial now in prospect) that he was being fired as deputy president because of Shaik’s conviction for corrupting him, Zuma looked around the room full of assembled Cabinet ministers and said: “But, But, but I am the poorest cadre in the room!” •Hoffman is a director of Accountability Now.