THE LAST WORD

Legal travails

The Constitution of South Africa, the Constitutional Court, The Zondo Commission, the Supreme Court of Appeals and High Court Divisions have all featured prominently in the media with the common theme being matters related to former President Jacob Zuma.

By Peter Bagshawe

The most recent of the court decisions that is noteworthy is the decision by the Supreme Court of Appeals that Zuma be denied State funding for the legal fees for his corruption trial scheduled for May 2021, and further ordering he pay back legal fees that have been paid out by the State. The amount of the fees to be repaid vary in estimates between R15 million and R25 million and reflects amounts paid by the State Attorney as fees between June 2005 and March 2018. The Supreme Court confirmed the December 2018 Full Bench decision of the North Gauteng High Court as correct, clarifying that assistance by the State Attorney cannot be granted in criminal matters and further made an adverse costs award against Zuma.

Immediately following this decision, an announcement was made that Jacob Zuma’s current legal team would no longer be representing him in the corruption trial involving Zuma and French arms company Thales scheduled between 17 May and 20 June 2021 in the Pietermaritzburg High Court. Initially the withdrawal was seen as a response by Mabuza Attorneys to the Supreme Court decision denying funding of legal costs. Subsequently it was announced that Zuma had discharged his legal team and would be handling his corruption trial himself. The question that immediately arises is whether the Pietermaritzburg High Court would permit this to take place. The next point of debate is whether the lack of a legal team (Mabuza Attorneys appointed Advocate Muzi Sikhakhane and there is currently a lack of clarity on whether the advocate will continue with the trial) will lead to a postponement of the matter in order that a replacement legal team may be appointed by Zuma. Debate exists that the lack of a legal team is a tactic to force a further postponement and a manipulation of the legal system. In this regard, Section 342(a) of the Criminal Procedure Act permits an investigation by the court if it suspects that the changing of legal teams is a tactic being adopted to obtain postponements. I am not aware that this type of investigation has ever been undertaken by the courts. An additional possibility is that Legal Aid could be applied for subject to Jacob Zuma being able to prove that he fulfils the qualifications. This would require that Zuma opens his financial records to scrutiny, which is unlikely. A final piece of input is the recent offer from Attorney Richard Spoor to appear pro bono on Zuma’s behalf.

The third court judgment that has noteworthy content is that delivered by the Constitutional Court. In brief, Zuma refused to comply with a summons requiring his appearance before the Commission. The Commission applied to the Constitutional Court for a declaratory order that Zuma was obliged, by law, to cooperate. The rationale behind this is clear in that the Zondo Commission has the rights of a High Court and would have, in any event, had the right to issue a summons to secure attendance at the Commission. The Constitutional Court confirmed that the refusal to attend the Commission hearings as required constituted contempt of court and Zuma was under a legal onus to appear. In respect of the Commission’s application that the Constitutional Court determine the punishment that should be applied for refusing to appear (with the Commission requesting a two year period of imprisonment), Chief Justice Mogoeng Mogoeng instructed that Zuma supply a maximum fifteen page affidavit on the sanction to be applied should he be found guilty. This is, of itself, highly unusual. Zuma declined to supply the affidavit as required.

In addition, the Constitutional Court was critical of the administration of the Zondo Commission, with Justice Chris Jafta stating clearly that the Commission (which had secured attendance of some 2,000 witnesses via summonses) invited Jacob Zuma to appear before it. Initially, this was a large portion of the necessity for an urgent application to the Constitutional Court because of the lack of summons. Additionally, the Commission went through an unnecessary process of a hearing on whether to issue summons when the right to issue summons was well known and often used. This led to the Constitutional Court querying why former President Zuma had been accorded preferential treatment.

A starting point to the debate around the appearance and non-appearance

before the Zondo Commission by former President Jacob Zuma, relating to the period when he was in office (between 9 May 2009 and 14 May 2018), must have as a starting point, be the duties that he was required to fulfil whilst in office. Inserted below is the oath that he took before Chief Justice Pius Langa on 9 May 2009 and again on 20 May 2014 before Chief Justice Mogoeng Mogoeng:

“Oath or solemn affirmation of President and Acting President.

In the presence of everyone assembled here, and in full realisation of the high calling I assume as President of the Republic of South Africa, I swear that I will be faithful to the Republic of South Africa, and will obey, observe, uphold and maintain the Constitution and all other law of the Republic; and I solemnly and sincerely promise that I will always

• promote all that will advance the Republic, and oppose all that may harm it;

• protect and promote the rights of all South Africans;

• discharge my duties with all my strength and talents, to the best of my knowledge and ability and true to the dictates of my conscience;

• do justice to all; and

• devote myself to the well-being of the Republic and all of its people.”

Building from this is the first right listed in the South African Constitution’s Bill of Rights, namely: “Section 9.(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.“

The Zondo Commission (Judicial Commission of Enquiry into Allegations of State Capture) was established (via enactment by Jacob Zuma) to review allegations relating to allegations of corruption, fraud, maladministration and State capture in terms of the recommendations contained in former Public Protector Tuli Madonsela’s “Captured State Report”.

Building from this is the first right listed in the South African Constitution’s Bill of Rights: “Section 9.(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.”

An analysis of the Oath of affirmation details that the Constitution, laws of the country, advancing the interests of the Republic, the rights of all South Africans and well-being of the Republic and its citizens are duties specifically acknowledged and undertaken. The Judicial Commission of Enquiry into Allegations of State Capture is required to examine, hear evidence and recommend actions in respect of specific allegations and, given that Jacob Zuma has been named by some four hundred witnesses, the Commission cannot complete its function without his evidence and input. The counter argument to his appearance is that Zuma states that he will not receive a fair and impartial hearing at the Commission and that the legal system and hierarchy of courts that serve it are being used to persecute him. This, in effect, begins with the apex court being the Constitutional Court, working through the Supreme Court of Appeals into Divisional High Courts as well as the Zondo Commission. If there was compliance with his oath of office, the required appearance and protection of Section 9.(1) should afford ample protection.

The sequela of the above in May 2021 will be interesting and, given the split between the Zondo Commission and Pietermaritzburg High Court, should provide clear direction on whether our legal institutions will provide protection to the Rule of Law.

PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.