Unless Jacob Zuma and the National Prosecuting Authority (NPA) suddenly have a change of heart and decide to file affidavits, a judge of the North Gauteng High Court will, on 16 March, hear the DA’s application to review the dropping of charges (on more than 700 counts of fraud, corruption, money laundering and racketeering) against President Jacob Gedleyihlekisa Zuma.
As things stand, the court will hear the DA’s application “unopposed”. In other words, the judge will reach a decision without listening to either Jacob Zuma’s case, or the NPA’s.
This is made possible by a procedure of the court called a “Practice Directive”. It is a way of making progress in cases that have come to a standstill because people have attempted to delay (and evade) justice by simply ignoring court deadlines.
This is precisely what the National Prosecuting Authority and President Jacob Zuma have been doing, repeatedly, for almost six years. If the proverbial “man-in-the-street” did this, he would be in contempt of court. Of course, the President and the NPA are too, but they clearly believe they are above the law and immune from the consequences.
In no proper democracy would it be possible for a President to flout the constitution he has sworn to uphold, or for the Prosecuting Authority to subvert the course of justice it has a responsibility to expedite. We will not let them get away with it.
Jacob Zuma – our president and the man who, on Thursday evening, will stand up in the National Assembly to bluff his way through his 8th State of the Nation Address (SONA) – must be seen for what he is: an evader of justice.
In this latest installment of the “Spy Tapes” saga, Jacob Zuma and the NPA have ignored two deadlines to submit their affidavits (after having already used this tactic previously in former instalments of this marathon case).
These answering affidavits are meant to be their response to the DA’s supplementary affidavit, based on what we learnt from the Spy Tapes recordings as well as the NPA’s Record Of Decision to drop the charges shortly before the election that brought Zuma to power in 2009.
To give you an idea of the lengths Jacob Zuma has gone to in order to evade justice, it took more than four years and six court appearances for the “Spy Tapes” and the “Record of Decision” eventually to be released to us in September last year.
While we’ve had to tirelessly raise funds and carefully budget to pay for this titanic legal battle, Jacob Zuma and the NPA have had no such troubles.
The President regards taxpayers’ hard-earned contributions to the fiscus as his own private legal (and home renovation) fund. He has squandered many millions on a legal team that has a mandate to keep him out of court.
Yet publicly he has, in the past, said he would “welcome his day in court”. More recently he has said that if he has to appear in the dock, he will bring the whole edifice down by his evidence.
This is the context in which we should evaluate what the President says in his SONA on Thursday.
He will, once more, paint a glowing picture of an administration that in reality is degenerating beyond cronyism and corruption, in the direction of a criminal state.
The President is a past master at saying what people want to hear — and then finding ways to duck and dive when the delivery deadline draws near. The state’s legal team has twice agreed to court deadlines for the submission of their answering affidavits – first 19 January and then 2 February – both of which were ignored.
But this time it won’t simply drag on indefinitely. Last week Thursday, the DA enrolled the application on the court’s “Unopposed Roll” and came away with a court date: 16 March 2015.
Of course, the respondents will, in all likelihood, suddenly find the time and motivation to file their affidavits in order to prevent an unopposed hearing.
In this case, the matter will not actually be heard on 16th March, but it will produce another court date soon thereafter. President Zuma and the NPA might have bought a bit more time, but the sand in their hour-glass is rapidly running out.
Make no mistake, President Zuma is not engaged in aimless procrastination. There is a very good reason for him to avoid appearing before a judge for as long as possible.
Repeated delays buy him the time that he (and the many others who fear being implicated) need to capture and subvert, through cadre deployment, the very institutions that should hold the politically powerful accountable to the constitution and the law.
During the past few years we have seen this process unfold, although initially it was difficult to see it for what it was.
Every individual who might fulfill their constitutional duty of investigating allegations of corruption and prosecuting the politically powerful, was suspended or sidelined under flimsy pretexts, or simply resigned for unconvincing reasons.
In the case of the corruption busting Scorpions, the entire unit was disbanded. This has a powerful demonstration effect. The yes-men appointed to replace them know that the only way to hold onto their positions is to shield Zuma Inc. from investigation and prosecution. Trashing our constitution is an incidental by-product for these cadres.
By now, every South African knows that the President is well on his way to achieving the “state capture” he covets. In just the last two months, the Hawks, the South African Revenue Services and the Special Investigative Unit have become leaderless.
The National Director of Public Prosecutions, Mxolisi Nxasana, looks set to follow the same route, as Jacob Zuma launches an “inquiry into his fitness to hold office”. The real reason is that Zuma is not sufficiently sure of Nxasana’s loyalty to either himself, or his key ally, former Crime Intelligence Head, Richard Mdluli, to protect them from renewed prosecution.
When institutions of state are stripped of their “leaders” under a variety of pretexts, they are replaced by close Zuma allies in “acting” positions. This is an additional convenience for the President because “acting” heads are far easier to remove if they put a foot wrong.
It is no exaggeration to say that South Africa is now in a race against time to prevent President Zuma from trashing our constitution entirely by “capturing” all its independent institutions.
And this “state capture” is not limited to investigative and prosecuting bodies. Newspapers and the broadcast media are also in the firing line, as we have seen with the ANN7 news channel, the Gupta-owned The New Age newspaper and the take-over of the Independent Group by the politically-connected Sekunjalo consortium.
In the latest move to take control of the SABC and turn it from a public broadcaster into a state broadcaster (and unashamed ANC mouthpiece), Communications Minister, Faith Muthambi, has signed a secretive Memorandum of Incorporation that effectively strips the SABC Board of its powers. It will give the Minister the power to veto Board decisions on rule changes, appoint an acting CEO (the Zuma-friendly Hlaudi Motsoeneng), recommend the removal of Board members, block disciplinary steps against Motsoeneng and force the SABC to pay for his legal fees.
It is effectively a hostile takeover of the public broadcaster and poses the most serious threat yet to the Independence of the SABC.
The DA’s latest move to prevent continued delays in the High Court case to review the NPA’s reasons for withdrawing corruption charges against the President before the 2009 election, must be seen in this light.
This is the context in which a deeply compromised man will stand before a packed National Assembly – and a nation of TV viewers – on Thursday, pretending nothing’s wrong.
He will clutch in his hand a stack of pages from which he will read yet another “good story”.
Spare a thought for his speech writers. As loyal as they may be, it must be increasingly difficult to stitch together a positive narrative, given the real state of the nation.
Of course, there is a very real chance that we won’t get to the end of Jacob Zuma’s “good story” on Thursday evening, if the noise emanating from the Economic Freedom Fighters is anything to go by.
They know that it is easy to break the media’s “sound barrier” by noisy theatrics. But the DA knows that it is also easy to break yet another institution, the apex institution of any democracy, its Parliament. And we cannot be party to that.
This does not mean that we will allow Jacob Zuma and his executive to evade the questions they must answer.
But we will enforce this through the rules of Parliament to which all parties are bound. Of course rules can be changed, but we must do that according to due process, not by undermining the rule of law while pretending to defend it.
But while the rules stand, we must enforce them through the available legal mechanisms. They have not let us down yet. As the saying goes: the wheels of justice may grind slowly, but they grind exceeding fine.
The DA will not join the EFF in trashing Parliament or our constitution. This would be an irrecoverable disaster for South Africa. Our institutions are all we have to defend people from the untrammeled power abuse of the ruling party.
Slowly, the media’s infatuation with theatrics will subside, hopefully before the cost is irretrievable. But we must anticipate that, for a while yet, the EFF will hold the media captivated, rather than the President to account.
It is far more “revolutionary”, for instance, to outlast Jacob Zuma through seven rounds in court over six years (so far), eventually forcing him to stand before a judge, under oath, and answer the serious allegations hanging over his troubled presidency.