Let the record reflect Jacob Zuma’s dismal court tally

The dangerous allegation of judicial bribery is a puzzling one, given how badly he fared

21 February 2021 - 00:00 By Franny Rabkin
Former president Jacob Zuma.
Former president Jacob Zuma.
Image: Thuli Dlamini

If there were, as alleged, millions spent by the State Security Agency (SSA) on "recruiting and handling sources in the judiciary in order to influence the outcome of cases against President Zuma", the mission seems to have been a dismal failure.

A comprehensive look at the judgments of our courts over the relevant time period paints the opposite picture: the courts overwhelmingly - not always - found against Zuma. Key judgments during that period show that the courts also acted as a bulwark against unlawful flexing of their muscle by security agencies.

There have been many shocking moments at the state capture commission, but the week in which the alleged shenanigans of the SSA were laid bare provided perhaps some of the most jaw-dropping. The chair of the SSA high-level review panel, Sydney Mufamadi, acting SSA director-general

Loyiso Jafta and investigator "Ms K" testified about unlawful projects undertaken by the SSA including Project Justice - "motivated . by a specific need to counter the influence of judges hostile to President Zuma".

"Allegations made were to the effect that judges were bribed to achieve this purpose," said Mufamadi. Millions were said to have been delivered to former minister of state
security David Mahlobo for this purpose. Mufamadi said the panel was told that "amounts of R1.2m and R4.5m were routinely given".

According to Ms K, one of the people interviewed said he was instructed to deliver money regularly to minister Mahlobo for Project Justice, starting at R1.3m and extending upward to R21.8m.

"This should, however, we thought, be treated with extreme caution . because we were not provided with any actual evidence that the operation was actually carried out to conclusion," said Mufamadi.

Jafta's evidence was more alarming. He said there was "very strong circumstantial evidence that some of the money went into the hands of some of the members, or a member, of the judiciary".

The so-called fire pool at the private home of former president Jacob Zuma who spent much effort in trying to avoid repaying public money spent on renovations, only to be thwarted by the courts.
The so-called fire pool at the private home of former president Jacob Zuma who spent much effort in trying to avoid repaying public money spent on renovations, only to be thwarted by the courts.
Image: Rogan Ward

Pressed by the commission chair, deputy chief justice Raymond Zondo, Jafta said it was one judge. The judge in question has yet to be told about the evidence, he said, and the matter is still being investigated.

With such large amounts of money and "regular" payments alleged, the judiciary now labours under a suspicion. If there was strong circumstantial evidence in respect of one judge, could this be the tip of an iceberg?

But a comprehensive look at the judgments of our courts at the time points overwhelmingly in the opposite direction.

The Sunday Times has reviewed judgments in cases that Zuma and his family members were party to over the period 2014-2018. He lost in the overwhelming majority of them. Even including those cases where the president was not the main respondent, but where an outcome would serve his perceived interests - as in the cases where parliament was dragged to court on the basis that it was protecting Zuma or not holding him to account - the outcomes mostly did not favour Zuma's interests.

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In 41 judgments over the 2014-2018 period, Zuma's interests came out on top in only eight. These cases do not include the many court cases that dealt with disputes that became part of the broader state capture story, including those against the minister of police about the removal of Independent Police Investigative Directorate head Robert McBride, Anwa Dramat and other top police officers, or the protracted litigation over the SABC under Hlaudi Motsoeneng.

Indeed, the period may be described as one of the tensest in the relationship between SA's executive and its judiciary - reaching a low point when Sudan's president Omar al-Bashir, wanted by the International Criminal Court for war crimes and crimes against humanity, mysteriously escaped from SA despite a court order prohibiting him from leaving - bringing SA the closest it has come to a constitutional crisis.

The scathing judgment that followed Bashir's escape resulted in a stand-off: members of the executive were shrill in their criticism of the judiciary, leading to an unprecedented show of force from the heads of court, who came out en masse at a press conference to ask for a meeting with the executive to discuss "repeated and unfounded criticism".

 

This was the period when a signal jammer was used at the president's 2015 state of the nation address and parliament's cameras were kept trained on the face of the speaker while mayhem broke out in parliament. A court challenge to parliament's rules on this failed, by a majority of two to one, in the Western Cape High Court - but that decision was over turned by the Supreme Court of Appeal (SCA).

It was the period when the National Key Points Act - an apartheid relic - was dusted off and used to shut down protests. The act made certain sites national key points but the state kept them secret. The high court in Johannesburg declared this unconstitutional.

When it came to Zuma's personal battles with the courts, there was the watershed Nkandla judgment in 2016, in which the Constitutional Court found that the remedial action laid out by the public protector in her "Secure in Comfort" report on the upgrades to Zuma's Nkandla homestead was binding. The judgment put an end to the seemingly endless runaround of the president, aided and abetted by members of his executive, to avoid paying back a portion of the money spent by the state on his private home, as directed by the report.

By the time the Nkandla case was argued, Zuma's counsel was openly talking in court about how the judgment could be used to seek Zuma's impeachment - "This is a delicate time, in a dangerous year," said Jeremy Gauntlett SC. Zuma was already on the ropes.

He had lost almost every step of the way in the case over accessing the spy tapes. The litigation over the spy tapes was a marathon preliminary fight in the DA's case to set aside a decision by acting national director of public prosecutions (NDPP) Mokotedi Mpshe to drop corruption charges against Zuma.

The 2014-2018 period does not cover the very first judgment in the matter from the Pretoria high court, in 2011; it was in Zuma's favour but was overturned on appeal. But in August 2014 the SCA had to, for the second time and this time upholding the Pretoria high court, tell the National Prosecuting Authority (NPA) to release the record of
Mpshe's decisions (famously referred to as the spy tapes) to the DA, clarifying which documents and recordings its earlier order covered.

Another epic battle of the period related to Zuma's appointments at the NPA. It was fought on various fronts and in different cases

The judgment cleared the way for the main fight, and the DA's case to set aside the Mpshe decision was heard in March 2016 by the high court in Pretoria. Zuma lost.

He lost again when he applied for leave to appeal. He lost again on appeal to the SCA in 2017, with justice Mahomed Navsa opening his judgment with a quote from TS Eliot about "the recurrent end of the unending".

Another epic battle of the period related to Zuma's appointments at the NPA. It was fought on various fronts and in different cases. There was the court challenge to the former president's settlement agreement with former NDPP Mxolisi Nxasana that saw him agree to walk away as prosecutions head barely a year after he took over, with a R17.3m pay cheque. On application by Corruption Watch, that settlement agreement was set aside. An appeal to the Constitutional Court failed. As a result, Shaun Abrahams' appointment as NDPP - he came in after Nxasana - was also unlawful.

Running alongside the Nxasana court battle were three separate court cases about deputy national director Nomgcobo Jiba. The four deputy national directors are also, in terms of the NPA Act, appointed by the president and may only be removed by the president.

Before Nxasana was appointed, Jiba - widely believed to be protecting Zuma's interests in the NPA - was acting as national director. When Abrahams was appointed, one of his first moves was a reshuffle of his deputies, putting Jiba into the most powerful deputy position.

The years 2014-2018 were crucial in this battle. In a number of court judgments, Jiba and the head of the specialised commercial crime unit, Lawrence Mrwebi, were scathingly criticised by the courts for how they had conducted litigation on the part of the NPA - even leading to a charge of perjury against Jiba during Nxasana's time, which was withdrawn when Abrahams took over.

Freedom Under Law (FUL), the DA and the General Council of the Bar (GCB) all went to court. The GCB sought to have Mrwebi and Jiba struck from the roll of advocates. The effect of this would have been to disqualify them from their posts. The DA and FUL sought court orders to compel Zuma to launch inquiries into their fitness for office.

Zuma had a better success rate in these cases than in the cases in the spy tapes saga, The Pretoria High Court ordered that Jiba and Mrwebi be struck from the roll but, in a notable success for Jiba, the SCA set that aside. The Western Cape High Court found in favour of Zuma in the DA's case - but primarily because the court was persuaded by Zuma's argument that there was other litigation on the same subject in another court.

But Zuma did not lose every case in this period. If he did, there may well have been cause to worry about the judiciary

In December 2017 the high court in Pretoria, ruling in the FUL case, set aside Zuma's decision not to hold an inquiry into Jiba's fitness for office. When Cyril Ramaphosa was elected president the following year, the fitness inquiry for Jiba was conducted and she was removed.

There was also litigation over the state capture report - first to interdict its release, which was abandoned, and then to review it and set it aside. Zuma lost that case and was hit with a personal costs order against him, which he is appealing. The SCA sent him packing, and he has now approached the Constitutional Court.

But Zuma did not lose every case in this period. If he did, there may well have been cause to worry about the judiciary.

Testifying at the state capture commission, Mufamadi warned the commission to treat the allegations around Project Justice with extreme caution. There may be more evidence coming - there is a Mr Y still expected to testify.

It may yet emerge that there was a judge who received money from the SSA. But looking from an outcomes perspective, the judgments of the period do not suggest that a project to sway the courts in favour of Zuma had any success.

Indeed, it would be quite a feat to accomplish - given how cases are assigned and the system of appeals in SA. In the high court, judges do not choose their cases but are assigned them by the judges president. In order to sway the courts in favour of Zuma, the SSA would have needed to have judges president and their deputies in its pocket.

And not just any judges president: the crucial ones - Gauteng, KwaZulu-Natal and the Western Cape. And even then, judgments can still be appealed, and the SSA would have needed to get a critical mass of appellate judges on board. The SCA's panels are compiled by the president of that court according to a complex system of seniority, and the Constitutional Court sits en banc - as a full bench for every case.


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