rom the infamous Nkandla fire pool to the creative accounting of the Fifa diaspora legacy programme and the great escape of Sudan’s President, Omar al-Bashir, South Africans have been asked to swallow a lot of extraordinary explanations about what their politicians get up to.
Another compelling addition to that list could well be the “myth of the immaculate prosecution”.
This concept, used by President Jacob Zuma’s advocate Kemp J Kemp more than 10 times in his heads of argument in the so-called spy tapes case, appears to be the catchphrase at the centre of Zuma’s legal strategy to keep at bay the 783 counts of corruption that have dogged him since well before he became president.
After six years, more than an entire term in office and two stops at the Supreme Court of Appeal (SCA), it will soon be high noon at the North Gauteng High Court, where the merits of the case to review the decision to drop charges against Zuma will finally be heard.
So what is Zuma’s legal strategy?
In a lot of ways, it is classic Kemp, a continuation of what has been used in defence of Zuma all along, an approach that has come to be known among commentators as “Stalingrad burning”.
This is based on a comment made by Kemp in 2007, when Zuma went to court to challenge attempts by the National Prosecuting Authority (NPA) to obtain documents from Mauritius that allegedly incriminated him.
Judge Jan Hugo asked Kemp: “If a person professes his innocence, then why go to all these lengths to prevent this evidence from being obtained?”
“We think it is important. This is not like a fight between two champ fighters.
“This is more like [the World War 2 battle of] Stalingrad. It’s burning house to burning house,” replied Kemp.
Such an approach partly explains why it has taken so long for the merits of the DA’s case to finally be considered in court.
And so, in his heads of argument, Kemp expects the DA to jump through a lot of hoops, but the party may well have thought itself clear of such hurdles already.
Kemp argues, for instance, that the DA will again have to deal with issues such as demonstrating why they have the legal standing for a review despite the fact that the SCA previously considered it.
It also means that, whatever the high court decides, the chances of appeal are nigh on 100%.
But the real crux of Zuma’s defence, perhaps unsurprisingly for a case involving a politician, comes down to the argument that the DA is taking the April 2009 decision of the then acting NPA head, Mokotedi Mpshe – as communicated in a press statement on the matter – out of context.
“Decontextualisation characterised these proceedings from beginning to end,” argues Kemp, who says the DA has focused deliberately and myopically on Mpshe’s statement.
Mpshe’s decision to drop the charges, argues Kemp, was never solely about the timing of the charges against Zuma but took place against a bigger backdrop of the abuse of prosecutorial process.
Enter the Browse Mole report
And here, argues Kemp, the myth of the immaculate prosecution and the controversial Browse Mole report come into play.
Kemp’s heads of argument make it clear that, whatever the DA may say, the defence sees then Scorpions boss Leonard McCarthy as being at the centre of the Scorpions’ investigation and prosecution of Zuma.
McCarthy was also then president Thabo Mbeki’s man through and through.
Kemp points out that, in 2005, McCarthy testified under oath in an affidavit that the investigation of Zuma had been a model of propriety.
In Kemp’s distinctive turn of phrase, he “[eulogised] the integrity of the Zuma prosecution”.
In the statement in question, McCarthy said “...the slurs of the defence on the manner in which the state has conducted the investigation and prosecution of this case are scurrilous and utterly unfounded”.
LEGAL EAGLE Kemp J Kemp (right) has served as the primary advocate for President Jacob Zuma for several years, representing him in his high-profile rape trial and his corruption trial