Prez Volte-Face sets a new le­gal record

The pres­i­dent has a seem­ingly end­less arse­nal of sur­pris­ing coun­ter­ar­gu­ments

Mail & Guardian - - News - Philip de Wet

Pres­i­dent Jacob Zuma set a new per­sonal record on Wed­nes­day: from to­tal con­vic­tion to com­plete about-turn so fast it was al­most in­vis­i­ble. His com­peti­tors could only gape in open-mouthed as­ton­ish­ment.

In fair­ness to those op­po­si­tion po­lit­i­cal par­ties, Zuma’s per­for­mance in the qual­i­fy­ing rounds could in no way have pre­pared them for what was to come.

In Fe­bru­ary 2016 Zuma pro­posed a set­tle­ment about Nkandla just six days before a Con­sti­tu­tional Court hear­ing. Yet by then he had spent a year first soft-ped­alling, then backpedalling, on his pre­vi­ous firm com­mit­ment not to re­pay money he swore he did not owe.

This Septem­ber Zuma did con­sid­er­ably bet­ter, ac­tu­ally mak­ing it to the Supreme Court of Ap­peal before ex­e­cut­ing a per­fect, and per­fectly un­ex­pected, pirou­ette. For years his le­gal team had suc­cess­fully fought off cor­rup­tion charges against him. Then, in ar­gu­ment, his ad­vo­cate con­ceded the de­ci­sion to drop those charges had been ir­ra­tional.

“Stag­ger­ing” rapidly be­came the con­sen­sus ep­i­thet for that flip-flop.

Yet it was down­right lack­adaisi­cal com­pared with this week.

On Tues­day Zuma’s ad­vo­cate, Ish­mael Se­menya, ar­gued pas­sion­ately and for hours that the pres­i­dent can­not be forced to set up a com­mis­sion of in­quiry into state cap­ture. Thuli Madon­sela, then the pub­lic pro­tec­tor, had gone too far, ir­ra­tionally and un­law­fully, Se­menya told the high court in Pre­to­ria.

Along the way Se­menya made some un­ex­pected claims, such as that a pub­lic pro­tec­tor may not is­sue a re­port on a com­plaint she re­ceives un­less she finds def­i­nite wrong­do­ing. In­stances in the past when pub­lic pro­tec­tor re­ports have ex­on­er­ated those ac­cused of malfea­sance, up to and in­clud­ing cur­rent Cab­i­net min­is­ters, were in­cor­rect, he later con­tended.

Then there was Se­menya’s ar­gu­ment about why Zuma had done, in the words of Gaut­eng Judge Pres­i­dent and pre­sid­ing judge Dun­stan Mlambo, noth­ing about state cap­ture.

In April 2016 the pub­lic pro­tec­tor wrote to Zuma, Mlambo pointed out, at­tach­ing a com­plaint “where by all ac­counts, se­ri­ous al­le­ga­tions against him are made. He does noth­ing. Noth­ing.

“Then around Oc­to­ber, af­ter his en­gage­ment with the pub­lic pro­tec­tor, when he gets to know the pub­lic pro­tec­tor wants to is­sue a re­port, he brings an ap­pli­ca­tion to stop it, then with­draws it. But the al­le­ga­tions against him must still be with him. He does noth­ing.

“We’re sit­ting in Oc­to­ber 2017, more than 16, 17, call it 18 months [af­ter] he first learned from the pub­lic pro­tec­tor that there are se­ri­ous al­le­ga­tions of what is now called state cap­ture. He has done noth­ing other than tell Par­lia­ment that ‘we have taken a de­ci­sion to es­tab­lish a com­mis­sion’.

“Is that con­duct one can ex­pect from a rea­son­able pres­i­dent in the con­text of a con­sti­tu­tional democ­racy?”

Yes, said Se­menya, be­cause Zuma’s hands were tied. “I would qual­ify the phrase ‘did noth­ing’,” he said. “He was legally in­ca­pable of do­ing any­thing un­til this re­view is heard.”

But Zuma had a plan, un­equiv­o­cally spelled out in his no­tice of mo­tion before the court, a doc­u­ment his le­gal team up­dated at one point to get it just right. First the court had to find that Madon­sela had gone too far. Then it could re­fer the state cap­ture mess back to Madon­sela’s suc­ces­sor, Bu­sisiwe Mkhwebane, for a proper in­ves­ti­ga­tion.

Oth­ers were not thrilled by that sug­ges­tion. If state cap­ture is made Mkhwebane’s prob­lem, then Zuma should help to find her the R31mil­lion she would need to probe it, her le­gal team ar­gued. That was fol­lowed by four of the seven big­gest op­po­si­tion po­lit­i­cal par­ties and one prom­i­nent non­govern­men­tal watch­dog ar­gu­ing that send­ing the in­ves­ti­ga­tion back to Mkhwebane would be a much worse and slower op­tion than a ro­bust, trans­par­ent in­quiry.

The ap­proaches were dif­fer­ent but the mes­sage was the same: do not send state cap­ture back to the pub­lic pro­tec­tor.

We will prob­a­bly never know whether they man­aged to con­vince the court.

Twenty min­utes before the end of the court day, Se­menya was wrap­ping up his re­ply in the case. He had calmly ex­plained that Zuma can­not just give money away, whether to the poor or the pub­lic pro­tec­tor, and that the pub­lic pro­tec­tor does not have the power to make the pres­i­dent do any­thing only the pres­i­dent can do.

Se­menya quickly checked with his ju­niors, then closed his case.

“Those are the ar­gu­ments we make in re­ply,” he told the court for­mu­laically. Yet there seemed to be one thing miss­ing.

“Ad­vo­cate Se­menya, I just want to un­der­stand the pres­i­dent’s case,” said Mlambo. “He says ‘re­mit the mat­ter to the pub­lic pro­tec­tor for further in­ves­ti­ga­tion’. Is he se­ri­ous in seek­ing that re­lief, the re­mit­tal?”

What hap­pened next was so quick that it took a con­fus­ing hour to sort out, and can only be prop­erly ap­pre­ci­ated in slow-mo­tion re­ply.

“Judge pres­i­dent, ‘se­ri­ous’ to con­note that …” be­gan Se­menya, before Mlambo cut him off.

“Let me ex­plain why maybe,” Mlambo said. “Maybe you’ll tell us what view we take of his ut­ter­ances in Par­lia­ment where he says ‘we’ve taken a de­ci­sion to ap­point a com­mis­sion of in­quiry’. If that’s se­ri­ous, that’s se­ri­ously stated in that gov­ern­ing body of South Africa, what do we take of the re­lief he seeks, that ‘send it back’? … Does it pre­sup­pose that ‘send it back and I’ll con­tinue sit­ting back and do­ing noth­ing’?”

Se­menya pon­dered for a mo­ment. “That re­lief,” and he in­ter­rupted him­self for a quick con­sul­ta­tion with his team, “we can’t per­sist with it, of the re­mit­tal. It must mean he prob­a­bly will act on his un­der­tak­ing, al­ter­na­tively will be made to act on his un­der­tak­ing in [a] dif­fer­ent set­ting.”

Zuma had gone from set­ting out a plan on how to deal with state cap­ture al­le­ga­tions to spec­u­lat­ing about what he may do. And he did so in a fash­ion that went un­no­ticed at first.

“That is gone,” Mlambo had to tell the pub­lic pro­tec­tor’s rep­re­sen­ta­tive Vincent Maleka min­utes later, when it be­came clear Maleka, like many among the 19 as­sem­bled ad­vo­cates, had missed the volte-face.

Af­ter sev­eral mo­ments of con­fu­sion Demo­cratic Al­liance ad­vo­cate Steven Budlen­der gained his feet to con­tend fiercely that Zuma had just, at the very last second, cre­ated the con­di­tions that would al­low him to per­son­ally select a judge to over­see a com­mis­sion of which he sets the terms — a com­mis­sion that is sup­posed to in­ves­ti­gate him.

Just so, said Se­menya. Though Zuma “may very well” have some­one else choose a judge, he may not. He may set up a state cap­ture com­mis­sion of in­quiry that does not ap­pear to be in­de­pen­dent. If so, op­po­si­tion par­ties could al­ways go back to court.

“And then we’ll hear that case, when that hap­pens,” said Se­menya.

About face: Pres­i­dent Jacob Zuma’s ad­vo­cate had to backpedal in the Pre­to­ria high court this week. Photo: John Hrusa/Reuters

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