Prez Volte-Face sets a new legal record
The president has a seemingly endless arsenal of surprising counterarguments
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