Path to perdition
Jacob Zuma’s fall after the Schabir Shaik corruption trial was swift, but his comeback was almost as quick and was the most remarkable in modern political times. The change in his fortunes, from a rape trial to election as ANC leader, was the beginning of
The court below failed to adhere to some basic tenets, in particular that in exercising the judicial function, judges are themselves constrained by the law Judge Louis Harms Appeal court judge in overturning a high court ruling that virtually exonerated Zuma
It is probably a little unfair to say that Jacob Zuma’s presidency was based on a lie. But it was based on an overturned court judgment.
Back in 2005, President Thabo Mbeki had fired Zuma from his job as deputy president in the wake of the conviction of his financial adviser, Schabir Shaik, on corruption and bribery charges.
Judge Hilary Squires had not minced his words, placing Zuma at the centre of his verdict against Shaik and his fellow accused, saying “all the accused companies were used at one time or another to pay sums of money to Jacob Zuma in contravention of section 1(1)(a)(I) or (ii) of the Corruption Act”.
It was so damning a verdict that Mbeki, after a week of dithering, announced to parliament that Zuma had been fired.
“The circumstances dictate that in the interest of the honourable deputy president, the government, our young democratic system, and our country, it would be best to release the Hon Jacob Zuma from his responsibilities as deputy president of the republic and member of the cabinet,” Mbeki told a special sitting.
Zuma, facing over 700 counts of bribery, corruption and fraud, made a momentous decision. Perhaps he had in mind the old slogan of the ANC’s military wing, Umkhonto we Sizwe: “Submit or fight.” He would not submit and follow Shaik to jail.
He would fight his way back to the summit of political power and then he would dismantle the ability of the criminal justice system and the judiciary to act against him.
It was to be a titanic struggle that would define South Africa for more than a decade.
Zuma would mobilise his old network of exiled ANC leaders and assemble a coalition of those disgruntled with Mbeki into a rag-tag political fighting force.
But first he faced a major obstacle. He was charged with raping a woman — the daughter of a friend — at his home in Forest Town, Johannesburg.
He was found not guilty after the accused — who was then known only by the name Khwezi — was subjected to brutal cross-examination about her past sex life and was found to have provided unreliable evidence.
Again a high court judge, W J van der Merwe, had strong words for Zuma, saying: “Had Rudyard Kipling known of this case at the time he wrote his poem If, he might have added the following: ‘And if you can control your body and your sexual urges, then you are a man my son’.”
Laid siege to court
Instead of retreating in shame, Zuma used the trial to bring his rag-tag army onto the streets. Young militant supporters laid siege to the High Court in Johannesburg, screaming their hatred for Khwezi and singing Zuma’s trademark struggle song, Umshini wam, a militant elegy to the AK47. Its lyrics went: “I want my machine gun/Bring my machine gun/My machine gun, my father/Bring my machine gun.”
Whatever it lacked in lyrical originality, the song made up for in message: Zuma was saving the ANC from Mbeki’s gentrified fiscal conservatism and returning it to its raw struggle roots.
It was a message that was attractive to the ANC’s new youth leader, Julius Malema, who became his most outspoken supporter. Also drinking the Kool-Aid were the SACP’s Blade Nzimande and the then head of Cosatu, Zwelinzima Vavi, who vowed that the Zuma tsunami was “unstoppable”.
At Polokwane in December 2007, Zuma was crowned ANC president in the most remarkable comeback of modern political times.
But, with more than 700 counts of corruption and fraud hanging over him, it was simply untenable for him to immediately assume the presidency.
It is hard to believe now, but with Zuma’s election came optimism. Doubts about his financial fidelity were shelved. Zuma, it was held, was more “in touch with the people” and would finally offer hope for the poor and unemployed.
While Zuma moved into the corner office in Luthuli House, Mbeki put on a show of business as usual. On February 8 2008 — just over 10 years ago to this day — he gave his state of the nation address.
Standing at the same podium from which he had fired Zuma barely three years previously, he now acknowledged “Mr Jacob Zuma, former deputy president of the republic and president of the African National Congress”. He quoted Dickens, saying it was the best and worst of times, and then disagreed that this quote was apt. He introduced a new concept — “business unusual!” — to describe how the government would more aggressively meet its delivery challenges.
“I am aware,” he said, “of the fact that many in our society are troubled by a deep sense of unease about where our country will be tomorrow.”
As the months dragged on, the gulf between Luthuli House and the Union Buildings widened, as did the unease.
Finally, Zuma was handed a gift — a court judgment that offered him a path to power. Judge Chris Nicholson, citing Mbeki’s interference with the prosecution, ruled that the decision to prosecute Zuma was “invalid and is set aside”. The prosecution service needed to make up its mind afresh on charging Zuma, he said.
The courtroom erupted in applause. Zuma, in a dark pin-striped suit, rose to celebrate. The first person to embrace him was Tokyo Sexwale, beaming from ear to ear. He was followed by Mathews Phosa, another party grandee iced by Mbeki.
Zuma was not out of the woods yet. It was now up to the prosecution service to make a final decision about the charges which lingered.
Nicholson’s finding would be overturned — you could go so far as to say “denounced” — in one of the most scathing judgments ever issued by the Supreme Court of Appeal. The appeal court’s Judge Louis Harms said: “For reasons that are impossible to fathom, the court below failed to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law.”
But that judgment would come a year later. Die koeël, as the old Afrikaans saying goes, was
deur die kerk (the die is cast).
Zuma used his majority in the party’s national executive to remove Mbeki.
But because the charges still hung over Zuma, it was deemed unwise that he assume the presidency immediately. Instead, Kgalema Motlanthe was appointed.
The Motlanthe presidency, acting on instructions from Luthuli House, disbanded the Scorpions, the independent FBI-style unit that was responsible for dealing with high-profile corruption cases. It was the first action taken to keep Zuma out of jail.
Then, under growing political pressure, the acting director of national prosecutions, Mokotedi Mpshe, announced that the charges against Zuma would not be pursued.
Zuma was free to assume the presidency in May 2009.
A powerful hand
No incoming president had been dealt as powerful a hand as Zuma since the days of the apartheid overlords.
He could appoint a new police chief, a new national director of prosecutions, a new head of the secret service and the head of the new Hawks unit, which would replace the Scorpions.
In addition to this, the position of chief executive at the state-owned enterprises Transnet and SAA were vacant and he would be called on to appoint a new board to the South African Broadcasting Corporation.
It was a golden opportunity for Zuma to implement his stay-out-of-jail scheme.
One of Zuma’s first acts was to reorganise South Africa’s intelligence structures into one department, which was to fall under the control of a new intelligence minister, Siyabonga Cwele.
Bheki Cele, then a loyal supporter from Zuma’s home province of KwaZulu-Natal, was made commissioner of police in July 2009, despite widespread misgivings about the appropriateness of his cowboy style for so serious a job.
Another loyal lieutenant, Menzi Simelane, was made the national director of public prosecutions amid an uproar.
While director-general of justice, Simelane had testified at an inquiry into the fitness of Vusi Pikoli to hold office as prosecutions boss. The inquiry’s convener, Frene Ginwala, had found that “in general his conduct left much to be desired. His testimony was contradictory and
without basis in fact or in law”.
Zuma appointed Mo Shaik — the brother of his convicted financial adviser — as head of the secret service and Anwa Dramat as head of the new Hawks priority crimes unit. As insurance against any remaining instinct for independence, the unit was placed under the direct control of the police.
Unsurprisingly, the police, the Hawks and the directorate of public prosecutions showed no interest in pursuing the charges against Zuma.
The sting had been taken out of the criminal justice system.
But, in his haste to subdue this potential threat, Zuma had been careless.
The warnings about Cele’s cowboy style were proven true as he called on the police to take an aggressive shoot-to-kill approach to criminals.
Cele awarded himself the rank of general and remilitarised the police.
Then the Sunday Times revealed he had pushed through irregular lease deals for police premises in Pretoria and Durban.
After a few months of prevarication, Zuma was left with no choice but to announce in June 2012: “I have decided to release General Cele from his duties.”
In October, the Constitutional Court found Zuma’s appointment of Simelane was invalid. When Shaik and Dramat’s loyalty came into question, they too were dropped.
Zuma did not react to criticism of his poor appointment record. Instead, he replaced those who were made to resign or who were forced out with people he believed would be more loyal.
Another Zuma appointment, Mxolisi Nxasana, would be forced to step down as prosecutions director in 2014 after it emerged he’d had previous brushes with the law.
Zuma knew his shadow security state would inevitably find itself in conflict with the constitutional dispensation. In anticipation of this, he moved to shore up his primary defensive weapon — parliament.
He had installed Baleka Mbete as Speaker and packed the benches with MPs who would stay true to his cause. Mbete had defected from the Mbeki camp to Zuma’s and was keen to prove her loyalty.
Bring them to heel
If the cowing of the criminal justice system was the first objective, the second was to bring to heel the remaining parts of the media that were critical of him.
Zuma attempted to muzzle the press in 2010 — barely a week after thousands of international journalists had left the country after covering the 2010 football World Cup — through draconian “protection of information” legislation which would make it illegal for journalists to be in possession of leaked documents that “threatened state security”, with a possible jail sentence of 15 years. Government officials would be able to designate material “classified” at their will.
At the same time the ANC released a discussion paper on a proposed “media appeals tribunal” that would oversee complaints about press reporting.
The moves against the media followed sustained reporting on abuses of state money spent on constructing Zuma’s Nkandla residence.
A third strategy was even more ambitious — taking the sting out of the judiciary. Shortly before taking office, Zuma had said that the status of judges of the Constitutional Court needed to be reviewed because they “were not God”. He sought to bend the court to his will, overlooking Dikgang Moseneke as chief justice in favour of Sandile Ngcobo. Moseneke had made veiled criticisms of Zuma.
Zuma may have believed that Ngcobo would serve him as an ally (not for the first time, a mistaken assumption) because he had written a minority judgment in a case concerning him.
When Ngcobo retired in 2011, Zuma again overlooked Moseneke, nominating Mogoeng Mogoeng. It was another miscalculation. The court continued to issue judgments critical of the government. Zuma turned up the heat. In a 2012 interview with journalist Moshoeshoe Monare, he said: “We don’t want to review the Constitutional Court, we want to review its powers. There are dissenting judgments which we read. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?” The judges were, he said, “influenced by what’s happening and influenced by you guys”. By “you guys”, Zuma meant the media.
The starkest illustration of Zuma’s poor judgment of who would serve his interests was appointing Thuli Madonsela public protector.
In all of these moves aimed at cowing the security machinery, closing down the space for free expression and subordinating institutions to his political will, Zuma enjoyed the backing of the ANC.
But support was beginning to fray. His bad appointments and the criticism of his spending on Nkandla were causing some allies to have second thoughts.
In an attempt to project party unity, he made a bold decision. At the party’s 2012 conference, Cyril Ramaphosa returned from more than a decade in business to be elected deputy president on Zuma’s slate.
Ramaphosa, who had his eye on the presidency after Zuma, played a canny political game. He would not be drawn into public criticism of Zuma until he had built enough of a base within the party to be sure that he could win a fight to the death.
Zuma, mistaking this for loyalty, kept Ramaphosa close. Ramaphosa smiled, patted him on the back and bided his time.
Trouble in the chicken run
But big trouble was coming.
Madonsela showed mettle when she investigated the Nkandla homestead. By now, the cost of this project was estimated to be north of R250-million.
Built on a hillside, the compound included numerous dwellings, an amphitheatre, swimming pool, a cattle corral, a chicken run and a tuck-shop to be run by one of his wives. Madonsela found that Zuma should pay back some of the money spent because it could not be justified on security grounds.
Zuma simply refused to pay, instructing his police minister, Nathi Nhleko, to conduct his own inquiry, and his security minister, David Mahlobo, to dig up dirt on Madonsela. The results were darkly comic.
Mahlobo instigated an investigation into Madonsela’s role as a “foreign intelligence operative”, while Nhleko produced a report that found Zuma did not owe a cent for the Nkandla renovations.
The report was adopted with gusto by the loyal ANC MPs in parliament after a presentation in which water was pumped from the pool through a fire hose to the strains of O Sole Mio.
National incredulity was mounting, but Zuma was undeterred.
The great bank robbery
Zuma moved to implement the next phase of his power plan — a takeover of the National Treasury.
Once he sensed that he enjoyed impunity, he had begun to cast around for ways of leveraging money out of state organs. He had already moved to take control of the country’s giant state-owned enterprises.
In what would come to be described as “state capture”, this plan was as audacious as it was corrupt.
Once loyal lackeys had been installed on the boards and in the management of these corporations, their procurement spending was diverted to corrupt contracts which benefited Zuma associates, such as the Gupta family.
Zuma’s son Duduzane occupied a senior position in the Gupta family empire. Eskom coal contracts were given to a Gupta company under dubious circumstances.
A contract for locomotives at Transnet was corruptly awarded. The locomotives were the wrong size to operateon South African rail lines.
There was one remaining obstacle to this wholesale conversion of state enterprises into corrupt cash machines — the Treasury.
Under Trevor Manuel, Pravin Gordhan and Nhlanhla Nene, the Treasury had been led by finance ministers who ensured that it would maintain fiscal discipline, keeping the country’s financial reputation intact with global lenders and inoculating the economy against a cycle of borrowing and rising debt-servicing costs.
The Treasury had begun to clash with the state-owned enterprises over irresponsible spending and contracts that appeared to be financially imprudent.
In 2015, Nene clashed with SAA chairwoman Dudu Myeni — the head of Jacob Zuma’s foundation and the president’s close personal friend — over aircraft contracts that appeared to introduce a mysterious and unnecessary middleman.
In December 2015, Zuma stunned the nation when he fired Nene, replacing him with Des van Rooyen, a backbench MP.
This was too much, even for the usually acquiescent leaders of the ANC.
After the rand plummeted against the dollar and European currencies, and business, union and civic leaders united in expressing horror. Ramaphosa and the ANC’s treasurer-general, Zweli Mkhize, encouraged by business leaders, persuaded him to relent.
Three days later he re-appointed Gordhan to the finance ministry — a move which began to rebuild confidence in the country’s financial management.
When it emerged that Zuma’s business connections in the Gupta family had offered deputy finance minister Mcebisi Jonas the position of finance minister, Zuma was exposed as having “outsourced” cabinet appointments.
Once again the party came to his defence, refusing to condemn him publicly. Because of his failure to bend the entire media and the judiciary to his will, it was inevitable that Zuma’s shadow security state would come into conflict with the constitutional democracy in which it lived an uncomfortable life.
It all came to a head in February 2016, when Zuma was taken to court over his refusal to “pay back the money”.
The case was brought to court by his arch-enemy, Julius Malema, whom he had fired from the party for dissenting over key policies. The verdict, delivered on
February 9, was devastating.
A line in the sand
Chief Justice Mogoeng drew a sharp line in the sand, informing Zuma that as president, he was “a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project”.
And, he said: “The president thus failed to uphold, defend and respect the constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the public protector in terms of her constitutional powers.”
After a meeting of the party’s top six leaders, Zuma laughed off the judgment, refusing to take responsibility and apologising for any “confusion” that he might have caused. He proffered the bizarre defence that what he had done had been within the law at the time because the Constitutional Court had not yet ruled on it.
Again, while there had been criticism behind closed doors by some of the party’s top six, there would be no public break with Zuma. ANC secretary-general Gwede Mantashe took to the podium to offer Zuma the “unanimous” support of the leadership.
Four days later, the ANC’s extended national working committee — a broader meeting of all the party’s leadership — lined up behind Zuma, saying there were no grounds for impeachment.
Even as they reaffirmed their faith in Zuma, troubles were mounting. The economy, damaged by years of failed policy and Zuma’s attempts to dominate the Treasury, was at its weakest point in a decade.
Under Zuma, South Africa’s once-vaunted mining sector had been hit by strikes and clumsy state intervention. It had been the country’s largest earner of foreign exchange; now it was deterring foreign investment.
Unemployment reached an all-time high — the official figure was 26%, but some put it as high as 35% — as Zuma undid Mbeki’s careful policy of “fiscal discipline” in favour of opening the government coffers to spend on a bloated civil service.
In April 2016, Zuma was once more the subject of a scathing judgment, this time by Judge Aubrey Ledwaba in the High Court in Pretoria.
The opposition DA had challenged the dropping of corruption charges against Zuma. The court found: “Having regard to the conspectus of the evidence before us, we find that Mr Mpshe [former director of public prosecutions] found himself under pressure and he decided to discontinue the prosecution of Mr Zuma and consequently made an irrational decision.”
After several weeks of silence, Zuma and the prosecuting authority, now headed by Shaun Abrahams, said they would appeal against the judgment. Abrahams would play his part in another unfolding drama.
Gordhan had continued to hold the line against corrupt networks in the stateowned enterprises, much to Zuma’s chagrin. Rumours began circulating that Gordhan was to be fired.
In October 2016, Abrahams took the extraordinary step of convening a press conference to announce that Gordhan was to be charged over the early retirement of a senior official at SARS. The allegation was that Gordhan had illegally authorised the early retirement.
There was shock that grew when it was revealed that Abrahams had, on the day before the announcement, met Zuma and three cabinet ministers at the ANC’s headquarters. Abrahams claimed they had been meeting to discuss student unrest. Few believed him.
When it became apparent that the case against Gordhan had no chance of success, Abrahams convened another press conference where he announced the charges had been withdrawn.
After a decade of controversy, scathing court judgments, and allegations of political bullying and cronyism, Zuma was hitting an all-time low.
The party was about to pay a high price.
Deserted by the people
In August 2016, local government elections delivered a massive blow to the party.
The metros of Tshwane, Johannesburg and Nelson Mandela Bay, as well as several others, fell under opposition control for the first time.
More shocking was that the party, despite spending a rumoured R1-billion on campaigning, received 53.9% of the aggregated ward and proportional representation vote. For the first time, the prospect of losing electoral power was real.
Corruption, high unemployment and poor service delivery under administrations run under Zuma’s umbrella had taken their toll.
Zuma showed no signs that he was prepared to change direction to limit the political damage to the ANC. He had chosen his course and he would see it through.
In March 2017, Zuma fired Gordhan and Jonas and appointed Malusi Gigaba finance minister.
His first choice had been Brian Molefe, who had been sworn in as an MP in anticipation of his elevation to the cabinet. Molefe had run Eskom when several dodgy decisions that favoured the Guptas had been made.
Realising that Molefe was now in the thick of the state capture scandal, Zuma chose Gigaba, an ambitious and relatively young minister who had been playing on his side since the Polokwane victory.
But Zuma’s aura was dimming within the party.
The rag-tag army that had brought him to power had long deserted him.
Malema turned every Zuma appearance in parliament into a nationally televised circus of insulting criticism which inevitably ended in scuffles as security sought to remove the party’s MPs.
Sexwale and Phosa, along with a swathe of senior veterans, distanced themselves from Zuma. The trade union movement announced that it would support Ramaphosa’s candidacy for the presidency and the SACP now said it had erred and Zuma was not fit to be president.
Ramaphosa, sensing that he now had sufficient support within the party to dash to the finish line, began publicly criticising state capture, saying its beneficiaries should be jailed and should be made to return the money they had stolen.
Finally, in October 2017, Zuma’s decade-long battle to stay out of jail appeared to be faltering. The Supreme Court of Appeal ruled that the decision to prosecute Zuma over the Shaik bribery and corruption allegations “cannot be faulted”.
Zuma had one final ace up his sleeve — a campaign for his former wife, Nkosazana Dlamini-Zuma, to become the next ANC president and therefore the next president of the republic.
The rag-tag army was gone. In its place was a new army of ministers wading through scandals led by Dlamini-Zuma and the discredited Carl Niehaus.
By December 2017, a key pillar of support for Zuma, the ANC in the Mpumalanga province — now holding the second-largest number of electoral votes after KwaZuluNatal — declared it was neutral and would support “unity” at the party’s conference. Zuma’s preferred candidate, Dlamini-Zuma, was defeated by Ramaphosa.
Then began the game of cat and mouse over Zuma’s continued occupation of the Union Buildings.
Zuma had lost but he was still president. He would fight one final battle — to hold onto office until 2019 when the next election was due. It was a loser’s fight. The courtroom, which had been avoided for 13 years, beckoned.
The president thus failed to uphold, defend and respect the constitution as the supreme law of the land Judge Mogoeng Mogoeng Chief Justice of the Constitutional Court