‘MY JOB IS TO HELP PEOPLE’
Muzi Sikhakhane on representing Jacob Zuma
I’m not interested in ANC factions because I see them as a gang war and a battle of grand narratives. It’s a fight between gangsters and I don’t pick sides in it
Muzi Sikhakhane SC doesn’t know why people are intrigued by him being Jacob Zuma’s counsel. “I think it is because I am black,” he says.
“My senior colleagues who are white have represented tax dodgers. They’ve represented Brett Kebble. They’ve represented people who sell black girls for sex.
“Unlike me, they can still go to dinner parties,” he says. But when he goes to dinner parties, he must explain himself.
It is an ethical rule that an advocate should not turn down a brief if he can take it. It is called the cab-rank rule, so called because advocates should be like taxicabs at the rank, hailed by the first wave, whoever it may be.
The rule protects the right to legal representation and hence the presumption of innocence. It serves the administration of justice since legal representation makes it more likely that a judge will come to the right conclusion. The rule also protects an advocate from public outrage when defending someone loathed or despised.
But on Twitter, Sikhakhane has been called an enabler of state capture for representing Zuma and public protector Busisiwe Mkhwebane.
Perhaps the trolls are not surprising. More surprising — “hurtful” — is when his motives and principles are questioned by colleagues, friends and comrades.
Zuma has been entangled with the law for years, with a string of white silks representing him, but with no eyebrows raised in their case, says Sikhakhane. When Jeremy Gauntlett SC represented Zuma in the Nkandla case before the Constitutional Court, he was being a professional — no-one questioned his morality. But when a black advocate represents someone not liked, it is saying something — that “I am not clever enough and I’m not morally upstanding enough not to be used”.
“I think it’s an extension of the psyche of our society that as black people, we’re inherently corrupt and we must be questioned when we do things ... And I think that hurts me because I think it is an extension of what I think is the life of a black person in SA.”
Sikhakhane says he has never refused to help where he can or turned down a client to please others.
This year he has done two matters for President Cyril Ramaphosa.
He also defended Julius Malema in a disciplinary hearing in 2011 that led to Malema being expelled from the ANC.
“And if someone stops me in Sandton seeking help, I tell them to tell their attorney to give me a call. Because I know what it’s like to face injustice.”
Not interested in factions
When people come to lawyers, they are in trouble. They need help. It’s a bit like doctors. He does not judge them, he says, and he does not ask them which faction they belong to.
“I’m not interested in ANC factions because I see them as a gang war and a battle of grand narratives. It’s a fight between gangsters and I don’t pick sides in it. Because I think that those who pick sides don’t realise how they get co-opted by either side of the battle.”
When Sikhakhane talks of the ANC, he is not talking as an outsider. He was in the ANC underground from the age of 18.
He was a student leader in the 1980s and later in the ’90s when he went back to university. He was a member of the United Democratic Front’s (UDF’s) Soweto area committee from 1988 until the ANC’s unbanning. He was, at the same time, in Umkhonto we Sizwe.
Though better known as a Transvaal activist, Sikhakhane was recruited as a teenager in KwaZuluNatal, at a teacher training college in
Pietermaritzburg, and became active — in the UDF and in the ANC underground — in the province as political violence escalated with the co-option of Inkatha by the apartheid regime.
He ended up in Johannesburg not by choice but with a bullet in his leg and a stab wound to the stomach. It was November 1987.
There was mist that day. And it was still early when he heard a knock on the door. “Good morning, sir” — it was one of his pupils.
The pupil’s mother had sent the boy to warn Sikhakhane: “Can you please leave? There is a bus carrying Inkatha people and my mother said I must tell you, run away because they are coming for you today.”
In those days, the mid-’80s to the mid-’90s, ANCInkatha allegiances split families. “Your uncle could be your enemy.” In this case, the pupil’s father was an Inkatha leader, but his mother sent her child to warn Sikhakhane ahead of time. Later, she even came herself. “My son, please go,” she pleaded with him.
Sikhakhane should have left earlier, but first he wanted to call the school district inspector. As he was leaving, a neighbour whose house faced the school gate waved to him. He waved back.
“And she kept waving. There was mist that day, and she was not stopping waving. And I realised, when you are in her garden, you can see that side. I couldn’t. PR
“And as I turned, there was a crowd of about 60 people with an assortment of traditional weapons ... I think she was telling me to go and I didn’t realise it.”
The crowd — people purporting to be Inkatha supporters — cornered him, stabbed him, shot him and were carrying him to somewhere where they studies. Those were his words ... to me and Aubrey,” he says. Like many of Hani’s more famous words, this turned out to be prophetic, in a way.
Years later it was Sikhakhane’s infamous “rogue unit” report that was used as a hook by Tom Moyane, at the time the commissioner of the South African Revenue Service (Sars).
Moyane used the report to bring charges of misconduct against a number of senior officials and purge them. The handover of the report was preceded by a number of sensational news reports in the Sunday Times about a “covert” intelligence-gathering unit at Sars.
Allegations about the unit included that it unlawfully spied, for political reasons, bugged Zuma’s house, and that it even operated a brothel.
The claims were later discredited and the Sunday Times retracted them and apologised.
There were also reports about Sars employee Johann van Loggerenberg’s romantic relationship with double agent Belinda Walter and the implications for Sars.
Sikhakhane had been appointed by acting commissioner Ivan Pillay to investigate the allegations concerning Van Loggerenberg.
Sikhakhane had 45 days to do the report and, just before submitting it, Moyane was appointed Sars commissioner. When Sikhakhane delivered his report to Moyane, the new commissioner used it to suspend Pillay and others. There was outrage.
Suddenly Sikhakhane — then a successful and respected senior counsel — had become controversial.
“I was trapped in something that I didn’t realise was powerful forces fighting,” he says. “I had been appointed by Ivan Pillay himself, the activist I still respect today.”
It was a little while before the full report found its way into the public space and by that time spin and speculation about what the report contained had turned into fact.
The report did not even mention a brothel. It did detail some of the other allegations about the intelligence unit, but, on a careful reading, only as prima facie evidence.
The report recommended that a commission of inquiry look into these serious allegations.
It made one conclusive finding of law: that the creation of an intelligence-gathering unit was “ultra vires” — the law did not empower Sars to have such a unit.
It was this finding of law that changed the course of history.
Sikhakhane says that, one day, people will know that he and the others on his panel did nothing wrong.
“We were trying to help an organisation fix itself and we were caught between fights that no-one could anticipate. I could never anticipate the fallout,” he says.
The investigation was an internal one, he says, and it was just to truthfully point out to Pillay that “bru, you need to check your organisation, this is what people are saying”.
The report was widely criticised. Though other lawyers have disagreed with his view on the law on the creation of the unit, Sikhakhane stands by it — the doctrine of legality requires that the exercise of any power by the state, especially the power to spy, must be granted by law, he says.
Sikhakhane says he had hoped that his report would be taken on review so that he could — in an affidavit — justify himself. Instead, he has been vilified by people coming at him “sideways”.
Friends agree that he was changed by the rogue report fallout. It was hard, says Nasreen Rajab-Budlender, who was a member of the panel.
“People questioned our integrity, called us stupid; they accused us of destroying Sars. And it was so much worse for Muzi because it was his name on the report.”
She says years of being black in the profession have also taken its toll on Sikhakhane.
“It’s been five, six years ofPtrRauma, of watching people talking about me,” says Sikhakhane.
“But what makes me sleep better is in all of these things for which I’ve gone through hell, my conscience is clear. I’ve never been bought. I’ve never been manipulated. And I’ve never supported a faction in my life.”