Getting Zuma off

2009-02-04 00:00

Two months ago, my long-time friend and colleague Barney Mthombothi, editor of the Financial Mail, made a startling prediction in his “Editor’s Note” column about how he believed that the ANC was going to get Jacob Zuma off the hook of his corruption case.

Having rejected President Kgalema Motlanthe’s insistence that Vusi Pikoli’s dismissal as National Director of Public Prosecutions was his own decision as simply not credible — he is a “deployed cadre” who “has finally discharged a crucial part of his mandate as a stop-gap president” — Mthombothi went on to offer his prediction about the future course of this tawdry affair.

“Now that the decks have been cleared,” he wrote, “here’s what’s going to happen. Motlanthe, acting on instructions from Zuma and probably advised by one of his many sidekicks, will appoint a believer or loyalist to succeed Pikoli. The new incumbent, smitten with joy at his good fortune, will do a perfunctory assessment of the Zuma case, after which he will announce with all fanfare that Zuma has no case to answer. Case closed.

“I’m happy to be proved wrong. I doubt it. It’s a perfect opportunity to kill the case once and for all. They are not going to let it pass.”

This disturbing forecast sprang to mind when I learnt last week that one Muzi Wilfred Mkhize, a Durban advocate, is being punted as the man to succeed Pikoli when Parliament finally ratifies that hapless civil servant’s demise.

Now let me say right away that I have no doubt that Mkhize is a fine lawyer, steeped in the ethics of his honourable profession. He is one of the few black advocates to take silk and become a senior counsel, and he has acted as a judge. But as is the case in matters such as this, it is public perceptions that matter most. And the fact is that Mkhize, who hails from the Nkandla area where Zuma has his family home, was part of Zuma’s legal team when our future president appeared in the Durban Magistrate’s Court in October 2005 on corruption charges.

According to the charge sheet, on brief for Zuma that day were Kessie Naidu SC, Kemp J. Kemp SC, Jerome Brauns SC, Wilfred Mkhize SC, M. Patel and M. Mthembu.

The question members of the public may well ask is whether a lawyer who has represented an accused person in a particular case is in a suitably independent position to decide whether that person should be tried in that case or not.

Can you be the defender of an accused person one day and his prosecutor the next? And if you let him off the hook, what will become of public confidence in the judicial system?

Compounding the problem is that Mkhize has been in this compromised position before. A few years ago, he provided the Ubuhlebezwe (Ixopo) municipality in KwaZulu-Natal with a written opinion that its chief financial officer, Pradeepkumar Kowlessar, was guilty of misconduct and should be charged — saying that if he was he would certainly be found guilty and be dismissed.

Mkhize subsequently chaired a disciplinary council hearing at the municipality and duly found Kowlessar guilty and recommended his dismissal.

Mkhize’s ruling was overturned on review by the KwaZulu-Natal provincial division of the Supreme Court and Kowlessar was re-instated. Kowlessar then lodged a complaint with the provincial Society of Advocates, which admonished Mkhize for unprofessional conduct and fined him R10 000 after he pleaded guilty at a 2007 hearing.

One can accept that a person can unwittingly commit an error of judgment and should not necessarily be permanently damned for it. In this case, the Society of Advocates’ panel even showed a measure of leniency towards Mkhize, saying that he had probably exercised poor judgment because the case was outside his usual field of expertise, which was “a rural practice in criminal law”. Nonetheless, even leaving aside the blot on Mkhize’s record, it is deeply disturbing that the ANC could even consider appointing a former member of Zuma’s defence team to the position of deciding whether the case against him should go ahead.

It reveals a contempt for public perceptions. Can the Zuma camp not see that to the ordinary citizen, there is a clear and pernicious pattern in the chain of events — from the scrapping of the Scorpions, who were investigating the Zuma case, to the firing of Pikoli, who was prosecuting Zuma, to the possible appointment of a political loyalist who can scrap the Zuma case altogether?

Such thinking also reveals a contempt for the judicial system by a ruling group so obsessed in its determination to stop the case against Zuma and ram him into the presidency that it is prepared to pervert the most precious institutions of the democracy that so many South Africans fought to achieve for so long and at such cost.

Perhaps it will not happen. Perhaps Mthombothi will be proved wrong. I have always had a faith that although the ANC may lose its way at times, there is a deep tradition of common sense that will ultimately bring it back on track. But I must say that, as I watch its tolerance of corruption and cronyism, and the weakness of a leadership that cannot bring the wild talk of its reckless elements under control, that faith is fading fast.

Nor is the Mkhize affair the only crisis to rattle the judicial system as a result of the Zuma saga. Last week the Judge-President of the Western Cape, John Hlope, threw his division into confusion when he thumbed his nose at the Justice Department and summarily re-turned to work before the Judicial Services Commission (JSC) had resolved a serious complaint against him.

The Constitutional Court has charged Hlope with improperly trying to influence two of its justices to rule in favour of Zuma in a judgment that in the end went unanimously against the ANC president last July. A complicated series of appeals is delaying the JSC hearing and in the meantime

Hlope was given extended leave to protect the dignity of the Cape High Court. His deputy, Jeanette Traverso, was appointed acting Judge-President.

Now Hlope has abruptly come back, saying that he wants to resume work and remain in contention to become South Africa’s next Chief Justice when Zuma is president. So there are now two judge-presidents in the Cape High Court and no one knows who should be running the show.

Is there no one left in the upper echelons of our ruling establishment who is prepared to put national interest above personal ambition?

All of which puts me in mind of one of the late Helen Suzman’s many anecdotes from her encounters with officialdom during apartheid’s darkest days. She had gone to the pass office in Johannesburg’s Albert Street to protest a particularly egregious case of injustice. As she outlined the details to an official, whom she described as “one of those rare old-school civil servants” who seemed stolid but sympathetic, she vented her outrage at the whole wicked system.

“Where is the morality in all this?” she fumed.

“Mrs Suzman,” the old man replied in his fractured English, “the morals is buggered.”

 

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