Adriaan Basson

Zuma's lawyer deserves the Order of Ikhamanga

2017-10-16 09:04
Michael Hulley. (Felix Dlangamandla, Netwerk24)

Michael Hulley. (Felix Dlangamandla, Netwerk24)

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President Jacob Zuma's lawyer and legal adviser Michael Hulley must be in the running to receive the Order of Ikhamanga for creative writing this year.

(Hulley is Zuma's private attorney who also gets paid as the president's second legal adviser and provides legal advice to the Presidency, but that is a story for another day.)

Hulley, who made a living from defending taxi bosses in Durban before being called up to higher duty, has magnificently succeeded in creating false narratives around his client’s prosecution that has kept Zuma out of the dock for over a decade.

After Friday's drubbing by the Supreme Court of Appeal, which effectively reinstated 18 charges of corruption, racketeering and fraud against Zuma, Hulley must now come up with a new narrative to keep Zuma from pleading for another decade or more.

The press statement released by the Presidency after Friday's ruling gives insight into Hulley's new playbook.

The statement was classic Hulley: not admitting one inch of defeat; pretending as if he and Zuma knew all along that Mokotedi Mpshe made an irrational decision to drop the charges; playing down the entire substance of the judgment as technicalities, and bullishly claiming the right to make further representations to the man on whose shoulders the responsibility rests to charge Zuma or not: Advocate Shaun Abrahams.

To be clear: this won't be the first time Zuma is afforded the opportunity to make representations to the national director of public prosecutions.

When Mpshe announced his fateful decision to discontinue the prosecution against Zuma in April 2009, he also announced that representations by Hulley and co. on the following issues were dismissed: the substantive merits of the case; the fair trial defences, and the practical implications and considerations of continued prosecution.

The only objection that stood was policy aspects militating against prosecution, which Mpshe granted because of the so-called spy tapes.

With that out of the park, what will be Hulley's next narrative to keep his client out of court and, maybe, jail?

The sting was in the final paragraph of the Presidency's statement: "These representations will be amplified in light of developments in the ensuing period, not least of all are the recent revelations around the integrity of the audit report which underpins the prosecution."

With this, Hulley obviously refers to the KPMG forensic report used as core evidence to convict Schabir Shaik, Zuma's former financial adviser, and to draw up Zuma's own indictment.

So let's get this straight: Hulley (and by implication Zuma) wants to catch the wave of controversy surrounding KPMG that was caused by the fallout over the audit firm's work for Zuma's friends: the Guptas and Tom Moyane.

How convenient. And desperate.

Because Hulley knows well that not all the work KPMG has ever done in its history is suddenly legally shaky. Just because it suits his client doesn't make it true.

Johan van der Walt, the forensic auditor who was the main witness against Shaik and authored the reports into Shaik and Zuma, is coincidentally the same person fingered for his recalled report into allegations that the South African Revenue Service (SARS) was operating a so-called rogue unit.

Van der Walt left KPMG earlier this year and is currently under investigation by the Independent Regulatory Board for Auditors (IRBA) for his SARS report.

Does this nullify his Shaik and Zuma reports? Of course not. An ill-informed media report recently tried to nail criticism levelled by Shaik against Van der Walt on the heap of dirt he is facing for his SARS work.

A simple Google search of Judge Hilary Squires' judgment in the Shaik trial would have brought up this summary of Van der Walt's performance in the face of critique by Zuma's fraudster adviser and friend: "Van der Walt was plainly an impartial witness who simply described chapter and verse, in extraordinary detail, the evidence that he culled from the mass of documents given to him to investigate. In the one or two respects that he expressed an opinion, there was nothing amiss about so doing, but we have not relied on any of those," Judge Squires ruled.

"The suggestion in his cross-examination that he might be biased against the accused because of his long-since national service as a policeman in the fraud investigation department, and the fact that his investigation efforts were paid by the State, can be safely dismissed as entirely without merit."

Hulley will have to produce new evidence to show why KPMG's work in the Shaik/Zuma matter must now suddenly be viewed with suspicion.

What will the rest of his representations to Abrahams consist of?

Judging from the lead story in City Press on Sunday, the NPA (read: Abrahams) is desperately seeking reasons not to prosecute Zuma. One is the alleged conflict of interest of prosecutor Billy Downer because of his affidavit in the DA's case to reinstate the charges against Zuma.

This may well end up in Zuma's representations. But again, this is a nonsense complaint.

Downer was the trial prosecutor of Shaik and Zuma before Mpshe abandoned the case. A reading of the SCA judgment (which Abrahams should really consider doing) vindicates Downer's actions every step of the way, particularly when he stood up to Mpshe and Willie Hofmeyr, the deputy NPA boss, to challenge their ill-advised decision.

Downer did not "help" the DA. As an officer of the court, he was obliged to ensure the full version of events is placed before the judge and therefore submitted a confirmatory affidavit to Hofmeyr’s in the case, which clarified a number of matters Hofmeyr had no direct knowledge of.

There should be absolutely no reason for Abrahams to remove Downer from the case, particularly if the NPA is worried about time delays, as claimed in City Press.

Concern about a potential lack of witnesses is a further ruse to postpone Zuma's trial. It was definitely not one witness who sank Shaik, but a range of people who testified about the "mutually beneficial symbiosis" between Zuma and Shaik, as put by Squires.

What else could Hulley argue to have the charges dropped, again? Social instability if Zuma goes back to court? Financial costs?

Probably the best argument left for Zuma is the delay between former prosecutions head Bulelani Ngcuka's bizarre decision in 2003 not to prosecute him and now. 14 years is an awful long time to wait for your day in court.

Of course Zuma doesn't want his day in court, but consecutive NPA bosses have made it easy for him to say so.

- Adriaan Basson is editor of News24. Follow him on Twitter.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    schabir shaik  |  jacob zuma  |  michael hulley  |  spy tapes  |  npa
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