The only way a process like the state capture inquiry can be halted is for it to be interdicted, which former president Jacob Zuma has failed to do so far, writes Bouwer van Niekerk.
"It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair.”
With what is arguably the most famous introductory lines in the history of English literature, Charles Dickens introduces the reader to the themes of his historical novel A Tale of Two Cities.
Dickens comments on the contradictions and turmoil that existed in London and Paris during the French Revolution – a juxtaposition between the "spring of hope" proclaimed by the revolutionists and the "winter of despair" for those who clung to the ancient régime.
During the evening of 25 March 2021 – some 162 years later – former president Jacob Zuma published a much shorter and (with respect) much less impressive piece of prose. But there are similarities in the themes explored by both authors.
In his statement, which can hardly be described as anything but a tirade, Zuma simultaneously attempts to explain why he continues to be mistreated by the "judicial dictatorship", while making himself out as a martyr of democracy.
It appears as if the former president has an axiomatic misunderstanding of the South African democratic system, even though the organisation he once led carefully crafted a constitutional democracy that he publicly swore an oath to on more than one occasion. Zuma attempts to persuade the reader by way of an ex post facto and populist basis that "all sorts of untruthful and selective averments were made against me" in the Constitutional Court that heard arguments on whether he should be held in contempt of court.
Irony
This is, of course, ironic, as Zuma has the constitutional right to present his case in court, to be heard and to be represented by his counsel of choice in defending any alleged untruths and averments made against him. But he chose not to do so. Zuma is undoubtedly aware of this, but his decision makes one think that his strategy in addressing his "concerns" is more sinister and attempts to dissuade the public in having faith in a constitutional régime.
Zuma then continues to argue what the Constitutional Court "failed to consider", which is his right to continue with his infamous Stalingrad approach to litigation. Here every judgment that does not go one’s way is appealed through the lower courts to the highest court in the land, thereby buying as much time as the law allows. But this approach also requires one to be an active participant in the litigation one is engaged in.
Being an experienced litigant, Zuma knows this, but he again failed to use his constitutional rights to present his case in the Constitutional Court.
Rather, he chose to express his displeasure in a public manner and criticised the very commission that he signed off on.
Incredulously, Zuma then proclaims that "I have stated that my stance is no disrespect to the law".
In doing so, he attempts to justify his actions by relying on his review application reviewing Deputy Chief Justice’s competency chairing the eponymous commission of enquiry.
Zuma qualifies this by saying that "[t]he Commission persists with its convenient untruth which has now unfortunately received judicial endorsement that I have refused to give evidence before the commission. Deputy Chief Justice Zondo knows that it is false that I have refused to participate in the activities of the commission. What I have objected to is appearing before Deputy Chief Justice Zondo against whom I have a pending review application to determine whether he should have recused himself from sitting in my appearances.” But as anyone with even a rudimentary understanding of public law knows, all administrative actions are lawful until set aside.
No interdictory proceedings
The only way to halt the continuation of a process such as the Zondo inquiry, which is under way, is to interdict it. Yet Zuma has not launched such interdictory proceedings.
Simply put, he wants to, on the one hand, review what was essentially his own approval of Zondo by way of legal process, yet he criticises the very legal procedures that want to keep him to account in the enquiry he set up follow a court order.
Ominously, Zuma ends off by warning of the "dangerous situation" that we face, citing the supposed weakening of the separation of powers.
This rant can simply not be tolerated by the ANC, both for its sake and that of the country. It cannot do so for the party’s sake, as it cannot be seen as a political organisation that has a place at the table for someone who has neither basic respect nor the elementary understanding of what it entails to function in a constitutional democracy.
As the ruling party, it cannot do so for the country’s sake; it cannot publicly portray a place for someone who can openly defy an order of the Constitutional Court. Let us be clear, in a constitutional democracy, orders of court do not serve as giving directions of what one may or may not do. It is not subtle hints of what should be done. It is to be followed. Failing to do so must have consequences and must be frowned upon and acted upon accordingly by those in power. There can be no misunderstanding when it comes to law enforcement, for the law must be enforced and seen to be enforced.
Let us hope that these are good times when our democracy, judiciary, and prosecuting authority work. Let this not be bad times when our ruling party and government fail us, for the government and the governing party must be the primary proponents of these fundamental truths.
It must be seen to have the belief, the conviction, and the moral fibre to act on what is just and judged upon.
For if this does not happen, it will come to pass as stated by Zuma himself: "Stooges of these so-called defenders of democracy, will be left with us battling to rebuild our country again."
- Bouwer van Niekerk is a Johannesburg based attorney.
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