COMMENT AND ANALYSIS
During World War II German Field Marshal Friedrich Paulus was ordered by Adolf Hitler to defend the Russian city of Stalingrad, no matter what the cost. He was facing overwhelming odds: the Red Army had regrouped after the losses sustained at the hands of the Germans earlier and was pushing back the Wehrmacht across the whole of the Eastern Front.
Stalingrad was symbolically significant: to Hitler because the city was named after his Soviet adversary and to Stalin because he knew it was important to the German dictator.
Tens of thousands of soldiers died in the Battle of Stalingrad, which was literally fought block by block, street by street and sometimes room by room.
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President Jacob Zuma was left battered and bruised on Friday after the Supreme Court of Appeal (SCA) in Bloemfontein delivered a pointed and crisp judgment on his own Stalingrad strategy. He has over the last decade and more fought the charges against him from courtroom to courtroom, from division to division and in every legal avenue in between. He has appealed, protested and stalled at every opportunity.
And the court -- with Judge Eric Leach delivering the judgment on behalf of acting judge president Mahomed Navsa -- was acutely aware of Zuma's tactics, quoting the poet T.S. Eliot: "Near the end of the interminable night, at the recurrent end of the unending..."
The court also warned that Zuma was probably not done with his own "lawfare" approach: "It is doubtful that a decision in this case will be the end of the continuing contestations concerning the prosecution of Mr Zuma... [who has] every intention in the future to continue to use such processes as are available to him to resist prosecution."
Zuma's room to manoeuvre is, however, being closed down. The SCA effectively neutered three of the main arguments that have sustained his run from justice over the better part of a decade. He will now have to find new alleyways and arcades through which he can deflect the 18 charges of racketeering, corruption, money laundering and fraud.
The president's main argument has centred on the so-called "spy tapes", recordings of conversations between the head of the now-defunct Scorpions (killed off by Zuma's ANC, shortly after Polokwane) and Bulelani Ngcuka, an ally of former president Thabo Mbeki and a former national director of public prosecutions. In these recordings, McCarthy and Ngcuka discuss the timing of serving of the charges on Zuma.
Zuma has always contended this conversation is evidence of a political conspiracy against him and that the legal process was manipulated to disadvantage him.
Not so, says the court.
"It is true that in the recorded conversations there are exchanges between McCarthy and Ngcuka about when Zuma is to be charged. Collectively, the conversations do not show a grand political design nor is there any indication of clarity of thought on the part of Ngcuka or McCarthy about how either Mbeki or Zuma would be decisively advantaged or disadvantaged by the service of the indictment on either side of the Polokwane conference timeline."
Moreover, the court says the authenticity and accuracy of the tapes are in question and that there are queries about how Zuma's legal team came to be in possession of recordings ostensibly done by the then National Intelligence Agency (now the State Security Agency). There is also no evidence that a judge signed a certificate authorising the wiretaps. "Suffice to say, it is troubling and warrants investigation by the relevant authorities," the court said.
Zuma's legal team -- marshalled by Michael Hulley and Kemp J Kemp -- has contended that the president was the victim of political machinations. But the SCA found no evidence of that, picking apart deputy director of public prosecutions Willie Hofmeyr's submissions and finding that most of it appears "speculative... contrived... based on conjecture and supposition".
Also, tellingly, the court found that the timing of the serving of the charges on Zuma -- which was supposedly part of the attempts to undermine him ahead of the Polokwane conference -- was a moot point. It couldn't be served on Zuma as McCarthy had wished because of legal issues with the papers. In the court's words: the timing of the delivery of the charges was ultimately "immaterial" and "irrelevant".
The SCA was scathing about Hofmeyr, the respected anti-apartheid activist and long-serving head of the Asset Forfeiture Unit, describing him as "animated... straining to find justification for the discontinuation of the prosecution".
None of Zuma's arguments, crafted by Hulley and Kemp, has held up in the wash. The tapes are of questionable origin and credibility, the timing of the charges has no bearing on anything and there's no evidence of a political conspiracy.
Mokotedi Mpshe, who took the decision to drop the charges against Zuma when he was acting head of the National Prosecuting Authority, and who is now a judge, is portrayed as someone who struggled to make coherent decisions and who lied to his prosecuting team.
None of Zuma's arguments, crafted by Hulley and Kemp, has held up in the wash. The tapes are of questionable origin and credibility, the timing of the charges has no bearing on anything and there's no evidence of a political conspiracy. Even if these contentions did hold water, it had zero impact on the integrity of the prosecution or the validity of the charges.
Zuma is running out of legal options. But all is not lost. Shaun Abrahams, the National Director of Public Prosecutions and a political ally, will now have to direct the process. And if there are any issues around Zuma's right to make further representations, he will surely bring an application to the High Court. He might even resort to the Constitutional Court, even if it might only serve as a delaying tactic.
And, of course, he might be bold and subject himself to the courts -- but base his defence or application for a stay of prosecution on the troubled auditor KPMG's forensic investigation into the Schabir Shaik matter. It was, after all, conducted by the same auditor who fluffed the Sars report.
At Stalingrad, the Germans provided fierce resistance, but the Soviets' overwhelming numbers eventually vanquished the invaders. But not before enormous losses to both sides.
Zuma's resistance has been hugely damaging, to the country, institutions and the governing party. He won't be able to hold out forever.Suggest a correction