Children of Stalingrad: Zuma’s court cases are multiplying and the time-space continuum is warping again

21 Nov 2022

The decision by the Supreme Court of Appeal that former president Jacob Zuma must return to prison – for a period to be determined by the Correctional Services Commissioner – is likely to lead to debates around his current political power. For some, the key question will be whether this decision could lead to a repeat of the kind of violence we saw in KwaZulu-Natal and Gauteng last year, when he was jailed for the first time.

On Monday, the Supreme Court of Appeal ruled that the decision by the then Correctional Services Commissioner Arthur Fraser to release Jacob Zuma on medical parole was unlawful. Judges said it was wrong for Fraser to overrule a decision made by the Medical Parole Advisory Board and release him to serve the rest of his sentence at home.

However, it seems very unlikely that Zuma will be asked to report to prison in the near future.

Meanwhile, there is some evidence that his political power has weakened even further since his imprisonment and release last year, largely because of his own actions.

Zuma was originally sentenced to serve a 15-month jail term for his refusal to obey a Constitutional Court order to return to the Zondo Inquiry to answer questions from the commission’s lawyers – he initially provided testimony only when questioned by his own legal team, and then walked out when the going got tough.

Fraser had given a television interview to the SABC in which he said the decision to release Zuma was his, and his alone.

Since then, Fraser has sparked the Phala Phala scandal by lodging a criminal complaint against President Cyril Ramaphosa.

Key to the questions answered by judges on Monday was, what happens to the rest of Zuma’s sentence? After he was released from prison by Fraser, he had remained at home, serving his prison sentence under medical parole at Nkandla. This means there was the difficult question of whether or not Zuma’s time spent at home under medical parole counted towards his custodial sentence.

It appears that the new Commissioner of Correctional Services, Makgothi Thobakgale, will now have to make this decision.

While this may mean that he can now decide if Zuma should return to jail, it is quite likely that several more court cases lie ahead, serving as a further buffer between Zuma and a prison cell.

First, this latest decision may well be challenged by Zuma himself.

Then, once that is resolved, any decision made by Thobakgale may itself be challenged. If he decides Zuma should return to prison, Zuma could then challenge that, too.

If Thobakgale decides Zuma has, in fact, served his sentence and need not return to prison, it is possible that one of the other parties in the case, such as the DA or AfriForum, will challenge that decision.

To add to this, it seems there may be virtually no precedent to guide both Thobakgale and the law. It appears unlikely that there have been many, or indeed any, cases where someone was released on medical parole, only for that decision to be overturned. This means all of these cases will create important precedents.

The question of whether there could be violence should Zuma be incarcerated again, may not arise for some time, if at all.

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In the meantime, there will be a focus on the situation in KZN, where the provincial ANC has already issued a statement claiming the ruling meant that Zuma did not have to return to prison.

When this reporter challenged this interpretation on Monday, KZN ANC provincial secretary Bheki Mtolo gave an aggressive response, saying it was clear to him that this was the ruling – even if other lawyers disagreed with it.

When asked if he was concerned that a decision to return Zuma to prison could result in violence, Mtolo refused to answer, claiming that this journalist was trying to deliberately provoke violence simply by asking the question.

Still, it appears that Zuma’s political power has waned even further in the last year.

The biggest indicator of this is the fact that even the KZN ANC are refusing to follow his lead ahead of the ANC’s December conference.

Zuma has said he is available for the position of ANC national chair. And yet there is vanishingly little evidence of branches supporting his nomination.

He also said he wants Cooperative Governance Minister Dr Nkosazana Dlamini Zuma to be elected leader of the ANC. Again, it appears that branches, whether in KZN or in other provinces, have not followed his suggestion.

Meanwhile, Zuma himself has been speaking in public fairly often.

Just this last weekend he spoke at two separate events, first at what appeared to be a relaunch of a book containing some of his public comments in Durban on Friday, and then in Cape Town on Saturday.

Neither received much media coverage, and it appears he has lost some of his power to influence people. Compare, for example, the coverage his events received last weekend, with the reaction to public comments by former president Thabo Mbeki in recent months.

But it may also be because of last year’s violence. There can be no doubt that the trigger event was the jailing of Zuma.

Since then, more information has come to light about how the unrest was orchestrated. In one instance, 22 people were arrested in one operation – all of them had a strong connection to the ANC Youth League in KZN.

This suggests that the violence resulted from much more than the “trigger event” of Zuma’s incarceration. It suggests the rioting was the result of a deliberate plan, and that it was political in nature.

Zuma himself has not appeared to disavow the violence. As reported by News24 during a court appearance earlier this year, he said: “I was in jail when I was told that the nation is on fire, with people going against judges because of the decision that they made.”

This does not appear to be a condemnation of the violence.

However, it is also true that the state has made little progress in holding those responsible for the violence accountable. The police and the criminal justice system did not work to arrest all of those responsible, and have not brought public cases against most of them.

At the same time, it is clear, as violence monitor Mary de Haas and others have noted, that our police service, particularly in KZN, is politicised. And that in some cases, politicians are using the police to carry out political acts.

This suggests it is unlikely that all of those who incited last year’s violence will be held accountable.

It does seem likely that the conditions caused by the pandemic may have been a factor in the violence, and that it was partly a reaction to the hardships the restrictions imposed. That does not mean life has improved for many millions of people – rising food prices have ensured that their lives may be even harder now.

But the tensions that built up during lockdown may no longer be present.

While many are critical of journalists and prosecutors, Zuma’s private prosecution of the advocate leading the Arms Deal case against him, Billy Downer, and News24’s Karyn Maughan, may set a precedent others are uncomfortable with.

The fact that the money for his private prosecution was put up by an alleged criminal and known racist, in the form of Louis Liebenberg, may have also suggested Zuma is willing to take money from anyone.

The fact that Liebenberg has made such explicitly racist comments cannot strengthen Zuma’s claim that he is a victim of racism and is fighting for black people.

As always in our politics, making hard and fast predictions is dangerous work. However, the most likely outcome here is several more court cases and appeals.

In other words, it could be several years before the question of Zuma’s medical parole is properly settled – whatever the outcome. DM

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