Op-Ed: A Snake Eating its Tail – South Africa cannot let two Zuma-era travesties get him off his corruption charges, again

In October 2017, the Supreme Court finally brought to an end nearly a decade of legal wrangling related to Moketedi Mpshe’s 2009 decision to terminate the prosecution of Jacob Zuma. In a devastating judgment, the court found that Mpshe’s decision had been entirely irrational; something that even counsel for Zuma and the NPA, in a bizarre turnaround, were forced to admit to the court under questioning.

In the wake of the judgment, it appeared that Zuma’s goose may, finally, have been cooked: he would have to go to court to defend himself against the corruption charges that his original prosecutors believed was “watertight”, and which he has successfully evaded for a decade, aided by an unlimited pot of taxpayers’ money dedicated to his legal defence.

Sadly, nothing is quite so simple when it comes to Zuma’s prosecution. Almost immediately after the Supreme Court decision, it was confirmed that Zuma could make submissions to the director of the NPA, Shaun Abrahams. Zuma could use the submissions to make a case for why a prosecution should not be initiated. Exactly what Zuma has claimed in his submissions will probably remain secret for some time, but it is likely that his submission will lean on at least two (problematic) defences.

The first defence is most likely to be that the KPMG report that formed a part of the factual matrix underpinning Zuma’s 2007 indictment is irredeemably tainted. This report flowed from the more limited KPMG report that was successfully used by the state to secure the conviction of Schabir Shaik.

In the hours following the Supreme Court judgment, the Presidency released a press statement indicating that the representations that would be made to the NPA would include “developments in the ensuing period, not least of all… recent revelations around the integrity of the auditor report [by KPMPG]”. The “revelations” that the Presidency referred to was almost certainly that the investigator (Johan van der Walt) who compiled the KPMG report into Zuma’s finances was the same investigator responsible for the infamous SARS’ “rogue unit” report.

Relying on this defence is an act of quite breathtaking cynicism and audacity. As is now well established, the KMPG report into the “rogue unit” was ordered by SARS’ upper management, and appeared to be designed to end the careers of Pravin Gordhan and others. Tom Moyane, the man behind the attack on the “rogue unit”, is widely regarded as one of Zuma’s most loyal lieutenants – and the move to sideline Gordhan and co was motivated by the need to remove obstacles to the Guptas’ State Capture plans.

Abrahams could only accept this as a basis to drop the charges if he ignored a number of fatal flaws in the defence. First, just because Van der Walt’s SARS report was flawed, it doesn’t mean that his report into Zuma’s finances is flawed simply by association. Zuma would have to show that the KMPG report into his finances was profoundly wrong, both in fact and in process, which gives rise to the second problem in relying on this argument: a good deal of the material covered in the KMPG report into Zuma’s finances was presented as evidence in the trial of Schabir Shaik. Lest it be forgotten, the version of events outlined in that first KPMG report, itself underpinned by mountains of seized evidence, was accepted by Judge Hillary Squires, and confirmed by the Supreme Court of Appeal and the Constitutional Court. In total, 17 judges ruled on the Shaik case, and every single one of them found Shaik guilty, and the facts outlined in the first KMPG report credible.

The third flaw, however, is perhaps the most important: it is simply not up to Abrahams to make a decision about the credibility of the KMPG report. Assessing the veracity of the facts outlined in the KPMG report, instead, is precisely the job of the courts, not the director of the NPA. The most recent Supreme Court decision dealt with this issue, and concluded that Mpshe had overstepped the mark when he decided to terminate the prosecution following a secret submissions process. By doing so, “Mr Mpshe assigned himself the role reserved for courts.”

If the NPA suddenly came to believe, at this very late hour, that the KMPG report was tainted in some terrible way, it could fix this problem by telling the trial court about it and letting the faults be dealt with in public. Inversely, dealing with it via a secret representation would do little to give the public confidence in the decision. As the Supreme Court most recently noted: “It is incumbent on prosecutors to disclose to a court any fact which, in their view, may impact negatively on the prosecution and in favour of the accused. This is in line with constitutional values and the provisions of the NPA Act. It is in the interest of the NPA, accused persons and the public’s confidence in the administration of justice, that decisions concerning allegations of abuse of process be made by a trial court.”

Finally, even if Abrahams did decide that the KMPG report was flawed, this could be remedied easily. The KMPG report did not magically create evidence against Zuma; it simply provided a forensic timeline of the alleged wrongdoing drawn from voluminous underlying primary evidence. It would be easy for the NPA to undertake another audit. Failing this, it could constrain the charges to deal with matters only arising in the first audit that was successfully used in the Schabir Shaik convictions. Or it could eschew the need for an audit by an outside entity entirely, instead presenting its own narrative of facts based on the underlying primary evidence.

The second defence could well rest on the findings of the Seriti Commission of Inquiry into the Arms Deal, which Zuma appointed in 2011. As is well known, the commission, in one of the great travesties of justice in the post-apartheid period, found in 2016 that there was absolutely no corruption or wrongdoing in the Arms Deal. As an aside, and in case anyone has forgotten, it was Judge Willie Seriti who was sitting as the interceptions judge when the original wiretaps that became the Spy Tapes were approved. When Seriti was asked about the matter, his spokesperson said that Seriti “couldn’t recall” if he had signed the Spy Tapes paperwork.

It is conceivable that Zuma’s legal team will argue that the commission’s findings undercut the allegations in Zuma’s indictment that he had intervened to help Schabir Shaik’s companies benefit illegally from the Arms Deal. To simplify the potential argument: if the Seriti Commission found that there was no corruption or wrongdoing in the Arms Deal, how could Zuma be prosecuted for corruption in the Arms Deal? And if there was no corruption in the Arms Deal, and yet claims of corruption feature in Zuma’s charges, doesn’t it suggest that the NPA was profoundly incompetent in that it failed to understand the facts it was prosecuting?

This argument, however, would also suffer from numerous serious problems. The first is that the Seriti Commission’s findings are currently under legal review. In October 2016, Corruption Watch and Right2Know (R2K) launched an application in the High Court to set aside the commission’s findings. For those curious about the progress of that application, Corruption Watch and R2K recently released a statement condemning the state’s attorney for endless delays in supplying the record to which they are entitled.

The application brought by Corruption Watch and R2K is damning. It argues that the commission’s report should be set aside as the commission had failed to undertake a meaningful investigation into the Arms Deal. It provides a litany of examples showing that the commission went out of its way to exclude or ignore relevant evidence, or when it did admit evidence, that it failed to interrogate it in any meaningful way. Numerous employees of the commission, including two prominent evidence leaders, resigned in protest for this very reason. It was also for this reason that I, along with my colleagues Andrew Feinstein and Hennie van Vuuren, withdrew from the commission in 2014 after spending wasted years trying to get the commission to do something approaching a decent job.

The commission’s failure to undertake a meaningful investigation gives rise the second problem of relying on its findings. One of the grounds of review in the Corruption Watch and R2K application is that the commission failed to have much regard for the Shaik prosecution or Zuma’s indictment. Indeed, Zuma’s name appears a grand total of four times in the entire 737 pages of the Seriti Commission’s final report. One of those times is accounted for by the fact that the report is addressed to “his Excellency Mr Jacob Gedleyihlekisa Zuma”. Schabir Shaik and his company Nkobi Holdings, for their part, are not mentioned at all in Volume 3 of the commission’s report, which sets out its findings of fact.

This is remarkable: it appears that the conviction of Schabir Shaik, which was broadcast live to the nation, was front page news for months, was one of the most undeniably defining moments in the post-apartheid period, and which was based in large part on wrongdoing on the part of Shaik and others during the Arms Deal, failed to make any major impression on a commission empowered to investigate the Arms Deal.

Indeed, the Schabir Shaik case appeared to have made so little impression that the commission simply decided not to access the record of that case. In the first volume of the commission’s report, it outlines all the various ways it gathered evidence. This included accessing the court records of a number of Arms Deal-related cases. The only cases it didn’t consult were the conviction of Shaik and the vast records pertaining to Zuma’s numerous court challenges to his prosecutions. Needless to say, neither Schabir Shaik nor Jacob Zuma was asked to testify or tender evidence.

This perhaps explains why the commission had only the most superficial and facile understanding of the case against Shaik, which was made plain in a statement made by Judge Seriti during the evidence of Col Johan du Plooy. Col Du Plooy was a member of the investigative team that had originally investigated Shaik and Zuma, and was testifying before the commission on this and other matters. During Du Plooy’s testimony, Seriti commented about the Shaik trial that “my reading and understanding of that trial deals with issues which happened after the contract was signed”. In simple terms, Seriti argued that the facts in the Schabir Shaik case only encompassed developments after the Arms Deal contracts were signed, and, as a result, did not fall under the commission’s Terms of Reference. Amazingly, Seriti made this comment on the 18^th of May 2015, three-and-a-half years into the life of the commission.

Judge Seriti could only have formed that impression if he had either failed to read the Squires judgment and Zuma indictments, or, if he did read the judgments, had severely deficient powers of comprehension. Both of these documents make it painfully obvious that the corruption involving Shaik, Zuma and the Arms Deal was based around ensuring that Shaik’s companies got a slice of a major Arms Deal contract, all of which played out prior to the signing of the final contracts. Entire sections of the original statement of facts in the indictments of Shaik and later Zuma are headed “the Arms Deal”. Indeed, this was a major part of the state’s argument that Shaik and Zuma had established a “mutually beneficial symbiosis”.

If Zuma is not prosecuted, after so many years of court wrangling, it will be a travesty and tragedy. If the NPA declines to prosecute because of the KPMG Report and the Seriti Commission of Inquiry, two travesties born of Zuma’s scandal-strewn presidency and embrace of State Capture, we will have to think of a new descriptor. Travesty would simply not be powerful enough. This would, instead, be almost semi-mythical: an infinite loop of injustice and wrongdoing that begets more injustice and wrongdoing – a snake eating its tail, or, perhaps more accurately, a political elite endlessly feasting on the lies it vomits into the public domain on a daily basis.

And if Abrahams accedes to the application to halt the prosecution, especially if he does so based on the KPMG report and the Seriti Commission, he too will be elevated into the realms of myth, becoming one more capricious, irrational deity in South Africa’s storied, sordid pantheon of parasites. DM

File Photo: President Jacob Zuma convenes the President’s Co-ordinating Council (PCC) meeting at Tuynhuis in Cape Town, 14 November 2017. EPA-EFE/NIC BOTHMA