Ramaphosa's legal strategy may backfire

Ramaphosa’s spokeswoman Khusela Diko said he will honour an agreement Zuma made with the state that the taxpayer will fund his defence in his criminal case “until a court orders them otherwise”.

It is unclear what prompted Ramaphosa to give this undertaking to Zuma after his appearance in court earlier in June 2018.

The criminal case against him was postponed pending finalisation on who will pay for Zuma’s legal bills. This came after the DA and the EFF separately approached the court asking them to stop taxpayers from being liable for Zuma’s defence costs. The EFF went further to ask the court for Zuma to pay back the money spend on his personal legal team.

It was immediately celebrated when Ramaphosa filed a motion to abide, meaning he didn’t oppose the case and told the court he would comply with any decision it takes. This caused Zuma’s team to panic with the looming possibility that the luxury of a state-sponsored defence was no more.

This panic was short lived for Zuma after Ramaphosa allayed his fears, confirming the state will continue funding his criminal case.

There is no way that the DA and EFF cases challenging the state paying for Zuma’s legal costs will be wrapped up soon. It’s been a month now and Zuma is yet to file his opposing papers. Eventually when the matter is heard, it will be a while until there is judgment and surely Zuma or the DA will appeal the outcome, depending on which way this goes.

All the while, his criminal case is likely to be stalled.

The chairman of the DA’s Federal Executive Council, James Selfe, wrote to Ramaphosa on June 20 indicating its displeasure with his decision. He told the president that this could be illegal and reminded him that this opens the door for Zuma’s delaying tactics.

Selfe said: “What’s going to happen is Zuma is now going to oppose the DA’s litigation using taxpayers' money. This process will take years. He will probably go to the Constitutional Court. All the while using taxpayers' money. And even if he loses only then can the prosecution in his criminal matter start. It’s quite clearly an invitation for him to engage in further delaying tactics”.

But if the DA’s opposition was predictable, Ramaphosa faces a bigger headache of his own constituency questioning why he would stretch his neck out for his predecessor. Those around the president explain it as him not wanting to poke the proverbial bear. He does not want to antogonise Zuma any more than he has already. But those opposed to Ramaphosa’s decision question why he has agreed to fund a criminal case that is being used as the bedrock to mobilise against him.

At the same time, Ramaphosa is embroiled in another legal battle which involves fighting Zuma’s fight. The Presidency confirmed that it will approach the Constitutional Court after he lost his bid to appeal the precedent-setting North Gauteng High court judgment at the Supreme Court of Appeal earlier in June 2018.

The North Gauteng High Court has ordered Zuma to provide a record and reasons for why he fired former finance minister Pravin Gordhan, following an urgent application made by the DA.

Judge Bashier Vally sided with the DA on the matter, saying the documentation must be provided within five court days. The Presidency petitioned the Supreme Court of Appeal for leave to appeal but that was lost. Now Ramaphosa’s office wants clarity from the Constitutional Court because it believes this judgment sets a bad precedent.

Diko explained it thus: “If that matter is left unattended, it means that we’re going to have to provide records for all Cabinet reshuffles. Some of these are decisions taken on the basis of certain political considerations”.

If the matter was strictly about legal principle, a hearing in the Constitutional Court would be riveting. But there’s a political dynamic as well – Ramaphosa is seen to be acting in Zuma’s defence – at a time when he is under fire for agreeing to the state paying for Zuma’s legal fees.

Ramaphosa’s action can also be interpreted as acting against the interest of transparency and open governance and perception can be devastating when, so far, the euphoria of a New Dawn is premised on these promises alone.

It seems that this case which would soon end up in the Constitutional Court is an important one for the Ramaphosa administration because it faces a similar test in the case the DA brought against him in the Arthur Fraser case.

The party has contested the former Stage Security Agency director-general’s move to the prison’s authority while being under investigation for corruption. The DA has asked for a record of how the decision was taken and Ramaphosa cannot provide them with it. They also asked for the reasons for the decision.

In essence Ramaphosa does not want to provide records and reasons every time someone disagrees with his decision. He is entitled to that view and the Constitutional Court will be the final arbiter. But it may not bode well for public trust and transparency of his administration.

While, legally, the case may be straightforward, politically this may have unintended consequences for the president. Ramaphosa now knows what the juggling act between politics and governance feels like and has to choose whether dabbling in the grey area is worth it.

Politics is not always straightforward but sometimes political decisions come at a cost of bending the law. And when the law is bent, it is only a matter of time until it is broken. We had a president who broke the law. Rightly or wrongly, South Africa is nervous about this happening again. DM

Qaanitah Hunter is an EWN reporter.