If he’s innocent he is going to great lengths to avoid judgment, writes Allister Sparks

With all the Byzantine complexity now confusing the ANC succession struggle, one significant question is escaping attention. Why is Jacob Zuma going to such exceptional lengths to prevent evidence from being brought to court?

If he is innocent, as he claims, surely the logical thing for a politician in his position wanting to run for the presidency of his country would have been to do everything he could to have his day in court as swiftly as possible to clear his name and have a long, smooth run-up to the election with no damaging suspicions hanging over him.

If Zuma had co-operated with the National Prosecuting Authority (NPA) from the outset and let them have whatever documents they wanted, knowing they contained nothing incriminating, this case could have been done and dusted more than a year ago.

Instead Zuma has done everything possible to delay the case. He and his legal team have fought legal actions at every turn and launched appeal after appeal against judgments that have gone against them, to prevent the prosecution from being able to bring evidence to court.

Keeping evidence out

Why would an innocent man want to keep evidence out of court? And why would an aspirant president not want to clear his name before his party’s all-important congress to choose its new leader?

With only six weeks to go to the Polokwane conference, there are now five cases before the Supreme Court of Appeal in Bloemfontein. It is going to be touch and go for those judgments to be delivered before the conference. And if any or all of them go against Zuma, will he then seek leave to appeal to the Constitutional Court? It would be in line with the strategy he has been following to do so.

All these cases relate to access to evidence. Three involve search and seizure raids carried out in August 2005 on Zuma’s home and office and the office of his former lawyer on warrants issued by Transvaal Judge-President Bernard Ngoepe.

Zuma’s legal team challenged the validity of the search warrants, claiming they were based on defective applications to the judge. The cases were heard in three separate High Courts. Zuma won two and lost one. All three went on appeal to the Supreme Court of Appeal, where they were argued about a month ago and we are now awaiting judgments on them.

The fourth case relates to a diary kept by the former chief executive of the French arms company, Thint, and allegedly contains evidence that Zuma was present at a meeting in Durban between his financial manager, Schabir Shaik, and the company chief at which a bribe of R500 000 was allegedly negotiated for Zuma to secure his help in obtaining a significant arms deal contract for the company, and to protect its interests against any investigation by the South African authorities.

Shaik has already been found guilty of this act of corruption, the Appeal Court has confirmed his conviction and he is serving a 15-year prison sentence. But it is one thing to prove in court that Shaik was guilty of negotiating a bribe on Zuma’s behalf and quite another to prove beyond reasonable doubt that Zuma himself knew of, and was party to, the deal.

So the diary is an important piece of documentary evidence. However, it is in Mauritius to which the French company moved its office when the Scorpions began investigating the case in South Africa.

The NPA has a copy of the diary, but it needs the original to submit as documentary evidence in any case against Zuma. The Mauritian authorities are ready to hand it over, but Zuma’s lawyers have been fighting a complex case to stop this from happening. They lost their case in the High Court, but have appealed to the Supreme Court of Appeal where the matter has been heard and again judgment is awaited.

The fifth case involves an attempt by the Scorpions to investigate some bank accounts in London which they suspect may have been used for money laundering. Again Zuma’s lawyers tried to prevent this, but they lost the case in the Rand High Court last week where Judge Willem van der Merwe — the same judge who acquitted Zuma in his rape trial — found against him, questioning why the defence should want to prevent evidence being brought to court.

Again Zuma’s lawyers have gone to the Appeal Court, where the case has yet to be argued.

All this legal stalling is taking an inordinate amount of time and costing a vast amount of money. Who is footing the bill for a man whom Shaik said he was helping because he was in deep financial difficulties is another question escaping attention.

The purpose, however, seems clear. It is to try to stop the NPA from being able to recharge Zuma before the Polokwane conference.

If Zuma succeeds he could well be elected president of the ANC with his supporters continuing to chant the mantra of “innocent until proven guilty”, after which it would require a brave head of the NPA to bring a charge of corruption — which carries a mandatory minimum sentence of 15 years — against the heir presumptive to the presidency.

The pressure to drop the case would be enormous; the risks of pressing ahead with it forbidding. There is an old adage which holds that “if you’re going to shoot the king, you’d better make sure you hit him”. Miss, and you’re dead meat yourself.

Conversely, if the Appeal Court judgments do come in time and if they are in favour of the prosecution, a new charge against Zuma will almost certainly be brought immediately, a trial date set and the whole succession picture will be changed. Then the ANC heavyweights, the custodians of its traditions and its proud reputation as an old and responsible organisation will have to consider whether it is prudent to go ahead with an election that could result in a man facing charges of corruption and possible long imprisonment becoming president of the organisation.

I think they would not want to do that. They would surely want the trial to run its course and await its outcome before having to decide. The way out would be to persuade the Polokwane delegates to agree that another extraordinary conference be held late next year to settle the leadership issue.

Strong pressure

The ANC’s policy conference last June agreed that it would be “preferable” for the president of the ANC and the president of the country to be one and the same person. President Thabo Mbeki holds both positions now, so that situation could remain in place for another year. The general election is only due in mid-2009.

Given such a scenario, I think it likely that other candidates would then come into the picture as front-runners for what by then would really be a run for the presidency of the country and not just the party. And given all the sturm und drang the ANC will have been through, I suspect there would be strong pressure for a consensus candidate.

That is the scenario the Zuma camp is trying so hard to avoid.

With acknowledgements to Allister Sparks and The Witness.