Whether the ANC is prepared to allow Zuma’s Stalingrad strategy to play out endlessly is for it to decide

WHEN one considers that the Democratic Alliance (DA) began its application in April 2009 for a judicial review of the decision of then national director of public prosecutions Mokotedi Mpshe not to prosecute then private citizen Jacob Zuma , the words of Judge Mohamed Navsa in the judgment on appeal regarding certain preliminary points taken in the case gather increased significance.

Speaking for a unanimous bench of five judges of appeal, Judge Navsa observed toward the end of the carefully crafted *1 judgment: "Generally, courts should be slow to allow parties to engage in piecemeal litigation, with attendant delays. Put differently, courts should be intent on obviating prolonged litigation. This case has shown precisely how undesirable for the administration of justice to-ing and fro-ing between the high court and this court over a long period of time, without the merits being finally adjudicated, can be. Courts should be circumspect when suggestions are made about the procedure to be followed on the basis that it might shorten rather than lengthen litigation."

Quite so.

The question is: what happens next? This is difficult to divine. Spare a thought for Richard Young, who unsuccessfully applied to intervene. He may be upset about the costs order *2 against him and his company, CCII, but is unlikely to want to run up further costs over the question of liability for it. He could justifiably complain that the court was a little obtuse*3 in its assessment of his case in that he was able to rely upon the findings, approved on appeal to the selfsame court in the Schabir Shaik case, in which Zuma was implicated as recipient of bribes of R500000 a year from an arms dealer seeking his "protection".

The situation in which Young found himself was correctly described in the judgment as that of a "fall-back position *4", and now that the standing to sue of the DA has been resoundingly established, it is most probable that the intervening parties will swallow their medicine in adverse costs and fade from the forensic battleground *5.

The DA, as successful litigant, will want to get on with the review as soon as possible. The matter should not be allowed to languish in a long queue in the high court, having already been delayed for almost three years since its inception. Justice delayed is justice denied. It is always open to a litigant to ask that a matter be given preferential treatment on the roll for hearing, and the DA may wish to explore this avenue in the interests of reaching a final determination sooner rather than later.

An alternative strategy would be to seek direct access to the Constitutional Court, in effect asking it to give expression to the words quoted from the judgment above by sitting as a court of first and final instance on the merits of the review. It is certainly invidious for a regular judge to adjudicate so weighty a matter alone.

The National Prosecuting Authority (NPA) may want to do whatever it can to avoid the embarrassment of making public even the most limited record of the documents before it at the time that the decision not to prosecute was made. It has been ordered to make an abridged record available. The former Scorpions investigators were particularly outspoken critics when the decision not to prosecute Zuma was made in April 2009. What they were saying privately in interoffice memorandums and e-mails is likely to be more damaging to the NPA’s defence that the impugned decision not to proceed with the prosecution was a reasonable and rational route to follow. Sadly, as the NPA has slipped from its constitutionally prescribed independent status to implementing the vision of the African National Congress (ANC), don’t expect it to appeal unless instructed to.

It is, of course, President Jacob Zuma who has the most to lose in light of the appeal judgment, which now clears the way for the actual merits and demerits of Mpshe’s decision to be examined by an appropriate court. His legal woes will be compounded by the political fallout that is likely to follow the ANC’s internal analysis of the outcome of the appeal. His options are to appeal, to abide by the review outcome, to oppose it or to continue to obfuscate ­ resigning himself to his fate is not Zuma’s way.

Rather less should be expected than the death knell that was sounded to Thabo Mbeki ’s political career by the famous (and later overturned) decision in favour of Zuma by Judge Chris Nicholson in the run-up to the NPA’s abandonment of the 783 charges of corruption. Still, it is fair to expect that those factions of the tripartite alliance that have lived to regret their Polokwane vote for Zuma and have fallen out with him, may use the opportunity to strike back and promote the candidacy of others for the leadership of the ANC after Mangaung, or even before it.

The Congress of South African Trade Unions has parted with Zuma over e-tolling and labour brokers and what it calls the corrupt "hyena" phenomenon flourishing on Zuma’s watch. The ANC Youth League is at odds with Zuma over nationalisation, policy toward Botswana and general economic policy, as well as the way its leadership’s wings have been clipped by the Zuma-led ANC hierarchy. Both may seek to make political capital out of the decision, by calling for Zuma’s head in much the same way as Mbeki was treated in September 2008.

Whether this is embarked upon, either successfully or at all, remains to be seen. It will certainly be an indicator of likely outcomes of possible leadership contests (those the ANC is officially not meant to contemplate until October) in respect of which the battle lines are already being drawn.

It is reasonable to suppose that the ANC’s nobility has lived to regret the decision made in Polokwane to put Zuma in the driving seat of the tripartite alliance. While there are elements who remain loyal to him, that loyalty is based either on blindness or on the patronage he has been able to dispense by reason of the ex alted positions he holds. Some may see these forms of loyalty as signs of the weakness of the current ANC leadership, and others may seek to exploit real or perceived weaknesses to their own advantage.

Much can turn on how the DA’s case pans out and particularly on how quickly it is brought to final determination. Zuma’s unlikely senior counsel, the dishevelled and eccentric Kemp J Kemp, is a past master at what is called the "Stalingrad strategy", in which all available technical and delaying points in the book and a few more besides are taken.

This strategy has worked well for Zuma. In tandem with the alleged tape recordings of irrelevant gossip, it has had the effect of holding off the 783 charges that the DA would like to see properly ventilated in a court of law. Should that day dawn, or even emerge as the viable prospect it actually is, Zuma’s political career must surely end. It is impossible to run as complex a country as SA from the dock of the high court in Pietermaritzburg.

Let it not be forgotten that even Mpshe, vulnerable as he was, insisted that the merits of the charges against Zuma are sound. If the threadbare excuse for not proceeding with them is found to be unacceptable for its irrelevance and because it was legally based on an overturned Hong Kong decision, Zuma may well find himself in the dock in a dispensation in which equality before the law and the presumption of innocence remain cherished values. Whether the ANC is prepared to allow Zuma’s Stalingrad strategy to play out endlessly is for it to decide. Its future trajectory depends on the decision it takes.

• Hoffman is a director of the Institute for Accountability in Southern Africa.

*1       Judge Navsa's judgment:was not carefully crafted, it was just careful.

He only made findings where the respondents made concessions.

Where there were no concessions there were no independent findings,


*2      I am not upset about the costs order because I don't have to pay.

I am upset about a wrong judgment.


*3      Obtuse is a mild form of dumb skulled.


*4      Funny when Terry Crawford-Browne called me in as an amicus curia in his case and we won it's fine, in this case when the DA called me in as as intervening party and I lost with the judgment correctly described it as a fall-back position.

Kak.


On the papers I had four positions :

• to support the DA's  review application;
• in my own private interest;
• in the interest of the company of which I am the sole and managing director; and
• in the public interest.