South Africa spared Jacob Zuma’s wrecking ball

So-called political solutions were offered, some subtle and others cynical and blatant, but the Constitutional Court’s ruling carried the day. This averted a ‘Marikana’ of South Africa’s soul.

So it came to pass. Not in bloody violence and the use of human shields. Nor with former president Jacob Zuma’s knobkerrie-wielding son, Edward, defiantly swallowing the key to the gates of the family compound in Nkandla and taunting cops to bring on the guns (and laxatives).

Rather, it was in the dead of night. In a cloud of exhaust fumes belched out by the line of SUVs that sped from the Zuma compound less than an hour before the midnight deadline for his arrest on 7 July. The handful of supporters singing and dancing outside the gates were far outnumbered by the gathered journalists and photographers whose flashes illuminated his exit.

Jacob Gedleyihlekisa Zuma went to jail. The first democratically elected president of a free South Africa to be imprisoned. In the early hours of 8 July, the Teflon man of South African politics entered a correctional services facility in Estcourt, KwaZulu-Natal, to start a 15-month prison term.

7 July 2021: Jacob Zuma’s son Edward has been outspoken during the lead-up to his father’s arrest. (Photograph by Simon McBride)

This came after almost two decades of trying to stay out of prison for a litany of different charges, including rape (he was acquitted) and the arms deal-linked racketeering, corruption and fraud trial dating back to the mid-2000s. That trial has yet to begin after years of Zuma appealing on technical legal grounds and the National Prosecuting Authority dropping the charges in 2009, a decision the courts later found to be irrational, leading to their reinstatement.

Zuma’s committal to the medium B prison on Thursday followed a sentence handed down by the Constitutional Court on 29 June, in which it found him guilty of contempt in not abiding by its order that he appear before the commission of inquiry into state capture chaired by Deputy Chief Justice Raymond Zondo.  

The bluster Zuma had demonstrated in recent months, when he addressed the Constitutional Court through a series of public rants in which he accused its justices of not being impartial and colluding against him as part of a larger political plot, had evaporated. These comments his legal team sought to desperately disown in the days after the judgment – attributing them to his Jacob Gedleyihlekisa Zuma Foundation – in papers that sought a rescission order by the ConCourt after it became apparent Zuma would have to be fitted for prison-issue orange overalls. That application will be heard on 12 July.

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Likewise, the braggadocio with which Zuma had incited his followers by proclaiming his victimhood and that he was not afraid of incarceration as a “prisoner of the Constitutional Court” also disappeared. It was replaced with something more fearful. More squeaky bum. In an affidavit submitted to the high court in Pietermaritzburg, which on Tuesday heard Zuma’s application to stay his arrest until the rescission hearing, the former president spoke of his age (he is 79) and terror of contracting the coronavirus in prison as reasons he should not be committed.

But judgment in the high court was reserved until 9 July. An eleventh-hour letter to the Constitutional Court on 7 July begging for a rethink was ignored. So he was incarcerated.

Better days, but not ahead

There is a general sense of disrepair around the Nkandla homestead, which Zuma had renovated using R246 million of taxpayers’ money. The visitors’ centre with its exposed wires and wall sockets has seen better days. Litter clings to the compound’s fence, and the gate to the enclosure where, on Sunday, his supporters defied Covid-19 restrictions to attend a largely maskless rally to threaten insurrection is broken.

There is an echo of Percy Bysshe Shelley’s poem Ozymandias in the disrepair of a grandiose compound surrounded by the monumental failure of the state. By the crushing poverty of those who live around Zuma. As if this monument to self-enrichment, built by a man who would be a dictator in a republic, was whispering a warning of the transience of despotism:

My name is Ozymandias, King of Kings;
Look on my Works, ye Mighty, and despair!
Nothing beside remains. Round the decay
Of that colossal Wreck, boundless and bare
The lone and level sands stretch far away.

1 November 2016: From left, advocates Dali Mpofu and Tembeka Ngcukaitobi with EFF member Mbuyiseni Ndlozi outside the high court in Pretoria. (Photograph by Cornel van Heerden/ Foto24/ Gallo Images/Getty Images)

Yet, among the local and nationwide wreckage Zuma left behind as he entered prison, something did survive a week that could have ended in lawless chaos and rule by the barrel of a gun: South Africa’s democratic institutions and the supremacy of the Constitution.

They almost didn’t survive. Pressure was placed on the Constitutional Court all week.

Minister of Police Bheki Cele and national police commissioner General Khehla Sitole wrote a letter on 5 July to Zondo, in his capacity as acting chief justice, informing him that in their “view” the litigation that Zuma had triggered with his applications on 2 July would have a “direct impact” on their being able to fulfil the ConCourt’s order that they arrest him by 7 July if he hadn’t turned himself in by 4 July.

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Their letter, submitted by the state attorney’s office, observed that “in view of the unique situation presented by the developments and the legal matrix involved, our clients will, out of respect of the unfolding litigation the process [sic], hold further actions they are expected to take in terms of the honourable court’s order in abeyance pending the finalisation of the litigation alternatively, pending any directions the honourable acting chief justice may possibly issue regarding the conduct of the litigation and any other matter relevant to the litigation”.

This was not a court application. It was a letter of little legal value, but one that subtly allowed the executive to apply pressure on the judiciary to consider the realpolitik of the Zuma situation and a political solution to it.

The letter was a softly treading, attempted trespass of the separation of powers doctrine. An attempt to nudge the Constitutional Court towards contemplating a political solution. One to which Zondo remained aloof and ignored. This compelled the police to ensure Zuma was brought to prison.

Political theatre and bluster

The 2 000 to 3 000 people Zuma and his henchmen mobilised by inciting the ethno-chauvinists and the hyena class to gather outside Nkandla added another layer of pressure on South Africa’s constitutional and democratic institutions.

Driving to Nkandla, people fired weapons into the air, they threatened the violent overthrow of the state and reportedly ordered the police around. Zuma harnessed this, both in terms of optics and in the papers his lawyers filed in Pietermaritzburg to keep him out of jail. The president during whose administration the police had killed 34 miners at Marikana was, without shame, now warning of a potential repeat.

On Tuesday, Dali Mpofu, arguing for Zuma, cited this crowd of belligerents as a security risk of which the court needed to be mindful if it allowed Zuma to go to jail. He, too, suggested the courts be considerate of a political solution when trying to solve what was a legal issue.

At the Farlam commission of inquiry investigating the Marikana massacre, Mpofu represented the striking mineworkers that the police arrested and injured on 16 August 2012. Mpofu coined the phrase “toxic collusion” to describe critically the dovetailing of outside interests – of the mining company Lonmin and its politically connected non-executive director, Cyril Ramaphosa, of the ANC, of the then majority National Union of Mineworkers (NUM) – that the police had considered when deciding to use lethal force to disperse striking mineworkers on that fatal August day.

2 July 2021: Supporters of Jacob Zuma gather at his home in Nkandla. In defiance of Covid-19 regulations, which also prohibit public gatherings like these, most are not wearing masks. (Photograph by Simon McBride)

Almost a decade later, Mpofu was suggesting this approach be the one used by the courts and the police to resolve the chimera of an impasse that Zuma had created. That, rather than follow the letter of the law and a Constitutional Court order, a political solution be found to keep Zuma out of jail.

The threat of another massacre, similar to Marikana, was mentioned several times last weekend as political players sought a political solution to an essentially legal problem.

The ghosts of Marikana were resurrected glibly and cynically. For in the political solution, which people such as the Umkhonto weSizwe Military Veterans Association’s Carl Niehaus were advocating a mere two hours before Zuma was whisked away to prison, lies the very reasons 34 men were killed by police officers at Marikana.

The police leadership at Marikana did not make their decisions based purely on operational concerns. It is on record – in evidence and testimony at the Farlam commission – that the police leadership in 2012 allowed political considerations (like whether EFF leader Julius Malema would gain mileage out of the strike; the NUM’s majority being affected) and economic ones (Lonmin and Ramaphosa’s profits diminishing the longer the strike went on) to have an impact on their decision to use violence on 16 August.

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If a political solution had been found to the Zuma situation this past week, a massacre of South Africa’s soul would almost certainly have ensued. Thankfully, the police and the courts held the line and the rule of law was defended. For what would have died was South Africa’s constitutionalism. 

Additional reporting by Rogan Ward.

* On 9 July, Judge Bhekisasa Mnguni dismissed Zuma’s application in the high court in Pietermaritzburg to stay his arrest until the outcome of his application to the Constitutional Court for a recission of its contempt order.  

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